Neal A. Puckett [attorney for Sgt. Frank D. Wuterich; Lieutenant Colonel, USMC (Ret)]: "The criminal justice system in America has certain checks and balances against overreaching by prosecutors when they bring felony charges. Some must simply file charges by information, which is then subject to a preliminary hearing before judge or magistrate who determines whether there is sufficient evidence to bind the defendant over for trial. Others must seek a grand jury indictment, before moving ahead with the trial of a defendant. This involves taking the evidence before a group of citizens who then vote on whether to return a true bill, or indictment.
The military justice system has a similar pretrial gateway, called an Article 32 investigation, named for Art 32 of the Uniform Code of Military Justice (UCMJ). That process involves a hearing before an impartial military officer (often a lawyer or "JAG") who issues a report answering two questions: 1) is there sufficient credible evidence to believe the accused committed any of the offenses charged; and 2) if so, how should those charges be adjudicated? The standard of proof is low (reasonable cause to believe) and the recommendation as to whether to prosecute as a felony, misdemeanor or dismiss is advisory only. That means that the commander who appointed the investigator is free to disregard those recommendations.
Often the Art 32 process is viewed by defense counsel as a rubber stamp for the commander who wishes to push the case to a felony trial (general court-martial), because over 90% of cases result in that recommendation. In other words it is easy manipulate and abuse. In rare cases, a recommendation to dismiss charges provides the commander justification to do away with specious allegations brought by disgruntled service members. More often, a recommendation to dismiss is ignored, as when the commander really wants protection against allegations of failing to punish misconduct or when he or she simply wants to appear "tough." Homicide and sexual assault offenses are almost never dismissed short of a full general court-martial even when dismissal is strongly recommended. Commanders do not want to be seen as insensitive to the needs of accusers, (read: politically incorrect), even when they fully believe in the innocence of the accused.
The Art 32 investigation protection against proceeding to trial on baseless charges could be improved by a change to the Manual for Court-Martial (a Presidential Executive Order). The change should require that investigating officer be JAGs except where impracticable and by making the investigating officer's recommendations binding on the commander in cases where that officer recommends dismissing charges."
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