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The Military Justice System: Innocent Until Proven Guilty

December 3, 2020

The Air Force made history this November when it charged Maj. Gen. William T. Cooley with sexual assault, making him the first active Air Force general ever to be charged with a military justice crime. He could also become the first Air Force general to face a court martial if the preliminary hearing, scheduled for January 2021, deems it necessary.

Cooley’s story made headlines and was featured in Task & Purpose, a news and culture outlet written by and for the military community. The author of the article, multimedia journalist David Roza, draws vastly different conclusions than Joseph L. Jordan, Attorney at Law. As a former Army soldier, Army combat arms officer, and JAG officer now serving as an experienced military defense attorney, Jordan is highly qualified to rebuttal Roza’s arguments.

The Accused is Innocent Until Proven Guilty

Roza relates Cooley’s sexual assault charge in a positive light, saying it “might help finally hold senior leaders to the same standards as their lower-ranking peers.” Roza argues that the long-standing “old boys’” network is a flaw in the Air Force justice system, protecting top brass from serious punishment after violating the Uniform Code of Military Justice (UCMJ).

The team at Joseph L. Jordan, Attorney at Law believes that holding guilty parties accountable is a critical aspect of the justice system, no matter the accused’s ranking. However, Roza writes as though Cooley is guilty until proven innocent.

“I am embarrassed that a member of the military legal counsel has forgotten the basic constitutional concepts of being innocent until proven guilty,” says Jordan. “This is what’s wrong with military justice. They look at it backward, failing to mention that the US government has a bottomless pit of money to prosecute sex assault cases in the military. All service members are innocent until proven guilty, but this article basically says that in every allegation, the accused is guilty. This is the wrong attitude, and I see it in every branch of the military.”

“Inexperienced JAG Officers” is Pure Conjecture

Roza argues that Air Force Judge Advocate Generals (JAGs) are inexperienced, which hurts their ability to win legal battles. His article highlights the case of Eddie Gallagher, a former Navy SEAL who was acquitted of murder charges despite multiple witnesses testifying that he shot two civilians and stabbed an ISIS detainee in Iraq. The article states that the Navy lost the Gallagher case, in part, due to inexperienced JAG officers.

Roza explains that few Staff Judge Advocates (SJAs) have significant experience in the courtroom because the military encourages them to spend time exploring a range of practice areas. As a result, the author claims, “the JAG is full of jacks of all trades, but masters of none.”

While it’s true that prosecutorial trial work can be a somewhat secondary duty, Roza fails to mention that big cases always have senior trial counsel assigned—that is, counsel whose only job is litigation.

Besides, arguing that JAG officers lack courtroom experience is pure conjecture. “From time to time, we hear these arguments from those who would like to have a DOD civilian job prosecuting military cases,” says Jordan. “Still, Roza’s conjecture fails to explain why military defense counsels score acquittals about half the time in sexual assault cases.”

Civilian vs. Military Justice Systems

Roza lifts the civilian justice system above the military’s, stating that “Air Force judge advocates…do not develop the trial experience one might find in a civilian district attorney’s office.” The author goes on to highlight that civilian prosecution offices hope to achieve a 90+ percent conviction rate. To accomplish this, DAs only take cases to trial for which they have probable cause and sufficient admissible evidence to prove the accused’s guilt beyond a reasonable doubt.

“There’s a big difference between having ‘probable cause’ to lawfully charge a case and proving ‘beyond a reasonable doubt’ that the accused is guilty,” Jordan explains. “The prosecution is supposed to lose when there isn’t enough evidence to convict. We should not be concerned when that happens.”

Jordan also points out that while DAs are judged on their conviction rates, SJAs are not. They are instead judged on case processing speed. That is perhaps one reason why, military-wide, only a third of sexual assault cases result in a conviction.

The arguments in the article assume, without empirical proof, that the system is broken simply because conviction rates are lower than the author thinks they should be. But the problem for Air Force prosecutors is that they’re too often forced to try cases where the evidence is less than convincing.

“If an SJA’s performance was evaluated more like a DA’s, maybe fewer cases would go to court in the first place,” Jordan contends. “In my opinion, a lack of evidence and limits on prosecutorial discretion are the likely reasons for high acquittal rates, not incompetent prosecutors.”

Roza seems to think that the state criminal justice system is better equipped to handle legal cases, but Jordan begs to differ. “I believe the military justice system acts more fairly toward alleged victims and perpetrators alike. Given the current record of proven injustices in state systems, I am encouraged that the military system does not mirror the states. Simply consider the case of Walter McMillian, a wrongfully convicted Black man whose story is portrayed in the movie Just Mercy.”

Joseph L. Jordan, Attorney at Law Wins Cases

Joseph L. Jordan, Attorney at Law wins cases because we do our research. We come forward with hard evidence and facts that put holes in the prosecution’s flawed thought process. We are diligent, hardworking and highly experienced.  We understand the stakes.  We defend America’s finest because they defend America.

If you want an accomplished military defense attorney on your side, let us represent you. We specialize in defending service members from all branches of the military against UCMJ violations, whether you are based at home or stationed abroad. Please call us toll free at 800-580-8034 or 254-221-6411 today to speak directly with Joseph L. Jordan about your case.

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