DALLAS – A justice system that long has been fodder for movies and TV will be center stage this week as the world watches how the United States handles one of the most embarrassing chapters for its military.
The first of several courts-martial of soldiers in the Iraqi prisoner abuse scandal begins in Baghdad, Iraq – at its convention center – with reporters allowed to watch.
Texas lawyers who have taken part in military trials said military courts often do better than their civilian equivalents in protecting the rights of the accused and getting the verdict right.
“It’s probably fairer,” said Dallas attorney Scott L. Frost, who prosecuted or defended more than 70 courts-martial in the U.S. Army. “There are a lot more procedural safeguards in the system.”
Prison guard Spc. Jeremy Sivits, who took photos of abuse at the Abu Ghraib detention center in Iraq, this week becomes the first soldier to be court-martialed in the scandal. He has cooperated with prosecutors and faces lesser charges than his colleagues.
There’s a common misperception that the court-martial system is “some kangaroo court, some formality out there just to make things look good,” said Todd Hedgepeth, a San Antonio, Texas, lawyer who was the lead prosecutor in more than 100 Air Force courts-martial. “From personal experience, I think it’s the opposite.”
Houston lawyer Jack Zimmermann, a former prosecutor and criminal trial judge in the U.S. Marine Corps, said the military justice system offers defendants more protections in several areas:
Every accused person gets a military lawyer free and can hire a civilian attorney.
In an Article 32 hearing, which is similar to a civilian grand jury session, defendants can appear personally, bring their lawyers, and present evidence and witnesses. In a grand jury, none of that is allowed.
The court-martial members – equivalent to a civilian jury – must all be officers, which means they are college-educated. If the accused is an enlisted person, he or she can ask for an enlisted panel, which means at least a third of the members must be enlisted personnel.
To obtain a conviction, two-thirds of the members must decide the accused is guilty, a requirement that makes it more difficult to get a conviction. In civilian trials, anything less than a unanimous verdict is a hung jury and can force a new trial.
A convicted person has more places to appeal. The commander who brings the charges reviews the sentence and can modify it. Then the appeals go to appeals courts for the various branches, such as the Army Court of Criminal Appeals.
Beyond that, there’s a U.S. Court of Appeals for the Armed Forces, and defendants can also appeal a verdict to the U.S. Supreme Court. Zimmermann, now a principal in Zimmermann & Lavine PC, acknowledged some criticisms of the military justice system.
In the courts-martial planned for the abuses in Iraq, lawyers, judges and members must be careful to avoid “command influence, where the senior officer who convenes the court-martial lets it be known what he or she wants done,” Zimmermann said.
“That influences the members. That’s illegal. They have some severe problems with the Iraqi situation right now about command influence,” he said.
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