Civilian versus military justice in the United States: a comparative analysis.

• Author: Rives, Jack L.

Military court, compared to most civilian courts, is refreshing in many respects... The pretrial discovery features are the best and most complete of any system... Military juries are nearly always made up of intelligent commissioned officers... There are no hung juries, and verdicts are usually reached swiftly... I still try courts-martial on a regular basis, and still enjoy them more than any other trials.

6. Lee Bailey (1)

   I. INTRODUCTION

   After more than a quarter century of an all-volunteer force, America's armed forces are largely unknown to the American public. Unlike previous generations, fewer Americans have personal experience with the military and fewer of them have family members, friends or neighbors who have served in the military. While the American public is generally unaware of military matters, they are especially uninformed about the military justice system. They know very little about the military's system of discipline or its criminal law process.

   This article will explain the military criminal law process, known as the military justice system, and it will contrast the military justice system with the civilian criminal justice process familiar to most Americans. Using the Commonwealth of Virginia (2) as a representative jurisdiction, this article will examine how the same hypothetical offenses would be handled in the United States Air Force (USAF) military justice system and the Virginia state criminal justice system.

   II. FRAMEWORK FOR ANALYSIS

   This article will analyze the hypothetical case of Heather Johnson. Assume that Heather Johnson consumed too many alcoholic beverages at the Enlisted Club on Langley Air Force Base, Virginia, then gets into her car to drive home. Before exiting the base, she drives across the centerline of the road, crashes head-on into another car, and kills the driver. The crash takes place in an area of the base where the United States has proprietary jurisdiction, but the state of Virginia retains legislative authority and criminal jurisdiction. (3)

   Air Force Security Forces and medical personnel respond to the scene. They find a loaded handgun and more than a pound of marijuana on the floorboard of Johnson's car. The medics determine that the other driver is dead and transport Heather J3hnson to the hospital. After treating Johnson for minor injuries, they turn her over to the Security Forces.

   III. THE SYSTEMS COMPARED

   The story now diverges and follows the prosecution of Heather Johnson on two different tracks. One is the state criminal process that will follow if Miss. Heather Johnson is a civilian not subject to the Uniform Code of Military Justice (UCMJ). (4) The other is the military justice process that will follow if Staff Sergeant (Sergeant) Heather Johnson is an active duty, uniformed member of the United States Air Force.

1. Nature of Criminal Jurisdiction

   Miss. Johnson is subject to the criminal jurisdiction of the state of Virginia because the alleged offenses took place in Virginia. (5) She is not subject to military criminal jurisdiction, so the Security Forces will detain her only long enough to be turned over to civilian authorities.

   Unlike state criminal jurisdiction, which is based on the location of the offense, military jurisdiction under the Uniform Code of Military Justice is predicated on the status of the offender. (6) Because Sergeant Johnson is an active duty member of the Air Force, she is subject to court-martial under the UCMJ regardless of where the offenses occur. (7) This assures commanders that they have the disciplinary tools they need wherever United States troops may be deployed. Note that while the offenses in this case are crimes common to the civilian and military justice systems, the UCMJ also includes uniquely military offenses, the prohibition of which is critical to the maintenance of good order and discipline in the armed forces. (8)

2. Rights Advisement

   After being turned over to civilian authorities, Miss. Johnson will be on her way to the local police station and jail. (9) The civilian investigators who are handling her case will read her the Miranda warning (10) prior to any questioning. Assume Miss. Johnson exercises her rights and requests an attorney. She will then be escorted to her cell to await a hearing to determine whether she should be released.

   Sergeant Johnson will initially remain in the custody of military investigators. They will read her her rights pursuant to Article 31 of the UCMJ. (11) Article 31 safeguards extend beyond Miranda in that they apply even to non-custodial questioning and require that the suspect also be informed of the nature of the accusation against her. Assume Sergeant Johnson exercises her rights and asks for an attorney. The interview will be terminated and Sergeant Johnson's commander will be called and briefed on the situation. The commander must then make the decision, that night, whether to place Sergeant Johnson into pretrial confinement or release her under some lesser form of restriction or no restriction at all. (12) If Sergeant Johnson is ordered into pretrial confinement, two additional reviews, discussed below, will take place to determine whether the confinement will continue.

3. Right to Counsel

   Back to Miss. Johnson and her right to an attorney. Unless Miss. Johnson is indigent, she must either hire an attorney at her own expense or represent herself. Virginia evaluates indigence by determining whether the family's available funds (income plus assets minus exceptional expenses) are above 125% of the federal poverty income guidelines. (13) For a family of four within the continental United States, the 2001 poverty guideline is $17,650. (14) Thus, assuming Miss. Johnson has a husband and two children, she must provide her own attorney unless her family's available funds are less than $22,063.

   If Miss. Johnson is indigent, she will be entitled to the services of a court-appointed defense counsel. (15) Her counsel will be compensated based on the time and effort she puts into the case, but the maximum compensation is fixed by statute according to the seriousness of the offenses. (16) Because Miss. Johnson will be charged with three felonies, none of which is punishable by more than twenty years of confinement, her counsel will be paid a maximum of $1335 in attorney fees ($445 for each offense). (17) The Virginia Court of Appeals has ruled that this compensation scheme is adequate. The Court held that it does not operate to deny a defendant her right to conflict-free and effective assistance of counsel on the grounds that it creates a financial disincentive for a lawyer to effectively represent her client. (18)

   Contrast this with Sergeant Johnson's right to representation by military counsel. Regardless of her income and assets, Sergeant Johnson is entitled to representation by a military defense counsel free of charge. (19) Her counsel must be a member of the bar of a federal court or the highest court of a state, who has been certified by The Judge Advocate General (20) of the Air Force as competent to perform duties as counsel in courts-martial. (21)

   Military defense counsel are well-qualified, completely independent attorneys whose full-time duty is to represent military members to the best of their professional abilities. In the Air Force, the Area Defense Counsel (ADC) is the attorney who performs this function. (22) The ADC is typically chosen from the base legal office after gaining experience prosecuting cases. She manages an office, which includes a Defense Paralegal. (23) The ADC office is physically separate from the base legal office, and the ADC does not fall in the base chain-of-command. (24) She reports to a Chief Circuit Defense Counsel, who manages defense services in a geographic region and reports in a judge advocate (military attorney) chain of supervision. (25)

   Unlike the civilian attorney appointed to represent Miss. Johnson if she is indigent, the ADC representing Sergeant Johnson will not have a financial incentive to limit the amount of time she spends on the case. Because the ADC is an active duty officer and full-time defense counsel, she can focus on representing her clients without the need to consider the business aspects of a private law practice. On average, each ADC defends about ten courts-martial per year, (26) so they can devote a substantial amount of time to each client's case. In addition, a number of more experienced defense counsel (Circuit Defense Counsel, or CDCs) serve as co-counsel in the more complex cases and provide training and advice to ADCS. (27)

4. Charging Mechanism

   Miss. Johnson was arrested immediately following the alleged offenses, without an arrest warrant. Within 48 hours, she will be brought before a magistrate, who will examine the arresting officer under oath and determine whether there is probable cause to believe that Miss. Johnson committed the alleged offenses. (28) If the magistrate finds probable cause, she will issue an arrest warrant.

   In this case, Miss. Johnson will be charged with three offenses under Virginia law: aggravated involuntary manslaughter, (29) possession of marijuana with intent to distribute, (30) and possession of a firearm while committing the offense of possession of more than one pound of marijuana with intent to distribute. (31)

   Sergeant Johnson will be charged with similar offenses under the Uniform Code of Military Justice: murder by engaging in an act inherently dangerous to another, in violation of Article 118, wrongful possession of marijuana with intent to distribute, in violation of Article 112a, and unlawful possession of a loaded firearm on Langley Air Force Base, in violation of Article 92. (32)

   The process of bringing charges under the UCMJ is called "preferral." (33) Although any person subject to the UCMJ may do so, the immediate commander of the accused typically prefers charges in Air Force practice. (34) The commander then forwards the charges to the...