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The U.S. Army has announced the preferral of charges against four soldiers involved in the murder of Abeer Qassim Hamza and her family in Mahmoudiya, an Iraqi town south of Baghdad.  

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.

The governing body of law in courts-martial is the Uniform Code of Military Justice (UCMJ), a statute passed by the Congress like any other federal law.  The UCMJ can be found in Title 10, United States Code, beginning at Section 800.

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.

Originally posted to Califlander on Tue Jul 11, 2006 at 08:26 AM PDT.

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Comment Preferences

  •  Is the age of the victims here (2+ / 0-)
    Recommended by:
    theran, sbdenmon

    an aggravating factor?

  •  Thank you for a very informative diary, (2+ / 0-)
    Recommended by:
    lgmcp, DSPS owl

    Califlander, that even us non-lawyers can follow and understand. One question: is there any type of plea bargaining in military trials that would allow these guys to get the death penalty off the table?

    "I will make a bargain with the Republicans. If they will stop telling lies about Democrats, we will stop telling the truth about them." -- Adlai Stevenson

    by sbdenmon on Tue Jul 11, 2006 at 08:43:12 AM PDT

    •  Yes (6+ / 0-)
      Recommended by:
      The Maven, majcmb1, sbdenmon, lgmcp, BachFan, qazplm

      An accused can offer to enter into a pre-trial agreement (PTA), in which the accused typically agrees to plead guilty to one or more offenses in exchange for some limitation on the sentence that may be approved by the convening authority.

      Some further background:  after the court-martial is adjourned, the verdict and sentence are reviewed by the convening authority.  The convening authority can approve the findings and sentence as adjudged, or disapprove any finding of guilty, or modify any guilty verdict into a verdict reflecting less culpability (for example, reducing a murder conviction to manslaughter).  The convening authority cannot reverse an acquittal, or modify the verdict to reflect greater culpability.  The convening authority may also reduce any sentence (but, as with the verdict, cannot increase it).  

      An accused with a PTA gets the best of both worlds: if the members impose a sentence less than the limit agreed to by the convening authority, then the accused gets the lesser sentence.  If the members impose more than what the PTA permits, the accused receives only that sentence agreed to by the convening authority.

      I would expect that any accused offering a PTA in these cases would ask for their case to be referred as non-capital.  The convening authority does not have to accept such an offer, of course, and I'm not sure such a deal would be all that attractive.

  •  I have been guilty of assuming (2+ / 0-)
    Recommended by:
    Califlander, khereva

    that Green and his cohorts are all in fact totally and completey guilty of rape, multiple murder, and arson, all premeditated.  

    It is very difficult for me to remember the presumption of innocence when
    a) the crime is so horrible,
    b) the evidence seems substantial, and
    c) the media leaps there too.

    But it is important to do.  

    So I will try.  

    The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function -- Edward Teller.

    by lgmcp on Tue Jul 11, 2006 at 09:18:23 AM PDT

    •  It is (2+ / 0-)
      Recommended by:
      lgmcp, khereva

      I wont say who, but I represented a "murderer". If you read the news accounts, you'd have thought he was very possibly guilty. In fact, I had to bite my toungue on DU watching people attack him and call him names.

      But when all of the facts came out at the 32, he was CLEARLY not guilty, so much so that all charges were dismissed.

  •  Thank You For An Excellent Overview Of A (1+ / 0-)
    Recommended by:
    lgmcp

    complex system.  

    More details are here.

  •  Corrections (3+ / 0-)
    Recommended by:
    The Maven, lgmcp, Califlander

    In my experience, IO's at an Article 32, at least in the Army, are almost never JAG's. They are usually a Major or higher line officer. The more important the case, you might see a LTC or even a COL Article 32 Officer. But I have done about 10 of them, and seen another 10, and maybe twice have I seen a JAG act as the 32 Officer, unfortunately.

    You are right about military judges being IOs in the most serious of cases, but not always or necessarily even often.

    A lot of the rest is dead on and a great writeup. One thing I would add is that we also have the right as defense to ask for and receive experts.

    It really is just like a civilian trial, but in many ways even better.

    •  That's interesting (1+ / 0-)
      Recommended by:
      lgmcp

      Your experience on IOs differs from mine.  I'll add that to my diary.

      •  Could be a service distinction? (0+ / 0-)

        Are you Army or another service?

        The only time I've seen a JAG as an Art 32 Officer was a few years ago, but he was too critical of the government so they very quickly went back to using line officers, they tend to be more likely to just send it up and "let a jury decide".

        Although I have to say, I've had a lot of success at Art 32s in getting charges dismissed.

        •  Could be (0+ / 0-)

          My experience is mixed between Air Force and Army courts-martial, with more of the former than the latter.  The Air Force almost invariably uses JAGs as Article 32 IOs; I've not really seen much of a pattern to the Army's use of them, other than that the more serious cases seem more likely to get a lawyer or a military judge.

          Like you, I've seen a lot of action at the Article 32 go the way of the defense.  From the standpoint of protecting the rights of the accused, I think the Article 32 is far superior to a grand jury proceeding.

          •  That's probably it then... (0+ / 0-)

            I have zero experience with the AF but I wouldnt be surprised with them using JAGs for 32s.

            It is interesting to see the many differences btw the services.

            E.G. on the Army uses the Reasonable Doubt std for Article 15s/NJP, the rest use preponderance of the evidence, and the AF doesnt have near the extensive legal assistance program that the Army does.

            The Army has lettters of reprimand but the Navy apparently doesnt.

            its interesting.

  •  Trial is irrelevent (3+ / 0-)
    Recommended by:
    zinger99, DSPS owl, khereva

    I understand two participants have confessed.  Since we are speaking casually, we can assume guilt.

    My point is the stain on our country will not be erased by punishment, no matter what it is.  I was overwhelmed by this whole event so I wrote a diary about it entitled simply, July 4, 2004 , that was rather personal.  But there are times when all you feel is pain.

    In that diary I said I could not even direct my anger at President Bush, because, "at least for this singular incident, I believe he felt the same remorse that I did."

    Then I saw him answer a question about it on Larry King.  He was preternaturally cool about it, saying that the important thing is not to allow the actions of "one or two" people to stain our Military.

    He was being asked about all of the accusations, Haditha and others where we already know the perpetrators and those who covered up numbered at least several dozen.  Yet, he cooly described it as one or two.

    There was no hint of empathy, of outrage, or remorse, rather a cool defense of "his" troops. The stain is not so much the action of Green, but that this country put a man like George W. Bush in power.

    •  Can you post a link to your diary (0+ / 0-)

      I've long held a view that our military is out of control. When you pet the dog and telling him "good boy", no matter how many kids' arms he's bitten off, do you think the dog's behaviour will get better or worse?

      With this military, we've had executions, torture, now rape and cold-blooded executions, songs of laughter about shooting little girls in the head, in addition to all the "collateral damage" - which are all innocent lives lost without a single person to blame. Oh, shit just happens.

      Yet despite all the evidence, nobody will speak the truth - the military needs its reins tightened. Somebody has to say the military discipline is shattered in Iraq, and impose draconian measures to restore it.

      I feel the loss of every of these kids as if they were my own - it just fucking hurts. And these god damn military jocks who are at best so casual about the loss of innocent life, and at worst just inhumane - at the first moment of admission of guilt, turn them over to Iraqis. They committed a crime against an Iraqi citizen, and it's for Iraq to dole out the punishment.

      Hang these assholes by their balls, till dead. Hell, we should do it first to redeem ourselves just a little bit in the eyes of the world, and Iraqis. Let us for once show them that we value their lives as much as our own.

  •  Where (0+ / 0-)

    will the trials take place?  Iraq or stateside?  It seems likely that the group
    would be required to witness at Green's trial and vice versa?

    And thank you for the clear presentation.  
    (Somewhat to my surprise) I did find it interesting.
    -

    •  Either location is permissible (2+ / 0-)
      Recommended by:
      The Maven, DSPS owl

      The choice of venue most likely will turn on a number of factors, including access to evidence and security considerations.  

      As for Green:  I'm not sure, based on the evidence mentioned in the FBI affidavit, that his testimony would be necessary for the prosecution; there are apparently several confessions from the other soldiers.  Nor am I sure he'd do much for the defense.  If his testimony was necessary, however, and the courts-martial were held in Iraq, his testimony would probably be taken at a deposition in the U.S. and presented at the trials later.

  •  You look like someone who knows (1+ / 0-)
    Recommended by:
    khereva

    Thanks, that helps a lot.  As one who has worked with the military for many years, I have a better understanding of them many of our left side friends.  And they hold the Geneva Conventions in higher regard that left in most cases.  It’s how they want to treated if things go badly.

    My sense is right now tons of our military are thinking, oh my god, I may have been acting against several of my standing orders, including the order to disobey illegal orders and to report war crimes.  Most military view politicians with a jaundice eye.  They force unwanted weapon systems on them, make stupid tactical and strategic planners and generally don’t get their real concerns.  But they see it as very honorable to carry out the wishes of the American people, as do I.  And now, it seems Bush administration has put them a very awkward position.

    They are caught between standing orders, orders higher than those issued on the field.  They are required to disobey an illegal order.  They are required to report war crimes.  They were told by the Bush administration to use techniques that are now being called into question by the same administration.  That the politicians are setting them up to take the fall must be on their minds.

    What is your sense on this?  Does a soldier now have the obligation to file charges against Rumsfeld for ordering war crimes?  Has the Bush administration pushed the brass into a corner that almost screams every order is now suspect?  

  •  Stupid Question? (0+ / 0-)

    You don't mention where the accused is during all the pre-trial activity.  Is he/she jailed the entire time or can he/she stay at home until his/her trial begins?

    Thanks for the info.

  •  That's handled case-by-case (0+ / 0-)

    An accused may be confined or otherwise restrained (for example, by being restricted to base) prior to trial, provided there is probable cause to do so.  Probable cause, in this context, means that there is a reasonable basis to believe that an offense triable by courts-martial has been committed, the person to be restrained committed it, and the restraint ordered is required by the circumstances.

    Only commanders can order pretrial restraint of their officers.  Any commissioned officer may order the pretrial restraint of any enlisted person.  A commanding officer may delegate pretrial restaint authority over enlisted persons in his command to noncommissioned officers or warrant officers.

    Typical scenarios in which pretrial confinement may be ordered: when there is evidence the prisoner will not appear for trial (deserters and persons who have gone AWOL are pretty routinely locked up prior to trial once they're caught) or there is evidence that the prisoner will engage in serious criminal misconduct if not confined.  This is not limited to violent behavior: habitual drug offenders may be confined to remove their access to illegal drugs, and persons who threaten or otherwise attempt to influence witnesses may also be subject to confinement.  Less severe forms of restraint must be found inadequate (though there is no requirement that all lesser restraints actually be attempted).

    A person ordered into confinement before trial is entitled to a review by a neutral and detached officer within 48 hours after confinement begins.  Within seven days of entry into confinement, the prisoner is entitled to a hearing before a reviewing officer; the prisoner must be assigned counsel prior to that hearing, if requested.  The prisoner and counsel may appear at the hearing and present evidence.  The review officer must prepare a written memorandum outlining his or her conclusions following the hearing, and the evidence on which those conclusions are based.  If the reviewing officer continues the prisoner in confinement, that decision can be appealed to the military judge once the charges have been referred to trial.

  •  I see why... (0+ / 0-)

    The media all reported Abeer to be a "young woman" of 20 or 25 - attacking children means much more harsh penalty (as it should) They started the spin immediately - so typical...

    This is so much more horrific because this was a child.
    Great diary -

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