Procedural Rights of the Military Accused: Advantages Over A Civilian Defendant

The Supreme Court recently decided in O'Callahan v. Parker that the military lacks jurisdiction to try servicemen for crimes that are not "service-connected." Justice Douglas, in rendering the majority opinion, was highly critical of military justice and criminal procedures in the court-martial system, which he characterized as "a system of specialized military courts, proceeding by practices different from those obtaining in the regular courts and in general less favorable to defendants . . . . .” The opinion further added that "courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law . . . . A civilian trial, in other words, is held in an atmosphere conducive to the protection of individual rights, while the military trial is marked by the age-old manifest destiny of retributive justice." The Court then quoted approvingly: "'None of the travesties of justice perpetuated under the UCMJ is really very surprising, for military law has always been and continues to be primarily an instrument of discipline, not justice.” The indictment of military justice was unmistakable; the portrait was of an institutionalized system of quasi-courts before which an accused is systematically deprived of fundamental rights. The recurrent implication was that any accused would eagerly seek to escape military jurisdiction for the comparative haven of a civilian trial. Within 30 days after O'Callahan, the Judge Advocate General of the Army received a letter from a serviceman tried and convicted in a civilian court for manslaughter. The crime was committed on a military reservation. The letter complained of the conduct of the writer's civilian trial including the denial of counsel, military or otherwise, and expressed bitterness that the military had not been able to take jurisdiction of the offense. The letter was, of course, a plea from one incarcerated man and, to be sure, some accused servicemen have sought to bar the exercise of military jurisdiction on the basis of O'Callahan. Nonetheless, the petition of this ex-serviceman and his dissatisfaction with his civilian trial may more truly reflect the realities of a thorough comparison of military and civilian criminal procedure than do the broad assertions of Mr. Justice Douglas.