Unequal Justice
Military courts are stacked to convict--but not the brass. The Pentagon insists everything's just fine
Court cases detail the problem:
Item: John Plumb Jr., an Air Force captain and criminal investigator at Malmstrom Air Force Base in Montana, was convicted of adultery and fraternization and ordered dismissed from the service. In a blistering opinion in December 1997, the Air Force Court of Criminal Appeals set aside Plumb's conviction, saying his court-martial was "permeated" with "numerous and egregious acts" and improper command influence. The court said that Air Force defense witnesses were intimidated and that "commanders and supervisors alike warned witnesses away from the trial." Air Force investigators, it wrote, "prepared an inaccurate transcription" of a wire surveillance that implicated Plumb "in crimes he did not commit." The judges concluded: "We have never seen a case so fragrant with the odor of government misconduct." The Air Force did not retry Plumb.
Item: A Marine Corps colonel convened a special court-martial, a less serious proceeding than a general court-martial, to hear fraternization charges against a female warrant officer. One witness said the chief of staff for the base commander paid a visit to the colonel, telling him angrily, "I want her out of the Marine Corps," and calling the court-marital proceeding "the last nail in her coffin." The colonel withdrew the special court-martial finding, and the warrant officer was tried at general court-martial, convicted, and dismissed from the Marines.
Item: Citing an "atmosphere of unlawful command influence," a military judge transferred the court-martial proceedings of a military doctor to another command. The judge ruled last year that Gen. Charles Krulak, then the Marine Corps commandant, and other officials might have improperly sought to influence the referral of the case to a court-martial.
In numerous appellate court decisions, the "appearance" of improper influence by commanding officers is cited rather than actual misconduct. Why? Such influence "is difficult to see and harder to prove," Judge Eugene Sullivan of the Court of Appeals for the Armed Forces wrote in December 1999. The court earlier warned that the "appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial."
Top JAG officials maintain that command influence seldom takes place. When instances of it are identified, they say, the remedy is to take away from a commanding officer the power to convene a court-martial. Most often, says Rear Adm. Michael Lohr, the Navy judge advocate general, commanding officers get into trouble when they make careless pretrial statements that might suggest an attempt to manipulate a court-martial.
But even when there is no such attempt, a commander's determination to pursue an underling can have enormous consequences. Take the case of Gretchen Payne, an Army staff sergeant with 16 years of service. Payne's legal troubles were directly attributable to her commander at Fort Jackson, S.C. The Army believed him, not her, and as a result, Payne, a married mother of two, was court-martialed for sexual misconduct. Her battalion commander, Lt. Col. Samuel Hawes, told Army investigators that he walked into an office at Fort Jackson in July 2001 and saw Sergeant Payne and Sgt. 1st Class Curtis Brown engaged in "consensual sex." Payne maintained she had been assaulted; Brown said the encounter was consensual, but an Army polygraph indicated "deception" on his part. Nonetheless, the Army went ahead with Payne's court-martial--even though Brown had been disciplined in the past for aggravated assault. At trial, an Army investigator testified for the defense that Brown had admitted lying on a critical point. Soon after, a five-member jury panel acquitted Payne. The Army says it treated her fairly. Payne's attorney, William Cassara, says: "The Army will say the system worked--that she was acquitted--but the larger question is this: Why did they put her through this emotional hell?"
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