Thirty-Sixth Kenneth J. Hodson Lecture on Criminal Law

• Author: Brigadier General Patrick Finnegan
• Pages: 07

190 MILITARY LAW REVIEW [Vol. 195

THIRTY-SIXTH KENNETH J. HODSON LECTURE ON

CRIMINAL LAW*

Today's Military Advocates: The Challenge of Fulfilling Our Nation's Expectations for a

Military Justice System that is Fair and Just1

BRIGADIER GENERAL PATRICK FINNEGAN2

Ralph Waldo Emerson said, "Our life is an apprenticeship to the truth that around every circle another can be drawn; that there is no end in nature but every end is a beginning." For me, today could be viewed

as the drawing of more circles, both beginnings and endings. I am particularly pleased that attending this lecture in criminal law is Dean John Jeffries of the University of Virginia School of Law, because in my first year of law school in 1976, Professor John Jeffries taught my course in criminal law. And when I reviewed the list of distinguished Hodson lecturers over the years, I noted that four of those individuals taught me law, either at UVa or at the JAG School. Another circle is completed in returning to Charlottesville and to the JAG school-I spent eight years of my military career here on the North Grounds, much of that time devoted to criminal law. Of course, the first criminal law lecture in this series was delivered by Major General Kenneth Hodson himself, a true gentleman and the single individual most responsible for shaping today's well respected military justice system. It's an honor to deliver a lecture named after him. And to begin this circle, General Hodson presented that initial criminal law lecture during my first year of active duty in the Army.

A few years prior to that, at age seventeen, I went to my West Point interview. After some preliminaries, the major conducting the interview asked, "So what do you want to do with your life?" I replied, "Well, sir, I really want to be a lawyer." To which he responded, "Then you probably shouldn't go to West Point." I disregarded his advice and am very happy that I did. I knew from an early age that I wanted to be a lawyer-and a lawyer who specialized in criminal law in particular. I was an avid fan of the Perry Mason books (and the TV show as well) and read every other book I could find, both fiction and non-fiction, about criminal law. And, as a practicing military lawyer for twenty years, I was fortunate to be involved with criminal law on many occasions and most assignments. As we talk today, I hope you will be able to see how those experiences have shaped my thoughts and ideas about what we do in practice and what we should aspire to in the military justice system.

In fact, when I was at this school in the 90th Basic Course in 1979, I received a letter from my sponsor in the 8th Infantry Division in Germany. As the Chief of Military Justice, he was also to be my boss. In his welcome letter, he enclosed the front page of the Stars and Stripes, the military newspaper in Europe. The top headline read "23 arrested in Dexheim for heroin sales." My future boss had written across that story, "These will be your cases." So, six months after graduating from law school, I was prosecuting major felony cases. One drug sale case had an interesting sentencing phase to the trial. While the trial was pending, the Soldier decided to go AWOL so when he had run out of money and was

rounded up a few days later, he went to pretrial confinement, where he remained until his guilty plea at trial. When it was time for extenuation and mitigation, the defense counsel asked if the accused could take the stand, guitar in hand, to sing a song he'd written while in pretrial confinement about how sorry he was. As the prosecutor I had no objection, so the accused performed his soulful ballad for the court members. They sentenced him to a dishonorable discharge and three years. I always thought it was two years for the crimes and one for the song! The significant responsibilities that you are given early on can be an exhilarating and sometimes intimidating aspect of our system-from the start, you must understand the underlying principles and be prepared to fulfill your crucial role in ensuring fairness, discipline, and ultimately justice. Just over two years later, still in my first assignment out of law school, I was the Chief of Military Justice for the 8th Infantry Division and prosecuted a Soldier in a capital murder case in which he received the death penalty. Those can be daunting circumstances for everyone involved and that's why it is crucial for our military justice system, of which we can be justifiably proud, to be efficient, effective, and most of all, just.

History shows that our system has not always been that way, or perceived to be a system of "justice," but the changes and significant improvements wrought by General Hodson and his successors have brought the practice of military criminal law to a place where we compare very favorably with criminal law systems throughout the United States and around the world.

The significant changes began after sixteen million citizens served in uniform during World War II and returned to their cities and towns with the correct perception that the military criminal law system may have been related to discipline-arbitrary, swift, and kangaroo-court like at times-but it was not concerned particularly with either fairness or justice. Their concerns ultimately resulted in the Uniform Code of Military Justice (UCMJ), the first major step toward a system based on principles of fairness and justice crucial to our nation and its citizens.3

As Justice Oliver Wendell Holmes said, "A system of justice must not only be good, but it must be seen to be good."

The UCMJ was a crucial step, but it was only the first step, and the history of our system since 1951 has been one of change as military

justice and military legal practice adapted to a different armed force and to evolving ideas concerning criminal law procedures. General Hodson was at the forefront of many of those improvements-it's enlightening to read his initial Hodson lecture from 1972 to see how many of the changes he urged, from separate and independent defense counsel, to a trial judiciary with military judges who actually ensured proper proceedings at courts-martial, to writs of certiorari to the Supreme Court, have come into being, first through the Military Justice Act of 1968,4

later with the Military Justice Act of 1983,5 and then subsequent advancements.

When I was assigned to the criminal law faculty in the early 1980s, I actually played a small role as the armed forces implemented the changes dictated by the Military Justice Act of 1983, which among other steps forward led to the promulgation of the Military Rules of Evidence, patterned on the Federal Rules of Evidence. That was back in the days of C-rations, so those were truly the first MREs. At any rate, the significant...