Frankenstein military justice

The UCMJ: A Frankensteined Military Justice

Over the past decade, the Uniform Code of Military Justice (UCMJ) has undergone significant change. Driven by headline-grabbing scandals and shifting political winds, Congress has stitched together a Frankensteinian monster of legislation, leaving a system with contradictions, unintended consequences, and a looming shadow over due process.

A History of Frankensteinian Tinkering:

The UCMJ boasts a long and complex history since 1950. However, the past decade has witnessed unprecedented revisions–many of them good. With over 80 significant changes introduced since 2006, the code resembles a patchwork quilt – each amendment a sewn-on fix for a perceived tear, often creating new rips in the fabric of justice. Spurred by public outcry and political pressure, this piecemeal approach has resulted in a legislative body with inconsistent and overlapping provisions for accused service members and legal professionals to navigate a labyrinthine system. As just one example, Gene Fidell has this post about the “effective date minefield” Congress created. 

Mismatched Parts, Unequal Justice:

One of the most glaring Frankensteinian elements of the UCMJ lies in its inconsistent application of legal principles. For instance, the Military Rules of Evidence allows for broad exceptions, potentially excluding crucial evidence that could exonerate the accused. 

Protections are not extended to an accused, and access to evidence or process is not extended to the accused. There is a perception that the system has been rebuilt to convict with less attention to an accused’s constitutional right to a fair trial. Whether real or perceived, military defense counsel believe they are under attack. Sometimes these attacks are personal against a military lawyer during the presentation of a case–the prosecutor disparages the defense lawyer during arguments.

The disparity creates a disparity in protections, raising serious concerns about due process and equal justice.

On the other hand, some amendments swing the pendulum towards increased prosecutorial power. Take the example of involuntary witness relocation in sexual assault cases. While intended to protect victims, this provision raises eyebrows concerning potential witness manipulation and intimidation – a double-edged sword that can potentially harm both truth-finding and the accused’s right to a fair trial.

The Monster Lurches, Leaving a Trail of Confusion:

The consequences of this legislative Frankenstein are far-reaching. Service members face the unsettling reality of an unpredictable legal system, where outcomes hinge not just on the facts of the case but also on the specific jurisdiction and type of offense. Defense attorneys grapple with a convoluted code, struggling to unravel its contradictions and loopholes. Meanwhile, prosecutors wield an uneven arsenal of powerful and restricted tools, further distorting the balance of justice. For example, the factual sufficiency analysis on appeal has been altered to make it less favorable to an appellant. (As of now) the issue is being litigated before the Court of Appeals for the Armed Forces resulting from a decision of the Navy-Marine Corps Court of Criminal Appeals.

The UCMJ’s monstrous complexity breeds confusion and undermines its legitimacy. Service members lose faith in an arbitrary and unfair system, while public confidence in military justice dwindles. A loss of faith in the system erodes the very purpose of the UCMJ: to maintain good order and discipline within the ranks while upholding the rights of those who serve.

Beyond Band-Aid Solutions: Time for Surgery:

Adding more amendments to this already Frankensteined system is akin to applying band-aids to a gaping wound. What is needed is a radical overhaul, a complete reassembly of the code based on principles of consistency, clarity, and fairness. An overhaul requires legislative action and a collaborative effort involving legal experts, military personnel, and civilian stakeholders. We must dissect the monster, understand its flaws, and rebuild it into a system that truly serves the cause of justice for all.

In conclusion, the current UCMJ is a Frankensteinian of reactive legislating and competing pressures. The time for band-aid solutions is over. An overhaul – a surgical reconstruction guided by reason and a commitment to fairness is needed.

As civilian military defense counsel we owe allegiance to you. We do not have to worry whether our uniformed superiors will dislike our advocacy, our willingness to professionally challenge the law and authority, or our careers will be damaged.

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