Late entry: This Navy Times article forwarded by Mr. Michael Barber, military correspondent, Seattle Post-Intelligencer
Walt, FYI....from Navy Times.....
Lawyer questions tenure of Navy judgesNAVY TIMES
By Chris Amos Staff writer
A lawyer has raised questions about the fairness of Navy courts, arguing that
the at-will employment of Navy judges could make them susceptible to pressure
from Navy brass to seek desirable outcomes in courts-martial.
Eugene Fidell filed an appeal in U.S. District Court in Washington, D.C., asking
that the 2003 conviction of Lt. Cmdr. Darrell T. Opperman be thrown out because
discrepancies in tenures among military judges could lead to such pressures and,
as a result, are a violation of Opperman’s Fifth Amendment right to equal
protection under the law.
Navy, Air Force and Marine Corps judges do not have a fixed
term of office, whereas Army and Coast Guard judges do, according to
The U.S. Supreme Court has ruled that government organizations can
treat similarly situated people differently only if there is a rational reason
for the difference in treatment.
But Fidell said there is no rational reason
for the differences in judge tenures, especially since most aspects of military
criminal justice are standardized under the Uniform Code of Military
“It has to be something based on practicality,” he said.
“Disparities have to be explained. I think they have a serious problem here. If
the Coast Guard has ships and they can do it, why can’t the Navy? The problem is
this is a platoon of services that is not in step.”
Opperman, a former Navy
nurse, was sentenced to nine months’ confinement, an $18,000 fine and dismissal
from the Navy after he was convicted of dereliction in the performance of his
duties, failure to obey a lawful order, physically controlling a vehicle while
drunk, being drunk on duty, wrongfully and recklessly engaging in conduct that
was likely to cause death or serious bodily harm and being incapacitated for the
proper performance of his duties as a result of wrongful previous overindulgence
in intoxicating liquor. The confinement and fine were suspended.
would have an option to retry Opperman after it provided a fixed tenure for its
judges if the appeal is successful, according to Fidell.
The U.S. Court of
Appeals for the Armed Services, Fidell said, dismissed the appeal Oct. 11 with a
one-sentence statement: “We disagree, and decline to grant
Disappointed that the court did not offer an explanation for its
decision, other than previous cases upon which it was based, Fidell then filed a
motion with the U.S. District Court in Washington, D.C., which is the next
highest level of review.
The Navy has 60 days to respond to the appeal, which
was filed Oct. 24, Fidell said.
U.S. District judge Emmet G. Sullivan will
hear the case. Fidell promised to appeal until the Navy changes the
“If it has to go to the Supreme Court, we will take it to the Supreme
Court,” he said.
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