By Pete Williams Justice correspondent
NBC News
updated 5/18/2004 6:12:59 PM ET 2004-05-18T22:12:59

When Army Spc. Jeremy Sivits walks into the room for his military trial in the Iraqi prisoner abuse scandal, he'll see a setup that would be familiar to any viewer of "Law & Order," even though nearly everyone in the room will wear a uniform.

The trial will be conducted by prosecuting attorneys and defense lawyers, pleading their case to a jury, presided over by a judge, with the full range of rights under the U.S. Constitution. 

But despite the similarities, the military justice system has key differences from the civilian system.

No standing courts
Most notably, there are no permanent or standing military trial courts.
       
"The idea is that you're going to have the trials where the troops are, wherever in the world they're serving," said Christopher Wilson, a former military lawyer now in private practice in Torrance, Calif.

That means the lawyers, judges and jurors are drawn from among the forces deployed wherever a court-martial is needed. Once the trial is over, the court dissolves.

Many of the critical legal calls are made by the commander of the military unit in which the defendant serves.

"Key decisions that in the civilian system would be made by lawyers are made by commanders — who gets prosecuted, on what charges, with what maximum punishment and who is picked to be on the jury," said Eugene Fidell, a Washington lawyer specializing in military law.

"It's command-centric. Lord Nelson would recognize our system," he said, referring to the legendary admiral of the British Navy.

How the system works
A defendant's commanding officer, after learning that a violation of military law may have occurred, orders a preliminary inquiry. After learning the facts, a commander can decide that no further action is needed or can impose administrative punishment, even seeking to have the service member discharged.

But if the commander decides the defendant should face a trial, the charge is referred to a superior officer who has authority to convene a court-martial.

The next step is a formal investigative hearing, known as an Article 32 hearing, named for the section of the Uniform Code of Military Justice that specifies the procedure. Witnesses are called, and the accused is entitled to be present. A military defense lawyer is provided free of charge and can cross-examine prosecution witnesses.

At the conclusion of the hearing, the investigating officer makes a recommendation on whether to go ahead to trial, but the commander who called for the trial is free to send the case on to a court-martial regardless of the recommendation.

At trial, the military provides a judge from its cadre of trained judicial officers. A panel of at least three jurors is required in trials where charges would result in imprisonment of up to a year. Five jurors are required in trials that could result in harsher penalties, and 12 must sit in cases that could result in the death penalty.

While the jury must decide that the prosecution proved its case beyond a reasonable doubt, the verdict need not be unanimous. Only a two-thirds majority is needed for a guilty verdict.

Jury is appointed by commander
In another key difference, the jury pool is not chosen randomly, as it would be in a civilian trial.

Instead, jury members are appointed by the same commander who called for the trial. But former military lawyers say that critical difference does not necessarily stack the deck against the accused.

"The jurors are not afraid to make decisions that are helpful to defendants," said Wilson, the California lawyer.

"They're attentive, and they bend over backwards to try and be fair, because they're deciding cases involving the same people they need to be able to lead," Wilson said.

Enlisted personnel have the right to ask that up to one-third of the jurors be drawn from the enlisted ranks.

Military defenses
In addition to the normal defenses available to a criminal defendant in a civilian trial, special arguments can be made by military service members at their courts-martial, including the claim that they were following a superior's orders when committing the conduct at issue.

Military law has long recognized the defense of obedience to orders, but there are limits.  "It is a defense to any offense," says the military's manual for courts-martial, "that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful."

The rule, says Gary Solis, an expert on military law, covers only the easier cases.
        
"Where the order presents a doubtful case, the subordinate should obey the order," Solis wrote in a law review article, since the law requires that it be disregarded only if clearly illegal.

And former military lawyers say the defense seldom works at the phase of the trial determining guilt or innocence, though it may help during the sentencing phase.

"Normally, that defense is pretty thin," said Kevin Barry, a retired military judge in the U.S. Coast Guard. But he said administration officials have said this is a new kind of war.

And that, according to Barry, could help the soldiers on trial in Iraq. "These folks have watched a slow degradation of the rules."

The top commanders in Iraq, he said, have proposed new prisoner interrogation rules "which are categorically in violation of Army regulations for handing prisoners and detainees. Defendants could say, 'How could I know which rule was legal and which rule wasn't?' I think you'll hear that argument made."

A servicemember can also claim unlawful command influence — statements made by higher-ups in the military chain of command that could improperly influence the process.

Among the questions, said military law expert Eugene Fidell: "Were hints dropped, things that might infect the jury pool, or influence a commander to make certain decisions about the trial or discourage defense witnesses?"

Jury has wide latitude        
When the jury begins its deliberations, it prepares a single verdict recommending a single sentence to cover all the counts in the charge. The sentence can range from no punishment at all to the maximum allowed by military law. The jury, not the judge, decides the sentence.

Convictions can be appealed, first to standing courts within the military services and then to the Court of Appeals for the Armed Forces.  In very rare cases, appeals can be taken all the way to the U.S. Supreme Court.

There's one further difference between civilian courts and the military trial system: Once sentence is imposed at trial, defense lawyers can go back to the commander who called for the trial and appeal for clemency. The commander has wide latitude to reduce the sentence and can even wipe the conviction off the books.

"Determining what action to take on the findings and sentence of a court-martial is a matter of command prerogative," military rules say, and commanders are not limited to reviewing a case solely for legal errors.

Pete Williams is the NBC News justice correspondent based in Washington, D.C.

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