Preparing for an Article 32

I spent most of my day today preparing for an Article 32 Investigation for an upcoming court-martial.  For those of you who aren't up on the UCMJ (uniform code of military justice) lingo, an Art. 32 Investigation is similar to a preliminary hearing in the civilian world.  It happens after charges are what we call in the military "preferred".  Meaning that the soldier has been officially charged with certain crimes.  If the commander's recommendations are that the case be tried by General Court-Martial, then an Art. 32 investigation must be done.

The brigade commander then appoints an officer to be the Art. 32 Investigating Officer.  He kind of acts like a judge during the investigation.  It is called an investigation, but it is really more like a hearing.  The government (me) calls witnesses to testify and submits evidence for the IO (investigating officer...we really love abbreviations and acronyms in the military) to consider.  The government never presents the whole case at these investigations, usually just enough to meet the burden.  The burden at an Art. 32 is that the government just has to show probable cause to believe the Accused committed the crimes that he is charged with.  It's a really low burden.

Defense counsel usually never calls any witnesses at an Art. 32, and usually just uses the investigation to cross examine the government's witnesses and get a look at how the government will go about proving up its case.  They are usually also very beneficial to the defense in that the witnesses who testify at the investigation give sworn testimony, so its just one more opportunity for witnesses to say something different which they can use to impeach them later.

The Art. 32 is supposed to be one of the checks in the system to make sure that Soldiers are not just thrown into a court-martial without proper grounds.  I think for the most part, it fills that role.  However, the decision of the IO isn't binding on the Convening Authority (the guy who decides to refer the case to a court-martial, usually the Commanding General).  So, that means that even if the IO doesn't think there is probable cause to believe that the Accused committed the crime he is being charged with, it can still go forward to a court-martial.  I'm not a fan of going against the IO's recommendation.  I feel that if the government cannot even convince one officer that there is probable cause to believe that the Accused committed the crimes he is charged with, then it is highly unlikely that the government will be able to convince a panel that the Accused is guilty beyond a reasonable doubt.  But as the prosecutor, I rarely get to make the final call and only get to give my opinion.

So now that I have put everyone to sleep with that little Military Justice class, I think that I'll move one.  This Art. 32 shouldn't take too long (some I have been a part of have gone on for days).  I'm really only expecting this one to go on for maybe 5 hours.  Which in terms of an Art. 32 isn't too bad.  This case is a pretty straight forward aggravated assault case.  One Soldier was drinking and sucker punched another Soldier, breaking his jaw in 2 places.  There were many witnesses, and the one Soldier freely admits that he punched the guy, so I don't forsee any problems with meeting the burden at the Art. 32.

So that's what I spent most of the day on.  The other part of my day was making sure another Soldier was served with his referred charges (meaning his case has been sent to a court-martial, although it was only referred to a Special Court-Martial, so no Art. 32 is necessary).  I think that case will actually be disposed of rather quickly with a Chapter 10 (discharge in lieu of court-martial).  I would explain that process, but I think that I've bored you with enough military justice for one blog post...

Everything else is going good, or as good as can be expected in a war zone....