News reports of today’s proceedings in the Sinclair case are trickling in, and they’re not pretty.

This ABC News report begins with the big picture:

Col. James Pohl granted a defense motion to reconsider “Unlawful Command Influence, and the role it played in the case. Pohl also ruled Army prosecutors failed to meet their burden of proof in denying UCI has influenced the trial

You’re thinking, “that’s bad.” Well this (from the same report) is worse:

“The only true, fair remedy is to reset that (the trial),” said lead prosecutor, Lt. Col. Robert Stelle, arguing for a mistrial.

The defense refused to request the mistrial.

I’ve failed to find a second source for this, so let’s not jump to conclusions. But what would cause the prosecution to ask for a mistrial in the most watched wild court-martial since the Lakin case? From this New York Times report:

The judge said he was particularly worried that a letter written by a lawyer for the main witness against General Sinclair, a captain who has accused him of forcing her to have sex and threatening her life, seemed to have unduly influenced General Anderson, the commanding general of Fort Bragg’s XVIII Airborne Corps. That letter, sent in December, said the captain was opposed to a plea deal, and it invoked the potential political consequences of an agreement on the Army’s efforts to combat sexual assault.

“Allowing the accused to characterize this relationship as a consensual affair would only strengthen the arguments of those individuals that believe the prosecution of sexual assault should be taken away from the Army,” the accuser’s counsel wrote.

For all those prosecutors who look at the SVC program and think “the enemy of my enemy is my friend,” welcome to the real world.

This CNN report adds:

The e-mails that brought the proceedings to a halt Monday were described by defense attorney Richard Scheff as evidence showing that not only did senior Army officials believe that the accuser had a credibility issue, but also that commanders are making decision based on politics rather than justice.

In the January communication, Col. Michael Lacey, a staff judge advocate, writes Lt. Gen. Joseph Anderson about the accuser’s testimony regarding an iPhone she said she found December 9.

“The forensic analysis of the phone indicates she accessed the phone before 9 December, which brings her credibility into question. The Special Victims Prosecutor (SVP) is trying to reconcile the forensic analysis and her statement, but it is possible that she was not truthful,” Lacey wrote.

Now don’t start thinking that this was a sneaky lawyer trick by Mr. Scheff, withholding those awful emails from months ago just to spring them on the replacement trial counsel right after the alleged victim finishes her direct examination. It turns out that the emails were just disclosed by the prosecution over the past few days (according to the CNN report, and the NYT report, and the ABC News report, and this report from the AP, and this report from Reuters).

And here I thought the Government was good at collecting emails…

How could this get worse for the prosecution, you wonder? Well, BGEN Sinclair could move to withdraw his pleas of guilty… From the Reuters report:

The judge criticized the prosecution for waiting so long to produce the emails sought by the defense and for bringing them to light after the trial was underway.

But Pohl disagreed with defense lawyers that dismissing the sexual assault charges was the proper fix.

“What we have here is a wrong,” the judge said. “To dismiss the charges based on this wrong would not be appropriate.”

The judge gave Sinclair’s lawyers until Tuesday to decide whether they will submit another plea offer. A new convening authority would be chosen to consider the offer, though details were still being worked out about that selection process.

It was unclear if the trial would be put on hold should Sinclair renew his offer.

Defense attorneys would not discuss specifics of the prior offer. They have said in the past that Sinclair proposed to plead guilty to the military crimes of adultery and conduct unbecoming an officer if the sex assault charges were dropped.

The general pleaded guilty last week to lesser offenses that carry a maximum penalty of 15 years in prison and possible dismissal from the Army, but his attorneys said they could move to withdraw that plea after the events on Monday.

“We’re trying to figure out our strategy,” Scheff said.

40 Responses to “Unlawful political(?) influence in the Sinclair trial – Part 2”

  1. Staring in Disbelief says:

    Since there was a great Varsity Blues reference on this site the other day, another came to mind. “When did the damn circus get to town?”

  2. RKincaid3 says:

    Someone, somewhere, needs to step up and lead this mess.
     
    America’s young people, both male and female, are going to think twice before volunteering to serve if they see this kind of treatment as awaiting them.  Many currently serving personnel I know are itching to move on or retire. 
     
    This is an utter disaster. 

  3. A.Firefly says:

    There’s nothing wrong with placing the politically advantageous (and a healthy fear of Congress) before the demands of justice in an individual case.  After all, it harms no one to take anything and everything to trial (except maybe it’s a little uncomfortable for that one soldier at the defense table, but he deserves it, because he’s a perpetrator).  When CAs consider the irrelevant, poisonous political ramifications of their decisions, they very ably demonstrate why they should keep their authority to convene courts-martial.
    -Insane

  4. Advocaat says:

    Can the Army really be this incompetent?  As much as I despise married senior officials who engage in affairs with their fawning and equally despicable subordinates, does anyone believe this accused can receive a fair and impartial trial at this point?    

  5. ResIpsaLoquitur says:

    RKincaid–
    Well, I expect that at some point we’ll replace everybody with drones anyway.  Drones can’t sexually assault other drones, or if they can, I don’t want to know how.

  6. PoeteGuerisseur says:

    Ironically, Victim’s counsel’s letter warning against “strengthen[ing] the arguments of those individuals that believe the prosecution of sexual assault should be taken away from the Army” has strengthened the arguments that believe the prosecution of sexual assault should be taken away from the Army.

  7. DMW says:

    Here’s something that occurred to me after watching this debacle of the Army trying to hold a general officer accountable for being publicly caught with his pants down at a most unfortunate time for his peers who proclaim zero tolerance for such conduct. What is a poor military trial judge (of which I was one for more than a few years) to do when, as often happens, the flag/general officers involved try to perform damage control under the belief that the laws were made for their benefit rather than to apply to them as well? Especially when self-righteous prosecutors currying favor fall into the same trap?
     
    I have long been a great admirer of Col. Pohl’s judicial skills and acumen, so this is purely hypothetical. This idea would be outside the box and outside his “lane” as we liked to say, but possibly satisfying and fun to watch the CCA deal try to deal with.  
    It would not be a stretch to find that Article 37 was passed after a series of blatant abuses of “military justice” by senior officers during WW II, who sacrificed junior personnel for their own advancement. Employing the “evolving law” and (the situationally- useful) “unspoken legislative intent” theories of progressive judging, perhaps a judicial exception to Article 37 could be carved out for cases in which the general/flag officer community decides to throw one of their own under the bus for the “good of the service.” The UCI doctrine was meant to protect the powerless from manipulation of military justice by those in power. But who is so naive as to think that the decision to criminally prosecute one of their fellow members of “the club” could possibly be devoid of political or “command” influence? 
    Article 37 was adopted to give protection to people like Airman First Class Brandon Wright from referral to a (second-bite) rape trial by Maj. Gen Sharon Dunbar, if (and I have no reason to know one way or the other) that was done for improper or insufficient reasons. I’m not sure that the law was meant to shield general officers from suffering the consequences of decisions leading to their self-culling from the herd. 
    Just a thought…

  8. RKincaid3 says:

    RIL: But that such were technologically possible.  But it is not (yet), and so instead of machines destroying other machines on behalf of mankind, we are stuck with a military that is composed of human beings.  And, that is the shame of this whole development: people are suffering because of a lack of good leadership from Congress and from senior military leaders.
     
    PG: Amen, brother.  Amen.
     
    DMW:  I agree with much of what you have written save for the conclusion: Art 37 must, of necessity, apply to all service members, without regard to their rank/grade/position.  We don’t need to institutionalize “classes” between service members–that would just be yet another way to destroy any unity left in the force.
     
    Just my POV.

  9. Javert says:

    OK, I get how emails from the XVIII Airborne Corps SJA to BG Wilson (and particularly if any were returned) could create at a minimum the appearence of UCI.  I also get how this letter from the SVC to the CA, if not timely disclosed, could be a discovery violation.  But here’s what I’m trying to rack my brain to figure out:  how on earth is an O-3 Captain the vector for UCI to a LTG?  She neither outranks the LTG nor does she represent anyone who does. 
    This court-martial is turning into a complete clown show.  It will be ironic if the authority of Commanders is stripped because of the actions of the Sinclair prosecution team. 

  10. k fischer says:

    A.Firefly, 
     
    Well done.  That’s what I basically got from Claire McCaskill’s wide eyed comments on Morning Joe, this morning.   She’s says about a gazillion times that the Commanders go to trial in contravention of their SJA’s legal advice and that there are more prosecutions and prosecutions have spiked.   Why?  It is easier to send a case that the SJA says has no merit to trial and let the accused swing in the wind than to have a Senator hold up the Commander’s promotion.  
     
    Gillibrand’s bill should have been passed, not to protect victims or increase prosecutions, but to extricate this type of logic and practice from the UCMJ.  Like I said before, I find it far easier to kick an overzealous prosecutor’s a$$ in the courtroom, than to combat the inherent UCI in the back of the minds of every panel member.

  11. RKincaid3 says:

    Javert:

    “how on earth is an O-3 Captain the vector for UCI to a LTG? She neither outranks the LTG nor does she represent anyone who does.

    Remember that UCI can be actual or apparent.  Your question focuses upon the actual and ignores the apparent–the not-so-subtle reminder in the SVCs letter to the CA that Congress is watching and your command discretion is on the line, as is your job.
     
    That is apparent UCI par excellence!

  12. LMC says:

    If the opinions in a letter from an SVC to the convening authority can be found to be apparent UCI, why not examine every CA on what he or she’s read in the paper or heard on the news?  Or what the CA’s opinion is on the opinion of Congress?  Or whatever?  Yes, the sexual assault part of the case would’ve been hard to prove.  But is the Army really going to let this ruling go unappealed?  Is it conceding UCI under these facts?  WTF, over.

  13. k fischer says:

    Javert, 
     
    I think Anderson could be a “type three” accuser under Article 1(9), if the reason he is only concerned with what the victim wants is because he fears that Congress would question him and hold up his promotion, a significant property interest: 
     

    The test for determining whether a convening authority is an “accuser” under Articles 1(9) and 23(b) is whether he “was so closely connected to the offense that a reasonable person would conclude that he had a personal interest in the matter.” United States v. Jackson, 3 MJ 153, 154 (CMA 1977) (citing United States v. Reed, 2 MJ 64, 68 (CMA 1976)). Personal interests relate to matters affecting the convening authority’s ego, family, and personal property. A convening authority’s dramatic expression of anger towards an accused might also disqualify the commander if it demonstrates personal animosity. Jackson, supra at 154. “[M]isguided zeal,” alone, however, is not sufficient. See Thomas, 22 MJ at 394.
     
    United States v. Voorhees, 50 M.J. 494, 499 (C.A.A.F. 1999)
     

    I think that there are some huge issue in the AF court martial of US v. Brandon Wright regarding the CG being a type 3 Accuser, in addition to there being UCI issues.  If I were the defense counsel in that case I would probably want each and every one of Dunbar’s e-mail from her inbox and sent box discussing the case with members of Congress.  I would want to interview Dunbar to see whether she had any verbal communications with Members of Congress about the case, as she is the Convening Authority for the AFDW.  

  14. RKincaid3 says:

    LMC:  we are not here dealing with the mere “opinion” of an SVC.  We are here dealing with a threat.  Which, notwithstanding all the wrangling in this forum over the finer points of the rules, was apparently the message clearly received by the CA.  Remember, it is the CAs own words that haunt him and define this issue in this case. He made his decision based pretty clearly on one factor: the wishes of the victim, which happen to coincide with Congress’s agenda, and his own future prospects for career success.  If his decision was based upon all the factors, then his answer should have so stated that fact.  We can presume that his lawyers advised him to tell the truth and didn’t attempt to draft or shape his answers to comport with the law to avoid the adverse finding.  And so his answer was and should be deemed to be true–and he is now stuck with it.
    As for an appeal, why wouldn’t they?

  15. k fischer says:

    RK3/Javert,
     
    How does this sound for disqualifying the Convening Authority from acting on the offer to plea after his admission to only caring about one thing: What the victim want?  (J-J-J-J-JJJ-JAIL…J-J-J-J-JJJ-JAIL….J-J-J-J-JJJ-JAIL) WHAT THE VICTIM WANT?!?
     

    In that case, our superior court stated that the test for determining if an “other than official interest” exists in a case is “whether, under the particular facts and circumstances … a reasonable person would impute to [the accuser] a personal feeling or interest in the outcome of the litigation.”

    McKinney v. Jarvis, 46 M.J. 870, 875 (A. Ct. Crim. App. 1997)
     

    In this case, would a reasonable person would impute to Anderson a personal feeling or interest in the outcome of litigation?  Yes. I, being a somewhat reasonable person, would impute to Anderson, based on his statement that he is solely concerned with what the victim wants, an interest in the outcome of the litigation, specifically, his future promotions, which affects his retirement, which is a significant property interest, particularly in the current environment where Senators sole concern is whether the victim’s case sees the inside of a courtroom, even when the lawyer advises the Commander to dismiss the charges.  
     
    So whether it’s on UCI grounds or type 3 accuser grounds, Anderson shouldn’t be making decisions on the OTP.

  16. RKincaid3 says:

    k fischer: You are spot on.  But the problem is not limited to General Anderson.  The problem is so pervasive that every CA is arguably suffering from the same UCI.  If the Sinclair defense goes for a new CA, the questioning that follows will be another assault on the system that is not inspiring faith in the system.

  17. Javert says:

    @RKincaid3, k fischer:  Congress has explicitly told us we are obliged to solicit victim input for OTPs.  I do it for every case I have.  Here’s the rub: for the Defense bar, that should make you very happy.  A large proportion of the time, the victim tells me that (for whatever reason), she’s not interested in a court-martial.  She wants to move on with her life.  Personally, I think that’s relevent for a CA to want to know – because, Sen. Gillibrand notwithstanding, we are not doing justice for anyone. 

  18. WEN says:

    After considering Javert’s comment and RKincaid3’s response, I still do not understand how this is UCI.  The SVC writes a letter urging the CA to turn down a plea offer.  The letter contains arguments that would be inproper for the CA to consider as a basis for denying the agreement, mainly that higher authority will disagree with his decision in this high profile sexual assault case.  The CA considers the letter, among other things, and then denies the plea agreement.  I restate the facts in case I am missing something.  I don’t see how this is UCI unless there is more evidence that the CA was actually influenced by the improper argument.  He could have denied the plea deal for many reasons – the fact that the victim opposed the deal, general deterrence, etc.  Plus, in a high profile case there is always the possiblity that higher authority could disagree with some action the command took. I doubt the CA needed the captain to point this out and it is only UCI if the CA was influenced by it or there is actual evidence that higher authority tried to express their discontent.   I just don’t understand how the the fact that a captain who has no connection or personnel knowledge concerning the opinions of the higher chain of command can create a UCI issue just by pointing out that there might be pressure from above.
     
    Second, I would be hesitant to be too critical of the OSJA and the prosecutors involved in this case.  There are a lot of unique factors involved.  It is a high-profile case involving a high ranking officer and a very senior panel.  Additionally, this SVC program is brand new and everyone is still trying to figure out how it is incorporated into the justice system.  I cannot say that I wouldn’t have made some of the same mistakes.  If I were advising the CA, I can’t say that I would have recognized the UCI issue and taken steps to prevent it.          

  19. k fischer says:

    Javert, 
     
    I agree that victim input should be a factor and it is appropriate for Congress to solicit victim input on an OTP.  However, when I’ve got a Chief of Justice who is an O-5 telling me that I should accept an OTP and I say, “I only have one question.  What the Victim want?!?!” ( J-J-J-J-JJJ……okay I’ve beat that dead fox), I have gone from looking at what the victim wants as one of the many factors in my decision to accept or reject the OTP, to it being the only factor, which can only be explained by one thing:  CYA for my career.
     
    And, so even though I hate to agree with Senator Gillibrand, I think she is right because there will always remain a question whether or not a Commander is CYA or really believes the case has merit.  I think if the facts are that the lawyers or he 32 IO are telling him to dismiss, then it really begins looking like UCI.

  20. stewie says:

    It’s possible I’m already a drone.

  21. AGJ says:

    What we’re watching is the collision of two trains on the same track.
    Congress and POTUS want military leaders (commanders, NCOs, JAs, civilians, everybody) to be more invested in eliminating sexual assault.  They want us to make sure that victims know that their voice is being heard.  They want CAs to send a message that sexual assault can’t be tolerated. 
    CAAF and the service courts, on the other hand, want to ensure that the military justice system is unimpeachable in protecting the rights of the accused.  They hold as one of their highest priorities that no accused can ever say that the outcome of his court-martial was affected by some higher authority.
    So while Congress and POTUS are telling CAs to get more involved, CAAF and the service courts are telling CAs to be less involved.  Both sides are increasing the volume and picking up speed to emphasize their messages.  Here’s what the resulting train wreck is going to look like:
    Commanders and TCs will prefer charges for every incident that gets reported, rumored, or wondered about aloud.  Every Article 32 IO will recommend that every charge go to a GCM.  No SJA will ever discuss the specifics of any case with a CA, or any other person, to include their own Chief of Justice.  Every CA will refer every charge to a GCM.  Every accused will contest every charge in front of a panel.  Every defense counsel will challenge every panel member for cause, and will win.  Any panel member who manages to somehow slip through will vote to convict on every charge.  Every MJ will cry themselves to sleep at night.  Every defense appellate counsel will raise UCI on appeal, and every charge will be dismissed.  Every accused will be returned to duty, with a clean record and back pay.  Maybe CAAF will institute treble damages for accused, who are all wrongfully impacted by UCI.  Congress will mandate extensive victim compensation packages.  Sexual assault will become a golden parachute industry for  servicemembers who are facing downsizing (just like med boards have become). Every victim will be on CNN.  CNN will change its name to Victims News Network.  This will all happen before football season starts.
    On the bright side, at least now I understand the lyrics to Jethro Tull’s “Locomotive Breath.”

  22. af_dc says:

    kfischer: I also hate to agree with Sen Gillibrand, but I agree with the large minority of JAGs, both defense and trial counsel, who believe that prosecuting sexual assault in the military has become such a headache, with such uneven and often unfair results, that it would be better for this giant legal turd to be taken out of the hands of the military and given to the civilians. I say this as a practicing defense counsel who recently had a client read his rights by AFOSI (apparently using an EXTREMELY broad interpretation of ASC in the newnewnewnew 120) for sexual assault after touching someone else’s hair. On their head. Once, during the day. While they were awake. I am not kidding. Who can take such a system seriously anymore? After seeing how the sausage is made via this Sinclair debacle, who can trust that they will receive a fair trial? I don’t and I wouldn’t.
    AGJ: fantastic comment.

  23. Dew_Process says:

    One Watada, two Watada, three Watada, four.
     
    Grant dat Gov’ment mistrial motion, and
     
    The General he be walkin’ right outta the door.
     
    Oh yeah!
     
    One Watada, two Watada, three Watada, four.

  24. B. Peters (TUS 80-82) says:

    Well, for goodness sake.
    First GEN Amos being too clever by half (in the USMC taliban desecration cases) and now USA meddling at this level in the BG Sinclair prosecution.
    When will JA staff officers acknowledge the obvious – and the UCI at play and allowed as is in this process?
    There’s an article out right now (Elon Law Review Vol.5) on this very issue as applied to war crimes. 
    We don’t need to totally remove the CA from the picture.  Just give CAs the structural incentive to do the right thing, up or down – subject to further review in cases where reasonable minds might differ – and where politics are already allowed to be part of that picture – subject to public policy and the ballot box.
    bp

  25. Zeke says:

    What we need to do is try all citizens, military members included, in the civilian justice system unless the crime occurs abroad and operational necessity dictates trial by court-martial rather than shipping everyone back stateside for a real trial before a real jury of in a real justice system.

  26. AF JAG says:

    @Zeke–just so I’m clear . . .
     
     Article 27 besting every public defender’s office and civilian jurisdiction in the country by mandating detailing of military defense counsel (unless refuesed by accused) in EVERY CASE = “Not a real justice system”?
     
    Article 31 stronger than Miranda = “Not a real justice system”?
     
    Article 32 (even after recent amendement) STILL providing more rights to accused than 5th Amendment Grand Jury right, including right to presence at the entire proceeding; right to counsel; and right to cross examine all witnesses, and provide evidence pertinent to probable cause inquiry = “Not a real justice system”?
     
    Article 46 providing, in effect, expert assistance at government expense almost on demand(low threshold for showing “necessity”),  far beyond any entitlement to such assistance (in a non-capital case or not involving an indigent defendant) in any civivilain jurisdiction in the country  = “Not a real justice system”?
     
    RCM 703(f) providing more robust acess to and remedies for lost/destroyed evidence well above and beyond the federal “Trombetta” standard  = “Not a real justice system”?
     
    RCM 707 regulatory speedy trial right w/ “120 day speedy trial clock” that literally laps the government friendly “Barker v. Wingo” 6th Amendment Speedy Trial standard = “Not a real justice system”?
     
    Accused entitlement to select judge OR members sentencing to minimize his sentence at his preferable venue = “not a real justice system”?
     
    Article 66 and RCM 1202 trumping every civilian jurisdiction in the country and requiring appointment of appellate defense counsel in every case w/ BCD and/or 1 year of confinement (unless Appellant explicitly declines) = “not a real justice system”?
     
    Are we perfect–NO, far from it.  But to claim that the miltiary justice system is not a “real justice system” because we have a command structure, juries of less than 12, and permit convictions (in non-capital cases) based on a 2/3 majority (that also results in more frequent ACQUITALS than the civilian “unanimity” requirement, btw) is to ignore the substantial expansions the military justice system provides while focusing solely on its divergences from the civilian system.  And BTW, the Supreme Court has ruled non-unanimous criminal verdicts, CONSTITUTIONAL; and juries of less than 12, CONSTITUTIONAL. 
     
    Also, it now appears that this “fake” system of justice you decry not interprets Article 37 so expansively that an alleged victim (communicating through counsel) commits UCI when she voices her strong prefence to go to trial.  The nerve of her!  Wanting to confront her alleged assailant in court–what a travesty!  This “fake system” is so corrput that it finds UCI particularly where (PAUSE FOR DRAMATIC EFFECT) the letter refernces what everyone already knows:  Congress has a strong interest in bona fide sexual assault prosecutions in the military.  Wouldn’t the system you so blithely cast aside reach the OPPOSITE conclusion?
     
    Tell you what, why not flee this “fake” system you abhor so much and let me know how it goes when you are on the outside. Tell me how much fairer it is without Article 31 where your clients are “liberated” by not being rights advised despite the fact that police are questioning them when they suspect them of a crime (because Miranda is only required for custodial interrogations).   Tell me how much more your due process rights are furthered where your client has no right to counsel, call witnesses, or even PRESENCE at a grand jury considering an indictment in their case.  Tell me how successful you are with enjoying a world free of Article 46 where you get experts at government expense in every case where you can show necessity.  Also, be sure to speak to me of how much better those thoughtful civilian juries are, especially now that you won’t be burdened with a college educated or higher panel of civic minded individuals who took an oath to protect and defend the Constitution.
     
    Be sure and get back to me on that.  And while you’re at it, please give that dead horse you’ve been beating a rest . . . he’s had enough.
     

  27. DCGoneGalt says:

    AF JAG:  Good points.  But show me a civilian jurisdiction that constantly forces their jury pool to submit to biased briefs from people who control the careers of the jury members.  Show me a civilian jurisdiction where the DAs feel pressured to send every drunken sex case forward.  I agree with Zeke that the time has come to just dump these cases on civilians and let them no-prosecute 95% of them. 

  28. Paco says:

    AF JAGS- I understand your passion and as a propable government counsel who has had to endure acquittals you may feel that too much protection is given to an accused.  However, many of your assertions are just false.
    Most public defenders offices are handled by the states and have staff investigators, experts, mitigation specialists, and social workers.  In the military you get 1, maybe two, ADCs.  Civilian Public defenders have about 5 years trial experience before they take a major felony case with lifelong implications.  Your local ADC could be compitent, knowledgable, and energtic, but not have that amount of experience.  Or the local ADC could be the only one left who could take the spot because the one who was compitent, knowledgable, and energtic didn’t want the job.
    Public defender offices have the experts and are not required to ask the prosecuters to fund them revealing trial strategy, etc.
    Grand juries can kill a charge.  Many jurisdictions allow prelimanary hearings where-in cross examination is allowed.  Grand Jury members themselves can cross examine.  And if 1 juror doesn’t agree, it stops.  If the judge kills it at preliminary hearing, it stops.  It doesn’t go to a commander who is worried about Sen So-and-So not approving their next promotion.  You tell me which one you would rather have if you were an accused? 
    RCM 703(f) is a poor substitue in a system where there is no prosecutorial discretion or public accountablity for the prosecutor who proceeds even in cases where they know evidence has been lost.
    Public accountability is a large and important part of the “real justice system.”  It effects discretion, and lends legitimacy to the system.  These prosecutors are truelly acting on behalf of the people, unlike a commander who will continue the beating until morale improves.  Judges in the military (both appellate and trial) are also not held publicly accountable.  They are judges who are anticipating their bosses deciding their next assignments.  If independence from command was irrelevant, than CAAF judges would be military members as well.
    The reason we have so many acquittals in the AF is not because of the “fairness” to the accused, it is because we have learned unjust risk-taking because even in crappy unjust cases the government can sometimes still get a conviction.  Civilians don’t take cases because they are not going to put a sex assault victim through the ringer without having a sure bet of a victory (and more importantly their own ethical standards- where the military ethical standard appears to be “my boss told me to”).  And civilian prosecuting authorities don’t pick their own juries, and don’t have their commander in chief and congress complaining to those jurors about how their jurisdictions supposedly mishandle sexual assault.

  29. Zeke says:

     Article 27 besting every public defender’s office and civilian jurisdiction in the country by mandating detailing of military defense counsel (unless refuesed by accused) in EVERY CASE = “Not a real justice system”?

    I’m not sure that every civilian jurisdiction in the nation would agree that their public defender system is bested by the military’s model.  But, even assuming that they would, and that you’re not just broadly overgeneralizing without having actually examined each jurisdiction, I hardly think it is a valid argument to say “at least we’re not them.”  Not being as bad as the other guy does not a good guy make.

    Article 31 stronger than Miranda = “Not a real justice system”?

    Article 31 exists precisely because military defendants are exposed to coercion as a matter of existence.  As a military subordinate, they have been conditioned to answer the questions of a superior, even if it is against their personal interests… perhaps especially when it is against their interests.  Young servicemen and servicewomen are conditioned from induction with calls for them to show “integrity” and “honor” and “service before self,” especially when called upon by superiors to meet their expectations.  Token protections such as Article 31, which, in practice are rarely utilized, are better than nothing, but they hardly equalize the playing field.  Miranda doesn’t require warnings before coercion is applied, Article 31 does the same thing – it’s just that coercion begins being applied to every military member upon enlistment.

    Article 32 (even after recent amendement) STILL providing more rights to accused than 5th Amendment Grand Jury right, including right to presence at the entire proceeding; right to counsel; and right to cross examine all witnesses, and provide evidence pertinent to probable cause inquiry = “Not a real justice system”?

    I concur in the utility of an Article 32 hearing in that it permits discovery.  One might question whether that benefit is worth the trade-off of the proceeding resulting only a recommendation as opposed to a disposition.  Further, you’re not entirely correct that an accused doesn’t have the right to appear before a grand jury.  While there is no constitutional right to do so, the DOJ, as a policy, permits targets of a grand jury investigation to testify if they want to.  USAM 9-11.152.  That’s because federal prosecutors are concerned about appearing fair to the accused in the public’s eye.  That’s a check on iprosecutorial discretion which is sorely lacking in the military justice system.

    Article 46 providing, in effect, expert assistance at government expense almost on demand(low threshold for showing “necessity”),  far beyond any entitlement to such assistance (in a non-capital case or not involving an indigent defendant) in any civivilain jurisdiction in the country  = “Not a real justice system”?

    Again, I doubt you’ve surveyed “every civilian jurisdiction in the country” to gain an assay of their laws and policies regarding obtaining expert assistance.  I bet you’d be surprised.  I know your description does not accurately capture the state of public defender services in my state of license, Colorado.  But, even if you were correct, saying you’re not as bad as the other guy doesn’t make you a good guy.  Military defense attorneys aught to have staff investigators, they aught to have access to staff expert consultants.  A trial defense counsel shouldn’t have to divulge attorney work product in order to talk to an expert consultant about whether a drug testing report is valid.  They shouldn’t have to divulge protected information to talk to an expert consultant about whether their client’s bizarre behavior in their office is indicative of a defect that makes them incompetent to stand trial. That lawyer should be able to call their boss up and have a staff expert detailed to consult with them.  The various military defense Corps should truly be self-sufficient and independent of command.  The current expert witness paradigm is anything but.

    RCM 703(f) providing more robust acess to and remedies for lost/destroyed evidence well above and beyond the federal “Trombetta” standard  = “Not a real justice system”?

    Concur.

    RCM 707 regulatory speedy trial right w/ “120 day speedy trial clock” that literally laps the government friendly “Barker v. Wingo” 6th Amendment Speedy Trial standard = “Not a real justice system”?

    You’re right.  The military justice system is extremely quick once the government actually prefers charges.  That happens after, of course, the government has taken however much time it needs to marshal its case.  If we were to measure the time from offense to trial, however, rather than preferral/indictment to trial, then I’m not certain the military “laps” its civilian contemporaries.

    Accused entitlement to select judge OR members sentencing to minimize his sentence at his preferable venue = “not a real justice system”?

    I agree that the option for sentencing by members benefits the accused.  That being said, it’s a poor substitute for losing the benefit of having a finding a guilt require 12 unanimous and representative jurors who are free of command coercion.

    Article 66 and RCM 1202 trumping every civilian jurisdiction in the country and requiring appointment of appellate defense counsel in every case w/ BCD and/or 1 year of confinement (unless Appellant explicitly declines) = “not a real justice system”?

    Military appellate rights are a mixed bag.  On the one hand, we deny any appeal at all to a broad swath of cases which result in “sub-jurisdictional” sentences.  I concur that the provision of counsel for “felony-level” appeals is better than not.  The power of the courts of criminal appeal to review cases not just for legal errors but also for factual insufficiency is great.  However, it cannot be ignored that one purpose for that power is a tacit recognition by Congress that military courts-martial panels are more likely to convict despite lacking evidence than their jury counterparts.  Thus, we have appellate courts with the unprecedented power to reverse convictions for lacking factual sufficiency.  The independence of CAAF from command authorities, and its staff of Presidentially-appointed, Senate-confirmed civilian jurists, is awesome.  The result is that Court being set on par with its civilian counterparts and starkly distinguished from lower military tribunals because it has actual democratic legitimacy.  (And I say this despite the fact that I’ve been impressed the military judges I’ve met, and there are several that I have deep respect for.  But, ideologically, it bothers me that the system doesn’t care that military judges (trial and service appellate) don’t enjoy the mandate of the people of this nation.  They don’t, in my view, have a legitimate right to preside over the judgment of their fellow citizens because of that lack of connection to the people.  After all, this is not merely supposed to be a government of and for the people, it’s also supposed to be “by” them.)

    Are we perfect–NO, far from it.  But to claim that the miltiary justice system is not a “real justice system” because we have a command structure, juries of less than 12, and permit convictions (in non-capital cases) based on a 2/3 majority (that also results in more frequent ACQUITALS than the civilian “unanimity” requirement, btw) is to ignore the substantial expansions the military justice system provides while focusing solely on its divergences from the civilian system.  And BTW, the Supreme Court has ruled non-unanimous criminal verdicts, CONSTITUTIONAL; and juries of less than 12, CONSTITUTIONAL. 

    First, more acquittals could mean anything.  It could mean we take cases to court that civilians don’t.  It could mean that we get acquittals when civilians get hung juries.  Either way, for an accused, the end condition is the same – no conviction, no punishment.  The terminology the government chooses to assign to its failure of proof is interesting, but irrelevant.
    Second, the Supreme Court has also unequivocally drawn the line, under the 5th Amendment, and said a jury must have at least 6 members to be constitutional, and then the verdict must be unanimous.  Less than 6 members is unconstitutional under the 5th Amendment regardless of whether there is unanimity or not.  Read Ballew v. Georgia, 435 US 223 (1978) and Burch v. Louisiana, 441 US 130 (1979).

    Tell you what, why not flee this “fake” system you abhor so much and let me know how it goes when you are on the outside. Tell me how much fairer it is without Article 31 where your clients are “liberated” by not being rights advised despite the fact that police are questioning them when they suspect them of a crime (because Miranda is only required for custodial interrogations).   Tell me how much more your due process rights are furthered where your client has no right to counsel, call witnesses, or even PRESENCE at a grand jury considering an indictment in their case.  Tell me how successful you are with enjoying a world free of Article 46 where you get experts at government expense in every case where you can show necessity.  Also, be sure to speak to me of how much better those thoughtful civilian juries are, especially now that you won’t be burdened with a college educated or higher panel of civic minded individuals who took an oath to protect and defend the Constitution.
    Be sure and get back to me on that.  

    It would be hard for me to get back to you on anything when you haven’t the courage to use your name in any of these posts.  And if you didn’t know who “Zeke” was, this is Isaac Kennen, and I am speaking, of course, in my personal capacity only.  Nobody could ever think my views reflect those of the Air Force, DoD, or any other governmental organization.  
    Regarding the substance of your terminal paragraphs, I know why I serve.  I did legal work in the civilian world before coming back on active duty.  I am here to serve my fellow service-members, to aid them as they protect the nation.  I would have happily done that as a legal assistance attorney, or a procurement lawyer, or any other variety of legal work.  Instead, I’ve been asked to do military justice and I have learned, through two times as many years as a prosecutor than as a defense attorney, that this system (despite the best intentions of the lawyers within it) does not respect the Constitutional rights of the members subject to it.  I don’t blame military lawyers, military commanders, or military court-members for those systemic problems.  I blame Congress, squarely.  I didn’t choose to see the system’s flaws, they were put on parade and I was compelled to attend.  As an officer, I feel an obligation to not pretend these problems don’t exist.  If I did, I wouldn’t be serving anyone other than myself.  I’m no fool, I know voicing these objections to the system isn’t helping me out any. I’m also not naive enough to think that my words on this blog and in my court pleadings will change anything.  But, I hope that perhaps others will talk about the problems as well, even if it’s only in private with close friends, and eventually there will be a collective will to make changes that will better protect the rights of our Soldiers, Sailors, Marines, Airmen, and Coasties.

  30. stewie says:

    I’m curious…if you truly believe the system is not a “real justice system” then why do you continue to participate in it? If I truly believe the system was sub-constitutional and not a legit system, I’d at the very least never do a criminal justice job again if not leave the service.
     
    You engage in hyperbole.  It’s one thing to say, the system has flaws that need fixed to improve it and here they are.  It’s another to assert it’s not a real justice system.  You then take a list of counter-points, some true, some as you point out flawed, and several of your responses is to say “But, even if you were correct, saying you’re not as bad as the other guy doesn’t make you a good guy.”
     
    I take that to mean, even if someone were to show that the military justice system is roughly equivalent to the civilian world (or actually even better), you don’t think that counts because it still doesn’t meet your standard for real justice.
    You toss aside the point about Article 31 giving more rights because the military system is coercive by nature.  I’d submit to you that there is plenty about the civilian process that is pretty darn coercive by nature.  Ever been racially profiled and stopped by civilian cops? I have, and let me tell you, it’s pretty darn coercive.
     
    You make some good points about flaws in our system, like others have, but you wrap them up in hyperbole that makes true IMO your prediction that your voicing your objections won’t change anything.
     

  31. Zeke says:

    I’m curious…if you truly believe the system is not a “real justice system” then why do you continue to participate in it? If I truly believe the system was sub-constitutional and not a legit system, I’d at the very least never do a criminal justice job again if not leave the service.

    It’s a legitimate question, which I beleive you ask honestly, so I will give it as legitimate answer as I have been able to muster:  I stay because in every billet I have been given the opportunity to favorably influence the administration of justice for the individual case in front of me.  Because, I think, often justice can be achieved in individual cases despite the infirmities of the system.  As a prosecutor, I have been blessed to work only for superiors of integrity, who strive to not railroad people even though the system, in my view, is structured to favor rail-roading.  I’ve had bosses that conscientiously avoided that peril.  I think my willingness to remain would be different if I’d had bosses that were unscrupolous.  My difficulty is that I believe the system itself should be changed; suspected members should not have to depend on the integrity of their commanders and legal officers to get a fair trial; the system should be structured in such a way as to protect fundamental rights even if it’s being run by scoundrels.

    You make some good points about flaws in our system, like others have, but you wrap them up in hyperbole that makes true IMO your prediction that your voicing your objections won’t change anything.

    Fair point.  Though, my commentary on military justice is hardly as harsh as that used by our nation’s highest Court.  It’s hard to read the sort of precedent they have set and beleive that our military justice system is anything other than a pale comparison to the American civil legal tradition:

    We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. . . . And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts.
     

    U. S. ex rel. Toth v. Quarles, 350 U.S. 11, 17, (1955)

     

    There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution. Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service. . . . Consequently considerations of discipline provide no excuse for new expansion of court-martial jurisdiction at the expense of the normal and constitutionally preferable system of trial by jury.

    U. S. ex rel. Toth v. Quarles, 350 U.S. 11, 22-23 (1955)
     

    None of the travesties of justice perpetrated under the UCMJ is really very surprising, for military law has always been and continues to be primarily an instrument of discipline, not justice.

    O’Callahan v. Parker, 395 U.S. 258, 266 (1969)

    Both in England prior to the American Revolution and in our own national history military trial of soldiers committing civilian offenses has been viewed with suspicion.

    O’Callahan v. Parker, 395 U.S. 258, 268 (1969)

    It was, therefore, the rule in Britain at the time of the American Revolution that a soldier could not be tried by court-martial for a civilian offense committed in Britain; instead military officers were required to use their energies and office to insure that the accused soldier would be tried before a civil court. Evasion and erosion of the principle that crimes committed by soldiers should be tried according to regular judicial procedure in civil, not military, courts, if any were available, were among the grievances protested by the American Colonists.

    O’Callahan v. Parker, 395 U.S. 258, 269-70 (1969)
     

    It is virtually hornbook law that ‘courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law.

    Schlesinger v. Councilman, 420 U.S. 738, 765 (1975) (Brennan, Douglas, and Marshall dissenting).
     
    So, while I concur that I have used hyperbole, and your caution is well-founded and well-received, I hope you will concede that I’m not without company in expressing distrust for the military justice system.

  32. stewie says:

    Those cases you cite are just a wee bit old (almost 40 years old to almost 60). The military justice system has undergone quite a few changes and improvements since then. What might have been correct then (certainly the 50s were far from adequate), isn’t so much now. So those quotes aren’t particularly persuasive IMO to your argument. The closest you can come today is the “rough justice” quote from the CJ a few years ago but I would argue that quote was as much ignorance of military law and the changes it’s undergone as any special insight.

    Do you really believe that today courts-martial are “singularly inept to deal with the nice subtleties of constitutional law?”

    I see no evidence of that, the courts-martial and military appellate courts deal with it on a fairly regular basis, and while I don’t always agree with the results, that doesn’t mean the subtleties were ineptly dealt with…I disagree with the Supremes almost as often.

    To your first response, sounds to me like you are saying any infirmities are more about people than the system. You say the opposite but it seems to me ANY justice system can be imperiled by people of ill will. Our civilian history is littered with cases of courts intruding on the Constitution and having to be reigned back in (and sometimes never being reigned in).

    If the standard is that a justice system has to be “human-proof” then you’ve set up a pretty impossible standard.

  33. Zeke says:

    @stewie:

    Do you really believe that today courts-martial are “singularly inept to deal with the nice subtleties of constitutional law?”

    Yes:  I think a principle subtlety of constitutional law, specifically of “due process,” is that a person should not be made to suffer criminal conviction or punishment unless their guilt has been adjudicated by a panel of members of sufficient size and constitution to engage in meaningful deliberations.  Structurally, due to small members panels, a lack of a unanimity requirement, and the influence of rank and privilege among members of the court, meaningful deliberations are impossible in a trial by court-martial.  Thus, I believe courts-martial, as an institution, are singularly inept to deal with at least that constitutional subtlety… they are incapable of constitutionally-reliable fact-finding.

    I see no evidence of [ineptitude], the courts-martial and military appellate courts deal with [constitutional law] on a fairly regular basis…

    Military trial and appellate judges deal with constitutional subtleties on a regular basis, that is true.  But, I don’t think that is what the quote in Schlesinger is getting at.  Surely, even then, there were lawyers of great skill in the military justice system capable of high-order constitutional thinking.  The problem I think Schlesinger is referencing is the court-martial system’s structural ineptitude – it’s hand-selected members, small panels, lacking unanimity, and rank bias, is incapable of meaningful deliberation.  Because of all of that, I think it is incapable of dealing with the ultimate constitutional subtlety – the need to render a “fair” trial. 

    If the standard is that a justice system has to be “human-proof” then you’ve set up a pretty impossible standard.

    Certainly it is impossible to render a justice system “human proof,” but the impossibility of achieving the desired end-state does not justify abandoning the pursuit altogether.  Indeed, what purpose other than “human proofing” is served by the common jury’s procedural safeguards?  Requiring sufficiently large panels, unanimity, and equality among jurors is designed to solely to suppress their individuality and reign, to the greatest extent possible, the wisdom (and justice?)  of the masses.  It’s an exercise in democracy and legitimized governance, as well.  All of which, though impossible to achieve in full perfection, are worth pursuing.  All of which, the military justice system, in my estimation, fails to even acknowledge has value.

    You make some good points about flaws in our system, like others have, but you wrap them up in hyperbole that makes true IMO your prediction that your voicing your objections won’t change anything.

    I’ve been thinking about this quote a lot, since you said it.  I still concur that my posts contain hyperbole; and that fact does leave a bitter taste for me.  Your caution continues to be well-received.  But, I’m not convinced that hyperbole is ineffective.  Certainly, the advocates for changing the UCMJ to strip rights from the accused of late have not relied upon cold logic to achieve their goals; and their shrill cries for denying rights to accused have been quite successful, as far as I can tell, notwithstanding the fact that this is a system where an accused’s rights were already fundamentally hobbled (IMO) to begin with.  I think if more rational folks, who paint themselves as defenders of the status quo, had fought back against the ranting with a little hyperbole of their own, then perhaps some of this “reform” could have been avoided.  I fear we all might have been too timid to be trusted with something as powerful as a parallel system of justice… particularly one that (IMO) was perilously balanced to begin with.

  34. stewie says:

    More hyperbole/absolutes from my POV…when you use words like incapable or impossible, it’s hard to take you seriously, which is too bad because I think you highlight legitimate issues/problems that continue to need fixing.
    Panels are not incapable of meaningful deliberation because they have 7 people instead of 12.  As you noted earlier, 6 or more is constitutional, and in my experience, nearly all of my GCMs on both sides of the aisle have had more than the bare minimum 5 because most jurisdictions start off with at least 10 people sitting on the panel, and you don’t usually get 4 folks kicked off, again, in my experience.  I suppose it would be interesting for someone to do an analysis of the average panel size, but I suspect it would be higher than 6.0 for GCMs.
    I don’t think rank and privilege have the impact you think on the panels.  I DO think the environment is more and more having an impact, but that wouldn’t change if you had everyone on the panel of the same rank or you had folks come in from different units wearing suits with no rank.
     
    I don’t believe the lack of unanimity renders panels incapable of meaningful deliberations.  I think panels get it right more than wrong, at least on the conviction side and given the winners that sit on civilian panels, given a choice, I think I’d rather be judged by the former (particularly if I were a person of color).
     
    I could go on point by point, but your use of absolutes makes it difficult because I don’t think you actually believe it…because again, why are you participating in a system you think is “incapable” of meaningful deliberations, and where they are “incapable” of constitutionally reliable fact-finding?
     
    You talk about civilian juries, but you neglect the downsides…racism, ignorance, lack of education, ulterior motives and other infirmities that come from a group of folks picked at random, and unable to get out of jury duty.  I’m not sure randomness, unanimity, and larger pools make up for it nearly as much as you think.
     
    No, the folks damaging our system aren’t relying on logic (or at least not logic we like much) but that doesn’t mean the response is something other than logic.  Using hyperbole/absolute statements isn’t going to work in this case.  The powers driving this don’t care much for the rights of the accused for example or at least not nearly as much as they care about stamping out sexual assault.  Hyperbolic arguments about how our system is incapable are either going to be met with a silent “good!” or with a “ok, if you are right, let’s just go to the civil system then, goodbye military justice.”
     
    And for reasons I’ve listed here and elsewhere, I don’t think that’s the boon for justice or accused (or alleged victims or the command) that perhaps they or you or others seem to believe.

  35. Zeke says:

    @stewie:
    I concede my absolutist language, as absolutism often is, is probably lacking in accuracy.  There are, as we all know, always exceptions.  I’m sure there are plenty 8-9 member court-martial panels out there who render reliable findings and sentences despite the adverse impacts of lacking unanimity and lacking equality among the members.  It is troubling, though, that Congress has systemically inserted those hurdles to effective deliberations.  By removing a unanimity requirement, Congress has permitted dissenting voices in the deliberation room to be disregarded.  Certainly, not all members panels will disregard their dissenting members, and may engage in meaningful deliberations anyway.  But, the fact that full deliberations depend on members acting despite the system’s structure, rather than because of it, is disconcerting.  Likewise, I am sure that some panels might follow instructions and disregard rank in their deliberations despite the fact that it permeates the rest of their existence as military members.  But, just trusting human beings to break off from the behaviors they have been carefully conditioned to engage in requires more faith (naivete?) than I can personally muster.
    Regarding the inadequacies of civilian jurors you mentioned, “racism, ignorance, lack of education, ulterior motives, and other infirmities:” You assume that military panels are devoid of such infirmities.  My experience having worked in other career fields, having been a civilian, and now as a JAG, is that military members are just as susceptible to racism, ignorance, and ulterior motives as civilians … they’re just better at concealing those biases, and we’re not permitted to fully voir dire them to uncover those biases.  Since we don’t find bias often, we’re tempted to presume it doesn’t exist, or that it is at least less prevalent.  But, if counsel were permitted by military judges to truly dig, with questionnaires and other methods, in the same way judges allow civilian jurors to be grilled about everything from their TV watching habits to the way they spent their summers growing up, then we would find less grounds for assuming that every military court martial member is of noble character.  We would find that they are equally as racist and otherwise ignorant as their civilian counterparts.
    I’m a good case in point regarding military member’s personal hidden biases.  Having been raised by and around poorly educated working class poor people, I have more, not less, faith in their inclination to apply common sense and to accurately perceive events.  If I’m asked to determine who has the more accurate accounting of a certain event between two witnesses of equal integrity, I’m more likely to rely upon the recollection of the grizzled E-7, who didn’t get an education until it was necessary for promotion, then I am the brilliant O-5, who has excelled in his educational pursuits and has also excelled as an officer but has little hard-knock life experience.  In voir dire of me in a military court-room, you’d be unlikely to uncover that bias because the military judge would not likely permit you to ask me questions designed to elicit such information.  If your case turned on the testimony of the educated O-5, and that conflicted with the grizzled E-7’s testimony, you’d lose me.  If I’m able to be persuasive in the deliberation room, then you might lose the case as well.  It’s not that I’m less biased than civilians, it’s that you’d be unlikely to ever find out.

  36. stewie says:

    We must come from different worlds then because while no one would be silly enough to suggest panels are devoid of racism et al, given both the nature of the military, it’s history as being a leader in integration, and the more educated nature of our panels (nearly all of them have at least a Bachelor’s degree) I find the idea that they are just as racist etc highly unsupportable.
     
    That grizzled E7 you speak of probably has a Bachelor’s Degree, extensive military education, and is in his late 30s or even early 40s…not quite the same as the average juror.
     
    You appear to have a lot of biases against the military in general, which is fine, certainly I don’t think the military is all sunshine and puppies either, far from it, but I also continue my “cynicism” into the civilian realm as well.

  37. Zeke says:

    it’s history as being a leader in integration

    In every branch other than the Army, minorities continue to be woefully underrepresented in the officer grades and over-represented among enlisted grades.  For example, less than 6 percent of Air Force officers are black but nearly 17 percent of its enlisted force is black.  In the navy, 8 percent of its officers are black v. 19 percent of its enlisted folks.  The Marine Corps has 5.6 percent black officers, and 10.9 percent black enlisted.  http://www.militaryonesource.mil/12038/MOS/Reports/2011_Demographics_Report.pdf
    Contrast that with the national demographics – our population is 13 percent black.
    http://quickfacts.census.gov/qfd/states/00000.html
     
    We’re not integrated.
     

    That grizzled E7 you speak of probably has a Bachelor’s Degree

    Not unless he’s the exception.

    Senior NCO Tier
    16.27% completed some college
    52.524% have associate’s degrees
    23.811% have bachelor’s degrees
    7.325% have master’s degree
    0.065% have professional degrees

    http://www.afpc.af.mil/library/airforcepersonneldemographics.asp

    You appear to have a lot of biases against the military in general, which is fine, certainly I don’t think the military is all sunshine and puppies either, far from it, but I also continue my “cynicism” into the civilian realm as well.

    I don’t harbor anti-military biases.  I just don’t harbor pro-military biases, either.  And I don’t ascribe to the mythology that military members possess wisdom, education, or judicial temperament beyond their civilian counterparts.  I believe military members are products of their civilization, rather than exceptions from it.  

  38. Charlie Gittins says:

    Regarding military panel members . . . .   I had the opportunity to participate in a capital member selection in an Army case a couple of years ago.  We went through over 65 members to seat 12.  The lowest ranking member we voir dired was an E-7 and the most senior were several Colonels (who just happened to be rated by the CA, of course).  Because it was a capital case, the judge gave us more latitiude and time than I would have expected in a run of the mill court-martial.  While there were certainly some members who I thought were probably middle of the road and less likely to be unfairly biased, I was shocked at some of the displays of bias and a basic lack of intelligence as well as cavalier attitude to putting someone to death.  We had several SGMs who I doubt could do simple long division if their lives depended on it.  How they graduated from the SGM Academy is a real question in my mind.  Even the prosecutors were in disbelief of the lack if basic intelligence on a couple of the SGMs and we jointly agreed to excuse these members without going throuth the more than an hour we were alotted to voir dire them.  There were clearly biased members; they had been inculcated to believe that if the accused was sitting before them, he must be guilty.  We were able to ask enough questions, that were carefully prepared with the assistance of a jury consultant to ferret them out as well.  From my experience the “Blue Ribbon” military members mantra is a fallacy.  Given the opportunity, which MJs rarely provide, military members are at least as biased and unintelligent as civilians, but they are definitely better able to hide their biases based on their military training and the MJs are not willing to allow counsel, generally (not always), to drill down to ascertain character and core beliefs.  We were lucky; we found at least one member who questioned the Government’s evidence on the merits and we didn’t have to find out how the not so subtle pressure of a DP sentence deliberation might affect that member’s view after having questions about the merits. 

  39. stewie says:

    On the NCOs, you list all senior NCOs, but we know all senior NCOs aren’t on the panel.  They are pre-selected by the BDEs, and then selected by the CA, and we know education is one of the A25 criteria.  So just citing those numbers doesn’t tell the full story, but even then, that says that almost 85% of the enlisted will have at least an associates degree, and 100% of the officers at least a bachelor’s degree.  On an officer panel of 9, that means 6 will have a bachelor’s degree minimum, and likely one more, and the remaining two will have at least an associates degree.
    I would still maintain that’s far better than what ends up on a civilian jury by far.
     
    As for integration, I didn’t say it was perfect, I said it led the way.  If you think civilian society has the whole integration thing licked better please show me, I’d love to feel better about it.  The entire society still lags in this area as well as rights for women, and GBLT. Military members are products of society, but they also drive society.  Which happened first, integration of the military or public schools?  Do you not think the integration of women into the military drove women’s rights?  Do you not think the repeal of DADT had an affect on the quickly blooming marriage laws for gays?
     
    I don’t think all military members possess wisdom, education, etc beyond all their civilian counterparts, I do believe the subset of folks typically selected for panel duty (BN/BDE CDRS. SGMS, 1SGTs being the bulk) possess it on average more than your average civilian jury of folks not smart enough or important enough to get out of jury duty.
     

  40. stewie says:

    Oh, and since I’m the Army, I am limited to talking about minority representation in the Army…I have no idea about the other services although I doubt it’s a fundamentally different experience…except maybe the Marines, those guys are crazy.
     
    (I kid, I kid).