Thursday, January 22, 2015

Trial by candlelight

The editor has just submitted the following suggestion to the Defense Department Office of General Counsel's Military Justice Review Group:
Recent news stories about a Nigerian general court-martial said to have been conducted at night have reminded me of concerns I have had in the past about U.S. courts-martial being conducted surprisingly often at outlandish hours, including into the wee hours of the morning. I believe one or more of the services' rules of court include precatory language about normal court hours. 
In connection with the Review Group's identification of possible changes to the Manual for Courts-Martial, I recommend that consideration be given to including in the Manual a uniform rule that would define court hours as the regular duty day, subject to exceptions only in extraordinary circumstances set forth on the record. 
In my experience, courtroom dynamics and the relatively junior rank of defense counsel have caused issues of excessively long proceedings to be waived when they should not have been. Therefore a rule is necessary.
Please comment if you have a view on this question. And if you have submitted anything to the Military Justice Review Group, please copy and paste it into a comment so others can know about it.


  1. I have in fact been subject to these long and late night courts - in one instance until 0200 while the members deliberated on findings of guilty or not guilt. I'm aware of a colleague who went to 0400 with the same judge.

    One author, sometimes referred to as the Blackstone of US military law had this to say.

    "This subject is regulated by Art. 94 of the code, as follows: - "Proceedings of trials shall be carried on only between the hours of eight in the morning and three in the afternoon, excepting in cases which, in the opinion of the officer convening the court, require immediate example."

    Winthrop, MILITARY LAW & PRECEDENTS, 2d., at 281.

  2. I am reading a record of trial for an appeal.
    The prosecution is arguing that everyone can "start early and work late" in order to do a two week trial in one. The military judge responds.

    "Going late at night . . . I think people make bad decisions when they're in court 14 hours a day and that's the wrong answer. They're just -- that's the wrong answer and it's the wrong answer to everybody who watches."


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