Unequal Justice
Military courts are stacked to convict--but not the brass. The Pentagon insists everything's just fine
To Navy Capt. Mark Helmkamp, now based at the Pentagon, the system is too much about winning and not enough about justice. "It is about keeping score," he says. "It is not about what is right for the Navy." Helmkamp recalls how he felt pressured to recommend prosecution of a sailor on indecent assault charges, despite strong evidence, he says, that the young man had not committed a crime. This happened, he says, while he commanded the Naval Diving and Salvage Training School in Panama City, Fla.
Wrongly accused. As a convening authority, in late 1999, Helmkamp assigned an Article 32 investigator, Lt. Charles Koutras, to look into allegations that a female sailor had filed against the ensign. After conducting an inquiry, Koutras concluded that the ensign had been "wrongly accused." His report recommended dismissing the case. Helmkamp agreed and passed along his recommendation to the admiral who would decide the matter. Meanwhile, the Navy's top prosecutor in the southeast region, Capt. Dan McCarthy, called Helmkamp. According to Helmkamp, McCarthy "whined about" his recommendation to drop the case and warned that Helmkamp faced the likelihood of an internal Navy investigation. "I told him," Helmkamp recalls, `You are way out of the box, pal.' "
McCarthy also called Koutras. In an interview, Koutras, now a local prosecutor in San Antonio, says McCarthy berated him about his lack of professionalism. "He told me that I might have to answer to the victim's congressman or to a news reporter," Koutras recalls. He says he worried that his career might be damaged because McCarthy, though not his boss, had a lot of influence in the Navy JAG Corps. In an affidavit, later filed during an internal Navy investigation of the incident, Koutras said he had been told that McCarthy prevented him from getting future Article 32 investigative assignments. McCarthy, who recently retired, denies that charge. He says he "was not trying to coerce" either Koutras or Helmkamp into changing their minds but was merely offering his opinion. The case against the ensign was not prosecuted. A Navy review concluded that McCarthy had not engaged in ethical misconduct.
The Pentagon's criminal justice system has long been subject to the appearance of stacked juries and hobbled by inexperienced defense lawyers, critics say. The Court of Appeals for the Armed Forces threw out the child molestation conviction of Army Staff Sgt. Robert Wiesen on grounds that his jury selection was unfair. Despite the decision 11 months ago, Wiesen remains locked behind bars at Fort Sill, Okla. The Army has indicated it will retry Wiesen, his lawyer says. Separately, that same court set aside two military death sentences, citing "ineffective" military defense work. A third death-row appeal, again claiming ineffective counsel, is now before the Army Court of Criminal Appeals.
More often than not, investigations and prosecutions have little to do with military operations. The military still prosecutes personnel for conduct unbecoming an officer and a gentleman, for going absent without leave, for violating orders, and for disrespecting superiors. But it also prosecutes personnel for adultery and sodomy and for crimes like rape, child molestation, larceny, robbery, assault, burglary, and murder. Given service members' dependence on one another in the military, drug use is a one-way ticket to a dishonorable discharge, the brig, or the military's only long-term prison, the U.S. Disciplinary Barracks in Leavenworth, Kan.
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