Well son you got a statement you’d like to make
Before the bailiff comes to forever take you away
Now judge judge I had debts no honest man could pay
The bank was holdin’ my mortgage and they was takin’ my house away
Now I ain’t sayin’ that makes me an innocent man
But it was more ‘n all this that put that gun in my hand
Well your honor I do believe I’d do better off dead
And if you can take a man’s life for the thoughts that’s in his head
Then won’t you sit back in that chair and think it over judge one more time
Let em’ shave off my hair and put me on the execution line
Bruce Springsteen, Johnny 99, on NEBRASKA (Columbia Records 1982)
The most recent publication of the Air Force Law Review contains an article delving into the propriety of allowing convicted servicemembers to make unsworn statements before sentencing in trials by court-martial. The article is by Air Force Major John S. Reid and is entitled “Undoing the Unsworn: The Unsworn Statement’s History and a Way Forward,” 79 A.F. L. Rev. 121 (2018).
Major Reid’s article notes that, until 1928, courts-martial were unitary proceedings where, if the military panel found the accused guilty, they immediately also adjudged a sentence. There was no separate sentencing proceeding. Undoing the Unsworn, at 136. Additionally, prior to 1878, in a court-martial, the accused had no right to testify in his own defense, and he also had no right to defense counsel until 1920. Id. at 131. In those respects, our early courts-martial closely resembled British common law trials. It is fitting, then, that our courts-martial adopted common law approaches to protecting the accused. To that end, the court-martial system adopted the common law right of allocution early. Id. at 124. The (usually) unrepresented military accused was permitted to make an unsworn “concluding statement” to the court-martial prior to deliberation on findings. Id. at 131. His statement was largely unfettered – and he could even plead innocence – so long as he veered clear of “disrespectful language toward superiors or the court, [or] any insubordination and defiance of authorities.” Id. at 132.
Of course, the military justice system did not, and still has not, made use of the greater measure the common law employed to protect accused persons. Our system has not availed itself of “the great bulwark of [our] civil and political liberties” – jury trials. Apprendi v. New Jersey, 530 U.S. 455, 477 (2000). A court-martial panel may have its virtues, but, as many commentators have noted – for example: here, here, and here – it is no jury. A court-martial panel is comprised entirely of the accused’s superiors, is not randomly selected, and is instead appointed by a convening authority “who is not a judicial official, exercises command authority and responsibility over the accused, over the members of the panel, and over the discretionary prosecutorial decision to refer the charges to a court-martial.” United States v. Benedict, 55 M.J. 451, 456 (C.A.A.F. 2001)(Effron, dissenting). Additionally, as discussed in this column recently, the American military justice system has also declined to adopt a truly independent judiciary.
Nonetheless, while those more substantive protections are left unemployed, our military jurisprudence has fully embraced the minimal protection offered by giving the accused robust allocution rights, which we now call “unsworn statements.” Major Reid’s article posits, however, that we may have embraced that protection too heartily. His article suggests that accused servicemembers now, unfairly, are permitted to use their mouths and pens to engage in “jury nullification.” Id. at 122, 131. Of course, one might reasonably question who a court-martial panel is more likely to be improperly influenced by – the convening authority that commands them, or an accused they just convicted of a crime and who is now spouting off before them, not even under oath.
Recent history suggests that unlawful command influence and the misconduct of government counsel poses the greater threat to the integrity and respectability of the military justice system. For example, in recent memory, we’ve seen cases like: United States v. Barry, 78 M.J. 70 (C.A.A.F. 2018) (CAAFlog case page); United States v. Riesbeck, 77 M.J. 154, (C.A.A.F. 2018) (CAAFlog case page); United States v. Chamblin, No. 201500388 (N.M. Ct. Crim. App. 2017) (discussed here); United States v. Claxton, 76 M.J. 356 (C.A.A.F. 2017) (CAAFlog case page); United States v. Chikaka, 76 M.J. 310 (C.A.A.F. 2017) (CAAFlog case page); and United States v. Boyce, 76 M.J. 242 (C.A.A.F. 2017) (CAAFlog case page). We have also seen criticism by the DoD Joint Proceedings Panel, and in articles featured here, here, and here.
That is not to say that the military jurisdiction’s treatment of an accused’s unsworn statements and how to deal with inappropriate content in those statements is not important. Though, it is possible that CAAF’s approach is sufficient to address that evil:
We have confidence that properly instructed court-martial panels can place unsworn statements in the proper context, as they have done for decades.
United States v. Grill, 48 M.J. 131, 133 (C.A.A.F. 1998).
The harder question may be how to deal with inappropriate content in the victim’s newly-minted right to allocution in courts-martial. Recent cases like United States v. Hamilton, __ M.J. __, No. 18-0135/AF (March 1, 2019) (CAAFlog case page), have tried to wrestle with that complex problem set, which presents a different animal altogether. A victim in a criminal trial in the Anglo-American tradition speaks for the government, not for themselves. At common law, “victims were allowed to speak in support of the Crown in ‘keeping the King’s peace.’” Undoing the Unsworn, at 162 (citation omitted). That makes sense because the “government’s primary objective” in a prosecution is “punishment of the perpetrator” rather than “restitution to the victim.” Mark Stevens, Victim Impact Statements Considered in Sentencing: Constitutional Concerns, 2 Cal. Crim. L. Rev. 3 (2000), ¶ 2. Given that dynamic, which is not present when an accused speaks, allowing victims unfettered allocution rights, cloaked in the legitimacy of the government’s power and shepherded by the government’s counsel, is a recipe for abuse. Our history bears that fear out:
I am wronged. It is a shameful thing that you should mind these folks that are out of their wits.
That is testimony uttered by Martha Carrier after the ramblings of child “victims” who claimed that they were – while in the courtroom – being invisibly “tormented” (pinched, pricked, and choked) by the defendant. On that “spectral evidence,” on August 19, 
1962, “Goody” Carrier was hanged for witchcraft by the Commonwealth of Massachusetts’ General Court of Oyez and Terminer. She was hanged by the State – not by her supposed victims, whose nonsense the Court had allowed. Apocryphally, she went to the gallows still protesting her innocence of a state-sponsored “falsehood so filthy.” Perhaps that’s the sort of thing we ought to be most concerned about when it comes to unsworn statements, and not that an accused will have “unfair” sway over the government’s hand-picked court-martial panel.