CONTEMPT PROCEEDINGS ARE ONE-SIDED – AGAINST THE DEFENSE
Every year, the Joint Service Committee solicits public comments for its review of the Manual for Courts-Martial. For 2015, those comments are due during April. Zachary Spilman, author and editor of CAAFLOG, sent such comments to the Joint Service Committee with a number of proposed changes to the Manual for Court-Martial. Mr. Spilman had many good suggestions but one is the focus of this blog – To increase protections for a person accused of contempt. Pursuant to Military Rule for Courts-Martial 809(b), a military judge can address contempt summarily and punish someone for even minor transgressions, such as being a few minutes late to court. Mr. Spilman rightfully proposes some reasonable changes to the current rule to prevent military judges from acting in an abusive manner. What is not highlighted is the occasions where contempt proceedings are actually instituted.
While contempt proceedings have been used a number of times over the last several years against defense counsel, such proceedings against the government (including military prosecutors, staff judge advocates and commanders) are a very rare thing. The military protects its own and the failure of military judges to enforce the rules against the government does nothing but highlight some of the inherent flaws and bias of military justice. We have seen this play out many times in many ways. Trial counsel does not comply but when the military judge addresses this, senior judge advocates or commands come to their rescue and judges do nothing. Or a command or government witness violates the orders of a court and there is no recourse. Most recently, in an appellate Air Force case, appellate government counsel did not follow the explicit orders of the court. Their answer was weak and the appellate court promptly rebuked their answer. But they failed to institute contempt proceedings.
It is commonplace that military defense counsel face disciplinary issues, ethical complaints, reassignments or contempt proceedings. However, those with the “white hats” on the government side are bullet-proof. I have seen egregious ethical violations swept under the rug when done by someone on the government side while defense counsel are commonly taken to task with ethical allegations and complaints.
Mr. Spilman’s suggested changes to the Manual for Courts-Martial will not affect the unfair treatment of the defense in military justice or fix the inherent bias of military justice. But it’s at least a reasonable step to hold such abuses in check.