Nobody asked me, but …

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By Commander Myles E. Eastwood, Judge Advocate General’s Corps, U. S. Navy

Have Your Day in Court;

You’re Entitled

A naval officer is constantly re­minded of his duties and powers un­der the Uniform Code of Military Justice (UCMJ). Although Congress and the courts have required greater lawyer involvement in courts-mar­tial, the line officer has an integral role in the process. The unit legal officer is usually not a member of the Judge Advocate General’s (JAG) Corps. Likewise, the executive and commanding officers usually aren't lawyers, nor is the flag officer who reviews the results of special courts- martial and acts as the convening authority for general courts-martial. The non-JAG Corps officer also sits as a member of the court, serves as corrections or brig officer, and re­ceives the accused returning from trial (and service of sentence, if imposed) as the accused’s division officer.

Given the regular contact of non­lawyer officers with the military jus­tice system, one would think they might seek education in this process. Unfortunately, such is not the case.

Except for trials involving classi­fied matters, courts-martial are pub­lic proceedings. However, the Navy “public” stays away from these pro­ceedings in droves.

When did each of us last attend a court-martial? To a junior judge ad­vocate, the answer is at least once in the last one or two weeks. For the small cadre of military judges, the answer is likely just yesterday, maybe today. For the junior line of­ficer, it may well be once in the last one or two years. For the senior line and JAG Corps officers, it is less frequent. For many flag officers, it may have been prior to 1968, when Congress amended the UCMJ to re­quire increased lawyer participation.

Although trials are public, non­lawyers are uneasy in courtrooms. Some officers unfortunately believe that the least important of their du­ties—if indeed a duty at all—is to exercise their right to be public ob­servers at trials by court-martial.

Even members named in a conven­ing order frequently try to avoid sit­ting on a case before it begins.

Discipline is at the heart of any military function. A court-martial is supposed to enforce the rights of the accused and the need for military discipline. A few judge advocates, but not enough, will sit in as observ­ers on trials involving persons who are not their clients—mainly to hone their trial skills. Virtually no line of­ficer considers courts-martial impor­tant enough to observe.

Since the 1968 amendments to the UCMJ were implemented in 1969, we have had a new generation of court-martial members. These mem­bers, sitting as a military “jury,” comprise essentially a blue-ribbon jury to hear the cases of those few accused who ask for a “jury” to hear and decide the case. The nor­mal civilian jury does not have the education or experience of the mili­tary court panel; however, it is the genius of Anglo-American experi­ence to allow lay jurors to apply common experience and rough ideas of justice in arriving at a verdict and often a sentence.

The military court members in their daily work deal with a better- quality citizen in terms of lawfulness than do their civilian jury counter­parts. This can lead to one of two disparate results: The military juror requires much more than reasonable doubt to convict, or he readily be­lieves that the accused would not be there if he were not guilty. Simi­larly, sentences imposed by court members vary widely in severity. I believe that if there were more offi­cers with court-martial experience mixed in with those sitting for the first time, such unevenness of result would be less likely to occur.

Because military justice is part of every officer’s duties, professional development could be effectively pursued by the simple measure of attending courts-martial as a specta­tor. One would hope that each offi­cer, including senior and flag offi­cers, could plan to watch at least one members trial and one non­members trial (i.e., military judge alone) each quarter. To avoid any appearance of impropriety, the se­nior officer would watch a case con­vened by a different convening au­thority than himself.

For a naval officer to understand the current system better, he or she needs to observe the system in oper­ation. By watching how courts-mar­tial operate, a potential court mem­ber or convening authority can compensate for his lack of experi­ence. Such observations will en­hance an ability to distinguish be­tween what is chimerical and what is just and humane. As a judge advo­cate, 1 have seen members convict too quickly and acquit too easily.

On the other hand, lawyers become case-hardened after a time; in partic­ular, JAG Corps officers have heard all the defenses so often that some might not be fully receptive to the ring of truth in an accused individu­al’s story.

Yet, if naval officers of all ranks will sit in on trials as non-aligned observers, a number of lessons can be gained. Overzealous prosecutors and less experienced convening au­thorities may have brought charges which are too serious for the actual crime involved. Or. an overly leni­ent court may have given the ac­cused all the clemency he deserves. If the convening authority or super­visory authority has expanded his observations of the court-martial process as recommended here, he may find it easier to rule on convic­tions, sentences, and clemency peti­tions. This would enhance the pur­pose in the UCMJ of having the convening and supervisory authori­ties review each conviction and sen­tence de novo.

Order and discipline should be strengthened by a more evenhanded administration of military justice.

Our professional development as na­val officers will be increased, and our understanding of the military justice system and its workings will be fostered.