Another Military Justice Tidbit – Capital Cases Must Be Tried By Jury

Many readers continue to ask why military death penalty cases are time-consuming and extremely expensive.  As noted in earlier posts, a military defendant is prohibited – by law – from pleading guilty in a court-martial where the death penalty is sought by Army prosecutors and commanders.   Obviously, contested cases are always more costly and protracted.   As the appellate courts have uniformally opined, Death Penalty Cases are “different”.   

Similarly, forum requirements are also different in Death Penalty cases.   As noted below, the law prohibits any court-martial case referred for capital disposition from being adjudicated by any forum other than a jury.  That’s right – it has to be a Jury Trial.   This obviously adds both considerable expense and time to final resolution of the case.  The  pertinent section of the Manual for Courts-Martial (RCM 201) provides the following:

A general court-martial composed only of a military judge does not have jurisdiction to try any person for any offense for which the death penalty may be adjudged unless the case has been referred to trial as non capital.

These costly and time-consuming decisions rest with Army commanders and prosecutors  – not the Defense.   When military commanders and their prosecutor advisors decide that they want to pursue the death penalty, they have only themselves to blame for the attendant cost and delays associated with those decisions.   Sadly, many Army prosecutors and commanders make these important decisions for reasons wholly unrelated to a just and fair disposition of a particular case.  Got a complaint about this situation – address your concerns to Army prosecutors, not the Defense.

Why Military Death Penalty Cases Must Be Contested

Many readers have inquired about whether or not a military Defendant is permitted to plead Guilty in a court-matial authorized to adjudge the death penalty.  The simple answer – NO

Rule for Court-Martial (RCM) 910 provides the following:

A plea of guilty may not be received as to an  offense for which the death penalty may be adjudged by the court-martial.

Of course, the decision whether to recommend 0r refer a case as capital (death penalty eligible) rests with intermediate US Army commanders and ultimately, the General Court-Martial Convening Authority.  The aforementioned commanders are advised by US Army prosecutors and the Staff Judge Advocate who ultimately provides pretrial advice to the General Court-Martial Convening Authority.   If it sounds like a system that is stacked against the military accused – well, you are right.   As noted previously, the decision to engage in the very costly and time-consuming process of prusuing the death penalty in courts-martial rests with the Government, not the Defense.

Senators Admit DOD, DOJ and White House Are Still Witholding Evidence

Senators Lieberman and Collins acknowledge in their Special Report, just published today, that senior government officials continue to unreasonably withhold important evidence.  In their words,

The redactions in this report were required by the Intelligence Community pursuant to Executive Branch classification policies and are the result of intensive negotiations spanning three months.  We take issue with the extent of these redactions, some of which we believe are unjustified, but we have consented to them in order to produce this report in a timely manner.

US Senate Report Faults DOD, Army and Others – It Could Have Been Prevented

Politico.com: http://www.politico.com/news/stories/0211/48768.html?iframe=true&width=80%&height=80%

Foxnews.com: http://www.foxnews.com/politics/2011/02/03/senate-report-pentagon-fbi-failed-protect-troops-ft-hood/?iframe=true&width=80%&height=80%

Firstread.msnbc.msn.com: http://firstread.msnbc.msn.com/_news/2011/02/03/5981775-a-string-of-failures-by-fbi-defense-in-failing-to-discharge-hasan?iframe=true&width=80%&height=80%

TPMMuckraker.talkingpointsmemo.com: http://firstread.msnbc.msn.com/_news/2011/02/03/5981775-a-string-of-failures-by-fbi-defense-in-failing-to-discharge-hasan?iframe=true&width=80%&height=80%

Senators Lieberman and Collins to Release Report on Fort Hood

WASHINGTON—Senate Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman, ID-Conn., and Ranking Member Susan Collins, R-Me., will hold a press conference at 12:30 on Thursday, February 3, to release their bipartisan report on the failures of the U.S. government to prevent the November 5, 2009, shooting at the Fort Hood Army base.