A new prosecutor once complained to me about a certain celebratory tradition of Marine Corps defense counsel, claiming that it is unprofessional bragging. “When you lose 90% of the cases,” I responded, “you really need to celebrate the wins.”
And the defense really does lose (that is to say, there is a conviction) in about 90% of courts-martial. For instance, the FY13 report of the Code Committee provides the following numbers for the period October 1, 2012 to September 30, 2013:
The Army tried 1,087 general and special courts-martial, resulting in 989 convictions and 98 acquittals (a 91% conviction rate).
The Navy tried 293 general and special courts-martial, resulting in 262 convictions and 31 acquittals (an 89% conviction rate).
The Marine Corps tried 427 general and special courts-martial, resulting in 367 convictions and 60 acquittals (an 86% conviction rate).
The Air Force conducted 619 general and special courts-martial, resulting in 525 convictions and 94 acquittals (an 85% conviction rate).
The Coast Guard conducted 23 general and special courts-martial, resulting in 20 convictions and 3 acquittals (an 87% conviction rate).
As the 2,163 courts-martial resulting in convictions in FY13 work their way through the military appellate system, we will have a reason to discuss maybe 100 of them on this blog. But those 100 or so cases will be notable because of asserted errors for which a remedy will benefit the accused (and, if you believe that military justice is a zero-sum game, hurt the Government).
We won’t discuss the vast majority of cases – especially the cases with airtight investigations, overwhelming proof of guilt, and flawless prosecutions – because there will be nothing much to discuss. Frankly, from an appellate perspective, those cases are boring.
But when we wade into the provocative muck of these other cases – the ones with judicial bias, prosecutorial misconduct, insufficient evidence, issues of first impression, and just plain bad lawyering – we’re inevitably talking about reasons why seemingly-bad people should be set free. Intelligent conversation about these cases requires looking beyond the bad things that the people in them did (or at least were convicted of doing) and focusing on the system that is punishing them and the kind of justice that it provides.
My contributions to this blog aren’t defense-oriented nor are they prosecution-oriented. I’m interested in the law, I want to get it right, and I write about cases that intrigue me. That’s my bias. And I suspect that the other contributors, and the vast majority of our readers, feel exactly the same way.