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NCJRS Abstract

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NCJ Number: 51300 Find in a Library
Title: MILITARY JUSTICE - MARCHING TO A DIFFERENT DRUMBEAT
Journal: AMERICAN BAR ASSOCIATION JOURNAL  Volume:64  Dated:(SEPTEMBER 1978)  Pages:1362-1365
Author(s): N G COOPER; J S COOKE
Corporate Author: American Bar Association
United States of America
Date Published: 1978
Page Count: 4
Sponsoring Agency: American Bar Association
Format: Article
Language: English
Country: United States of America
Annotation: THE UNIQUE ROLE OF THE U.S. COURT OF MILITARY APPEALS IN THE MILITARY JUSTICE SYSTEM IS EXAMINED, AND THE COURT'S OPINIONS SINCE THE MY LAI TRIALS IN THE EARLY 1970'S ARE REVIEWED.
Abstract: THE COURT WAS ESTABLISHED IN 1951 AS THE HIGHEST APPELLATE COURT IN THE MILITARY JUSTICE SYSTEM. IT INCLUDES THREE CIVILIANS APPOINTED BY THE PRESIDENT FOR STAGGERED 15-YEAR TERMS. THE APPELLATE JURISDICTION OF THE COURT EXTENDS TO DISCRETIONARY REVIEW OF DECISIONS MADE BY COURTS OF MILITARY REVIEW FOR EACH OF THE ARMED SERVICES, WITH MANDATORY REVIEW IN ONLY A FEW INSTANCES. COURTS OF MILITARY REVIEW AUTOMATICALLY EXAMINE ALL CASES IN WHICH THERE ARE SENTENCES OF CONFINEMENT OF 1 YEAR OR MORE OR A PUNITIVE DISCHARGE AND CASES IN WHICH A GENERAL OR FLAG OFFICER IS THE ACCUSED. IN ADDITION TO ITS ORDINARY APPELLATE JURISDICTION, THE COURT HAS AUTHORITY TO GRANT EXTRAORDINARY RELIEF UNDER THE ALL WRITS ACT. THERE IS NO DIRECT APPEAL FROM THE COURT TO THE SUPREME COURT OR ANY OTHER FEDERAL COURT. THREE PRINCIPLES GUIDE DECISIONMAKING BY THE COURT: (1) MILITARY SOCIETY NEEDS ITS OWN SYSTEM OF LAWS BUT NOT A SYSTEM PREDICATED SOLELY ON THE REQUIREMENT FOR DISCIPLINE; (2) THE MILITARY JUSTICE SYSTEM MUST BE MANAGED BY JUDICIAL OFFICIALS AND NOT COMMANDERS; AND (3) THE SYSTEM MUST STAND ON THE TRIPLE SUPPORTS OF INDEPENDENT PROSECUTION, DEFENSE, AND JUDICIAL ENTITIES. THE APPLICATION OF THESE PRINCIPLES IN CERTAIN CASES HAS RESULTED IN SIGNIFICANT DEPARTURES FROM CASE LAW AND AN INNOVATIVE APPROACH TO MILITARY CRIMINAL LAW. THE PRINCIPLES CALL INTO PARTICULAR QUESTION THE ROLE OF THE COMMANDER IN THE MILITARY JUSTICE SYSTEM. THE COMMANDER'S INHERENT INTEREST IN MAINTAINING DISCIPLINE HAS RAISED QUESTIONS ABOUT WHETHER HE CAN OR SHOULD ALSO PLAY A JUDICIAL OR QUASIJUDICIAL ROLE IN THE MILITARY JUSTICE SYSTEM. IN MILITARY CRIMINAL LAW, REQUIREMENTS FOR A PROVIDENT GUILTY PLEA ARE MORE RIGOROUS THAN THOSE CONSTITUTIONALLY MANDATED IN CIVILIAN PRACTICE. NEGOTIATED PLEAS ARE RECEIVING INCREASED ATTENTION, AND THE COURT HAS ASSERTED ITS SUPERVISORY AUTHORITY OVER THE ENTIRE MILITARY JUSTICE SYSTEM. THE MILITARY JUSTICE SYSTEM, AS AN ESSENTIAL ELEMENT OF MILITARY ORGANIZATION AND SOCIETY, SIGNIFICANTLY AFFECTS THE NATURE OF THE ARMED SERVICES AND THEIR ABILITY TO ACCOMPLISH THEIR BASIC MISSION. (DEP)
Index Term(s): Appeal procedures; Judicial review; Military justice
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