James Cunningham, 26, was charged March 3 with aggravated child abuse for allegedly admitting to punching his baby in the head at their Rapid City home.Sorry, folks, but this is wrong.
His charge was upgraded to second-degree murder after the five-month-old died nine days later after being airlifted for treatment at a hospital in Sioux Falls.
Cunningham had already made several appearances at the Pennington County Court when the Air Force requested to take over the case in early May, said Lara Roetzel, chief deputy at the state’s attorney office.
The Air Force has the power to take jurisdiction over cases involving airmen even if the crime occurred off base, Roetzel said.
Roetzel said her office consented to the transfer because her office is already crunched for time due to coronavirus-related furloughs. She also said military court is comparable to civilian court, while military prisons are tougher than South Dakota ones.
The Air Force works “towards maximizing jurisdiction over our airmen,” Lt. Joshua Sinclair, an Ellsworth spokesman, said when asked why the Air Force wanted to handle the case. “The military justice system is designed to promote justice and to maintain good order and discipline in our service.”
Cunningham is charged with murder under the Uniform Code of Military Justice for engaging in an act that is “inherently dangerous to another” and shows a “wanton disregard of human life,” Sinclair said.
He said the maximum punishment is life in prison without parole, a dishonorable discharge, reduction to the lowest enlisted grade and forfeiture of all pay. Cunningham would have faced a mandatory punishment of life without parole under South Dakota law.
First of all, the case is not being "transferred." Both the state and the Air Force can prosecute. What's happening is simply that the state prosecutor is not prosecuting.
That said, consider what's going on.
The accused is losing his right to a 14th Amendment-compliant (unanimous, 12-member, randomly-selected fair cross-section of the community) jury and will now have a military judge with only a three-year term of office, R.C.M. 502(c)(3), rather than a state circuit judge with an eight-year term of office, all because of an arrangement between two prosecutors. He's also apparently now facing a harsher sentence if convicted. And because of the discriminatory limit Congress has placed on GI access to the Supreme Court, his right even to seek review there in the event of conviction will be significantly dicier than if he were tried in state court.
Because the Air Force's druthers are to "maximize" its military justice jurisdiction ("Convening authorities and SJAs foster relationships with local civilian authorities with a view toward maximizing Air Force jurisdiction," AFI 51-201 ¶ 4.17) (does any other service admit to having such a policy?) and it has room on its docket, whereas COVID-19-related furloughs have created staffing problems for the local prosecutor. Is that office shut down? How about finding a prosecutor from another county?
Are military prisons "tougher" than South Dakota's? Is that a factor the state's prosecutors should be relying on, even if it's true?
Did I mention that there is nothing inherently military about the charged offense, so no claim can plausibly be made that specialized know-how is required or even helpful to try this case.
The military justice system is not a catch-all or spillover system to pick up the alleged slack for local prosecutors. This is an abuse.