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Fairchild Case Study In Military Justice Rape Trial Of Master Sergeant Will Follow Disciplined Regimen

SATURDAY, MAY 17, 1997

Master Sgt. Napoleon Bailey is charged with all-too-familiar-sounding crimes of rape, assault and kidnapping, but he faces a trial that is strange to most Americans.

Courts-martial differ from civilian trials on several key points.

One of the biggest is the jury, which is not drawn from a random pool of citizens, but selected at least in part by a superior officer. In Bailey’s case, that’s Lt. Gen. Charles Robertson Jr., commander of the 15th Air Forcek,.

Robertson has named a group of officers to be available to serve on the jury, which must have at least five members.

The judge, Col. Willard Pope, has ordered prospective jurors to avoid news accounts or personal discussions of the case, but he has not sequestered them.

On Friday, Bailey requested that enlisted men or women be added to the panel. They’ll make up a third of the total, and the size of the panel will be adjusted to reflect that split.

All members of the jury must have a rank higher than Bailey, and none of them can be from his unit, the 92nd Security Police Squadron.

Before the jury is empaneled, the prosecution and the defense can each have one prospective juror removed without stating a reason. The judge, an experienced military attorney from the office of the judge advocate general, decides whether to remove jurors that either side challenge “for cause.”

The rules of evidence are similar to a federal trial. In describing the process, Fairchild officials said opposing attorneys in a court-martial are more liberal about sharing evidence, routinely exchanging information without going to court.

As in civilian trials, Bailey is presumed innocent until proved guilty beyond a reasonable doubt. Like civilian defendants, he cannot be required to take the stand to testify.

But the jury is not required to reach a unanimous verdict. Bailey must be found guilty by at least two-thirds of the jury to be convicted; otherwise, he’s acquitted.

If he’s convicted, at least two-thirds must also agree on the sentence, which will be decided after a hearing that immediately follows the trial.

If the sentence is for 10 or more years in prison, at least three-fourths of the jury must agree.

The prosecution and defense can subpoena civilians to testify. Federal law gives the judge the power to make them take the stand, even though they are not in the military.

The trial will take place in a small courtroom in the Fairchild Air Force Base headquarters building. The room is arranged so that Bailey and his attorneys sit directly across from prosecutors, with Pope and the witness stand on one side and the jury box on the other.

In most civilian courtrooms, the defense and prosecution sit at adjoining tables, facing the judge and witness box.

, DataTimes MEMO: See related story under the headline: Hearing previews court-martial at Fairchild

See related story under the headline: Hearing previews court-martial at Fairchild

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