Court-Martial Trial Practice Blog
The Real Cost Of Having Commanders In Charge Of Military Justice
This article has appeared in Task & Purpose as a result of United States v. Woods, decided by the Court of Appeals for the Armed Forces on 18 June 2015.
Incredibly, a senior naval officer was appointed to be the president of a court-martial panel when in a questionnaire prepared when first told she’d be a court-martial member in the future, the member answered thus about the presumption of innocence.
In this case, the convening authority selected [x] as the senior member of the panel that would try Appellant for sexual assault, despite having access to her preliminary member’s questionnaire, in which [x] stated her belief that “enforcement of ‘you are guilty until proven innocent’ (just the opposite as in the civilian sector) is essential because the military needs to be held to a higher standard just for reasons of our mission.” During voir dire, [x] elaborated on this response, but reasonable observers could interpret her responses as confusing rather than clarifying her views (emphasis added).
On the surface, this looks bad for the line officer convening authority. Although I’m sure there are many out there cheering for the member who in their minds got it right on the presumption. Once you understand how the naval service selects members for a panel, you can see that they lawyers and the legally trained staff were more at fault than the convening authority.
So—I disagree with The Weirick that the existence of MJIA would have prevented United States v. Woods from happening. Or at least, I disagree with The Weirick’s or Mr. Christensen’s implication that Woods would not have happened if MJIA were in place. That is because it was likely the indifference or negligence of the very legal professionals running the system at best or their hubris.
In all of the Services, the staff judge advocate office (SJA) under the supervision of the SJA and the senior prosecutor, collect nominations for service as a court-martial member. Only in the naval services do they also obtain a fairly detailed questionnaire. The other Services include a brief summary of the person’s record. These documents are collected into a binder and a “standing” court-martial order prepared for the SJA. Most general court-martial convening authorities will appoint a panel for six months or a year. Once the panel documents are prepared, they are taken to the convening authority for review, discussion, and then appointment (been there done that). The appointing documents and the supporting questionnaires then sit in the binder for the term of those members appointment, for all to see. The problem would not likely have arisen in the Army or Air Force because they don’t bother with questionnaires.
So the legal personnel failures are:
- Someone didn’t read the questionnaires; the staff only collected, copied them, and put them in the binders.
- The SJA didn’t read them.
- The chief of justice or MOJO didn’t read them.
- The TC didn’t read them.
Or worse.
- The SJA read them but ignored them.
- The chief of justice or MOJO read them but ignored them.
- The TC read them but ignored them.
Either way, if the legally trained staff had done what the defense counsel did . . . ?
OK, so the commander failed to catch the error that his fully trained legal staff failed to catch. That does not now justify saying that if MJIA were in place the Woods case would not have happened. That’s silliness to be expected of some.
I am in favor of the MJIA and enactment of the O.’Callahan / Relford factors for jurisdiction. But I cannot in good conscience use Woods to argue for those changes. This convening authority was failed by his staff.