Unequal Justice
Military courts are stacked to convict--but not the brass. The Pentagon insists everything's just fine
Splitting hairs. Things got worse. An Army magistrate issued a warrant allowing investigators to clip Adens's pubic hair. It tested positive for cocaine use. Despite passing several urine tests, Adens was charged with cocaine use. He insisted he was innocent. A DNA test, he argued, would show that the hair that tested positive was someone else's. But Adens couldn't afford the test. It cost over $2,000. Before his court-martial, Adens pleaded with the Army to do the test. Maj. Gen. Robert Foley, the convening authority, refused. At trial, the military judge also refused to authorize the test.
At Adens's court-martial, Davis was the main prosecution witness. The Army also put in the hair test. Charles Gittins, Adens's attorney, argued that the hair was not his client's, that the hair had not been properly sealed and safeguarded in the evidence room, and that the Army was framing his client because he had not assisted in the computer-theft investigation. The Army denied the charges. The five-member jury panel convicted Adens and ordered him discharged.
In January of this year, the Army Court of Criminal Appeals set aside the findings of guilt and the bad-conduct discharge, finding that Adens was the victim of "trial by ambush." The court said prosecutor Joshua Braunstein "intentionally withheld" vital evidence from the defense concerning the methods used by Army investigators to collect hair samples. Adens's "substantial rights to a fair trial and to have equal access to the evidence against him," the court ruled, "were materially preju- diced by the government's nondisclosure" and by procedural errors by the trial judge. The Army decided not to retry the case. An Army review found that Braunstein was "inexperienced" but not unethical. "Nothing I did was out of dishonesty," Braunstein, now a Justice Department lawyer, told U.S. News. "Nobody railroaded this guy."
Adens, still waiting for his back pay and promotion to sergeant 1st class, sat in his living room on a recent weekday, his wife by his side and their fifth child, newborn Kiera, asleep in a bassinet. "I've been through six years of hell," he said quietly. "I truly feel like a soldier left on the battlefield."
Reform of the Pentagon's justice system seems unlikely. Last year, a panel of outside military law experts issued a blueprint for changes in the system. Sponsored by the nonpartisan National Institute of Military Justice, the commission was chaired by Walter Cox III, the former chief judge of the Court of Appeals for the Armed Forces and still a senior court member. Cox and others on the five-member panel, including former Navy Judge Advocate General James Jenkins, are highly respected figures in military law. In its report, the commission said that public confidence in the system had been undermined by the military's refusal to change. "Military justice in the United States has stagnated, remaining insulated from external review and largely unchanged," the panel wrote. It said commanding officers had too much power and should no longer be permitted to select jury panels. It called for random selection, an idea that the Pentagon does not like. Further, it said, convening authorities should be stripped of their power to make critical pretrial decisions, such as whether witnesses would be subpoenaed. That power should be given to military judges, who need more independence and legally fixed terms, the panel wrote. "The far-reaching role of commanding officers in the court-martial process remains the greatest barrier to operating a fair system of criminal justice within the armed forces," the commissioners wrote. "There is no reason to preserve a practice that creates such a strong impression of, and opportunity for, corruption of the trial process by commanders" and their legal advisers. The panel emphasized that "a bottom-up review of military justice is long overdue" and criticized congressional and executive "inattention" to problems in the justice system.
advertisement
