The Joint Service Committee recently posted the Code 146a reports of the four services on FY20 courts-martial data. Consistent with the decades long trend, the number of general and special courts-martial tried was down from the previous year to a record low since the adoption of the UCMJ. In total, the four services tried a total of 1,323 generals and specials compared with 1542 in FY19. What isn’t clear is whether the reduction is a result of the pandemic occurring during the last six months of the fiscal year or merely consistent with the well-established pattern of ever fewer courts-martial being convened. For example in FY60, the services tried 40,810 general and special courts. Even if adjusted for the smaller total force in FY20 that would still be the equivalent of 21,200 courts today. Obviously, this represents a significant reduction in the rate in which commanders use courts-martial, but I am not aware of any studies into why courts-martial use has seen such a dramatic reduction. I believe it is in part driven by the court-martial now being viewed almost exclusively as a criminal justice process rather than a discipline tool. Consequently, pure discipline issues predominately seem to be handled by administrative actions. The reports have two other interesting data points worth examining. The first has to do with conviction rates in general courts and the second is the paucity of trials before members. The Marines led the services with a 92% conviction rate while the Air Force again had the worst conviction rate at 69%. The Navy and Army both had a conviction rate of 83%. Of the 720 general courts tried in the four services, the defense won 131 cases, or 18%. In reality though, the defense success rate in litigated cases is certainly much higher as the 720 general courts would include a significant number of guilty plea cases. Additionally, the numbers also doubtlessly include many cases counted as a conviction by the military where the accused was acquitted of the most serious charges, but found guilty of a lesser charge like underage drinking. It would certainly be helpful to know these numbers as well as the acquittal rates for fully litigated cases. But much to their credit, the defense community is winning at unprecedented rates for their clients, especially in Air Force courts. One number that I believe might be surprising is how few cases were tried before members. Of the 1323 general and special courts, only 273 were before members or 21%. This is actually quite startling and not entirely attributable to Covid as only 25% were tried before members in the prior fiscal year. Considering that there are several thousand O-3 JAGs in the various JAG Corps, it raises the question of how experienced is the average JAG when it comes to litigated cases before members? This is especially true, as many of these 273 cases would have included sentencing only courts. Purely for perspective, of the 1,340,000 active duty members, only 1140 were convicted at a general or special court last year. We have thousands of JAGs assigned as trial counsel, defense counsel, appellate counsel, trial judges and appellate judges to achieve these results. Of course this doesn’t count all the paralegals, commanders or convening authorities also involved in the process. Not saying there should be more or less convictions, but that is a lot of manpower for so few. Don ChristensenGuest Contributor
14 Comments
Scott
1/13/2021 06:46:08 pm
A lot of manpower indeed given the number of cases. Even more so in that a fairly small percentage of JAG litigators are actually quite busy - trying a vastly disproportionate number of cases to their counterparts. Conversely, of course, that means many JAGs in “litigation” positions try hardly any cases (or none at all). On the government side anyway. On the defense side there is more of an even spread because defense offices are regional rather than unit-specific.
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Donald G Rehkopf
1/14/2021 11:33:50 am
Equally as interesting would be a correlation of how many cases that in times past, would be referred to trial, but now are processed as admin separations.
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William E. Cassara
1/14/2021 11:49:57 am
Those of us in the field are seeing two phenomenons: One, we are seeing cases go to trial that would never see the light of day in a civilian court. This goes along with the stacking of charges. So I have had a client acquitted of sexual assault, and guilty of smoking pot. Two, I am seeing soldiers get GOMORs and go to Admin Separations for sexual assault. IMO, if the CA and SJA believe a soldier is guilty of rape, it has no business at a GOMOR or Ad Sep. But nobody asks my opinion.
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Donald G Rehkopf
1/14/2021 01:50:31 pm
I do! And of course, you are right. Many of the 120 offenses being referred to trial would never make it out of a civilian Grand Jury or a real "probable cause" hearing.
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Scott
1/14/2021 03:10:07 pm
Completely agree. For similar reasons I was always opposed to sending 120 cases to SPCM (back when that was an option). If a sex offender registration case is serious enough to go to trial at all, send it to a GCM where the accused gets the protections offered thereby.
AD DC
1/14/2021 01:08:46 pm
Active Duty Defense Counsel here. Can confirm the reduction is at least a partial result of the pandemic occurring during the last six months of the fiscal year. Started having hearings cancelled in March, didn’t get back into court for a 39a until August, no contested members trials until October.
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Nathan Freeburg
1/14/2021 02:58:09 pm
In the Army separation board script there is language about how even "the number of times convicted at court-martial necessarily results in a separation." In other words, there used to be a time when you could be convicted multiple times at a court-martial and still stay in. What's happened is that the consequences of a court-martial conviction have increased dramatically and so courts-martial have been replaced by the administrative process. The number and complexity of administrative actions have increased exponentially (and in the Air Force and Coast Guard separation boards are much longer and more complex than in the other services). Further, the remaining courts-martial are much longer and more complex. A lot of it is the exponential growth in digital evidence (same reason that trials are almost extinct in civil litigation). Could you have imagined 20,000 pages of discovery in a Special Court-Martial pre-2004 or so? Now that's ordinary. DNA experts, Digital Forensic Experts, child forensic interviews, etc...these did not exist in days of yore.
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Donald G Rehkopf
1/15/2021 05:05:33 pm
Nathan, when I was a young AF DC, I had a client with 3 Summary CM's and one SpCM - all were in Vietnam. Later on as a CDC, I had an Army client with 2 SpCM's and 1 Summary, again, all in Vietnam. What's changed is the disappearance of rehabilitation and the "one mistake and you're out" mentality.
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AF JAG
1/14/2021 05:27:31 pm
“. . .the worst conviction rate. . . “ Interesting, but not surprising, word choice. “Lowest” would have sufficed.
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Tami a/k/a Princess Leia
1/14/2021 06:48:12 pm
The Air Force's low conviction rate is probably because the Air Force takes pretty much any sexual assault allegation to court-martial, including many that wouldn't, or shouldn't, see the light of day in a courtroom.
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Scott
1/14/2021 08:46:54 pm
The Air Force is hardly unique among the services in that regard.
DON CHRISTENSEN
1/14/2021 09:06:36 pm
For context, in FY19 there were 5699 unrestricted reports of sexual assault or rape. Only 363 or 6.4% of those actually resulted in a court-martial and 138 or 2.4% resulted in sexual assault or rape conviction. After charges were preferred, another 91 cases were dismissed prior to referral and another 86 resulted in a RILO or discharge in lieu of court.
Tami a/k/a Princess Leia
1/14/2021 09:07:16 pm
Scott, based on what I've seen, the Air Force regularly takes up the weakest cases.
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Scott
1/15/2021 10:55:52 am
Fair enough. I’ve heard the same actually. Though it’s hard to imagine how they could top their sister services.
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