RFE/RL: The civilian justice system in the United States has a reputation for impartiality. Most judges are secure in their positions, jurors are chosen at random, defendants have many rights, and prosecutors must prove their cases beyond a reasonable doubt. In what ways does American military justice differ?
Eugene Fidell: In many respects it's a close replica of a trial in a federal court. The rules of evidence are very similar [to those of a civilian trial]. There are opportunities for lawyers to participate for the defense. But a court-martial is going to be different from a civilian trial in a number of ways. For one thing, the jury is going to be different. In a court-martial, you need a smaller number of jurors, except in a death-penalty case, where you need 12. But a court-martial can have as few as three jurors or five, for a felony-level case. Also, the jury is not picked at random -- it's picked by a commanding officer. In a court-martial, the military judge may not have any protected term of office, so there may be a problem about the appearance of impartiality -- or independence -- of the bench. The sentencing is also somewhat different because in a court-martial, all there is is a maximum punishment, and the jury or the judge can award any punishment up to that. So there are no guidelines as to what the punishment should be.
RFE/RL: Are there any other differences?
Fidell: There are differences in what might constitute a crime. For example, in a court-martial, military personnel could be prosecuted for being negligent, whereas that's typically not a crime in the civilian community. Dereliction of duty, for example, is an offense under the Uniform Code of Military Justice. It's not in civilian life. Some military personnel -- officers -- can be prosecuted for speaking contemptuously of the president. That's not a crime for American citizens generally. Disobedience to your boss, or being disrespectful to people is not a crime in the civilian community. So the substantive law's going to be a little different.
RFE/RL: Some critics say defendants in courts-martial have fewer rights than civilian defendants have, and therefore are more likely to face false convictions. Is that so?
Fidell: I think conviction rates are probably comparable. Most people who are prosecuted [in civilian courts] in this country are convicted. Many people plead guilty. I think that conviction rates are comparable.
RFE/RL: Earlier you mentioned the differences in juries. What is the most striking difference between a military and a civilian jury in the United States?
Fidell: The key thing is they're handpicked. They're picked by a commander, rather than at random by a jury commissioner. They're not picked off the voter rolls or the motor-vehicles-registration list. They're picked from the available officers at a particular unit.
RFE/RL: Are there other factors that may hinder the impartiality of a court-martial?
Fidell: There is always concern about what's called "unlawful command influence." That is a persistent preoccupation of the system. It's been called the mortal enemy of military justice. How often does it actually come up? I don't know. But what I can tell you is that the system does provide opportunities for the defense to try to explore whether there has been unlawful command influence -- for example in screening jury members. As long as we have the kind of architecture that we have had from the beginning in this country for military justice -- which means commanders playing a major role -- that's going to be a concern.
RFE/RL: Can you give an example of potentially unlawful command influence?
Fidell: A commander can decide simply not to prosecute a case. The decision to prosecute in the military-justice system is not made by an attorney or a prosecutor; it's made by the commander. So if the commander thinks that you're a hell of a guy, your case may never go to a courtroom.
RFE/RL: Some critics of U.S. President George W. Bush say he has made American soldiers serve too many tours of duty in Iraq, leaving them overly stressed and prone to commit crimes that they otherwise would not have done. Is such stress an acceptable defense in a court-martial?
Fidell: Well, there's an insanity defense. I think more people assert that kind of thing than succeed with it.
RFE/RL: If a soldier is convicted of a major crime and is given a long prison sentence, where does he serve it -- at a military prison or a civilian facility?
Fidell: Long-term prisoners are held at the United States disciplinary barracks at Fort Leavenworth, Kansas. It's a military prison.
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