Monday, March 25, 2019

Did Congress overlook military magistrates when requiring minimum terms of judicial office?

Minimum terms have not been required for military magistrates in the United States, even though they now can in some circumstances decide pre-referral issues, try misdemeanor-level cases with the consent of the accused, and hold individuals in contempt. See R.C.M. 502(c)(3); arts. 19(c), 26a, 30a(c), 48(a)(2)(C), UCMJ. Given these powers, should military magistrates have the protection of minimum terms, as Congress has required for military trial and appellate judges?

Comments welcome. Real names only, please.

What to wear when going to civilian court

Hon. Daniel J. Hill
In 2010, Oregon Circuit Judge Daniel J. Hill (at the time, a colonel in the state's National Guard, now a brigadier general) wrote this interesting National Judicial College essay on Military Personnel Wearing Uniforms in Civilian Court -- The Judges Conundrum

Beaudry & Stillman cases to be argued at SCC

Tomorrow the Supreme Court of Canada will hear argument in the Beaudry and Stillman cases. At issue is whether courts-martial for civilian offenses that would otherwise be tried to a jury violate the Charter right to trial by jury.

Preston Lim has this curtain-raiser on Just Security. His bottom line:
A separate military justice system has an important role to play in keeping the Canadian Armed Forces an agile and responsive organization. But just as the Canadian military will need to continually adapt to 21st century standards, so too will Canada’s military justice system. An affirmation by the Supreme Court of the Appeal Court’s holding will not weaken, but rather strengthen, Canada’s military.

A senator bats .500

Responding to Sen. Martha E. McSally, former naval aviator Paula Coughlin writes here in Military Times:
We should use training and encouragement to prosecute, McSally said, “and if the commander is the problem or fails in his or her duties, [he or she] must be removed and held harshly accountable.”

Unfortunately, history shows us that the expectation that commanders will execute an impartial and fair interpretation of justice is unfounded. Commanders should, but are not required, to rely on proven tools: investigative experts, victim advocacy experts and prosecutorial experts for an informed, just outcome.

Empowering military prosecutors to lead the process and decide whether to prosecute cases, or if necessary, turn over cases to the relevant civilian justice systems, is the answer.

After years of painful silence, McSally bravely has taken steps to fix a broken justice system by disclosing her horrible rape and revictimization by her command.

What if there had been no fear of retribution and her command had forwarded her complaint to trained investigators, prosecutors and victim advocate lawyers without bias or command influence? This is the next step to make our armed services mission ready: Reform the Uniform Code of Military Justice and reverse the trends of a rape culture that is destroying our military.
Editor's comment: the issue surrounding who should make disposition decisions -- commanders (18th century) or lawyers outside the chain of command (21st century) -- is not confined to sex offenses. It is a structural issue that, while currently generating the most controversy in the context of sex offenses, exists across the board for a serious offenses under the UCMJ. The only real issue is where to draw the line in defining what offenses are minor and can remain in commanders' hands. The Manual for Courts-Martial (2019 ed.) uses one year's confinement as the guideline for defining minor offenses for purposes of the administration of non-judicial punishment (Art. 15).

A strange outcome in Spain

A whistleblower succeeds in overturning her discharge from the Spanish Guardia Civil . . . but a senior officer she accused of abuse of authority is promoted to brigadier general. Details here (en español).