Sergeant Paul E. Cortez, Specialist James P. Barker, Privates First Class Jesse V. Spielman and Bryan L. Howard have, according to media reports, all been charged with murder, rape, arson, and other offenses related to the killings. A fifth soldier, Sergeant Anthony W. Yribe, is charged with dereliction of duty for failing to report the offense.
Criminal proceedings under military law are similar to civilian trials, but there are a number of important differences. In this diary, I'll try to provide a look at the road that lies ahead for these cases.
Preferral is the formal act of accusing a U.S. servicemember of an offense under the UCMJ. Traditionally, the accusation is levied by the immediate commander of the accused, but any person subject to the UCMJ may prefer charges. Neither Abeer Qassim Hamza's relatives nor any other Iraqi authority could bring court-martial charges against any U.S. personnel.
Once charges are preferred, they are generally disposed of initially by the special court-martial convening authority (SPCMCA). Unlike civilian courts, courts-martial are not persistent institutions: a court-martial is called into existence, or "convened," to hear a specific case or group of cases, and then ceases to exist once the trial is over. The SPCMCA (usually a colonel or brigadier general in the Army; the Navy is slightly different) can dismiss the charges, direct that they be dealt with by means other than court-martial (for example, through non-judicial punishment proceedings under Article 15, which are generally reserved for minor infractions and cannot impose jail time), refer the charges to a special court-martial, or order an investigation under Article 32.
An Article 32 investigation (or "Article 32," for short) is the military analogue to a grand jury hearing. An Article 32 must be held before a case can be referred to trial by a general court-martial, unless the accused waives the hearing. An accused has considerably more rights at an Article 32 than he would before a civilian grand jury; for example, he may be present throughout the taking of evidence at the hearing, may be represented by counsel, may question the witnesses who testify against him at the proceeding, can call his own witnesses and present other evidence, and can make a statement, personally or through counsel, which can be given under oath or can be unsworn (and therefore not subject to cross-examination).
The Article 32 hearing is presided over by an Investigating Officer (IO) appointed by the SPCMCA; generally an Article 32 IO is a military lawyer, known as a judge advocate or a "JAG." JAGs are graduates of ABA-accredited law schools and admitted to the bar of a U.S. state or territory. It's common in especially-serious cases for the IO to be a military judge. There'll be more on military judges later.
[NOTE: commenter qazplm reports downthread that in his experience, IOs have not often been JAGs]
Once the Article 32 hearing is complete, the IO prepares a report for the SPCMCA. The report summarizes the evidence, makes recommendations as to the form of the charges (for example, a date alleged in the charges may not match a date testified to by a witness; the IO can recommend amending the charge to conform to the evidence), and also makes recommendations as to the disposition of the charges. Serious cases are usually disposed of at trial by courts-martial; especially-serious cases, at a general court-martial.
There are three types of courts-martial: summary, special, and general. The SPCMCA cannot convene a general court-martial; but can forward the Article 32 IO's report to the general court-martial convening authority (GCMCA) recommending that a general court-martial be held. The GCMCA (almost always a flag officer, usually of two-star rank or higher) may accept that recommendation or dispose of the charges in some other manner.
Special and general courts-martial are presided over by a military judge. Military judges are JAGs, generally with extensive backgrounds in prosecution or defense, appointed to the bench by the highest-ranking lawyer in their service, known as The Judge Advocate General, or "TJAG." All of the service TJAGs are two-star flag officers, and military judges are usually colonels, lieutenant colonels, or senior majors. High-profile cases are usually presided over by more senior (and more experienced) military judges. I would be surprised to see any of the four soldiers charged with participation in Miss Hamza's rape and murder to be assigned a military judge below the rank of colonel. I would also expect, based on the evidence described in the FBI affidavit filed to secure the arrest of former soldier Steven D. Green, that all four participants would be tried by a general court-martial. Sgt Yribe's offense is on its face less serious, and might perhaps be tried at a special court-martial; but it would not greatly surprise me to see him in front of a general court, as well.
A general court-martial may impose any sentence authorized by the law, including death. Premeditated murder is a death-penalty eligible offense, as is murder committed in the course of rape, or murder of a child under 15. Rape is also a death-penalty eligible offense under the UCMJ, although the Supreme Court has held that death amounts to cruel and unusual punishment for the rape of an adult. A general court-martial cannot impose the death penalty, however, unless the GCMCA specifies that the accused's case is to be tried as a capital case.
In a non-capital court-martial, the accused may elect to be tried by the judge, or by a panel of members consisting of officers or, in the case of an enlisted accused, officer and enlisted members. The members of the court are its "jury," and determine questions of guilt and, if there is a conviction, impose the sentence. In a capital case, the accused does not have the right to be tried before a military judge alone, because only a panel of members can impose the death penalty. The members of a general court-martial are selected by the GCMCA, and comprise those persons the convening authority deems best suited by reasons of age, education, training, experience, length of service, and judicial temperament -- in other words, the best and brightest in the command.
An accused has the right to be represented by military counsel, civilian counsel hired by the accused at his or her own expense, or to represent himself pro se. The old saying that a man who represents himself has a fool for a client is as true in military courts as in civilian. If the accused is dissatisfied with the detailed military counsel, he or she can request another military counsel, and can even specify the military lawyer by name - and if that lawyer is available, they will be detailed to the accused's defense. (Certain judge advocates are not available to serve as defense counsel, including TJAG, military judges, and so on).
An accused has a right to have access to the government's evidence, including witnesses, prior to trial. The government counsel must provide notice of certain kinds of evidence -- for example, results of scientific tests or examinations, statements made by the accused, exculpatory evidence, and so on -- just as in a civilian criminal trial. In a capital case, the prosecution must also provide notice to the accused concerning what factors the prosecutor (called the trial counsel) intends to prove warranting the death penalty. The factors that may warrant death are listed in R.C.M. 1004(c), and include, for example, that a rape was committed in time of war and on territory in which the U.S. was an occupying power, or was engaged in active hostilities; or that a murder was committed during the commission of an rape, or with intent to obstruct justice, or that the victim was under the age of 15. More on these aggravating factors later.
The trial is conducted in accordance with the Military Rules of Evidence (M.R.E.s), which are analogous to the Federal Rules of Evidence -- in fact, most M.R.E.s are verbatim copies of the corresponding federal rules. The accused may move prior to trial for an order compelling access to evidence ("discovery") or for the production of evidence the accused needs to build his case at trial. The military judge can rule on such requests any time after referral.
Referral is the formal act of calling the court-martial into existence to try a specific accused or group of accuseds on the charges preferred against them. The order referring the charges lists the names of the members who will sit on the court-martial panel, if the accused is tried by a panel. The accused is entitled to biographical data on the members listed on the convening order, and at trial, may question them on voir dire, just as in a civilian court. Counsel for both sides may challenge any member "for cause," meaning that they believe there is some reason that the member cannot render a fair verdict. They must articulate that reason for the military judge, who rules on challenges. Counsel can challenge every member for cause, if they choose. Each side also gets one peremptory challenge, allowing them to remove any member for any reason or no reason at all. Neither side is permitted, however, to use their peremptory challenge simply on the basis of race or gender.
Trial consists of opening statements by counsel, presentation of evidence by the prosecution, presentation of the defense case (if any), rebuttal evidence, surrebuttal from the defense, and so on. Witnesses are subject to cross-examination by opposing counsel, and may also be questioned by the military judge and -- unlike most civilian juries -- by the members of the court. The members of the court may also request the recall of any witness or the presentation of additional evidence, as they see fit. Once the evidence is presented, the military judge instructs the members on the law: the burden of proof, the elements of each offense and each lesser-included offense, and so on. An "element" is a fact that must be proven to prove a crime. Rape, for example, has two elements: first, that at the time and place alleged, the accused committed an act of sexual intercourse with the person alleged; and second, that the act of intercourse was done by force and without consent.
An accused is presumed to be innocent. To overcome that presumption, the prosecution must prove its case beyond a reasonable doubt. To convict, the members must agree that each element of the offense has been proven beyond a reasonable doubt. There are sometimes affirmative defenses, such as lack of mental responsibility, that must be proven by the accused, but if the prosecution fails to prove the accused's guilt, then those defenses need not be considered. The accused need not take the stand in his own defense, or present any evidence at all, and the members are instructed by the military judge (if requested by the accused) that they may not hold the accused's choice not to present a defense against the accused. The government still must carry its burden of proof, no matter what the accused does or does not do at trial.
Unlike civilian juries, courts-martial panels need only a 2/3 majority to convict: if there are 12 members, only 8 guilty votes are needed. Also unlike a civilian jury, however, the members vote only once. In a civilian jury, there may be a 6-6 deadlock, and the jurors resume their deliberation until they reach a unanimous verdict or the judge declares a mistrial. In a court-martial, a 6-6 vote equals an acquittal.
The exception, of course, is that in a capital case a unanimous guilty verdict is required to impose the death penalty. If there is an 11-1 vote to convict the accused of murder, the accused is guilty, but the death penalty is no longer on the table. The members must also unanimously find that one or more of the aggravating factors alleged by the prosecution was proven beyond a reasonable doubt.
If an accused is convicted, the court-martial immediately takes up sentencing. Both sides can present evidence in aggravation, extenuation and mitigation. To impose the death penalty requires a unanimous vote. To impose a sentence greater than 10 years of confinement requires a vote of 3/4 of the members; to impose a sentence less than that requires only a 2/3 majority. If there is no majority for any sentence, a mistrial can be declared as to the sentence, and a new panel may be seated to try again. The death penalty cannot be imposed by such a new panel.
That, in a (very large) nutshell, is what lies ahead in the Hamza courts-martials. Don't get me started on the appeals process ... unless you have some more time on your hands.