There was an exceptionally informative post on Salon.com on Saturday that detailed the specifics of how a U.S. military court martial is carried out, in anticipation of this instrument being used to determine the future of Army Pfc. Bradley Manning, the soldier charged with disclosing American secrets to WikiLeaks. The inclination that I think most people have is that a court martial is fundamentally less fair than a civilian criminal trial, that the accused have fewer rights, that the culture of the military, with a low tolerance for dissent, would mean decisions are rendered with more prejudice towards the defendant. I know this was my own view. Upon reading the article I found myself pleasantly surprised that the military justice system affords those accused with rights and procedures, identical, if not slightly more favorable than a U.S. civilian trial. I began thinking, what are some of the inadequacies in our civilian justice system that a military court martial identifies and corrects? Below I have outlined what I think are some good ideas and while they may be difficult or even impossible to adopt from the military, at the very least they can encourage discussion on where we can do better.
The jurors are not chosen randomly from voter registration rolls, like they are in the civilian world, they are chosen because they are known to be educated, experienced, and have a developed ‘judicial temperament’. If my future was on the line I would want critical thinkers who wouldn’t be swayed by a prosecutor’s parlor tricks and those who could understand and make sense of complex arguments. I would want civically engaged and community minded people rendering a decision impacting the rest of my life. I would want the most educated and balanced group of my peers listening to both sides of the arguments presented.
Who are Your Peers?
The military anticipates the problems that can arise from prejudices in social standing influencing decisions. In the case of Manning, because he is enlisted, 1/3 of the jury has to be enlisted. Imagine if this quality and equity was applied in the civilian world. What if in a civilian trial there was a mandate that your income, ethnicity, religion, occupation, education, and other social factors had to be represented in the jury? This is accomplished to some degree by the attorneys collaborating on jury selection before the trial, but what if it was codified and quantified? The military jury that Manning will face will likely be a closer sample of his peers than a random selection of fellow citizens chosen for a civilian jury.
In a court martial sentencing is also carried out by the jury, not by the judge, who generally determines the punishment in a civilian court. More severe sentences require a larger percentage of jurors voting in favor, and in the case of a capital punishment, a jury comprised of twelve people and a unanimous vote is needed. Looking at the civilian world, in some parts of the U.S., judges are elected, not appointed. This means they have the proclivity to give out harsher sentences because they can then use that record in a campaign as an example of how they are ‘tough on crime’. Manning’s sentence will be decided by a group of people with different emotions, experiences, and interpretations of the facts, not politicians looking for an easy campaign slogan.
There are of course elements of a court martial that are inherently less fair. The fact that Manning effectively put fellow members of the armed forces at risk through his actions will likely not sit well with a jury comprised of members of the armed forces who probably have very developed and hostile opinions on the matter. However, we should consider what these proceedings will do well, how they will give someone who will probably spend the rest of his life in prison and is charged with a crime in a time of war, all the protections and rights that any of us would want. Manning will be able to defend himself in a public forum (U.S. court martials are open to the public) before a jury that is comprised of educated people who will evaluate both sides of his case with an even temper and a critical eye. If any of us are ever unfortunately on trial for our lives I think we would want the same.