NCJ Number
59836
Journal
Columbia Law Review Volume: 79 Issue: 1 Dated: (JANUARY 1979) Pages: 173-197
Date Published
1979
Length
25 pages
Annotation
AN EXAMINATION OF THE SUMMARY COURT MARTIAL IN LIGHT OF THE 1977 AND 1978 BOOKER DECISIONS BY THE COURT OF MILITARY APPEALS (CMA) CONCLUDES THAT THE SUMMARY COURT MARTIAL SHOULD BE ABOLISHED.
Abstract
THE MAIN FEATURES OF A SUMMARY COURT MARTIAL ARE: (1) CONVICTIONS CAN BE USED IN LATER PROCEEDINGS TO AUTHORIZE A PUNITIVE DISCHARGE; AND (2) THE DEFENDANT HAS NO STATUTORY RIGHT TO COUNSEL. THE STRUCTURE OF MILITARY JUSTICE, INCLUDING THE SOURCES OF MILITARY LAW, PROCEDURES FOR CONVICTION AND APPEAL, AND THE ROLE OF THE CMA, ARE DESCRIBED. ALTHOUGH THE CMA IN THE ALDERMAN DECISION FOUND UNCOUNSELED SUMMARY COURT MARTIALS SUSPECT UNDER THE SIXTH AMENDMENT, THE SUPREME COURT RULED IN THE MIDDENDORF DECISION (1976) THAT SUMMARY COURT MARTIALS DO NOT VIOLATE SERVICEMEN'S CONSTITUTUIONAL RIGHTS. IN THE BOOKER DECISIONS, THE CMA TRIED TO RECONCILE THE TWO APPROACHES BY REQUIRING COUNSEL TO HELP DEFENDANTS DECIDE ON THE TYPE OF PROCEEDING TO BE USED, AND BY PREVENTING USE OF UNCOUNSELED PROCEEDINGS IN ISSUING A PUNITIVE DISCHARGE. SEVERAL CONFLICTS BETWEEN THE BOOKER AND MIDDENDORF DESCISIONS REMAIN UNRESOLVED, HOWEVER, AND RAISE THE ISSUE OF THE TWO COURT SYSTEMS' RELATIONSHIPS WITH ONE ANOTHER, ALTHOUGH THE BOOKER DECISIONS WERE WITHIN THE CMA'S POWER. ALTHOUGH THE BOOKER DECISIONS PROVIDE SERVICEMEN WITH ADDITIONAL PROCEDURAL PROTECTIONS, THE SUMMARY COURT MARTIAL STILL LACKS PROTECTION AGAINST CONVICTION ON WEAK EVIDENCE AND USE OF THE CONVICTION IN A SUBSEQUENT UNFAVORABLE ADMINISTRATIVE DISCHARGE. POSSIBLE REFORMS DISCUSSED INCLUDE (1) PROVIDING MORE OR LESS COUNSEL; AND (2) LIMITING SUBJECT MATTER JURISDICTION TO MINOR OFFENSES. BOTH ARE SERIOUSLY FLAWED. ARTICLE 15 CAN ADEQUATELY REPLACE UNCOUNSELED SUMMARY COURTS MARTIAL AND THE SPECIAL COURT MARTIAL CAN REPLACE COUNSELED SUMMARY COURTS MARTIAL. THEREFORE, LEGISLATIVE ABOLITION OF THE SUMMARY COURT MARTIAL, WHICH SERVES NEITHER JUSTICE NOR MILITARY NECESSITY, IS RECOMMENDED. REFERENCES ARE INCLUDED. (CFW)