Sunday, August 18, 2002

MIB - Military Injustice Blog

The Article 32 Is A Command of Congress
No Article 32, No GCM, No Choice!

Congress has mandated under Article 32 of the Uniform Code of Military Justice (UCMJ) that “no charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made.”
The statute quoted above is the command of Congress to all general court-martial convening authorities (GCM CA). Nothing in this section of the UCMJ allows for choice or discretion. No provisions exist for a GCM CA to avoid this law. The requirement to conduct an Article 32 is binding on all persons administering any provision of the UCMJ.
In the book, Military Criminal Law, author Michael J. Davidson states Article 32s are designed to protect personnel accused of criminal acts with a “thorough and impartial investigation” before a case is sent to trial. It’s the military’s rough equivalent to a grand jury and serves four purposes: 1) to adduce the truth of the allegations, 2) to consider the form of the charges, 3) to record and submit a recommendation to the convening authority as to the disposition of the case and, 4) to allow the accused an opportunity to mount a defense by gathering exculpatory evidence.
Federal prosecutors are barred from bringing cases to trial that have not been first examined by a grand jury. If the grand jury does not indict, no trial can go forward. However, at no point in time is the defendant vested with the power or authority to “waive” a sitting grand jury. In many situations persons who are the focus of a grand jury are not even aware of the ongoing inquiry. The law placing the burden on federal prosecutors of obtaining a grand jury indictment can’t be erased by anyone, certainly not the target of the hearing.
Similarly military defendants have no more sway to dismiss a 32 hearing than they have in dismissing their court-martial. Suspects are not empowered to lift a burden Congress has placed upon GCM CAs.
JAG HUNTERS learned in early May that in the days leading to his GCM; Private. Corey Cox was tricked into unconditionally waiving his Article 32 hearing. One wonders what a conditional waiver of an Article 32 looks like. Pvt. Cox was forced to face charges in a general court-martial not examined during an Article 32 hearing.
Army Lt. Col. Greg Gross, Deputy Staff Judge Advocate at Fort Lewis, Washington, commented in a meeting with this writer soldiers waive their Article 32s regularly. According to Gross, “it happens all the time.” It further appears that Pvt. Cox’s assigned defense attorney, Cpt. Ricardo Diaz, frequently advised his clients to “unconditionally waive” their Article 32 protection.
A federal trial can’t proceed in the absence of an indictment just as a general court-martial can’t proceed without an Article 32.
Any Soldier, Sailor, Airman, Marine, or Guardsman who sits in a military correctional facility today as the result of a GCM conviction achieved in the absence of a required Article 32 may be held under unlawful imprisonment and subject to immediate release. Persons who’ve been convicted by a GCM that did not first enjoy the mandated scrutiny of an Article 32 may be subject to instant remedy and relief. If charges weren’t properly screened through the Article 32 process subsequent GCMs are null and void.
Military attorney or military judges party to a GCM conviction sans the required Article 32 may be subject to prosecution under Article 98 of UCMJ and stripped of their licenses to practice law (disbarment). Any GCM convening authority that has referred charges to a general court-martial without first vetting accusations through an Article 32 may be similarly prosecuted under Article 98 whether or not a conviction was achieved.
Defendants brought to general court-martial without first appearing at an Article 32 are victims of a court-martial factory that’s been running without oversight and out of control for decades. Unwary junior enlisted personnel, operating under a misplaced trust in a system run amuck, have become the gas and grease that keeps the monster machine running using them up as it goes.
Practitioners of military law who participate in deceiving defendants that Article 32 hearings are optional have committed criminal acts by obstruction justice and perpetrating a fraud on a military court. The cast of characters in the Private Corey J. Cox case includes Convening Authority General Maples, Staff Judge Advocate Robert Burrell, Cpt. Ricardo Diaz, Cpt. David Goscha, Cpt. Ruth Vetter, Cpt. MacDonald, and Lt.Col. Jerry Linn.
Then there is the Military Judge, Col. Gary V. Casida.
General Maples materially obstructed Pvt. Corey Cox from appearing before an Article 32 hearing. No indictment no trial. Maples is personally responsible for the unlawful incarceration of an innocent man. Pvt. Cox must be released instantly.
No 32, no trial, no choice!
Congress commands it.


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