Document created: 9 September 02
Air University Review, July-August 1979

Military Justice: Is It Equal?

This supposed lack of justice in the armed forces is caused, some legal writers believe, by the simple fact that the military system is different. Charles Morgan, of the American Civil Liberties Union, states that "the Uniform Code of Military Justice is uniform, is a code, and is military--and therefore has nothing to do with justice."² Unfortunately, criticism of this caliber is often an outgrowth of the now popular rhetoric condemning the military in general.³ If often ignores the actual realities of the military justice process and cites as its proof isolated incidents not at all representative of that process.⁴

It is significant to note that most criticism of military justice comes from legal theoreticians rather than practitioners: most attorneys experienced in both military and civilian trial work will acknowledge that the military trial offers the accused the better advantage.⁵ Many rights, just recently held by the Supreme Court to be vital to due process of law and essential to safeguard individual liberty, have been part of military justice for as long as 40 years.⁶ This system has prompted Senator Sam Ervin to state that "… military justice [has] attained virtual parity with civilian criminal justice."⁷

This unique system of law has been created by Congress to enforce certain standards of conduct, some identical to standards enforced in civilian life, which have importance in maintaining discipline and public respect for the military service. The administration of this system is placed in the hands of various military courts because these courts are more familiar than a civilian court would be with the problems of maintaining discipline and assessing appropriate punishment. Also, in some situations, a military court may be more convenient or may be the only feasible alternative.⁸ Although many supporters of this system base their belief on the idea that the peculiar requirements of military discipline make such a system necessary,⁹ military justice is regarded by the Department of Defense and most field commanders as a system of justice whereby fair and impartial trials are provided for military personnel accused of criminal conduct; discipline is an incidental effect since the guilty are punished and the innocent are exonerated.¹⁰

My primary purpose in this article is to compare the military and civilian justice systems by reviewing the fundamental rights afforded the criminal offender in each system. I hope the reader will be able to draw a reasonable conclusion as to whether the administration of justice in the armed forces substantially protects or endangers the constitutionally guaranteed rights of individual citizens.

Military Justice
and the Bill of Rights

For many years the Bill of Rights was not recognized as applicable to members of the armed forces. This policy was changed when the United States Court of Military Appeals decided United States v. Jacoby, in which the new standard became that "the protections in the Bill of Rights, except those which are expressly or by necessary implication inapplicable, are available to members of our armed forces."¹¹ Thus, for the first time, it was expressly held that the Bill of Rights did have application in the military justice system. Since 1960, the Military Court has expanded this concept through its decisions so that there is now a clear understanding of the rights and protections afforded the serviceman by the Constitution and the Uniform Code of Military Justice. A format that lends itself easily to an examination of these rights is a comparison between the military and civilian systems.

The right of the people to be secure in their homes and possessions as guaranteed by the Fourth Amendment is no less applicable to the military than it is to the civilian justice system. In two decisions, the Supreme Court eliminated as evidence the use of material obtained through an illegal search. First in 1914 with Weeks v. United States,¹² and then in 1961 with Mapp v. Ohio,¹³ the high court established the basic dimension of the exclusionary rule for the federal and state courts, respectively. The military, on the other hand, adopted the exclusionary rule shortly after the Weeks decision, but it was not expressly sanctioned in service manuals until the 1949 Manual for Courts-Martial¹⁴ Today, the admissibility of such evidence depends on much the same rules as prevail in the civilian system.¹⁵

There are, to be sure, basic differences between the civilian and military mechanisms for safeguarding this right. Probable cause is basic to any lawful search.¹⁶ In the civilian court system, probable cause is set out in a written application for a warrant, and the determination of sufficient proof is made by an independent magistrate.¹⁷ This rule is obviously inoperable in a foreign jurisdiction. The United States Court of Military Appeals has recently defined the limits of admissibility of evidence seized by foreign police officials and used to prosecute United States servicemen in courts-martials in deciding United States v. Jordan,¹⁸ In its decision, the court ruled that evidence produced by a search conducted by host-nation police officials is admissible in an American military trial so long as there is no United States involvement or presence, and the search and seizure are conducted in accordance with the host-nation's laws and do not, in the view of the judge, "shock the conscience of the court."¹⁹

Probable cause, as set out in a written application for a warrant, has been held by implication to be inoperative in areas under control of the armed forces. Consequently, the Manual provides that a search of property on a military installation may be authorized by a commanding officer, based on probable cause.²⁰ Further, the military practice does not require that the application for search be in writing, nor does it require that the application be on oath or affirmation.²¹ The Court of Military Appeals has, however, encouraged the use of written applications, and many commands have adopted this practice as a local rule.²²

These concepts of military search and seizure are clearly based on the belief that the commanding officer can always be impartial toward his men. Unfortunately, this is not always the case.²³ The armed forces have already begun the practice of allowing military judges to issue search warrants, but the practice is not widespread nor is it mandatory.²⁴ Only when this trend is brought to its logical conclusion will the serviceman be afforded the fullest protection of the Fourth Amendment of the Constitution.

The serviceman's privilege against selfincrimination is well established. Not only does the Fifth Amendment apply but the right is further protected by Article 31 of the Uniform Code of Military Justice. It is interesting to note that the warnings codified in Article 31²⁵ contain most of the elements required by Miranda v. Arizona,²⁶ which it predated by 16 years. In addition to requiring that a suspect must be advised of the nature of the offense, that he has the right to remain silent, and that any statement which he makes can be used against him, the Court of Military Appeals, expanding the Miranda rule, ruled in United States v. Tempia,²⁷ that a suspect in the military must also be advised of his right to hire a civilian attorney and told that, if he desires, a military lawyer will be provided free of charge. He can consult with his attorney before any interrogation takes place, have his attorney present during questioning, and terminate the interview at any time. Further, he is advised that any statement he makes must be voluntary and with a full understanding of his rights.²⁸

There can be little doubt that the warnings provided in Article 31 and Tempia are broader than those provided the civilian accused. Further, the Supreme Court's decision in Miranda pertains to custodial interrogations, while Article 31 is applicable regardless of custodial status.²⁹ Additionally, case law established by the Court of Military Appeals has expanded the gap even further, going far beyond the protections afforded civilian defendants. Under military law, an accused serviceman cannot be compelled to speak for voice identification, give handwriting examples, urine or blood specimens.³⁰ Thus, the Military Court has brought within Article 31 actions which the Supreme Court has held are not protected by the Fifth Amendment and, therefore, are not applicable to civilians.³¹

The Fifth Amendment right to indictment by grand jury is the only right expressly inapplicable to the military accused.³² Again, however, the military has a substitute procedure for the grand jury indictment. Article 32 of the code requires that prior to referring charges to a general court-martial, a commander must appoint a commissioned officer to conduct a thorough and impartial investigation of the facts. Although the two procedures are analogous, their differences are rather distinct.

Grand jury proceedings are conducted in secret. The defendant is barred from all proceedings, and, consequently, he does not have counsel and cannot confront the witnesses against him. The defendant is not permitted to introduce evidence or witnesses in his own behalf. Further, the grand jury indictment has not been considered an essential element of Fourteenth Amendment due process so long as the state provides a suitable substitute.³³

On the other hand, Article 32 investigations are open proceedings. The accused is always present and represented by counsel and can confront and cross-examine the witnesses for the government. The accused can call witnesses and introduce evidence in his own behalf.³⁴ Further, at an Article 32 investigation, the government makes almost its entire case available to the defense.³⁵

Because of these differences, even the harshest critics of military justice have acknowledged the superiority of Article 32 investigations. By contrast, substantial criticism has been leveled at the civilian grand jury. Consequently, little support can be given to the notion that the military accused would benefit procedurally if they were under a grand jury system.³⁶

right to counsel

At present, as provided by the code, a military attorney must be appointed for a defendant in all general and special courts-martial,³⁷ except on the rare occasion when counsel is not available for a special court-martial because of "physical conditions and military exigencies."³⁸ The Manual, in defining physical and military exigencies, has virtually eliminated special courts-martial without benefit of counsel.³⁹ Thus, the only trial situation where counsel is not required by the code is the summary courtmartial.⁴⁰ Recent court decisions and department regulations, however, have negated this practice. The Supreme Court, in a civilian case, Argersinger v. Hamlin,⁴¹ held that counsel must be provided whenever criminal proceedings may result in a sentence of imprisonment. The decision extends the Sixth Amendment right to counsel to misdemeanor trials. Since a summary court-martial can adjudge a maximum sentence of one month's confinement,⁴² it was foreseeable that the decision could have an implication within the military system. Following the Supreme Court's decision, the Army and the Air Force promptly announced that counsel would be provided in a summary court-martial as a condition of adjudging a sentence of confinement. The Navy and Marine Corps chose not to extend this protection to their members.⁴³

This decision, however, was short-lived. The United States District Court for the district of Hawaii decided in Daigle v. Warner⁴⁴ that counsel must be provided in summary courtsmartial. In reaching this decision, the court rejected the government's notion that the accused had waived his right to counsel by his failure to demand a special court-martial. Relying on United States v. Jackson,⁴⁵ the district court found that the possibility of the greater punishment that can be adjudged by a special court-martial "chilled" the defendants' exercise of their Sixth Amendment rights.⁴⁶ The court did recognize that, because of the exigencies of military operations, the armed forces may not be able to provide a lawyer as counsel.⁴⁷

A year later the same issue reached the Court of Military Appeals. In deciding United States v. Alderman,⁴⁸ the high military court held that the Supreme Court's Argersinger decision does in fact require that counsel be provided in summary courts-martial, unless military exigencies prevent it. The issue was confused three years later when the United States Supreme Court decided Middendorf v. Henry,⁴⁹ holding that neither the Sixth Amendment nor the due process clause of the Fifth Amendment required that counsel be provided at a summary court-martial proceeding.⁵⁰ The Court stated that a summary court-martial differed from customary civilian criminal proceedings since most of these trials were for purely military offenses and the penalties allowed were very limited. ⁵¹

Finally, the United States Court of Military Appeals in applying the Middendorf ruling restricted the use of the summary courtmartial. United States v. Booker⁵² established that a summary court-martial should be limited to disciplinary action involving minor military offenses unknown to civilian society. Such hearings, in the absence of counsel are not "criminal convictions" for any purpose. Counsel must be made available, and if the defendant waives counsel, the waiver must be in writing.⁵³ Thus, without representation of counselor a valid waiver of counsel, imposition of discipline by summary court-martial cannot be used to escalate sentences in a subsequent court-martial (Booker), nor can a sentence of confinement be rendered (Alderman).

This sequence of cases clearly shows that the military justice system is responsive to the tenets of justice as decided by the Supreme Court and practiced in the civilian community. The military requirement for counsel during trial is identical to that in the civilian courts, with application of the rules coming at about the same time.

Military right to counsel in some situations actually goes beyond civilian practice. For example, military counsel is provided during the Article 32 pretrial investigation. There is no such provision in the civilian grand jury system, where the accused has no opportunity to defend himself. Also, military counsel is provided free of charge throughout the entire military appellate process,⁵⁴ regardless of the financial status of the accused. Civilians, on the other hand, enjoy neither of these benefits. In addition to appointed military counsel, the accused, in all proceedings, has the right to civilian counsel, provided at his own expense. An accused 'can request a specific military attorney if reasonably available.⁵⁵

It has long been held that the right to trial by jury does not extend to military courts-martial. The reason for this exclusion is threefold. First, courts-martial are not courts within the meaning of Article III of the Constitution and are therefore not directly bound by that article's requirement that all trials be by jury. Second, the purpose of Article III, paragraph two, and the Sixth Amendment was to ensure trial by jury only for those cases in common law where a trial by jury was the rule. Since military trials at the time did not provide for a jury, neither Article III nor the Sixth Amendment can be construed to include juries for military trials today. Finally, the Fifth Amendment expressly excludes members of the armed forces from the right to a grand jury indictment. It is felt that this exception extends, by implication, to the Sixth Amendment right to a jury trial.⁵⁶

Although not required, the armed forces were provided with a form of jury trial by the Congress. A jury of at least five members is required for a general court-martial, and at least three members are necessary for a special court-martial.⁵⁷

The military jury has been the brunt of much criticism. Two practices frequently criticized have been the less than twelve- man size and the fact that the jury does not require a unanimous verdict for a finding of guilty. Both of these criticisms, however, have been negated by recent Supreme Court decisions. The Court ruled in Williams v. Florida⁵⁸ that state felony trials with six-man juries were constitutional. In another important decision, Apodaca v. Oregon,⁵⁹ the Supreme Court ruled that the practice of requiring a unanimous verdict was not constitutionally guaranteed. On these two issues, the military's jury procedures would certainly survive constitutional scrutiny.

Even though these two decisions, in the civilian courts, have seemingly brought the two jury systems closer together, there still remains one glaring fault with the trial by jury as practiced by the military courts. The code provides for the selection of the jury by the convening authority.⁶⁰ The jury usually consists of officers: only on written request by an enlisted defendant will enlisted personnel be assigned to serve on courts-martial, and even then he is only guaranteed that one-third of the court members will be enlisted personnel.⁶¹ It is widely accepted that such requests usually result in senior noncommissioned officers being appointed to the jury. These senior enlisted men are often more strict disciplinarians and have even less in common with the young enlisted man than do young officers.⁶² Even though the commander has wide discretion in the selection of the court members, this power is not without some limits. For example, the convening authority is prohibited from selecting members favorable to the government,⁶³ and he cannot systematically exclude identifiable groups.⁶⁴ These two restrictions have questionable value, however, when the overall selection process is considered. While military procedures are not subject to the usual constitutional restraints on civilian juries, the jury selection practice nevertheless appears to lack the basic fairness necessary to ensure an impartial hearing.⁶⁵

Although this practice is unjustified, there seems to be little foundation for the many overly broad statements made by the critics of military justice. For example, one writer has stated that "the American public has viewed with growing distaste a process where ninety-four percent of its sons are convicted by handpicked juries."⁶⁶ Unfortunately, "conclusions such as these are all too often accepted as irrefutable fact without any pretense of independent inquiry as to their foundation."⁶⁷ Not only do the facts fail to support the broad generalities of such statements but most critics would probably be surprised to learn that the great majority of Army officers today are themselves overwhelmingly in favor of some system of random selection of courts-martial members.⁶⁸

There can be little doubt that a random selection of jury members is essential to a fair trial. This reform, coupled with the possible increase of enlisted men among the court members, could do much to dispel the fears of many lower-ranking servicemen that the courts-martial is an arbitrary tool of the commander rather than a viable system of justice.⁶⁹

In the past, criticism of the military judicial process has been harsh. Typical are the remarks of Mr. Justice William O. Douglas when he characterized military justice as being "singularly inept in dealing with the nice subtleties of constitutional law [and] ... marked by the age-old manifest destiny of retributive justice."⁷⁰ With equal conviction, others have taken an opposite view.

Senator Sam Ervin, the noted constitutionalist, observed that "military justice has attained virtual parity with civilian criminal justice."⁷¹ Chief Justice of the Supreme Court Warren Burger believes that the system is "the most enlightened military code in history."⁷²

Three circumstances provide a relatively objective basis from which to judge these two extremes of opinion and thereby determine the essential character and quality of military justice. The first was noted by Yale law professor James Bishop. He observed that since the adoption of the Uniform Code of Military Justice, the Supreme Court "has yet to find a fatal denial of constitutional rights in a court-martial."⁷³ The second is a comparison of the rights and protections provided for the accused in a court-martial with those of a defendant in a civilian court. While the military accused is afforded somewhat different search and seizure protections, and only partial protections of a jury trial, he enjoys broader rights to counsel, rights of discovery and securing of witnesses, and protections against self-incrimination than his civilian counterpart. The final basis for an objective judgment of military justice lies in the American Bar Association Standards for the Administration of Criminal Justice. While many states fall far short of these standards and, in fact, consider some of them quite revolutionary, the military, for the most part, is already up to the level of the American Bar Association standards.⁷⁴

Even though the military judicial process equals and in many cases surpasses that of the civilian community, it is by no means perfect. It is only after the single most glaring deficiency is corrected that servicemen will be able to have the highest confidence in and respect for military justice and the armed forces in general.

Without doubt, the most fundamental deficiency in the military judicial system is the military jury. The philosophy behind the right to trial by a jury of one's peers chosen at random is that there is a better chance of a fair and impartial hearing if the jury represents different economic groups, occupations, and perspectives within society. The all-officer jury, appointed by the convening authority, on the other hand, is composed of a small, select group who by their very positions, generally reflect the attitudes of the command. As such, military juries do not reflect the wide spectrum of attitudes and biases basic to the jury system. Consequently, many lower-ranking enlisted men believe that the court-martial is simply an instrument of the commander; its members, the jury, are there to respond to his wishes. Whether this belief is founded in fact is irrelevant to the obvious lack of faith in the system.⁷⁵

This lack of faith and the fact that the military jury, as it is now constituted, fails to meet the accepted standards of a traditional jury make reform an absolute necessity. There can be little doubt that the key to this reform lies in the removal of authority to appoint a jury and the adoption of a system of random selection. It is interesting to note that the great majority of military officers today are overwhelmingly in favor of some system of random selection of court-martial members.⁷⁶

The ultimate solution would obviously be to have random selection, totally without regard to the rank of the accused. This is the view of Senator Bayh in the military justice reform bill that he proposed several years ago. The senator's bill, which was not passed, had only one requirement for jurors: that each had served at least one year on active duty.⁷⁷ Military justice would undoubtedly be more civilianized, as was Senator Bayh's intent, if this approach were adopted. However, most military legal experts, both in and out of the service, hold that such a utopian view is not practical. They feel that military discipline cannot be effectively maintained if superiors are made directly answerable to their subordinates.⁷⁸ Regardless, it is essential that more enlisted men serve on military juries so that the accused can be more nearly judged by a jury of his peers.

In light of this view of military discipline, the solution that seems the most promising is that the accused serviceman, whether he is an officer or enlisted man, should be entitled to one-half of the court being composed of persons of his own or higher rank. The balance of the court would be made up of officers. In no case would the court have as a member a person lower in rank than the accused. The court members, regardless of rank, would be selected on a random basis without the influence of the convening authority.⁷⁹

Another possible solution to this dilemma would be to establish a fixed number of members for each type court, with greater enlisted representation if desired by the defendant. Random selection of the jury would follow the guidelines set by the Federal Jury Selection and Service Act and the Uniform Jury Selection Act.⁸⁰

Such representative juries would go a long way in improving military law. Rather than reduce discipline, randomly selected and more representative juries might well playa major role in increasing the integrity and effectiveness of military justice.

This deficiency and the proposed reforms are by no means all that is necessary.⁸¹ It is important to remember that since the adoption of the Uniform Code of Military Justice in 1950, continuing efforts have been exerted to make the present code a truly enlightened system, carefully balanced between the requirements of discipline and duty in the military society, and the tenets of fairness and justice as set forth by the Constitution. If the code is to continue as an enlightened system, these efforts must not cease.

1. Senator Birch Bayh, Parade Magazine, 1971, cited by Kenneth J. Hodson, "The Manual for Courts-Martial-1984," in Military Law Review, Summer 1972, p. 2.

2. Charles Morgan, Jr., "Justice on Trial," Newsweek, March 8, 1971, cited by Hodson, p. 3.

3. George D. Schrader, "Military Justice--A System for the Seventies," Air University Review, May-June 1972, p. 44.

4. Henry B. Rothblatt, "Military Justice: The Need for Change," William and Mary Law Review, Spring 1971, pp. 455-56.

5. Homer E. Moyer, Justice and the Military (Washington: Public Law Education Institution, 1972), p. 19.

6. Merlin H. Staring, "Foreword," San Diego Law Review, December 1972, pp. 1-8.

7. Sam J. Ervin, "The Military Justice Act of 1968," Military Law Review, July 1969, p. 77.

8. Moyer, pp. 14-15, citing Robinson O. Everett's Military Justice In the Armed Forces of the United States (Harrisburg, Pennsylvania: The Military Service Publishing Co., 1956), pp. 4-7.

9. Ibid., pp. 11-19.

10. Charles M. Schiesser and Daniel H. Benton, "Modem Military Justice," Catholic University Law Review, Summer 1970, p. 492.

11. 11 USCMA 428, 29 CMR 244 (1960).

12. 232 U.S. 383 (1914).

13. 367 U.S. 643 (1961).

14. Moyer, p. 245.

15. MCM, par. 152. For an excellent description of current permissible search and seizure rules across the broad spectrum of the issue, see Murl A. Larkin and Joe H. Munster, Jr., "Military Search and Seizures," JAG Journal, Fall 1976, pp. 1-64.

16. For a thorough review of the military concept of probable cause, see Moyer, pp. 254-64.

17. John F. Munger, "Procedural Due Process in the Civilian and Military Justice Systems," Arizona Law Review, vol. 14, p. 357.

18. 24 CMA 156.

19. Burrus M Carnahan, "U.S. v. Jordan: Foreign Searches, Military Courts and the Act of State Doctrine," Air Force Law Review, vol. 19, no. 4, 1978, p. 414.

20. Robert E. Quinn, "Some Comparisons between Courts-Martial and Civilian Practice," Military Law Review, October 1969, pp. 91-92. MCM, par. 152, provides that a search "may be authorized by commanding officer (including an officer in charge) having jurisdiction over the place where the property or person searched is situated...." This practice has been upheld by the USCMA in United States v. Carter, 16 USCMA 277, 36 CMR 433 (1968). 21. Ibid., p. 92. The practice of allowing oral application was upheld in United States v. Hartsook, 15 USCMA 291, CMR 263 (1965).

22. Ibid., pp. 92-93.

23. Munger, pp. 361-62.

24. Ibid., p. 360, citing Army Regulation 27-10.

25. UCMJ, Art. 31. Compulsory self-incrimination prohibited:

(a) No person subject to this chapter may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.

(b) No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by courts-martial.

(c) No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him.

(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by a courts-martial.

26. 384 U.S. 436 (1966). Miranda actually praised the Article 31 warnings.

27. 16 USCMA 629, 37 CMR 249 (1967).

28. Schrader, p. 45.

29. Ibid.

30. Moyer, pp. 357-73. See also Quinn, pp. 89-90.

31. See Randall R. Riggs, "Self-Incrimination in the Military Justice System," Indiana Law Journal, Fall 1976, pp. 203-22. The USCMA has continued to involve itself in this critical area. Recent decisions have gone far to secure the rights of the military accused. In U.S. v. Dohle, 24 CMA 34, the court ruled that the suspect's perception of his questioner's authority is enough to require activation of the Art. 31 warning. The high military court also ruled that the issuance of any order that would result in the self-incrimination of the suspect violates Art. 31, U.S. v. Kinane, 24 CMA 120. Finally, in U.S. v. McOmber, 24 CMA 207, the court held that once an investigator is aware of the accused's desire for counsel, he may not in the future question the suspect without affording counsel reasonable opportunity to be present.

32. U.S. Constitution, Amendment V, in part, "No person shall be held to answer for a capital, or otherwise infamous, crime unless on a presentment or indictment of a Grand Jury, except in cases arising in the land and naval forces...."

33. Homer E. Moyer, "Procedural Rights of the Military Accused: Advantages over a Civilian Defendant," Maine Law Review, vol. 22, 1970, pp. 110-12.

34. Ibid., pp. 112-14.

35. Schiesser and Benton, p. 513.

36. Moyer, "Procedural Rights," pp. 113-14. Mr. Justice Douglas suggested this in O'Callahan v. Parker, 395 U.S. 258 (1969). See also Jon W. Bruce, "The Pretrial Investigation: Some Practical Considerations," JAG Journal, September 1972, pp. 225-38.

37. UCMJ, Art. 27; MCM, par. 48.

38. UCMJ, Art. 19.

39. MC M, par. 6c. provides: "Physical conditions and military exigencies, as the terms are here used, may exist under rare circumstances, such as on an isolated ship on the high seas or in a unit in an inaccessible area, provided compelling reasons exist why trial must be held at that time and at that place. Mere inconvenience does not constitute a physical condition or military exigency and does not excuse a failure to extend to an accused the right to qualified counsel."

40. UCMJ, Art. 27; MCM, par. 48.

41. 407 U.S. 25 (1972).

42. UCMJ, Art. 20.

43. D. A. Message 101236Z (August 10, 1972) and AFM 111-1, par. 3c. (August 30, 1972), cited by Moyer, Justice and the Military, p. 389.

44. 348 F. Supp. 1073 (1972).

45. 390 U.S. 570 (1968).

46. 348 F. Supp., at 1080.

47. Ibid. For a criticism of this decision, see James Stroud, "Military Law--Right to Counsel," American Journal of Criminal Law, February 1972. I hold that the possibilities of greater punishment by a special court-martial are no more chilling to the defendant's exercise of his rights than the extensive civilian practice of plea bargaining.

48. 22 USCMA 298, 46 CMR 298 (1973).

49. 425 U.S. 25.

50. In reading its decision, the Supreme Court reasoned that the Sixth Amendment right to counsel did not apply since a summary court-martial was not a "criminal proceeding" as required in the Amendment (425 U.S. 25, 34). The due process guarantee of the Fifth Amendment was also rejected by reasoning that it was not the intent of Congress in establishing the military court system to grant counsel at a summary court-martial (425 U.S. 25,43). For an excellent discussion of what I see as the fallacy of the Supreme Court's decision, see Jeffrey A. Bell, "Middendorf v. Henry: the Right to Counsel at a Summary Court-Martial," Arkansas Law Review, Summer 1977, pp. 345-57.

51. U.S. 25, 38.

52. 3 MJR 443 (CMA 1977).

53. Ibid.

54. UCMJ, Art. 70; MCM, par. 102.

55. UCMJ, Art. 38. Use of civilian counsel in no way affects the right to appointed military counsel.

56. Murl A. Larkin, "Should the Military Less- Than-Unanimous Verdict of Guilt Be Retained," Hastings Law Journal, January 1971, pp. 9.19-42.

57. UCMJ, Art. 16.

58. 399 U.S. 78 (1970).

59. 406 U.S. 404 (1972).

60. UCMJ. Art. 25.

61. Ibid.

62. Munger, p. 369, citing Benson, "Military Justice in the Consumer Perspective," Arizona Law Review, vol. 13,1972, pp. 607-8.

63. United States v. Hedges, 11 USCMA 642, 29 CMR 458 (1960).

64. United States v. Crawford, 15 USCMA 31, 35 CMR 3 (1964).

65. For an excellent discussion of current issues relating to the military jury, see Gary C. Smallbridge, "The Military Jury Selection Reform Movement," Air Force Law Review, vol. 19, no. 4, 1978, pp. 343-82.

66. G. Edward Rudloff, Jr., "Comments--Stacked Juries: A Problem of Military Justice," Santa Clara Lawyer, Spring 1971, p. 363.

67. R. Rex Brookshire, "Juror Selection under the Uniform Code of Military Justice: Fact and Fiction," Military Law Review, Fall 1972, p. 65. In a study of Army general and special courts-martial during FY 1971, it was found that of the 30,646 defendants, 93 percent were convicted; of that figure, 43.4 percent pleaded guilty. Considering the 91.5 percent that opted for a trial by the military judge alone, and discounting the guilty pleas, only 6.5 percent of all cases involved a jury where there was even the possibility that command selection could affect the outcome; pp. 85-87.

68. Ibid., pp. 88-89.

69. Joseph Remcho, "Military Juries: Constitutional Analysis and the Need for Reform," Indiana Law Review, Winter 1972, p. 223.

70. O'Callahan v. Parker, 395 U.S. 256, 265 and 266 (1969).

71. Ervin, p. 77.

72. Guaqlairdo v. McElroy, 259 F2d 927,940 (1958).

73. James W. Bishop, "The Quality of Military Justice," New York Times Magazine, February 22, 1970, p. 37, cited by Robert E. Quinn, "Courts-Martial Practice: A View from the Top," Hastings Law Journal, January 1971, p. 211.

74. Hodson, p. 7.

75. Remcho, p. 223.

76. Brookshire, pp. 88-89.

77. U.S., Congressional Record, p. S 3142.

78. Rothblatt, pp. 468-69.

79. Edward F. Sherman, "The Civilianization of Military Law," Maine Law Review, vol. 22, 1970, pp. 98-99.

80. Smallbridge, p. 382.

81. For an excellent discussion of the possible reform measures of the future, see Hodson, "MCM ...1984."

Major Felix F. Moran III (B.S., Washington State University; M.A., California State University, Sacramento) was an instructor pilot for C-5s at Dover AFB, Delaware, prior to his present assignment at Air Command and Staff College as a student. Most of his Air Force career has been in flying C-141s, with assignments at Laredo AFB, Texas, for pilot training, Robins AFB, Georgia, Norton AFB, California, and in Thailand; he also served with Security Police at Griffiss AFB, New York. Major Moran is a graduate of Squadron Officer School.

Disclaimer

The conclusions and opinions expressed in this document are those of the author cultivated in the freedom of expression, academic environment of Air University. They do not reflect the official position of the U.S. Government, Department of Defense, the United States Air Force or the Air University.

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