You can't handle the truth!

I've been meaning to put up something new, but the week has rapidly slipped away from me. Several long-languishing cases have suddenly sprung back to life, and along with a few brand new appeals they are keeping me rather busy. It's an energized sort of busy, which I much prefer over the oppressed and paralyzed kind of busy I'd been feeling for a few months. I have some fascinating and important legal issues to brief and some interesting new clients to get to know. That's the way I like it.

I'm also learning more than I ever imagined I would about military law. The federal civilian courts have jurisdiction over habeas corpus petitions by military personnel convicted by courts martial, and I've been assigned such a case on appeal. Military criminal procedure is a whole new animal, and rather a large and hairy one at that.

Of particular interest to me is the discovery that military criminal defendants enjoy several rights and protections to which civilian defendants are not entitled. For example, a military appellate defense lawyer is required to consult with her client about all possible claims the defendant wants to present to the court of criminal appeals. Even if the lawyer thinks those claims are entirely frivolous, she is required to submit a document identifying them as possible appeal issues her client wishes to bring to the court's attention. Another interesting feature of military procedure is that the appellate court - either the service branch court of criminal appeals or the United States Court of Appeals for the Armed Forces - may on its own initiative or at a party's request order the court martial to hold a factfinding hearing to explore issues such as ineffective assistance of counsel and other matters not fully developed in the trial record. These hearings appear to be routinely conducted, and far less difficult to obtain than an evidentiary hearing in a federal postconviction proceeding. And as best I can gather after considerable research, the military appellate courts have broad powers to address issues of concern even where appellate defense counsel has not identified or briefed them.

At first, it surprised me that military defendants would enjoy stronger protections than do civilians. But as I thought about it more, I decided that it makes sense for many reasons. For one, in many cases the military must continue to pay a soldier who is incarcerated for a military conviction (even though he is no longer earning that pay), so convictions impose a significant financial burden on the armed forces. In addition, the military has an incentive to avoid unnecessary scrutiny by civilian courts of its courts martial procedures and decisions. If it affords greater constitutional protections than the civilian courts require, such outside scrutiny can be minimized. And as a general rule, the military takes a highly paternalistic approach to the lives of its personnel, which apparently extends to its law enforcement activities.

In any event, I'm still sorting out the intricacies of military law and procedure. Maybe I should start watching JAG reruns instead of Law & Order SVU?

Comments

[Scheherazade H.]

I used to watch Jag just because I thought the guy was cute. I don't think I've grown up much since then!

[jdz]

I've never seen Jag, but for the love of god woman, DO NOT GIVE UP LAW AND ORDER SVU!!!

Have a great weekend Mad (even if its a day early)!