Military courts are stacked to convict--but not the brass. The Pentagon insists everything's just fine
"The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States."
--The preamble to the U.S. Manual for Courts-Martial
`Be all you can be," the Army recruiters liked to say, and they found a true believer in a young man named Duane Adens. Just 19, Adens enlisted in February 1985. Over the next decade, he became a top personnel sergeant at the Pentagon and was on track to make sergeant major. Life was good. But all that changed in late 1996 when the Army, his beloved Army, began investigating him for cocaine use. The chief witness against him was an admitted crack- head and felon. At 9:27 p.m. on July 28, 1998, a five-member Army jury panel convicted him and gave him a bad-conduct discharge. Adens, his wife, and their four children were later evicted from the family's apartment at Fort Belvoir, Va., outside Washington, D.C. The conviction made it tough holding down a civilian job, but Adens managed to find steady work. Last January, his luck finally turned. An Army appeals court, finding that the prosecutor had "materially prejudiced" Adens's right to a fair trial, tossed out his conviction.
A happy ending? Hardly. Adens, now 36, cannot get his old Pentagon job back, he hasn't received most of his back pay, and he has fallen hopelessly behind his peers in the race for promotion. Then, of course, there was the taint of the criminal conviction. "If there was a way to get my good name back, that would be great," Adens says, "but there are people in the Army who still think I am guilty."
Two-faced. Adens, understandably, has no use for the military justice system, and he is far from alone. Consider the case of the Navy petty officer who spent nearly 500 days in a brig as a suspected Russian spy. He was finally freed--but only after a hearing officer concluded that the Navy didn't have much of a case. The Navy says it handled the case properly. In the military, a lawyer can prosecute you, then turn right around and defend you in the same case. That's what happened to a highly regarded Air Force major who was court-martialed and sentenced to eight months in a military prison on a drug conviction, based solely on a urinalysis. Then there's the case of a staff sergeant accused of sexual misconduct, despite the fact that the Army had information that she had been assaulted.
Such cases, sadly, are not unusual in the military. As President Bush continues prosecuting the war against terrorism and prepares for the likelihood of another conflict with Iraq, Pentagon brass say the morale of their troops and the can-do spirit that has been the hallmark of America's fighting forces through nearly every war are higher than ever. There is abundant evidence to support such claims. But to some--legal experts, defense lawyers, and military personnel who have run afoul of the Pentagon's arcane criminal justice system--there is another story. It is a story of unequal justice.
At a moment when many of the 2.7 million men and women who serve in the active-duty armed forces, Reserves, and National Guard units may be called to put their lives on the line, it is an issue of particular urgency. Why is it, critics ask, that these men and women are governed by a system of justice that provides a standard of fairness inferior to that guaranteed to even the most hardened criminals who appear each day in America's civilian courts?
The question is not without foundation. A six-month investigation by U.S. News has documented a flawed criminal justice system in which injustices can easily occur. Though the cases almost never make headlines, every day across this land, and at American installations abroad, the Pentagon's legal bureaucracy gears up and tries a soldier, sailor, marine, or aviator by court-martial. Many are guilty as charged. Almost all are first-time offenders. Overwhelmingly, the accused are enlisted men and women--not general staff or flag officers. The odds, overwhelmingly, are that the accused will be convicted.
The law that governs the proceedings in the nation's military courts is the Uniform Code of Military Justice. Congress created the code 52 years ago to eliminate widespread injustices that occurred in court-martial proceedings through- out the nation's armed services in World War II. Lawmakers have not thoroughly reviewed the system in more than 30 years and seem in no mood to do so anytime soon. As a result, critics say, the code has failed to embrace key procedural safeguards available in civilian courts and to keep pace with the military justice systems of some U.S. allies, including Britain. "There is a shocking lack of interest on Capitol Hill," says Eugene Fidell, a Washington attorney and expert in military law. Kevin Barry, a retired Coast Guard captain and former chief military judge, is more pointed. "The code badly needs a face-lift," he says. "It either should be reformed, or it should be abolished."
Bread and water. Top military lawyers don't agree. They say their system is fair--but strict enough to ensure maintenance of the high quality of discipline necessary to successful military operations. To outsiders, these lawyers say, some punishments may seem archaic, but they are necessary. Bread and water and three days in the brig can help adjust the attitudes of difficult sailors, they explain. "We don't have a society where a kid can come in and say, `I am not coming to work today.' We can't tolerate that," says Brig. Gen. Kevin Sandkuhler, the Marine Corps's top lawyer. "We wouldn't get marines willing to go around in strange situations, jumping off helicopters and going to get bad guys."
The Air Force's top lawyer, Maj. Gen. Thomas Fiscus, the judge advocate general, adds: "I consider it my No. 1 job to make sure that the military justice system operates effectively, operates fairly, and creates the climate of good order and discipline."
The U.S. News investigation is based on an examination of about 1,000 court-martial cases filed in military appellate courts. The magazine also interviewed service members, civilian lawyers who practice military law, and officials from the various services and the Pentagon. Among the magazine's principal findings:
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.
Important military justice proceedings are shrouded in secrecy. Behind closed doors, an obscure five-member Pentagon board decides what changes will be made in court-martial rules and procedures. The Joint Service Committee on Military Justice holds just one public meeting a year. This year's lasted 22 minutes. Moreover, while court-martial trials are open to the public, not all the records from the proceedings are made available to the public once the matter is concluded. Citing a two-decades-old Pentagon advisory opinion as the basis for withholding information, military officials refuse to release personal information or even law-enforcement reports introduced as evidence at trial. This policy extends to military appellate courts.
On paper, the Pentagon's criminal justice system is an impressive one. There are prosecutors, defense lawyers, and rules of evidence. In addition to appellate review courts for each service, there is a supreme court of sorts--a five-member civilian panel, the U.S. Court of Appeals for the Armed Forces.
"Thorough and impartial." A key player in the justice system is the judge advocate general. Each service has one. The JAG appoints all military trial judges and supervises the activities of military prosecutors and defense attorneys. In interviews, JAG officials point out the benefits of military justice. Military law provides substantial legal protections, they say. Suspects cannot be forced to incriminate themselves. Once accused, a service member is provided a free military lawyer for trial and, if convicted, for appellate proceedings. In the most serious cases--a general court-martial, which can lead to long-term confinement--the Uniform Code provides for "a thorough and impartial" Article 32 investigation, the military equivalent of a civilian grand jury. A commander, usually a general or admiral, appoints an officer to conduct a preliminary investigation. Many civilian defense lawyers, hired by service members, prefer the Article 32 proceeding over the civilian grand jury process because they can present evidence and cross-examine witnesses.
But there's a rub. An Article 32 hearing officer can only recommend a course of action--whether a case should be dropped or pursued at court-martial. The recommendation is not binding. And a commanding officer can reject an Article 32 officer's advice to drop a case and instead refer charges to court-martial, which occasionally happens, according to civilian and military defense lawyers.
Senior military officials say that nobody relishes prosecuting service personnel. "You have to remember, this is our human capital we are talking about," says Rear Adm. Stephen Pietropaoli, the chief Navy spokesman. "Everyone we put in the slammer, put out of the Navy, is a hole we have to fill."
Some commanders and their aides go too far, however, and unlawful command influence--what the appellate courts have called the "mortal enemy of military justice"--remains a touchy subject in the military legal hierarchy. In an October 2001 memo to subordinates at Fort Hood, Texas, Army Maj. Gen. Raymond Odierno laid it on the line: "Unlawful command influence continues to be an insidious problem in our military justice system and is of grave concern to me."
Many former active-duty lawyers echo those sentiments. "There have been documented cases where the convening authority tried to stack the deck," says Dwight Sullivan, a Baltimore attorney who worked as a Marine prosecutor and defense lawyer. "A convening authority deliberately picking women to sit on sexual assault cases--it is rare, but it happens." Grant Lattin, a top Marine Corps lawyer before retiring in 1995, is even more blunt: "You realized command influence was going on. You ignored it. You knew it was terminal to your career if you said anything about it." Last year, a blue-ribbon panel of outside experts in military law issued a report calling for sweeping reforms. Most pressing, the panel urged, was the need to avoid even the appearance of unfairness and corruption in court-martial trials as a result of commanding officers' influence over the proceedings. The silence at the Defense Department was deafening.
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?"
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.
Leavenworth, however, is not a place admirals or generals need worry about. None have spent a day there, except to tour the place. When they get in trouble, a review of military records shows, they are variously reprimanded, fined, stripped of command, demoted in rank, or forced to retire. They are never imprisoned, even in the most serious cases, although some have been confined to quarters for short periods. In its 56-year history, the Air Force has never taken a general to court-martial, although it has administratively disciplined eight generals.
Cutting deals. The Army's record is similar. David Hale, a retired Army major general and decorated Vietnam War veteran, was the last general officer to be court-martialed, in March 1999, on charges that he had carried on affairs with the wives of four subordinate officers and lied to Pentagon investigators. Hale faced up to 11 years in prison, forfeiture of all retirement pay, and dismissal from the Army. He cut a deal. After he pleaded guilty to eight charges, a military judge reprimanded Hale, fined him $10,000, and ordered him to forfeit $1,000 in monthly pay for a year. Later, the Army demoted Hale to brigadier general. That cost him $750 a month in retirement pay.
The Navy, too, has cut deals with flag officers in trouble. Rear Adm. John Scudi, accused of funneling $170,000 in contracts to his girlfriend, among other charges, avoided prison. At an administrative proceeding in late 1998, he accepted a finding of guilty on charges that he violated ethics regulations, made false official statements, obstructed justice, and committed adultery. He retired as a captain, and his pension was cut by $17,700 a year.
Pentagon brass dismiss any suggestion of a double standard. When a court-martial is appropriate, senior officials say, that action is taken. "That is the keystone of our system, regardless of rank," explains Army Brig. Gen. Scott Black, an assistant judge advocate general. "It is what's fair and right."
Duane Adens would take exception to that. What happened to him is laid out in the pages of U.S. Army court file 9801084. The case was based on the testimony of an admitted crack addict and a controversial hair test used to detect drugs. The Army rarely uses hair tests and knows little about them. But no matter. In October 1996, an Army criminal investigator named John Spann phoned Adens and said they needed to talk. They met at Spann's Fort Belvoir office, Adens says. Spann asked Adens about a suspected computer thief. Adens knew the man. But he told Spann he didn't know anything about any thefts. Adens testified that Spann told him: "Well, you want to play hardball, I'll play hardball with you." And: "You're obstructing justice, and I know you're using drugs." Adens had no record of drug use. He ended the conversation.
Around this time, Spann had questioned an individual known in investigative records as "registered source 319." He was a paid informer named Jeff Davis. A convicted drug trafficker, Davis knew a thing or two about crack--testifying that he once had a $200-a-day habit. Davis smoked crack with Adens, he told Spann, in an apartment near Fort Belvoir. He described Adens as 6 feet tall and bald. Adens is 5 foot 8 with a full head of hair. Spann paid Davis a $200 bonus for information on Adens and another soldier.
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.
Congress and the Defense Department paid little heed. One senior Pentagon lawyer says the report was "mostly regurgitation" of old complaints. Lawmakers approved one recommendation--12-member juries in military death penalty cases--but showed no interest in overhauling the system. Frank Spinner, a Cox commission member and former Air Force lawyer now in private practice, thinks he knows why. "Congress has handed over the military justice system to the military to run," he says. "There is no civilian control."
Parsing the Pentagon
The terminology of the Uniform Code of Military Justice is unknown to most Americans. Key terms and definitions:
COURT-MARTIAL. The military's version of a trial. There are three types--summary, special, and general. General is most serious.
CONVENING AUTHORITY. Exercises prosecutorial discretion, determines whether or not someone will be court-martialed, determines the type of court-martial, and selects the service members who will serve as jurors. Once the trial is over, the convening authority then decides whether to approve or disapprove the findings of the jury.
JUDGE ADVOCATE GENERAL. The lawyer for each service and the Coast Guard who administers their justice programs. Considered the most senior lawyers in the military. Except for the Coast Guard JAG, a civilian, are all generals or admirals.
JUDGE ADVOCATES. The military lawyers who serve on prosecution and defense teams and in other positions. They also serve as military judges, by appointment of their respective judge advocate generals.
A decidedly results-oriented justice system
For every 1 acquittal, military prosecutors win more than 9 convictions.
Time period Total cases Convictions Acquittals Conviction rate
AIR FORCE Jan.1,'92-Dec.31, '01 8,833 8,166 667 92 percent
ARMY FY '97-FY '01 5,458 5,024 434 92 percent
NAVY/ FY '97-FY '01 13,339 12,866 473 96 percent
*Data include general courts-martial and special courts-martial but not summary courts-martial, the least serious of the judicial procedures. Statistics on convictions and acquittals for the Navy and Marine Corps are maintained jointly. Source: Department of Defense
With Gary Cohen, Nancy Bentrup, Monica Ekman, Ann Wakefield and Carol Hook
This story appears in the December 16, 2002 print edition of U.S. News & World Report.