Posted on May 21, 2008 by Anthony Lake

Overview of Georgia's Military Criminal Justice System

     Except for the United States Coast Guard, every branch of the United States military possesses personnel and bases within the State of Georgia: Fort Benning, Fort Gillem, Fort Gordon, Fort McPherson, Fort Stewart, Hunter Army Airfield, and Lawson Army Airfield for the United States Army; the Atlanta Naval Air Station and King's Bay Naval Submarine Base for the United States Navy; the Albany Marine Corps Logistics Base for the United States Marine Corps; and Dobbins Air Reserve Base, Moody Air Force Base and Robins Air Force Base for the United States Air Force. Although the vast majority of servicemen and women serve their country dutifully, honorably and without any mark whatsoever on their record, occasionally military personnel do become involved in criminal activity, and the United States armed services have a well established justice system to deal with such activity.

     Firstly, each armed services branch has its own military police force, the Military Police Corps for the Army, the Master-at-Arms for the Navy, the Provost Marshal’s Office for the Marines and the Air Force Security Forces (there also are separate United States Department of Defense police forces for each branch, which are concerned with security). Each service further has its own department for criminal investigations: the Army Criminal Investigation Division (CID), the Navy’s and Marine Corps’ Naval Criminal Investigative Service (NCIS), and the Air Force Office of Special Investigations (OSI). The Army CID 3rd MP Group and the U.S. Army Criminal Investigation Laboratory are based at Fort Gillem, and Air Force OSI maintains units at all Georgia Air Force bases.

     If an investigation indicates criminal conduct by a serviceman or woman, a court martial is convened by a commanding authority at the facility where the serviceman or woman is located. Court martial proceedings are adversarial proceedings, similar to federal criminal cases, and a serviceman or woman may be represented by counsel, present evidence and confront witnesses. Courts martial are Article I, or legislative, as opposed to Article III, courts.

     There are three types of courts martial: summary court martial, for minor charges, in which a member of the Judge Advocate General’s (JAG) Corps for the particular military branch acts as both prosecutor and defense counsel; special court martial, for offenses not resulting in a sentence of confinement of more than 1 year, which involves a military judge, prosecutor and a panel of at least three officers or enlisted personnel who serve as a jury; and general court martial for serious crimes carrying severe punishment, including the death penalty, with a judge, prosecutor and panel (military servicemen and women are not included within the Sixth Amendment’s right to jury trial by longstanding practice). A serviceman or woman is entitled to be represented by counsel in any court martial proceeding, and can obtain free appointed counsel, or may retain civilian counsel. The defense may further challenge the makeup of a court martial panel, and request that up to one-third of the panel be composed of enlisted personnel, as opposed to officers. Court martial proceedings are governed by the Uniform Code of Military Justice (UCMJ); the Manual for Courts-Martial, which expands upon the UCMJ, and the Military Rules of Evidence.

     A serviceman or woman may appeal an adjudication of guilt or sentence to an intermediate military appellate court, including the Army Court of Criminal Appeals, Navy-Marine Corps Court of Criminal Appeal and the Air Force Court of Criminal Appeals. Adverse decisions from these intermediate appellate courts may be further appealed to the United States Court of Appeals for the Armed Forces in Washington, and the United States Supreme Court. Subjects of courts martial proceedings have also increasingly sought relief from United States district courts.
Tags: , , , ,
Posted on March 26, 2008 by Anthony Lake

Medellin v. Texas: The Effect on International Law on Domestic Criminal Law and Procedure

            Defense counsel with foreign clients will not be pleased with the latest offering from the United States Supreme Court and its take on international law. José Ernesto Medellín, a Mexican national, was convicted and sentenced in a Texas state court for the capital murder of two girls. Fortunately, Mexico brought an action in the International Court of Justice (ICJ) in the Hague against the United States on behalf of Medellin’s and 51 other Mexican nationals in Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. 12 (Judgment of Mar. 31) (Avena). The ICJ held that, based on violations of the Vienna Convention, the nationals were entitled to review and reconsideration of their convictions and sentences in state courts in the United States, regardless of whether the defendants had waived their rights to raise challenges under the Vienna Convention on Consular Relations (Vienna Convention or Convention) for failure to comply with generally-applicable state rules governing challenges to criminal convictions. President George W. Bush even showed his support for the international tribunal by issuing a Memorandum to the Attorney General in which he directed that the United States discharge its international obligations by having State courts give effect to Avena. Medellin did not raise any Vienna Convention claims prior to his conviction. After the state court dismissed Medellin’s petition for writ of habeas corpus to raise his Vienna Convention claims, the United States Supreme Court granted certiorari in the case of Medellin v. Texas.

            Chief Justice John Roberts, writing for the majority, recognized that the Vienna Convention, which had been ratified by the United States, guarantees that a person detained by a foreign country may require authorities of the detaining country to inform consular authorities of the detainee’s home country, and that the detainee may request assistance from the consul of his country. Furthermore, “Optional Protocol” of the Convention provides that disputes arising out of an interpretation or application of the Convention shall lie within the compulsory jurisdiction of the ICJ.

            The majority acknowledged that the ICJ’s decision in Avena constituted an international law obligation on the United States. However, it held that “not all international law obligations automatically constitute binding federal law enforceable in United States courts.” It noted that there was a distinction between treaties which automatically have effect as domestic law and those which do not and that treaties do not become domestic law “‘unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.’” (Citing Igartúa-De La Rosa v. United States, 417 F. 3d 145, 150 (1st Cir. 2005)). The majority concluded that “[b]ecause none of these treaty sources creates binding federal law in the absence of implementing legislation, and because it is uncontested that no such legislation exists… the Avena judgment is not automatically binding domestic law.”

            The Court held that the Convention’s Optional Protocal was a “bare grant of jurisdiction,” which said nothing about the effect of ICJ decisions and did not require signatories to comply with ICJ judgments. It noted that the Convention itself merely represented a “commitment” by member nations to comply with an ICJ decision, and that there was no indication that Congress, in ratifying the United Nations Charter, ever intended to vest ICJ decisions with immediate legal effect in U.S. courts. Also, the fact that the ICJ was required to enforce its judgments through the U.N. Security Council, on which the United States possesses a veto, indicated that its decisions were not immediately and directly binding in the U.S. Finally, the majority held that the President could not convert a non-self-executing treaty into a self-executing one by merely issuing a Memorandum. Justices Breyer, Souter and Ginsburg, naturally, dissented.
Tags: , , , , , , ,