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San Diego Union-Tribune
January 6, 2008 Choices on small bases limited, attorneys say
By Steve Liewer, Staff Writer
SAN DIEGO – When Sgt. Robert Hankins goes to trial tomorrow on charges that he abused men under his supervision at Marine Corps Recruit Depot in San Diego, he'll probably be staring at a jury full of familiar faces.
Some attorneys said the pool of potential jurors at small bases, including the depot, is so limited that it's typical for many of the people who pass through the courtroom as lawyers, jurors or witnesses to know each other.
“There's little that goes on aboard MCRD that all hands don't know about, particularly when it comes to drill-instructor abuse,” said Gary Solis, a former Marine Corps attorney from San Diego who now teaches law at Georgetown University in Washington, D.C.
Small jury pools make it harder for lawyers to choose a panel that isn't biased. Moving a trial to a different base is cumbersome and rare, said longtime lawyers knowledgeable about military cases.
“It's up to the judge to determine impartiality,” said John Hutson, formerly the Navy's senior judge advocate general and now dean of the New Hampshire-based Franklin Pierce Law Center. “In the end, you rely on the experience of the military judge.”
Hankins faces 16 counts of maltreating recruits, violating orders, destroying property, lying to investigators and covering up serious charges. He's the last of three drill instructors to be court-martialed on similar allegations involving recruit Platoon 2167 between December 2006 and February 2007.
About 1,450 service members work at the depot, said a spokeswoman there. But only a fraction of them may be eligible for jury duty.
By comparison, Camp Pendleton has about 50,000 Marines and sailors.
Even low-profile cases can pose challenges with jury selection, said Capt. Patrick Callahan, the recruit depot's senior defense counsel.
“It's unusual that I try a case on MCRD where the jurors don't know at least one of the witnesses. It's going to be rare that you find a senior officer on base who doesn't know every other senior officer,” said Callahan, referring to military law that calls for service members to be tried by jurors who outrank them.
Another distinctive feature of the military justice system is the convening authority. This term describes a senior officer, such as the commanding general of a base, who decides whether a service member should be court-martialed and chooses the pool of prospective jurors who will judge that defendant's guilt or innocence.
“It's a given that the jurors are going to be hand-picked by the convening authority,” said Eugene Fidell, who heads the nonprofit National Institute of Military Justice in Washington.
In 2001, the institute commissioned a report that ultimately recommended changes to the Uniform Code of Military Justice, which governs military courts. Among its top suggestions: stripping convening authorities of their right to select jury pools.
“There is no reason to preserve a practice that creates such a strong impression of, and opportunity for, corruption of the trial process,” the report said.
Military brass haven't adopted the proposed change.
The recent trials of Hankins' co-defendants, Sgts. Jerrod Glass and Brian Wendel, offered a view into the cloistered world of criminal justice at the recruit depot.
Prosecutors and defense attorneys questioned a panel of officers and senior enlisted Marines in a process called voir dire, which allows for the probing of potential jurors' views to detect potential bias.
For Wendel's court-martial, it took two days to select a five-member panel from the 13 prospective jurors. Voir-dire questioning revealed that all of the potential jurors knew at least several Marines on the list of about 60 expected witnesses, and about half knew the two prosecutors.
Some had read media accounts and/or internal investigations about the abuse cases, and at least two acknowledged that they had formed opinions about Wendel's guilt or innocence. One officer said he had discussed the cases at length with the battalion commander who brought the charges.
The revelations didn't end with voir dire. While Glass gave testimony against Wendel, the court-martial judge briefly halted the trial because he suddenly realized he had served with Glass in Iraq. After brief questioning, prosecutors and defense attorneys agreed that the judge could continue to preside over the case because he knew Glass only slightly.
“Everybody's got some sort of connection,” said 1st Lt. Joshua Levine, Wendel's co-counsel.
In the end, the jury acquitted Wendel of three of the five charges against him. He could have been imprisoned for six months and given a bad-conduct discharge, but the jurors gave him a reprimand and a one-rank demotion for disobeying an order and dereliction of duty.
“We felt that they were unbiased, and we got a fair trial,” said Capt. Jahn Olson, Wendel's lead attorney.
Several lawyers said the military's professionalism partly offsets the incestuousness of small bases. Unlike some civilian juries, they said, the officers and senior enlisted members who serve on military panels are typically well-educated and understand how to follow a judge's orders.
“I can't think of any time I ever had cause to question the fairness of a juror,” Solis said. “A military panel is about as fair a panel as one can get.”
January 6, 2008 Choices on small bases limited, attorneys say
By Steve Liewer, Staff Writer
SAN DIEGO – When Sgt. Robert Hankins goes to trial tomorrow on charges that he abused men under his supervision at Marine Corps Recruit Depot in San Diego, he'll probably be staring at a jury full of familiar faces.
Some attorneys said the pool of potential jurors at small bases, including the depot, is so limited that it's typical for many of the people who pass through the courtroom as lawyers, jurors or witnesses to know each other.
“There's little that goes on aboard MCRD that all hands don't know about, particularly when it comes to drill-instructor abuse,” said Gary Solis, a former Marine Corps attorney from San Diego who now teaches law at Georgetown University in Washington, D.C.
Small jury pools make it harder for lawyers to choose a panel that isn't biased. Moving a trial to a different base is cumbersome and rare, said longtime lawyers knowledgeable about military cases.
“It's up to the judge to determine impartiality,” said John Hutson, formerly the Navy's senior judge advocate general and now dean of the New Hampshire-based Franklin Pierce Law Center. “In the end, you rely on the experience of the military judge.”
Hankins faces 16 counts of maltreating recruits, violating orders, destroying property, lying to investigators and covering up serious charges. He's the last of three drill instructors to be court-martialed on similar allegations involving recruit Platoon 2167 between December 2006 and February 2007.
About 1,450 service members work at the depot, said a spokeswoman there. But only a fraction of them may be eligible for jury duty.
By comparison, Camp Pendleton has about 50,000 Marines and sailors.
Even low-profile cases can pose challenges with jury selection, said Capt. Patrick Callahan, the recruit depot's senior defense counsel.
“It's unusual that I try a case on MCRD where the jurors don't know at least one of the witnesses. It's going to be rare that you find a senior officer on base who doesn't know every other senior officer,” said Callahan, referring to military law that calls for service members to be tried by jurors who outrank them.
Another distinctive feature of the military justice system is the convening authority. This term describes a senior officer, such as the commanding general of a base, who decides whether a service member should be court-martialed and chooses the pool of prospective jurors who will judge that defendant's guilt or innocence.
“It's a given that the jurors are going to be hand-picked by the convening authority,” said Eugene Fidell, who heads the nonprofit National Institute of Military Justice in Washington.
In 2001, the institute commissioned a report that ultimately recommended changes to the Uniform Code of Military Justice, which governs military courts. Among its top suggestions: stripping convening authorities of their right to select jury pools.
“There is no reason to preserve a practice that creates such a strong impression of, and opportunity for, corruption of the trial process,” the report said.
Military brass haven't adopted the proposed change.
The recent trials of Hankins' co-defendants, Sgts. Jerrod Glass and Brian Wendel, offered a view into the cloistered world of criminal justice at the recruit depot.
Prosecutors and defense attorneys questioned a panel of officers and senior enlisted Marines in a process called voir dire, which allows for the probing of potential jurors' views to detect potential bias.
For Wendel's court-martial, it took two days to select a five-member panel from the 13 prospective jurors. Voir-dire questioning revealed that all of the potential jurors knew at least several Marines on the list of about 60 expected witnesses, and about half knew the two prosecutors.
Some had read media accounts and/or internal investigations about the abuse cases, and at least two acknowledged that they had formed opinions about Wendel's guilt or innocence. One officer said he had discussed the cases at length with the battalion commander who brought the charges.
The revelations didn't end with voir dire. While Glass gave testimony against Wendel, the court-martial judge briefly halted the trial because he suddenly realized he had served with Glass in Iraq. After brief questioning, prosecutors and defense attorneys agreed that the judge could continue to preside over the case because he knew Glass only slightly.
“Everybody's got some sort of connection,” said 1st Lt. Joshua Levine, Wendel's co-counsel.
In the end, the jury acquitted Wendel of three of the five charges against him. He could have been imprisoned for six months and given a bad-conduct discharge, but the jurors gave him a reprimand and a one-rank demotion for disobeying an order and dereliction of duty.
“We felt that they were unbiased, and we got a fair trial,” said Capt. Jahn Olson, Wendel's lead attorney.
Several lawyers said the military's professionalism partly offsets the incestuousness of small bases. Unlike some civilian juries, they said, the officers and senior enlisted members who serve on military panels are typically well-educated and understand how to follow a judge's orders.
“I can't think of any time I ever had cause to question the fairness of a juror,” Solis said. “A military panel is about as fair a panel as one can get.”