Jury acquits former Marine in killing of Iraqis (NAZARIO!!)

ping

[Mr] T

Thanks for your posts and continued service to this great nation. Interesting and a fascinating analysis of events.

Without question, there are whacks that clearly run the range from unjustified all the way to blatantly criminal...

For instance -- I can accept that most LEGITIMATE convictions would involve charges of murder against "friendly forces", "assassination attempts against friendlies", murders associated with robbery or rape, murder for profit, etc, etc..... ALL of which, and worse, have taken place in the military.. I have no problem with charges and convictions in these cases..

However — it stretches credulity to think of going after a specific individual or group of individuals officially designated “targets” or “enemy” and come to any conclusion on the event of their deaths as anything more than cause to celebrate....

Am I THAT old and that much out of touch with the current world?

I'll grant you that I'm not up to speed on these particular cases. I was talking about military justice in general.

It reads to me that this is a problem with the investigatory end of the case ... NCIS and the Navy/Marine equivalents of CID and MPI. It's a garbage in/garbage out type of situation. If the commanders get bad advice and information from their investigatory arms, they're going to make bad decisions ... or, at least, uninformed ones. So, no, I will grant you that I was not aware of the information that you posted here and elsewhere. Quite frankly, I tend to ignore threads pertaining to "prime TV" types of cases. A lot of times, information in threads citing webpages or news extracts is totally at odds with the real facts that are going on in the courtroom. I know that, in the GRANER case .. in which I have personal knowledge .. a lot of the stuff that was talked about in the press and online with respect to the evidence in the case, witness statements, etcetera, was completely wrong with what was presented at trial. There were numerous individuals here who asserted that, with the information that they had, they were sure that Graner and his merry band of thugs were being railroaded, were being framed, were being hung out to dry by the Command. They were .. and still are .. completely wrong. I heard all of the evidence. I saw documents that did not go the panel which, if they had seen them, would only have reinforced the guilt of the whole bunch of them.

Sometimes, the surrounding evidence is strong enough to take it to court. That's why I have such faith in the system itself. All of these men .. and those in likewise cases .. were either acquitted or had their charges dropped once they got to court. It's crappy sometimes, but the Command can only act on what evidence and statements are presented by their investigative arms. Again .. garbage in/garbage out.

Finally, with respect to why 85% of cases coming to court end up as guilty pleas, well, you've got to remember that probably 75% of all cases are for relatively minor .. but continuous and recurring .. offenses. They're for things like AWOL/desertion, drug use, insubordination, minor assaults or thefts. They can usually get very good deals from the Convening Authority for simplifying the system and pleading guilty. If the evidence is against them and they don't plead guilty, and are found guilty by either the military judge or the panel, there isn't a hope that they will be allowed to stay in the Army: they have shown no remorse and no sign of rehabilitation potential. However, if they plead guilty and can show that they've changed their ways, either by getting some of their chain of command to come in and testify on their behalf during sentencing .. and that happens more than you would expect .. or by showing that they've been good steady soldiers during the time between the preferral of charges and the court date, they have a VERY good chance of being allowed to remain in the Service if they so desire. On the other hand, the ones who simply want to get it over with and get out of the Service, plead guilty to speed up the process and ask to be discharged. If they ask for it, they always are. So, it's the mentality of the accuseds in the military that lead to the high amount of guilty pleas and, ultimately, convictions in the military justice system. I would bet that, if you went to the civilian system and added up those who are pleading guilty to those who are pleading "no contest", which, in my mind, is a convenient fiction that still means that they're guilty, you would probably have close to the same number of convictions. In talking to individuals who have set on civilian juries, most of the time, the morning of the case, the accused changes his plea from not guilty with a jury to guilty with a judge alone. Very few civil criminal cases, in proportion to all of those that are charged, carry on through a complete not guilty with a jury case. If they did, the civilian justice system would grind to a halt, just as would the military system if every accused opted for a fully contested jury trial.

Also, as to the idea that, of the 15% in the military who contest their charges in court, 50% are convicted; there's a relatively simple reason for that ... they ARE guilty. With most of the easy cases being disposed of before trial, either by non-judicial punishment or summary court or by a guilty plea deal with the Convening Authority, usually only very serious crimes such as rape, murder, aggravated assault, and the like are contested. Some accuseds simply can't face or admit the fact that they committed the crime and, as a result, they plead not guilty even if the evidence is overwhelming. Others plead not guilty because they have nowhere else to go: the charges are serious enough that the Convening Authority won't make a pretrial deal for a guilty plea with a result that the accused wants to agree to. With nowhere to go, the default position in military courts .. if you don't specifically plead guilty .. is a not guilty plea with a full panel of officers sitting in judgment.

So, this particular case or series of cases may be outside the norm for the military justice system, but, see, I have every faith that the system works and the proper findings and decisions will be made by those in the system. And, as you can see, where the rubber meets the road, when the accused has had his day in court, in these cases, the justice system worked as designed. If the investigative system did not, well, then that's the system that needs fixing.

Well said

"...prosecuted for reasons known only to the Marine Corps, NCIS and the JAG Corps"

One additional thing, Race ... the JAG Corps, just like any other unit within the Division or the Corps, is bound to obey the directives of those higher commanders who are ultimately responsible for the decisions. When the Convening Authority, after examining the packet of evidence that comes to him, receiving recommendations from both the investigating officer and the Staff Judge Advocate, decides to forward the charges and refer them to trial, the prosecutors assigned to that case .. usually Captains and Majors .. are expected to salute, do a smart about face, and drive on. They are expected to do the best that they can, regardless of their personal opinions of the guilt or innocence of any accused. The JAG officers are not given the option to pick and choose their cases; they are assigned to them and expected to do the best job that they can to succeed.

It's no different than the Brigade, Division, or Corps Commander issuing an order to an infantry battalion commander to "Take and hold that hill." If the battalion commander believes that such an operation isn't feasible or could only be accomplished with great loss to his unit, he is expected to make those positions known to the Commander issuing the order. If, after all of the pros and cons are weighed and the higher echelon commander decides that the order stands, it is the duty of that infantry commander to do his best to obey the order, regardless of his personal feelings in the matter.

Now, it goes without saying that the order must be a "legal order" within the framework of military rules and regulations. However, if the order is legal, lower commanders have NO option but to obey it or face charges themselves.

Again, I will reiterate that I have not been paying attention to this or any similar cases because, in the end, I believed that the system would work and that, if they were guilty, they would be so found and, if they were innocent, they would be exonerated and acquitted.

And, in the end, I was correct.

And, in the end, I was correct.

Point of clarification. You don't follow these made-for-tv-cases and commented on one case that was decided by a civilian jury that cleared a Marine.

http://www.freerepublic.com/tag/pendleton8/index?tab=articles

“But still on its face, this form of trial was a travesty of justice. Jury of your peers anyone?”

At least he drew a jury of people who mostly recognized that they were NOT his peers. In California, no less! Not that I'd like to have to depend on luck like that. Nazario needs to go find a poker game and see if he has any luck left.

my friend... I appreciate all that you've done. If the internet wasn't available these men would have been sacrificed on the altar of the "PC" or Liberal "support the troops but undermine the mission" asshats. Almost a real life version of "Breaker Morant".

What we need to find out is "WHO" or "WHOM" are the people responsible for this BULLS#T.

Names and faces to find out who the investigators, JAG/NCIS lawyers and finally who authorized and supported this.

Because when it's all said and done, I don't want to let these future ACLU lawyers to profit by any means either by elected or appointed office to suck off the nipple of the government that these brave men fought so hard to defend.

The reason I've been so upset is that "snatch and grab" is/was familiar to me. For me to be sent out on a mission and just cut loose would have put me in those men's boots.

I couldn't even imagine what they felt like after returning home safely and then having to go through the living hell of incarceration, psychological brutality of accusations that are false, and finally the trial by which mealy mouthed lawyers attack me as a murderer.

These men should counter sue. They can't I know, but somehow they must be shown that the Marine Corps still has some men that will buck the system and the promotion board in order to find out who on the investigator's side lied and that the over aggressive attack in order to make political hay, face criminal or civil penalties.....rather than being hunted down like dogs and put down.

Names, that's what we need. Names, a time line and chart showing how they all connect.

There has to be a paper trail and most of the names are in the public domain or accessible via Freedom of Information.

Thanks again RaceBannon

thanks for the info.

I have a name, James Connely. Go to Jaghunter.com and do a search for that name.

He was involved in ALL these high profile cases in this war.

jaghunter.com is an expired domain. Google search asks if I meant “janhunter.com” and shows a lot of garbage.

Praise the Lord! This was such a witchhunt to make Bush look bad.

I forwarded your response to Freeper Flightline, whom I served with back in the day. He is the lead support person on the Pendleton 8 case. It is from him that I learned many things about what happened in these cases, especially the witholding of evidence from the defese that was allowed for the prosecution, the perjury by NCIS personnel, the coerced statements by the accused, and the discovery of how so much of Military Law is not what is protected in the U.S. Constitution, in fact, the U.S. Constitution forbids civilians from being subject to the standards of what our Military undergo in court martials.

Below is his response, in red, to your previous comments:

I have been involved in military courts-martial since 1978 as a court reporter. After two years in the Navy, I came into the Army in 1975 as an infantryman and then competed against paralegal specialists in the 1st Cavalry Division for a school position at the Court Reporter School. I graduated first in my class at the Naval Justice School (where Army court reporters went to train back then) in 1978 and have had no other job since then. I retired as a Sergeant First Class in 1995 and was hired as the only civil service court reporter on Fort Hood immediately thereafter. In 2003, the three jurisdictions on Fort Hood ((1st Cavalry Division, 4th Infantry Division, and III Corps) consolidated their court reporter sections and I was placed in charge of the section .. myself and 10 military court reporters. Since my graduation in 1978, I have been the court reporter of record in at least 100 courts-martial every year and, since 2003, have supervised the other 10 reporters on Fort Hood in their cases as well.

First, I would like to congratulate you for your fine and continued service to the military, Semper Fi.

To start with, out of all of the courts-martial within any given year, 85% of them are guilty plea cases, where the accused has agreed to plead guilty in exchange for sentencing consideration by the Convening Authority. Probably 95% of these are held without a panel for sentencing in front of a military judge alone. Thus, right from the start, 85% of all military courts-martial result in a conviction .. because the accused pleads guilty.

This projected outcome and result is part of the problem. Based upon National standards and conviction rates, red flags immediately are raised by the percentage and out comes of this statement.

On a National level the conviction rate is far below that of the military and if the civilian courts were to rise to this percentage there would be an investigation on those who have been so successful. This also means primarily the investigative bodies who have supplied the material for the prosecution. ( Side Note: NCIS, CID, and the rest of the military investigative bodies gather and make the product for the prosecution. This is also done with no oversight and with complete immunity under oath?)

Of the remaining 15% where the proceedings are contested, 10% are held before panels (juries, in the civilian context) composed of officers and warrant officers; if the accused is enlisted, the accused may request that the panel be composed of one-third enlisted personnel. In any event, none of these panel members will be junior in rank to the accused and none will be from his company-sized unit. The remaining 5% of the contested cases are held before the military judge alone, without a panel for either findings or sentence.

10% are held before panels (juries, in civilian context). Using this term jury in any explanation of the military "hearing" is not accurate; this word has been borrowed from a real court of law and is misrepresented in its context on a daily basis. A panel never was, or as is used, ever been meant to be a jury.( see Col. William Winthrop, Military law and precedence Vol. I and II).

A panel consists of Sr. men/women in uniform with rank, it does so under orders and acts as an advisory panel to the hearing officer.( thus the name "CODE" of justice)

U.S. citizens, uniformed or not, are allowed by the very existence of the Constitution, the two types of juries under its "PROTECTION", Grand and petite.You are correct in the statement that a percentage are held in front of a hearing officer, yet here lies another problem. Unlike English Common Law (or, our Constitution) when you are in front of a magistrate or elected judge of the court, he alone has been given the power of the Nations judiciary to make a decision, and that decision is to be based on law and to be final and within the mandates of the nation and states who have legally empowered him or her.

A hearing officer only acts as a mediator between the accused and the convening authority who has been given the power by the DOD ( Department of Defense) through the surrogate of the CIC ( commander in Chief) under Roman Law ( adopted through the Confederation) and inflicts punishment and or judgment without a jury and meets all three standards under the supreme court of attainder. "Punishment without the presence of a jury" or the power given by the Constitution of the United States. This standard has become DOD policy and has never been ratified by congress or heard by the Supreme Court and conflicts in its totality with the constitution.

My gut feeling, after 30 years of being involved in more than 3000 courts-martial, is that, if the defense is arguing a legal/evidentiary point, the accused will select a military judge alone; if the accused is going to argue an emotional/evidentiary point, it will be before a panel.

The fact is, most young men and women from the beginning of service are taught to respect rank. Most of the plea deals and or decisions in front of a reviewing officer revolve around the lower hanging fruit ( IE, Jr. enlisted). These folks have under the UCMJ a Capt. or above assigned to them. They look to these folks for guidance and advice for what they stand for. Most are not in a position to obtain or seek civil council in there behalf. Even if you can afford this outside council, you would never have enough funds to fight this system most of the time. (Look at the recent hearings that have taken place during this war) The cases that end up in front of a panel are most often the most serious offences or accusations of a crime. Emotions run high when you look at years or death under the UCMJ so it would make a great deal of sense to say emotions exist in that stressful environment. Bottom line, is the defense and prosecution work together to mediate the outcome of most hearings. This is why there has been no access to military dockets, names or offences for civilians to attend and on a regular basis reported on. (see last months article Marine Corps Times)

Over 30 years, contested cases break pretty much even ... about half are acquittals and half are convictions. A lot of times, an accused will plead not guilty because the defense simply doesn't believe that the government can prove up its case, or the defense counsel can't convince the accused to plead guilty even though the unbiased evidence is heavily against him, or the accused can't get the deal that he wants to get from the Convening Authority for a plea of guilty.

Above you were closer than this statement, 85% conviction rate, in truth it stands close to 98% conviction rate, so 50/50 is not a good statement. In a court of law and not a hearing room, it is up to the prosecution to prove guilt beyond reasonable doubt, not the defense to prove some one is innocent. Unlike a real court room, in a Military Court only 2/3 of the panel need to find you guilty and the prosecution in a hearing runs the hearing and the convening authority has the final word on how it is going to work. This is what you allude to when in this statement you talk of a plea bargain and whether or not the convening authority will agree to it. This my friend is called command influence, it happens in every case, thus defined by the boundaries of the UCMJ itself nullifies under its own rules as one of the most grievous crimes against the code. This is the standard and has shown for decades that a military hearing cannot go forth without the the decisions made by the same man who has brought the charges against the accused as a surrogate of the government. We continue to meet the standards of attainder as you speak from your 30 years of recording the events.

Military Rules of Evidence are identical to those used in civilian courts.

Well, I wish this was true, there are Marines and Solders in fort Leavenworth as we speak that if this statement could stand on its own merit, we would not be talking about this topic. It has become fact through hearings and the documents that have been gathered for over twenty years that this is far from the truth. If the gathering of evidence by NCIS,CID,and the rest of the military investigative body's did such a tremendous job there would be no reason to have to testify under full immunity !

The 4th and 5th amendments would rain true for the accused and the prosecution would really have to work for their pay check. This is a gathering system that uses hearsay and accusations as the truth, they have defendants write there pre-arranged statements multiple times before acceptance or write them for the accused and make them sign them. (This was the case of the Pendleton 8, their 'statements' of supposed guilt were dictated to them by NCIS personnel, directing their every word as to what they would plead gulty to).

With the gathering and case building these folks do, if in a real court 50% would never make it passed the article 32 stage if it ever was allowed to go that far. This has been witnessed time and time again in recent times with the hearings that have gone on at Camp Pendleton, documented, recorded and reported on. If you would like to document share I would be glad to do so.

Case in point, the first ever hearing of a U.S. service man was just ended in a California Federal Court. The same evidence given by the Government and work product of Special agent Fox NCIS, was listen to and looked at by a "JURY" This was used and presented in the same manner as in all the cases that have put fine American Hero's behind bars in recent times. A real jury operating under the judiciary or the United States Constitution found there was no evidence that would prove beyond reasonable doubt that this young Sgt. committed any crime. If this was allowed to be heard in a military hearing he would be confined as we speak. Intel gathering and the manipulation of statements and evidence in no way comes close to a real court of law.

Appeals of courts-martial are AUTOMATIC to the Army (or Navy or Air Force) Court of Criminal Appeals if the sentence includes a bad conduct or dishonorable discharge or confinement for more than six months. I can tell you up front: probably 90% of all convictions are AUTOMATICALLY appealed. The Convening Authority has NOTHING to say with regard to the appeal process; the procedure is set forth by the Manual for Courts-Martial (signed into effect by the President of the United States and based on United States Codes) and AR 27-10.

This is completely true, the majority of the reviews (appellate process) are automatic upon the sentencing of some one spending more than 6 months in confinement. With a couple twists. The Supreme Court has just in recent times made a decision on GITMO detainees. This decision and the powers to be (Human Rights Watch) and the folks in D.C. who wanted it closed got their day in court. Though the word of attainder was not mentioned or brought up, it was part of the over all decision; you cant keep folks for ever.

Most importantly was the decision to give the Constitutional rights to these folks who have been hell bent on killing our folks? These folks now have the ability to petition after their tribunal to a federal court for full review with a, yes again, jury.

You mention the review process and how it works. Well, if you research the military process you will find a small percentage that have been over turned, you will find some that have reduced sentences to time served and some that have changed the determination of the accused rated discharge, heck, recently the Fort Lawton solders were just found wrongfully convicted after 64 years and one that was still living to hear died hours after being told! The only reason these men were cleared was a man and women team who went through the archives and dug for the truth and wrote a book! The problem with the Military "review" process is it only allows what was actually in the original hearing to be reviewed!

All evidence that is in hand that would vindicate any wrong doing is kept out of any review and only the record of trial and what's in it is allowed! That's why the percentage is so low; you're only allowed to review what you were convicted with.

That's a great system, any material that can prove against your incarceration is not allowed. Then here are your chances with CAAF (court of appeals for the military): less than 1% has ever been over turned. This may explain, the five judges appointed to CAAF are done so for there term by the POTUS. The key to the puzzle is, when a convening authority makes his final disposition it represents the Commander and Chief, The king in Roman law or articles of war. With this said, why by the time it gets to CAAF would they overturn a decision, the decision represents the President. Now you say they have the right to go to the Supreme Court, This again is true, but only if it is approved for review by CAAF, ones already reviewed by CAAF. Would they let someone's review go higher? Some have, but most do not because by the time it would get to that stage the accused is out of confinement or dead. This is how your military review works, how would anyone reading like to be under these non constitutional restrictions. What do you think your chances would be? and how would you like to trade places with some one in uniform who can die in a heart beat for the protections you outside the military get to enjoy?

The defense has a complete right to disclosure of ALL evidence against the accused. Nothing will get a judge pissed off quicker or a conviction overturned on appeal faster than the government playing hide-the-ball with the evidence. Ambush witnesses are not allowed; the defense has to be informed up front of all witnesses that are going to be called and given a chance to interview them prior to the proceedings. Courts have been delayed, sometimes for months, when new evidence or new witnesses have been discovered (or "discovered") and the defense requests time for further investigation and/or interviews. Cases have been overturned by the Courts of Criminal Appeal or the United States Court of Appeals for the Armed Forces (which is the next step up from the Courts of Criminal Appeal and one step below the Supreme Court) if new evidence is discovered or it is found that the government withheld evidence from the defense. I know this because I have been involved in numerous re-hearings, either for both findings and sentence or just for sentence alone.

This is not always the case, It is up to the prosecution and the hearing officer what will be allowed or not. The cases that are overturned by the court of appeal or the review in sentence length or dismissal, which is slim to none in most cases and is formatted on the irregularity or things that have appeared in the "PUBLIC" record of trial. Nothing beyond that is reviewed in behalf of a defendant.

Now, classified documents or national security matters can be redacted or the session will go into a closed session with spectators and/or non-cleared personnel banned from the courtroom. However, evidence MUST be presented in court, whether open or closed, in front of a security-cleared panel (if there is a panel in the case), the judge, the trial counsel (the prosecutors), the defense counsel (whether civilian or military), the accused, and the court reporter. All court reporters are REQUIRED to maintain a SECRET security clearance so as to allow them to participate in courts-martial in which SECRET material and evidence is presented and discussed. If material higher than a SECRET level is being discussed, a court reporter with the appropriate security clearance must be detailed to that court. Again, there is no playing hide-the-ball. If the government doesn't want to present the unredacted material in open (or closed) court or redact enough of the material to get it reclassified to a lower security level, then that charge may not go forward. The accused always has the right to hear the evidence against him, at least in one form or another, and it must be enough for the panel or military judge to be able to find him guilty beyond a reasonable doubt. I know these things .. I have been involved in a number of courts-martial where classified material was involved .. and it came out, in one form or another, or the military judge dismissed the charge that it pertained to. I was the court-reporter-of-record in the Abu Ghraib case of US v. GRANER, the purported ringleader of the guards, as well as the supervising court reporter for US v LYNNDIE ENGLAND, the female with the proverbial "thumbs-up", as well as for most of the other Abu Ghraib cases.

This is a truthful statement in the fact it was designed to work this way, sad fact is, it does not. With the internet and new communications we have today the truth travels faster than the speed of heat. With the cases against our military that the Government and the media were so fast to make opinions on, they failed to realize the internet is faster than the print or TV media. They could not work as fast as information directly or indirectly reach people who were following, researching and speaking on behalf of our men and women in uniform. From your 30 year exposure to this system, it has given you a seat from the inside out, you have been fortunate to record history of a system that after over 200 years has been exposed for what it stands for and the internal fight within the system to keep it the way it is. I know 4 Solders and one Marine who this day sit in Leavenworth because none of the protocol you mention in this paragraph was allowed to be used in there defense. The information provided by the S2 officer assigned to one case was not allowed to bring in information that would have been useful in a defendant’s behalf. Example 2, The lead defense attorney was given his clearance to view S2 information (intelligence) and the Government and the prosecution block the information as a National Security issue so as not to allow it in the defense of the Marine. You’re correct, the room should have been cleared and those involved in the case given the clearance and others removed, did not happen. I can go on with other cases but we would be wasting time.

All of that being said, I can unhesitatingly state that I would much prefer to be tried by a military court than by a civilian one ...

Some folks also like sausage, till they get to the factory to see how it is made! It is not the same on the other side of the fence you were recording.

First, even though they may outrank you, this a jury truly of your peers. These are professionals who, every day, do the same things that you do, see the same things that you see, and feel the same things that you do. These are not couch potatoes looking for something to do so they show up for jury duty; these are not half-wit civilians who are either too stupid, or too lazy, or too greedy to even attempt to get out of jury duty that the rest of their civilian counterparts seem to be able to do. These men and women, officer and enlisted, know that the accused is an individual just like themselves, who volunteered to serve their country, and whose careers are on the line in these courts. They listen intently to the evidence presented and weigh it carefully.

Again, you use the word "JURY" it does not exist in a military "HEARING" room. You have a panel, in uniform, with military decorations and rank and orders to appear there by the same man (Convening Authority) who has recommended the charges against you by allowing the proceedings to go forward in the first place. I believe your words that no one than other military would have compassion, problem is, and they are just a body of service members there to make a recommendation to the hearing officer................ "NOT A JURY" under the Constitutional protections. Now you have focused on the problem in the end of your paragraph. Volunteers who have done so to serve their country......... So why does this system strip them clean from the very writings they have sworn to protect with their very lives?

These are NOT kangaroo courts.

Your correct, by law and their very existence, they are not, or are they recognized as any court of "LAW" at all. Not my words or opinion, DOD's and the writing of the foundational structures set in place by the articles of war ( UCMJ) and one Col. William Winthrop.

"This code, if such it can be called, does little or nothing more than permit the commander to do as he pleases.” It is a do- as -you- please" code out of deference to the power of the military command. It prescribes little or no procedure, It contains forty-two punitive articles. The offence is defined in none of these, but is left to be taken care of by the military custom. Twenty-nine of them prescribed that the offence denounced “shall be punished as a court-martial direct". Under this authority the court-martial may award any punishment whatever except death, and for a minor military offence may, if they choose, sentence an offender to imprisonment for life." Col. William Winthrop......... military Law (code)

This is but one quote I could pull for each and every view you have on a system you sound you very much love and were proficient at, and still are. The problem is, like me being a former active and reserve Marine is, what I was taught to believe in without question after almost 4 years of study and research has shown me they taught me what I needed to know............... The truth is some what different.

There have been some very serious cases of alleged murder, rape, assault, and the like in which I have participated where the accused is acquitted of all charges or at least the most serious ones, because these panels are serious about what they do.

The very fact that the system acquitted all of these individuals or dismissed the charges before/during trial goes against your argument against the military justice system.

Now, processing charges is a completely different thing. That is under the control of the commanders of the accused and the Convening Authority. The charges are sworn out against the accused usually by the accused's immediate company commander, a person who usually has some (if not a lot) of knowledge about and contact with the accused. In many cases, charges do not reach the courts-martial because the company commander or some intermediate commander determines that the charges can be resolved at a lower level of non-judicial punishment (Article 15 or summary courts). If the charges are serious enough, they have to go to the equivalent of a military grand jury, called an Article 32 proceeding. There, an unbiased senior officer with no connection with the military justice system .. just some infantry, artillery, armor, or personnel services officer .. is detailed as an investigating officer and the prosecution must convince him, by presentation of the evidence that the government has, that the charges should go forward. The accused must be present at this proceeding and is detailed a military defense counsel from the Trial Defense Services .. which operates independently from the military justice system within that jurisdiction .. and may be represented by a civilian lawyer if he pays for it himself. After presentation of the evidence by both sides, the investigating officer makes a recommendation to the Convening Authority as to what level of court .. Special or General .. the charges should be adjudicated at or even if the charges should be completely or partially dismissed.

However, the Convening Authority .. the Commanding General of the jurisdiction .. has the final say on whether or not charges go forward. Sometimes he takes the advice of the investigating officer and sometimes not, but he is required, by regulation, to consider it. At that point, the charges are referred (or dismissed) to a specific court-martial convening order, which designates the panel which will set in judgment on the case and the trial proceeds.

So why go through the process at all? as I stated above, only one man makes a decision that represents the king. Commander and Chief.............. This is against all common law and shows the inactions over two century's of congress not wanting to address DOD policy, not LAW.

There is much, much more involved than I have laid out here. Sometimes cases which look like a slam-dunk going into trial blow up in the face of the government because a witness changes their testimony from earlier statements or critical evidence is not allowed to be admitted because the technical rules of evidence haven't been met and the judge won't allow it in; or a borderline case becomes a certain conviction by the merest gesture or statement of a witness.

As a case in point: a lot of the "he said/she said" sex offense cases that come before panels can usually go either way, unless there is solid physical evidence of injury or DNA results. If the panel gets it into their head that the accusing female is bending the truth or not believable, then even a good amount of circumstantial or even hard evidence won't convince them otherwise and they'll acquit

On the other hand, in one particular case in which I was involved, it was a child sodomy case, where the accused was charged with anally sodomizing a five year old girl. He was a solid soldier, no previous record, and the evidence was borderline ... certainly nothing to reach the "beyond a reasonable doubt" stage. However, when the little girl got on the stand to testify about the incident, she was so believable and credible that I'm sure that's what led the panel to convict the accused. In one part of her testimony, when the government asked her how she knew that it was the accused who was anally sodomizing her, she, quite frankly and freely said, "Because I looked over my shoulder and saw him." When she said that, she turned slightly in her chair and actually looked over her shoulder. I can tell you .. that motion convinced me that she was telling the truth and, in addition to all of the other physical evidence and statements, that the accused was guilty of the act.

Anyway, I've rambled on long enough. As the court reporter, I and my counterparts are always a neutral in the proceedings. We're there to mark evidence, record the proceedings, do the post-trial paperwork, and transcribe and assemble the record of trial for the appellate process .. which, unlike your belief, ALWAYS takes place.

Record of trial only represents the view of the command through their surrogates in the hearing room that were allowed to be used against the accused, this in no way means all the facts have been allowed into the record beside what was allowed to be heard in the hearing room.

I would much prefer to be tried by a military court-martial than by a civilian court, any day of the week. I have said so in different forums to anyone who would listen: the military system .. as it stands now .. is fairer to the accused than the civilian one. The juries are professional and contain individuals who you can trust your career and life to, unlike those who sit on civilian juries. Given the option, I've always told those to whom I have given military justice system training: if you commit a crime downtown, pray to whatever God that you pray to that, if the civilian authorities offer the case to them, the military takes jurisdiction. At least then you're not trusting your life to a jury of probably uneducated ne'er-do-wells whose only contact with the military is watching JAG or war movies on The Movie Channel.

By the way, I've been called to serve on civilian juries eight times in the past 20 years ... as soon as the attorneys ask me and are told that I'm a court reporter in the military justice system and have been one for 30 years, I'm excused. I have never sat on a civilian jury ... why? Well, my belief is that they know that I know the system and would try to hold their civilian court up to the level of the military system and they don't want anything to do with that.

I appreciate your thoughts and the service you have given to this system and your country, The pride you have for this service and your accomplishments while working in this field. Let me make a suggestion in your thought on why you may have been not asked to sit on a real jury, and I wish you had so you could see a different and LAW abiding, Constitutional work process, not that is the best, but it's the best we got and it is the LAW. I would suggest that if the War articles or the UCMJ was as good and constitutional as the present judiciary, you would not have to go to a CIVILIAN court. We would all be mandated to tribunals. I think they release you out of respect for you and to stop any problems with interjection on what you know on other members of the JURY....... all 11 others. Please take this with an open mind , I, in no way did this to demean or knock in any way what you represent or the professional path you took with pride, I applaud it and respect it. Do some research Use the information and make your own decision based on the facts........................... respectfully: Flightline

http://www.blogtalkradio.com/frontline

Check out this upcoming show, in fact, check out the archieves, too while you’re here

The upcoming show will have former lead JAG Col Vokey on, ever hear of him?

Also, Freeper Flightline is the other guest on the show, Tim.

Bluelancer, since you were a stenographer for 30 years, you would find much of this interesting. I do wish you actually worked with the accused to know more of what we are saying, but your having sat in these trials will give you a unique perspective and might set off a few light bulbs.

Thanks for the ping and your work, Race. OUTSTANDING, informative, educational discussion!

I’ll bet that fat scumbag surrender murtha cried louder.

Thank you for posting this. This is pretty much what I thought was going on. I think that most people don't realize that if someone in command has it out for you, you will get screwed. Especially if you are involved with any type of activity that may lead to falsification or interpretation of fact. (after action reports...etc)

this makes me just shake my head and think, "what has the Marine Corps come to?" This would make a great script for a movie. We'll never see it, because the Marines involved were found innocent, but my God I feel sorry for those men.

We really need to make sure the "bad guys" in this whole scenario are exposed for the cockroaches that they are.

Dude, do not send me anymore 50,000 word novels again.

SEMPER FI