One of the many reasons (in addition to those mentioned by others) sentences are low in the military justice system, compared to our civilian counterparts (including our state counterparts) is that many TC’s are ill prepared for a robust sentencing case.  They simply have so little actual trial experience that they put all their eggs into getting the conviction.  They don’t really know what cases are worth, as they have nothing to bounce the sentence off of.  To young and inexperienced counsel, they often times ask for the max in a case that is at best a serious mast case.  Furthermore, they have no idea what other similarly situated accused have received in the past, so they essentially wing it. 

They don’t have the luxury that state and federal prosecutors have in terms of experience, AND, they don’t have a pre-sentence report prepared by Parole/Probation between the time of the conviction and sentencing.  

Of course, these comparisons are strained, because many (if not most) civilian defendants have criminal records by the time they “graduate” to felonies (we all know of exceptions to that general observation).  Prior convictions generally jack up the final sentence. 

Although I am not proposing these changes, certainly an alternative to the current structure is to require unanimous verdicts AND establish a determinate sentencing scheme, much like they have in California.  The result would be a substantial increase in the number of hung juries, and, for those convicted, more uniformity across similar crimes.  

For example, in California a conviction for a petty theft with a prior (a prior conviction for misdemeanor petty theft) exposes the defendant to one of three possible sentences: 18 months (called “the low”), 2 years (called “the mid”) or 3 years (called “the high”).  In California, judges do the sentencing, but there is no reason you could not allow the members to make that decision vice the judge.  In many crimes, the judge has the option of awarding the convict probation in lieu of a jail sentence.  The judge would sentence the defendant to prison for a period of years, suspend the sentence, and place the defendant on probation for two or three years.  Successfully complete probation and you get out from under your sentence.  Violate probation, and you may go to jail at the conclusion of the probation violation hearing.  (Parole and probation is an entirely separate subject, and problematic in the military justice system.) 

So, in the military context for example, a conviction for assault with a deadly weapon (current statutory max is 3 years) could expose an accused to a jail sentence of:  no time; 1.5 years; 3 years.  

Policy makers would have to weigh the pros/cons of setting determinate sentencing schemes, if they went down that road in the first place. 

There is no perfect sentencing system, at the state, federal, or military level; however, there is much room for improvement in our military system.  We have a unique justice system for lots of good reasons, however, and should be wary about trying to civilianize it. 

BZ to Colin for starting this conversation.

This is a significant development, and a clear break from the Bush administration’s policy with respect to al-Marri.

As readers of this blog are well aware, the Supreme Court had taken up the al-Marri case, and is currently scheduled to hear his case this spring.

Recall that President Obama issued a series of Executive Orders during his first week in office. One aspect of that flurry of orders required an analysis of the al-Marri case. If the news stories are true—that he is about to be indicted—it appears that analysis concluded that he could be safely tried in federal district court.

Many of us who have been closely involved in detention-related matters, both inside and outside of the government, are not surprised at this development. Just yesterday, I mentioned at a panel event at the National Press Club that I believed that the Obama Administration would attempt to resolve the al-Marri case before it was argued before the Court.

Al-Marri’s attorney, Jonathan Hafetz, now with the ACLU (formerly with the Brennan Center) told the Washington Post (in the article linked above) that the decision to charge his client “is an important step in restoring the rule of law.” He added, “But it is vital that the Supreme Court hear the case because it must be made clear once and for all that indefinite military detention of persons’ arrested in the U.S. is illegal and that this never happens again.”

As stated above, al-Marri is currently detained in the Navy brig in Charleston, South Carolina. Once indicted, al-Marri would presumably be brought to a federal facility in Illinois, where his conditions of detention would be different from those he enjoys in the brig.

For those interested in some of the evidence allegedly in the possession of the government on al-Marri, take a look at the previously-classified Declaration of Mr. Jeffrey N. Rapp, Director, and Joint Intelligence Task Force for Combating Terrorism, found here.

If charged with material support for terrorism (as news outlets are suggesting he will be) and convicted, al-Marri could face a sentence of up to life in prison.

Ironically, if acquitted of all charges in federal district court, and the U.S. Supreme Court hears his case, and the Court upholds the Fourth Circuit’s opinion, al-Marri might find himself right back in military detention as an unlawful enemy combatant.

According to a story today in the Miami Herald, military commissions judge Colonel Patrick J. Parrish barred Hartmann from acting as the legal advisor in the case of United States v. Omar Khadr. The Herald reports that Colonel Parrish found that Hartmann appeared to have lost his neutrality and that there is a perception that he favors the prosecution.

This is the third military commissions’ judge, in as many cases, to find that Hartmann has abused his role as the Legal Advisor. Hartmann was previously slapped down by two separate judges in the Hamdan case and the Jawad case.

It seems to me that the trend of judges slapping Hartmann down will continue, and for good reason. Judge Keith Allred, the judge in the Hamdan case, held a hearing about Hartmann’s behavior, and, as a result of that hearing, issued devastating findings of fact and conclusions of law against Hartmann. You can’t ignore the record.

It is quite possible that every case that Hartmann touches will create a big fat hanging curve ball of an appellate issue. If that is true, and many think that it is, then what value is there in keeping him in the position as Legal Advisor?

In the past (NPR’s Diane Rehm show on July 22, 2008) I have called for Hartmann to be thanked and excused – - -fired – - from his present position. He is a legal liability, a burden on the commissions process itself. I still believe that he should be relieved of his duties.

As an alternative to firing Hartmann, they could bi-furcate the role of the Legal Advisor, since the Legal Advisor wears two hats. Hartmann could wear one hat; the one he has most closely associated himself with—that of energizing, educating, and working closely with the Chief Prosecutor (but not stepping on the independence of the Chief Prosecutor, or micromanaging the prosecution’s efforts). The other hat should go to the new co-Legal Advisor, who would dispense independent legal advice to the Convening Authority. It’s not perfect, but it might work.

The DOJ would bring charges under the Military Extraterritorial Jurisdiction Act (MEJA).

The Congressional Budget Office issued a report recently about the use of contractors in Iraq. In that report, the CBO said, amongst other things, that “MEJA does not apply to civilians working…for federal departments or agencies other than DOD.”

The Blackwater security guards were working as security contractors for the Department of State.

Some argue that MEJA does not cover the Blackwater security guards, and thus DOJ cannot bring charges against the guards for the alleged incident last year in Iraq. Others argue that the 2005 amendment to MEJA expanded its’ provisions to include contractors “supporting the mission of the Department of Defense,” and thus the contractors are subject to prosecution under MEJA.

What do you think?

In the coming months, I plan to suggest improvements to the UCMJ, all of which come actual state practice. My suggestions will cover changes to the evidence rules, the punitive articles, procedural rules, and other related areas. One goal is to stimulate an intelligent dialogue, and inform decisionmakers about what is happening- – -and has been happening- – -in the states. My ultimate goal is to improve the criminal justice system in the military, for victims and defendants alike.

An obvious place to start is in the area of domestic violence and sexual assault cases. I start with the former.

As a former local, state, and federal prosecutor (and military defense and trial counsel), I think it is obvious that our UCMJ is in need of updating and revision. At the outset let me be clear: the UCMJ (to include the MRE’s and RCM’s) is a remarkable and carefully crafted instrument, and any changes to the UCMJ should only be made after great thought and deliberation. That said, there is much room for improvement.

Typically, it has been the states (not the federal government or the military) that have been at the forefront of advancements in criminal law, evidence code revisions, and the creation of appropriate criminal laws. For many reasons, it takes the federal government years (sometimes) to recognize- – -if ever- – -advances in various states’ criminal justice initiatives. Changes to the UCMJ typically occur after the federal government passes new federal rules (under 18 USC or FREs). There are many reasons why the feds lag behind the states in this respect. And there are certainly plausible reasons why the committee that considers changes to the UCMJ – - -the Joint Services Committee, an arm of the DOD General Counsel – - -looks to the feds before recommending changes to the UCMJ.

In some instances, however, that delay is unwarranted. Indeed, it has harmed the administration of justice in the military in some cases. The Joint Services Committee should look at best practices around the country for guidance, not just the federal government.

In 1995 the California legislature passed Evidence Code section 1108, which allowed the prosecution to admit evidence of another sexual offense against the defendant in a sexual assault case (so-called “propensity” evidence). Congress enacted FRE 413 and 414 in 1994, and eventually it was adopted for court-martial in 1996. Fine, that covers sexual assault cases, but what about domestic violence cases?

In 1996, the same California legislature passed a similar provision – - -Evidence Code section 1109 – - -which allowed the admission of evidence that the defendant committed acts of domestic violence in other domestic violence cases. Here is how that rule works in a typical case: defendant assaults victim; victim calls 911; police show up and take statement from crying victim; police document crime scene and take pictures of any injury. A misdemeanor charge of assault is filed. Meanwhile, the victim and defendant reconcile, and the victim recants or refuses to testify. The prosecutors attempt to locate previous wives or ex-girlfriends (or the like) of the defendant, and ask them about any potential violence. At trial, the government calls previous girlfriends of the defendant who the defendant abused. They testify, in detail, about the prior assault. The government also puts on all other evidence of the assault, and puts into evidence the 911 call by the victim. The victim refuses to testify, and the government rests. At closing argument, the government argues that the defendant has a propensity to commit domestic violence in this case, because of the prior victims. Like all cases, the jury convicts sometimes, and acquits in other cases.

Anyone who has spent years actually prosecuting or defending domestic violence cases, sexual assault cases, and sex abuse cases, knows that these propensity rules of admissibility make sense. These defendants are different, and the normal rules underlying the rationale of MRE 404b (excluding propensity evidence ) ignore that reality. Yet, we have no 1109 equivalent in the military. The lack of such a rule has harmed, and continues to harm victims of domestic violence in the military. That needs to change.

Penal Code 591 and 591.5 – - -When I was a Deputy City Attorney in the San Diego City Attorney’s Domestic Violence Unit (working for renowned domestic violence prosecution visionary Casey Gwinn), it was quite common to handle cases of simple assault where the accused had (in addition to assaulting the victim) pulled the phone out of the wall or disabled any other communications device to prevent the victim from reporting the crime to law enforcement (or anyone for that matter). Evidence in those cases would often include a 911 call; a crying victim; slight injuries; a house that was torn up, and; a phone cord pulled out of the wall. By the time you got to trial, the victim had recanted and refused to testify. We routinely called previous girlfriends to the stand in our case-in-chief under Evidence Code section 1109. They testified about assaults the defendant committed against them. Often, they brought pictures to court of the abuse inflicted by the defendant. That evidence was powerful. Without it, juries had no idea of the propensity of the accused.

We had another tool, one which we need in the military. California Penal Code section 591 makes it a crime to willfully and maliciously remove, injure, or obstruct a telephone (or any communications device). And, because of the increased use of cell phones by citizens, the California legislature enacted Penal Code section 591.5 in 2003—which makes it a crime to unlawfully and maliciously remove, injure, destroy or damage a cell phone with the intent to prevent the use of the device to summon assistance or notify law enforcement. The result: victims are empowered, and more accused’s are held accountable—-and get help for their actions. As in many domestic violence simple assault cases, the government loses the simple assault charge, but wins the disabling the communications device charge. And, not surprisingly, those reluctant victims often thank the prosecutor after the conviction. We need similar provisions under the UCMJ.

In the coming weeks and months, I plan to propose other common sense improvements to the UCMJ. I recognize that the aforementioned improvements are California-centric, and prosecution-centric. Over time, however, I plan to propose other improvements drawn from other states, and ones that could easily be characterized as “defense oriented.”

The goal is to make our criminal justice system in the military reflect the very best that our Country has to offer. I welcome your thoughts and remarks, and look forward to an intelligent dialogue.