NCJ Number
17821
Journal
Duke Law Journal Volume: 1973 Issue: 3 Dated: (AUGUST 1973) Pages: 649-701
Date Published
1973
Length
53 pages
Annotation
ARGUMENTS AGAINST THE ADEQUACY OF MILITARY JUSTICE HAVE BEEN EXAGGERATED, IMPORTANT REFORMS HAVE ALREADY TAKEN PLACE, FURTHER CHANGES WOULD BE PREMATURE, AND SOME PROTECTIONS ARE PROVIDED THAT ARE NOT IN CIVILIAN COURTS.
Abstract
AS A RESULT OF THE MILITARY JUSTICE ACT OF 1968, THE DECISIONS OF THE COURT OF MILITARY APPEALS, AND SUCH PRECEDENT-SHATTERING CASES AS O'CALLAHAN, AVRECH, AND LEVY MILITARY JUSTICE HAS TAKEN ON A NEW LOOK. PERHAPS THE GREATEST CHANGE ACCOMPLISHED BY THE MILITARY JUSTICE ACT OF 1968 WAS ITS CREATION OF THE POST OF MILITARY JUDGE. SPECIFICALLY, THE MILITARY JUDGE WAS AUTHORIZED TO RULE FINALLY ON CHALLENGES, MOTIONS FOR FINDINGS OF NOT GUILTY, ALL QUESTIONS OF LAW, AND ANY INTERLOCUTORY QUESTION 'OTHER THAN THE FACTUAL ISSUE OF MENTAL RESPONSIBILITY OF THE ACCUSED.' MOREOVER, THE ACT NOW PROVIDES THAT A SPECIAL COURT-MARTIAL MAY HAVE A MILITARY JUDGE AND THAT NO BAD CONDUCT DISCHARGE MAY BE ADJUDGED BY A SPECIAL COURT-MARTIAL UNLESS A MILITARY JUDGE HAS BEEN DETAILED TO THE TRIAL, EXCEPT IN A CASE WHERE A MILITARY JUDGE COULD NOT BE DETAILED BECAUSE OF PHYSICAL CONDITIONS OR MILITARY EXIGENCIES. THE 1968 ACT PROVIDED FURTHER REFORM IN THE AREA OF THE PROCEDURAL RIGHTS OF ACCUSED. OF PARTICULAR SIGNIFICANCE ARE THE GREATER FLEXIBILITY ALLOWED THE MILITARY DEFENDANT IN SELECTING TYPE OF TRIBUNAL IN WHICH HE IS TO BE HEARD AND THE PANDED PROVISION FOR COUNSEL. PLEA-BARGAINING, A MUCH CRITICIZED BUT IMPORTANT FEATURE OF MILITARY JUSTICE IN THE ARMY, NAVY, AND MARINE CORPS, HAS RECEIVED APPROVAL FROM THE SUPREME COURT IN THE CIVILIAN SETTING. THEREFORE, NO COMPELLING REASON EXISTS FOR ITS ABANDONMENT BY THE MILITARY--ESPECIALLY IF THE ARMED SERVICES CONTINUE TO UNDERGO A SHORTAGE OF EXPERIENCED MILITARY LAWYERS. THE SELECTION OF COURT-MARTIAL MEMBERS BY THE CONVENING AUTHORITY WILL REMAIN A PROBLEM. HOWEVER, THIS ISSUE SHOULD BECOME LESS IMPORTANT IF THERE CONTINUES TO BE EXTENSIVE WAIVER OF TRIAL BY MILITARY JURY AND IF THE MILITARY JUDGES ARE GRANTED SENTENCING POWER EVEN IN CASES WHERE GUILT IS DETERMINED BY THE COURT-MARTIAL MEMBERS. FINALLY, THE RELATIVE SUCCESS OF MILITARY JUSTICE IN AVOIDING COURT CONGESTION AND TRIAL DELAYS CONSTITUTES AN ADDITIONAL IMPRESSIVE ARGUMENT AGAINST FURTHER PRECIPITOUS CHARGES. (AUTHOR ABSTRACT)