The issues with panel selection (Article 25, UCMJ) that I outlined in my first post have obviously been around for a long time. Generally, the government argument has been that the concerns with the court-martial panel makeup and selection process have been balanced by the additional protection offered to the accused service member through the convening authority’s power to grant clemency under Article 60, UCMJ. Not only does the convening authority review the record in order to ensure the findings were actually warranted by the evidence, but in many cases the convening authority is the only appeal available (due to the jurisdictional limitations on the appellate courts of Article 66(b), UCMJ). As the highest military appellate court stated, “[i]t is at the level of the convening authority that an accused has his best opportunity for relief because of the former’s broad powers which are not enjoyed by Courts of Criminal Appeals or even by this Court.” U.S. v. Boatner in 1971. To be blunt, that may have once been true. Today, it’s horseshit. The 2014 and 2015 NDAAs (National Defense Authorization Acts) took away most of the clemency power of the convening authority. The balance is gone. See, 2014 and 2015 NDAAs. Not only does a military accused still face a non-unanimous, small panel handpicked by the same authority that referred the charges against him, but he no longer can appeal to that same authority for meaningful clemency or legal and factual review of the findings (Article 60, UCMJ, as revised by the 2014 NDAA). Nor may he apply to the Army Discharge Review Board (since the Article 120 (sex assault) allegations now require a General Court-Martial and the Army Discharge Review Board can’t provide relief on the results of a General Court-Martial) This long-held, historical right of service members and designed to balance the rights they have never had; is pfffft. Gone.
Likewise, in a system where the same commander controls the investigation, the drafting of charges, the referral of charges, the prosecution of the charges and the selection of the panel, the Article 32 investigation has long served as a bulwark for the innocently accused. Indeed, the old investigation was considered an essential element of due process of law. McKinney v. Jarvis (ACCA 1997). This hearing has served not only to provide discovery for the defense but also as a backstop to frivolous and arbitrary prosecutions. Traditionally, it was the objective, impartial Article 32 investigation that likely determined whether a case should go to court-martial, which charges and specifications should go forward and the level of disposition. Now it is the advice of the prosecutor, for all practical purposes, that the convening authority has to consider under the 2014 and 2015 NDAAs. Today, the Article 32 hearing is now a preliminary probable cause hearing and it’s not even binding on the command. In fact, routinely Article 32 hearing officers (who are lawyers) recommend not going forward on charges and the commanders send the case to trial anyway. In the civilian world, grand jury verdicts are binding on the government.
Now you might ask, why does Congress have it in for military members like this? I actually think they don’t. My sneaking suspicion is that most members of Congress have no clue about Article 25 and no clue that the panel members are essentially picked by the prosecutor. They didn’t know it and so the balancing rights of the service member just looked like extra rights to them. So why weren’t they told? Because some folks at senior levels of the military are physically brave but moral cowards.
For 90 years, service members have been allowed to raise what is called the “good soldier” defense. This defense simply involves putting on evidence as to the kind of soldier (or sailor or marine or airman or coastguardsman) they are and asking the panel or judge to consider it. Usually it’s in addition to other defenses and is a way of asking whether a service member with this kind of record would do what they are accused of. Evidence of the general good military character of an accused has been “admissible to show that he conformed to the demands of military law and was not the sort of person who would have committed such an act in violation of regulations.” U.S. v. Kahakauwila, C.M.A. 1984. And, in fact, there are civilian equivalents. In 1948 the Supreme Court stated that character evidence “alone, in some circumstances, may be enough to raise a reasonable doubt of guilt.” Michelson v. U.S. That’s exactly what the “good soldier” defense does. And Congress took it away for certain crimes. But only certain ones. Can you guess which? Yup.
But, here’s the rub. The court in Kahakauwila stated that the admissibility of the “good soldier” defense was grounded on the separate society construct. That separate society construct is the basis for Article 25 and the panel selection system. If the separate society justification no longer holds water for the good soldier defense then it no longer justifies the deprivation of the Sixth Amendment right to a trial by jury. To remove the “good soldier” defense and preserve the non-unanimous, convening authority-selected panel serves no purpose other than as a political pretext for ensuring convictions.
Finally, not even a legislature can exclude evidence which is Constitutionally required to present a complete defense. California v. Trombetta (1984). Specifically, evidentiary rules cannot be arbitrary or disproportionate where they limit a “weighty interest of the accused.” U.S. v. Scheffer, (1997). The per se prohibition at issue is both arbitrary and disproportionate. This prohibition on general character evidence applies to Articles 120-123a, Articles 125-127, and Articles 129-132, UCMJ. There is neither rhyme nor reason to this selection of offenses. The evidentiary exclusion applies to sexual offenses, larceny, arson, fraud (including against the United States) and forgery, but not to murder, manslaughter, dueling, maiming or aggravated assaults. The selection of covered offenses appears to be purely arbitrary. As well as being arbitrary, the prohibition is disproportionate in application. The per se prohibition does not allow for a balancing test or exceptions as seen in other rules of exclusion, such as M.R.E. 404, 412 or 413. Neither is it clear as to why the M.R.E. 401-403 rules of evidence are sufficient rules of exclusion and inclusion for some serious offenses but not for others. Finally, the “good soldier” defense clearly can be “a weighty interest of the accused.” As the United States Supreme Court said in Michelson, character evidence can be sufficient to raise reasonable doubt as to a criminal offense.
Part III to follow.