Unequal Justice
Military courts are stacked to convict--but not the brass. The Pentagon insists everything's just fine
Commanding officers, known as convening authorities, wield far more power than any prosecutor in any of America's civilian courts. They decide whether to prosecute a service member. They handpick jury members. They decide whether to approve, disapprove, or amend guilty verdicts and sentences issued by juries and military judges. Critics say the power to pick jurors is the Achilles heel of the system, likening it to allowing a prosecutor alone to pick the jury in a civilian case. Military appeals courts have criticized commanders for "unlawful command influence," or manipulating the process to convict an accused member. Despite those warnings, legal experts say, military lawyers have prosecuted only one command-influence case--and that was nearly 50 years ago.
The system heavily favors prosecutors. Trial by court-martial almost always results in a guilty verdict. Most recently, the conviction rate was nearly 100 percent. The Army, Navy, Marine Corps, and Air Force court-martialed 7,603 members in the one-year period ending Sept. 30, 2001. Some 97 percent, or 7,373 members, were convicted. The Coast Guard, which also operates under the Uniform Code, convicted all 50 people it tried by court-martial in that same period.
All the armed services have a real, if unwritten, double standard for criminal prosecutions. Military prosecutors can throw the book at enlisted men and women, but the services tread lightly when it comes to generals and admirals. Some have been disciplined and forced to retire, but the military has court-martialed only three general officers--two Army generals and an admiral--in the past 50 years. Says Glenn MacDonald, a retired Army major who runs a Web site, militarycorruption.com: "We call it `different spanks for different ranks.' "
Defendants in military courts are tried by a jury of their superiors--not, as in civilian courts, a jury of their peers. The code requires convening authorities to select jurors "best qualified" by "age, education, training, experience, length of service, and judicial temperament." Officers who outrank the accused dominate jury panels. In many cases, jurors know the accused, the prosecutor, the military defense lawyer, and the witnesses. In most cases, however, trials are conducted by a judge with no jury.
Defendants can be convicted of criminal charges by just a two-thirds jury vote, even in murder cases. Marine Lance Cpl. Shannon Schlamer is serving a life term in prison, convicted of murder by a 6-3 vote, according to his attorney, Richard McNeil. In death penalty cases, 12-member jury panels and a unanimous vote are required.
The court-martial system is just a small part of the disciplinary system within the armed services. Thousands of personnel are discharged in administrative proceedings each year, many for "other than honorable conduct." The Army discharged 16,208 soldiers "in lieu of trial by court-martial" and another 22,768 soldiers for "misconduct" in the five-year period ending Sept. 30, 2001. The services also impose what is known as Article 15 "nonjudicial punishment" for misconduct or disciplinary infractions like disobeying an order. The punishment can include loss of pay, even a short period in custody, but it also can lead to administrative discharge. Commanders imposed Article 15 punishments in more than 85,000 cases in the year ending Sept. 30, 2001.
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