In 1955 the Department of Justice (DOJ) and the Department of Defense (DoD) signed a memorandum of understanding relating to the investigation and prosecution of offenses where the offender could be prosecuted by either the DOJ (in district court) or the DoD (in a court-martial). The memorandum established that for most offenses, and under most circumstances, civilian prosecutors would investigate the offense and, where appropriate, prosecute the offender in the civil justice system. In turn, the military would investigate and prosecute offenses at courts-martial only under certain circumstances involving particular military interests.

But things changed dramatically in 1984 when the memorandum of understanding was revised. Other than offenses involving corruption and frauds against the DoD, the revised memorandum established a preference for trial by court-martial so long as the offense is one that is “normally tried by court-martial.” Compared to the 1955 memorandum, this new memorandum was a seismic policy shift.

Moreover, it did not occur in a vacuum. One year earlier Congress strengthened the military justice system with the Military Justice Act of 1983. Then, in 1987, the Supreme Court expanded the reach of courts-martial by overruling a 1969 decision that had limited military trials to only offenses with a “service connection.” The deeply-divided Court determined that a court-martial can try any offense, without a need for a service connection, so long as the accused is subject to the Uniform Code of Military Justice. These developments marked the beginning of an era where the military justice system experienced explosive growth, as the old preference for civil trials gave way to the new preference for courts-martial. Gradually, nearly all offenses became the type “normally tried by court-martial.”

Yet three decades after the 1984 policy change, the military justice system is under withering attack for a perceived failure to hold a particular type of offender – the sexual predator – accountable. Each month brings a new proposal to “fix” the system, and Congress is poised to take dramatic action. But these proposals share a common problem: they all see the military justice system as flawed, when the real flaw is in how and when the system is employed.

Our military justice system is a model for the world, but a court-martial is a poor replacement for the traditional American criminal justice system. A court-martial has members, not jurors; a military trial counsel, not a career prosecutor; and the commander decides which charges go to trial and holds veto power over the verdict and the sentence. A court-martial also treats victims differently from the civil justice system, leading to many complaints. And a court-martial is less accessible to the increasingly savvy public that wants to observe judicial proceedings and access judicial records. These and other inherent limitations of the military justice system were recognized back in 1955, when the DoD agreed that the newly-created Uniform Code of Military Justice would be used only for offenses evoking a particular military interest, and that the civil justice system would remain the preferred venue for the majority of crimes.

The policy change made in 1984 sparked a flame that has grown into a firestorm. Using courts-martial to prosecute offenses that are traditionally prosecuted in the civil courts, and under situations not involving a particular military interest, has wrought chaos in an otherwise model justice system that carefully balances the needs of commanders with the rights of those in their charge. Today, after three decades of this experiment, it is time to remember the lessons of the past. The military justice system is a tool to enforce good order and discipline and address the unique needs of the armed forces, it is not a separate-but-equal venue for general criminal prosecutions of the men and women who serve our country in uniform.

Addressing the scourge of sexual assault is important, but it’s not a reason for Congress to make radical changes to the Uniform Code of Military Justice. If Congress enacts legislation that restricts the role and responsibility of the commander, gives the commander’s authority to a lawyer, or burdens the process with greater procedural hurdles and administrative oversight, it will not bridge the divide between the military and civil justice systems. Rather, Congressional action to change the Code in order to affect the way sexual assault is prosecuted in the military is a legislative “fix” for a policy problem.

Instead, before Congress takes any action, the Secretary of Defense and the Attorney General should revise the memorandum of understanding to reconsider the policy change of 1984, acknowledge the Constitutional preference for civil trials, and retain the court-martial as a special tool for commanders that is reserved for cases involving particular military interests. They need not return to the 1955 standard, or reverse the progress of the past 60 years, but they should strike a balance that considers the nature of the offense, the status of any victims, the needs of military, and the interests of justice, when determining where, how, and by whom an offense will be prosecuted.

Such a policy will restore the traditional roles of the civilian prosecutor and the civil justice system, will ensure that traditionally-civil offenses like sexual assault are prosecuted in the justice system designed specifically for that purpose, and will provide the most protection for the rights of the accused, the interests of the victim, and the needs of society as a whole.

39 Responses to “It’s time to change our understanding relating to the investigation and prosecution of offenses under the Uniform Code of Military Justice”

  1. AFJAGCAPT says:

    A very well written piece, but I’m not sure how much this would change in real terms. We would still catch the majority of these cases because they either occur on our installations or because they involve military victims. I’m all for letting someone else handle these cases if they will, but (whether Congress understands this or not) they won’t. The FBI investigate and on base sexual assault? I’ve seen that three times in my short career when we had civilian subjects/victims. Each time, the investigator beat up the victim so badly they changed their mind about the assault and left in tears. Mil on mil assaults off base? Our folks are transient and local authorities don’t often care about dealing with them if victims aren’t going to be around to bad mouth them at election time (to say nothing of shoddy investigations). Our systen isn’t easy on victims, but I’m deeply uncomfortable with just saying “good luck gtesting the civilians to prosecute” and calling it a day.
    Perhaps all these cases would meet the proposed service connection requirement? Okay, well how many cases would we really be left with then? Mil on NBA civ off base? The civilians take any such provable cases anyway, but I’d be happy to let them have all of them.

  2. stewie says:

    Yeah, I just don’t see the “civilian = better” argument.  Because so far the only evidence I see for that proposition is…it just would be better.
    I absolutely don’t believe the rights of the accused are necessarily better in the civilian system than in the military system.  There are a whole complex set of tradeoffs that mean pros and cons.  I personally would rather be tried in a CM than a state court trial, and would most certainly rather be in jail at Leavenworth than state or federal prison.
    I am also not convinced victims automatically fare better in the civilian world…I’ve seen the opposite, at least at the local level.
     
    And let’s be honest, the scourge of sexual assault would be the reason to do this because no one was advocating this prior to said scourge.  We didn’t spend the 90s wondering why we were still doing courts-martial.

  3. DefenseFriendly says:

    So, what do you do overseas?  Just let the Turks/British/Japanese take care of everything?  Or let JAGs (who would be even less experienced than they already are) prosecute?  Also, having a single military jurisdiction makes it easier to prosecute cases that span state/national borders, such as child porn and solicitation.  As flawed as the system may be, it’s good to have ease of jurisdiction and a well-established program for when we need it most–overseas and in combat areas.

  4. Bryant Bair says:

    At least in the Air Force we have a policy (and as far as I know it is just policy) that we will not prosecute a case that is being investigated/tried by local authorities.  I would suggest c;hanging this policy.  It shouldn’t impact double jeopardy as long as the other court is a state court.
    Probably doesn’t change things too much but it would allow us to move forward on a case immediately providing the desired good order and discipline effect and if the civilians are unhappy with the result, they can proceed with their case.
    Of course this (or the suggestion in the original post) wouldn’t help a case like Wilkerson as it happened overseas.

  5. ResIpsaLoquitur says:

    I don’t understand why there isn’t a push for tort reform for sexual assault victims, or an encouragement for SA victims to seek tort damages from the person they’re accusing.  I am by no means suggesting that we dump matters onto the victim–“It’s your case, you deal with it,” that sort of thing.  Where we have good evidence of a sexual assault, we should pursue it.  But let’s face it, a lot of these cases are unprovable by the beyond-a-reasonable-doubt standard.  Why not encourage accusers in those cases to seek damages in tort?  The standard of proof is a lot lower, and they’d at least get the satisfaction of their assailant having to write them a check for their harm.  (Actual damages might be hard to prove, since military victims have health coverage through the military health system or the VA.  Actual damages might also be subject to Third-Party Collections to compensate the military for its costs.  However, I assume punitive damages would go right to the victim.)
    I’ve been annoyed for a long time now that there’s a movement to turn the military’s prosecutorial arm into a personal sword for an accuser.  Personal grievances–even ones as bad as sexual assault–are supposed to be covered by the civil court system.  Heck, if groups like SWAN are willing, they could set up a fund or assign pro bono attorneys to represent SA victims in tort suits.  Why is nobody trying this?

  6. TC VIEW says:

    So service members are less likely to take advantage of a situation because civilians are prosecuting?  That is how predators work?  People who commit sexual assaults don’t give a rip about who is prosecuting them. 

  7. ResIpsaLoquitur says:

    @Bryant,
    I can imagine a few problems.  One, the victim may be unwilling to go through two trials.  Yeah, we can subpoena them into court, but I don’t think anyone wants to go there.  Two, we may end up with a “double-jeopardy like” result.  If you’re effectively charged with the same misconduct in two different forums, I’d bet that the defense argument at sentencing is “You can convict twice, but you shouldn’t punish twice.”  If a state court gives, say, 10 years to a rapist, then a defense counsel could argue that the state court has already determined that 10 years is necessary for punishment and rehabilitation of the offender.  Another 10 years in military prison would be duplicative of the state court’s decision, waste military resources, and be downright mean.  (If we convict first, we don’t have to care, but that’s a big “if.”)
    Three, military and state sentences to confinement are usually consecutive, not concurrent.  If an offender is convicted in state and then military court, then he has to immediately report to military prison to begin confinement there.  I imagine that military prisons are much more orderly than civilian ones, and they probably aren’t keen on picking up a confinee who’s been influenced by a civil prison for however long.

  8. Marshall Wilde says:

    Responding to the DefenseFriendly comment above, remember that, overseas, it’s not the end of the world to let the locals have jurisdiction.  The NATO SOFA gave us primary, but not exclusive, jurisdiction over Wilkerson case.  We could have given jurisdiction to the Italians.  I assume we didn’t because we thought our system was better equipped to handle that case.  Anyone want to make that argument now?

  9. AFJAGCAPT says:

    MW, after Amanda Knox I would still make that argument.

  10. Ed says:

    Defense Friendly
    If too many of our personnel end up in Japanese prisons with their wonderful fair and humane condtions this will cause another backlash

  11. Anonymous says:

    “Personal grievances–even ones as bad as sexual assault–are supposed to be covered by the civil court system.”
    Wow!  That’s a bold (or poorly worded) comment.  Sexual assault is a crime, not a personal grievance.  As a society we have a responsibility to prosecute it.  To stop it. 

  12. ResIpsaLoquitur says:

    @Anonymous–
    Sigh.  I don’t disagree with the latter part of your response.  My earlier point was that the politicization of this issue risks turning these cases into the accuser’s case.  It’s not.  A criminal prosecution is the government and military service’s case.  The government’s interest–in addition to protection of the victim–is the maintenance of good order and discipline, to deter future misconduct, and to drum out offenders.  The prosecutor’s client is still the military service, not the victim.  Also, don’t take the civil and criminal systems as mutually exclusive.  I’m suggesting the civil process as an alternative in cases where the victim is convinced that he/she has been wronged, but there’s simply insufficient proof to overcome the beyond-a-reasonable-doubt standard.

  13. Peter McLaughlin says:

    If the prosecutorial decisions were given to the military “experienced 0-6 trial attorneys” who we might find riding their Unicorns, and the funding of trials were turned over to the JAGs, what would change?

  14. k fischer says:

    The nugget I am taking from this piece, Zachary, is that Congress is blaming the military for failing to prosecute these cases when they should actually be blaming the civilians for failing to prosecute them.  It used to be that the military was prohibited from prosecuting these cases and the civilians had to do it, unless there was a military connection.  So, nothing has changed, except that now Servicemembers face concurrent jurisdiction between State and Federal sovereigns.  This does not mean that the military is doing a bad job.  It means that civilians are doing a bad job, as well.
     
    RIL, 
     
    Good luck finding a PI attorney to take a sexual assault case to trial.  First, unless you have someone like General Sinclair, your changes of actually getting paid, assuming you get a verdict, are slim.  Not a good business model if you are taking cases on a contingency and fronting all the expenses.  Also, a saavy predator could effectively use the SCRA to get a stay and really mess the case up.  If the guy is not in jail, then his Command will probably support him because they will believe that the allegations are BS, and they will send him to Korea or Afghanistan.  So, while the accuser is waiting on the stays, the attorney will go broke.
     
     

  15. k fischer says:

    RIL, 
     
    And the pro bono idea sounds good on paper, but I think that even SWAN knows that that rape victims getting compensated by rapists would be throwing good money after bad.  I seriously thought about it when I first left the JAG Corps, then I started doing PI work and realized that you don’t get paid unless you have a insurance or the Government footing the bill.  
     
    And, how much money would you give a person who says that after a night of drinking with her friend, they showed up at their instructor’s place, where they played strip poker with their friend who was having an affair with said instructor, and woke up the next day naked.  I seriously doubt a civilian jury would give that complainant a nickel.  Like I said, even if you could get a decent sized judgment, getting paid off said judgment is a different story.  DFAS will only let you garnish a small percentage each month.

  16. ResIpsaLoquitur says:

    k fischer–
    All good points.  Still, I’d love to see someone bring up the tort angle during a Q&A portion of a showing of “The Silent War.”  “Ms. Burke, what are your thoughts on SA victims using tort litigation to go after their assailants, and has your organization considered funding plaintiff’s attorneys for such litigation?  Or have you thought about doing pro bono representation for the victims?”  (Crickets.)

  17. Terminal Velocity says:

    Perhaps a return to the twelve step Relford service connection test?  Isiah RELFORD v. COMMANDANT, U.S. DISCIPLINARY BARRACKS, FT. LEAVENWORTH 401 U.S. 355 (1970) http://www.law.cornell.edu/supremecourt/text/401/355 
     
    As I am sure the Wonks know much better than me, our military appellate case law is filled with analysis of this decision until it was mooted by Solario.
     

  18. Phil Cave says:

    Echo Peter.
    Do we have any 05’s even (who are not judges)?
    TV.
    DC:  Relford, oh Relford, where are you?
    MJ:  DC have you lost your client?
    DC:  No sir, but we can’t find him anywhere.
    TC:  Judge, we believe he might be out in town sucking back Guiness with O’Callahan, they seem part and parcel to be in the same conspiracy to evade us.  
    Along with Catlow/Russo motions, litigating jurisdiction was fun.
    My recollection was that the military wanted to take on the non-military specific cases because the civilian prosecutors weren’t.  So mission creep.  Civilian prosecutors didn’t have the time, resources, or will.  So the civilian prosecutor “allowed” jurisdiction and in cases advocated for the military to take a case.  The military saw Sailors “getting away with it, so took action.”
    BTW don’t the stats show the military prosecutes more 120’s than civilians according to some recent pubs?  Huuuuuuuuum.
    BTW, did anyone catch Congress resetting the speedy trial clock back to 90 days where it used to be.
    BTW, did anyone catch this, “whether or not to try charges by court-martial shall be free of unlawful or unauthorized influence or coercion.” and have a feel for what it means.  I am in litigation heaven.  I think they would create a LIO of UCI at a lower standard – awesome.  That way we get the SecDef and other civilians who are abusing their power to influence outcomes in specific cases.

  19. Some Army Guy says:

    Do you really believe that a jury is superior to a panel?

  20. Paleo says:

    Is a jury better than a panel? I say yes. For one, erroneous verdicts increase with declining size of “decision makers”, and it is skewed against the defense. Another matter is that for all the talk of how great a panel may be, why aren’t decisions unanimous more than what is seen? If they can so clearly see the light, why aren’t they on the same page? These decisions and issues of panel size, bias, and group factors within panels as a function of panel size should be addressed with regard to CM and admin proceedings. Admin proceedings can be worse because the evidence barriers are looser and the burden is lowered. To argue that the punitive nature differentiating admin and CM or between various articles and maximum punishments should be a mitigating factor is to ignore the nature of the decision making which is the same regardless of venue, punishment, crime, or potential sentence. 

  21. Peter McLaughlin says:

    Regards to Phil.
    IRT Paleo;  I’m not sure I have all your points, but it appears that a point is the lack of required unanimity in the court-martial panel verdict.  I think that is a well expressed critisizm of the court-martial system – in modern times.  In a guilty finding, why would we label a minority of good-thinking court-martial members voting not-guilty as “unreasonable” (and they might be flag officers in some cases.  Should we let such “unreasonable people” return to duty?) and permit conviction based on the remaining members per the court-martial dice-throw?

  22. Peter McLaughlin says:

    Although a “tort angle’ might seem expedient in the serious territory of sexual assault, it might be a Pandora’s box element embracing all other complaints of perceived wrongdoing by shipmates, i.e., “my LPO didn’t great me enthusiatically in the morning” (actual EEO Complaint).  I think Wallace v. Chappell is a good thing. 

  23. Ex TC says:

    Peter,
      Where’s the unicorn stable where you left your steed when you retired? I would like to be an O-6, do mil jus AND ride a unicorn.
       But part of the larger problem is mil crim investigation agencies, especially NCIS, prefer civilian jurisdictions to prosecute (subpeonas, grand jury, man mins, supervised release, career prosecutors) than Jags. Without an increased case load brought to Jags, there will never be anymore unicorn riding, litigating 0-6’s. And of course the way for a NCIS agent to make a career is to work criminal cases. The jags aren’t alone in these problems. 

  24. Marshall Wilde says:

    Basically, a service connection requirement is the system we have in the Guard.  Is the difference in discipline between active duty and the Guard so great?  My experience is that misconduct rates are lower for the Guard.

  25. Phil Cave says:

    Paleo,
    George Zimmerman is being tried by a jury of six that must be unanisous for second degree murder.

  26. Phil Cave says:

    Sorry, hit the wrong key.
    George Zimmerman is being tried by a jury of six that must be unanisous for second degree murder.  As “My Liege” Dwiight Sullivan has recently observed, the Supremes have approved that, so far as the lowest number.
    Some years ago, a number of us had standard motions challenging the number or members in a GCM, and challenging the unlimited government preempts compared to the defense one.  Those motions didn’t go anywhere and we’ve given up.
    I agree the small group dynamics mean quicker decisions usually against an accused.  (Of course the result may well be the same with a bigger group.  Biggest group I’ve done is 14 and I think the result would have been the same regardless of the magic seven or higher, except the case took way longer and there was a lot of arguing that could be heard down the hallway.)

  27. Babu says:

    From the front page of NBC news, here is an interesting juxtaposition to what some comments in this thread have mentioned:  Alleged rape at 8th and I, local prosecutor takes it to a grand jury and then declines to prosecute for lack of evidence, military takes the case, and the 32 IO recommends dismissal.  Nevertheles, the CA refers rape to a GCM (as well as other charges).  Here is a link.
     

  28. k fischer says:

    Babu, 
     
    Good story.
     
    I filed a UCI motion on this very issue back in May of 2011 before the rhetoric really started to heat up on military SA.  I had a 32 IO, non-JAG, recommend dismissal on a triple victim rape case.  The SJA recommended referral.  I interviewed the SJA and asked why she recommended referral, and she said she didn’t have to answer my questions.  So, I filed the motion because there was an appearance of UCI, even back then, based on some of the comments by the SecDef in 2010.  At the UCI motion hearing, the judge required that she appear to testify, and she could not tell me one single fact or piece of evidence that convinced her to refer the case against the IO’s recommendation……on a triple victim rape case that involved peanut butter, a chihuaha, and sex acts that rival 50 Shades of Grey.  
     
    I lost the motion, lost the case, and my guy got slammed on sentencing, but I have to think that such a motion might gain some traction a little more today, especially if the SJA cannot testify as to one single piece of evidence as to why the IO’s recommendation was not followed when the IO was a former military judge.

  29. Some Army Guy says:

    Having seen both juries and panels in operation, I would much prefer my fate being decided by a panel.   

  30. k fischer says:

    And a quick tip to the trial counsel in US v. Bohlayer: while I do not think having a nose ring justifies a man forcing himself upon a woman, I have never ‘dated’ a non-Indian woman with a nose ring who was, shall I say politely, less inhibited than I.  I’m sure I’m not the only male or female with that opinion, so she might want to take that hoop out of her right nostril when she testifies.  (Look at tip number five if you don’t believe me.)
     
    I have never liked the reporting by Michael Issakoff.  I would like to know what the facts are that convinced the former judge IO to recommend dismissal.  

  31. Peter McLaughlin says:

    Ex TC,
    There’s a local JAGC fingerprint on NCIS-investigated cases brought downtown, although the prior JAG (and maybe the current JAG) did not favor that path.  In some instances, it’s a JAGC SAUSA prosecuting, but then the SAUSA takes his or her experience and cashes it in for CIVLANT.
    Peter

  32. Peter McLaughlin says:

    Last Navy courts-martial I can think of that had an O-6 as first chair defense and trial counsel involved the Kennedy-Belknap collision in 1976.  Any fresher memories?
    Peter

  33. Charlie Gittins says:

    PM:  How about the (Dr.) Billig court-martial?  They had a Colonel prosecutor (he later promoted to be SJA to CMC) before the appellate court (NMCMR) ripped him up. Circa 1986/87 I believe.  Not sure about the DC’s rank.
     

  34. Ex Tc says:

    Peter,
    Many litigators leave USN bc of perception that NCIS and Sja’s don’t want cases litigated anywhere but town. Once a Sausa you can see the overall cases and you realize that your next RLSO tour won’t be the same type and quality of litigation and cases. Wonder how many 120’s are taken to AUSA office? The slam dunks (very rare)and CP. there needs to be more coordination on both sides.
    the last and only 0-6 I ever saw litigate was Captain Frank Carber as TC over ten years ago as CO of then TSO West. Did one guilty plea against him on random spcm. 
     

  35. Paleo says:

    My comments about jury v. panel were based on Ballew if I remember the correct case. If you’ve watched a group of senior officers talk like a council of colonels etc, then maybe you’ve seen the same things I have: lot of talk, but very few leaders that stand their ground. Most senior officers are making rank on making the boss happy, not on leadership. So, I believe the inclination to fall in line is greater with a military panel, which can easily turn a 2-3 decision into a 3-2 or lead to a 4-1. Group dynamics and not independent assessment rule the day. That means inaccurate results. Also, don’t forget these panel members know each other or see each other regularly on an installation. They’re going to know or suspect who voted in a given way. Peer pressure is strong in the military.
    Look at the history of how military leaders have tried to change military law. Hardly ever do you find an example where they move for less power for commanders, less consolidation of people that lends itself to stacking, and less influence over judges and panel members. And, they make these moves in less than transparent ways, in and of itself a break from the ethics they claim to so strongly espouse. Ex: GEN Coffey (sp?) tried to get less objectivity and independence of judges citing hinderances in giving instructions to panel members, claiming it was in fact a safeguard. He wasn’t mentioning the large number of instances where wrong instructions were given.  
    The way the military seeks to manipulate its own system is not forthright and not to the advantage of the service members. It’s part of the reason investigations and convening authority power should be addressed, but holistically, not in pieces as Congress is doing. 
     

  36. Peter McLaughlin says:

    Charlie G,
    I believe the Billig prosecution team was headed by then-LtCol Mitchell.  I met him in Hawaii when the team was on a world-wide victory tour.  Ironically, I was on the Appellate Govt team that saw the case swirl down the drain due to what appeared to be the review court finding the prosecutors were too mean to the doctor.
    Peter

  37. Charlie Gittins says:

    PM:  Gerry Miller was the lead prosecutor . . . .  this from the Philly Inquirer:
    The chief prosecutor, Marine Col. Gerald Miller, told the panel of naval officers that Billig, one of their own, caused the deaths of five patients at the hospital when he was chief of heart surgery because he lacks “integrity, honesty, responsibility, professionality and competence.”
    He later became the SJA to CMC.

  38. Peter McLaughlin says:

    Charlie G,
    Agreed, Miller is correct and ever a gentleman, but the memory fragment that he was then a LtCol still resonates.  The Philly Inquirer might not distinguish bird colonel and LtCol in the use of “colonel.”  He did become SJA to CMC, but not before some Marine JA rival(s) put nails on his road to promotion and success after Billig.
    Col or LtCol, that was 25+ years ago and the only other O-6 in this string took a guilty plea. 
    Peter

  39. Atticus says:

    Remove serious felonies from the military justice system, e.g., murder, sexual assault, child exploitation, etc.  No more DP cases screwed up and no more sexual assault/UCI fiascos.  Military litigation is only done by very junior officers anyway, and there would still be plenty of cases to cut their teeth on before deciding whether to be put to pasture as an SJA or take their skills to the civilian sector.