MILITARY TIPS SCALES OF JUSTICE, CRITICS CHARGE

WASHINGTON - The soldier had been distributing marijuana, his commanders
said, and though he deserved a fair trial, they were not going to stand by
as other soldiers and officers dared to testify on his behalf.

So officers took Army subordinates behind closed doors and let them know
what they thought of Spc. Howard Levite's "bad character," according to
court files. The commanding officers also showed the potential witnesses a
file on Levite, with "letters of indebtedness, counseling statements and
other . . . defamatory information," court records show.

The information and their superiors' intimidation were powerful enough to
keep two of the witnesses from testifying, according to Levite's lawyers.
Others went on the witness stand only to see their commanding officer and
his minions glare at them, according to court records.

A jury found Levite guilty, and the Army called this justice. But civilian
judges on the U.S. Court of Appeals for the Armed Forces, one level below
the Supreme Court, set aside his conviction, calling the Army's tactics
"desperate" and "pernicious" attempts to rig a trial.

Dozens of military court files and interviews show that this was not the
first time that military commanders were accused of stacking a case,
tampering with witnesses, abusing the rights of soldiers or attempting to
grease the system to assure a conviction. In fact, the U.S. Court of
Appeals for the Armed Forces reverses military verdicts or sends them back
for a rehearing twice as often as federal appeals courts do for civilians,
court statistics show.

The military legal system gives most soldiers and sailors a fair shake, say
current and former military lawyers and judges. "Systematically, I think
it's fair," said Lt. Col. R. Gary Sokoloski, head of military justice for
the Marine Corps. "But it can always be tweaked."

But says Philip Cave, a former Navy prosecutor: "I think there's sand in
the gears."

A high-level commission chaired by Walter T. Cox III, senior judge of the
U.S. Court of Appeals for the Armed Forces, issued its own blunt assessment
last month. The Cox Commission concluded that military justice "has
stagnated, remaining insulated from external review and largely unchanged
despite dramatic shifts in armed forces demographics, military missions and
disciplinary strategies."

Lawyers for Daniel King say they certainly feel that way. King, a Navy
petty officer first class from Elyria, was held 520 days without charges,
accused of spying after a routine security polygraph in 1999 showed
inconclusive results.

"The military justice system lacks the most fundamental protections for the
rights of soldiers and sailors," says Jonathan Turley, King's civilian
lawyer and a law professor at George Washington University.

The Navy said King, a cryptologist for the National Security Agency,
confessed to sending a computer disk to the Russian Embassy. But King said
his statement was in response to investigators' questions about dreams and
fantasies, coerced out of him after a series of interrogations, each
lasting 15 to 20 hours.

King was released after an officer in charge of an Article 32 hearing, the
equivalent of a grand jury hearing, determined the Navy's evidence was
"based exclusively on a confession that the accused subsequently
contradicted on several occasions."

The Navy lost an earlier legal skirmish in King's case. Citing national
security concerns, the Navy wanted to have one of its agents present at
defense team sessions to make sure King and his lawyers didn't discuss
national security issues. But that would have violated King's right to talk
in confidence with his lawyers, and it could have harmed the lawyers'
ability to privately plot strategy. "We couldn't even e-mail each other,"
said Turley, who went to an appeals court to get the Navy order dropped.

Lawyers cite flaws

In theory, the United States military grants more legal rights to the
accused than police and state courts give to civilians. In the military,
all suspects are read their rights; in civilian law, rights need not be
given until there is an arrest or charge. The military also provides
lawyers free to any soldier or sailor.

In fact, the civilian system's method of providing lawyers for the poor,
and its "Miranda" rights advisory, evolved from military law, said William
Eckhardt, a 30-year Army veteran who is now a law professor at the
University of Missouri in Kansas City.

Yet lawyers who specialize in armed-forces law, including former officers
and military judges, say the system is too open to real or perceived abuses
of justice.

The main problem is that the officers in charge of a base, ship or military
operation control the keys to justice: the decision to investigate; to
prosecute; to set up trials and seek judges; to pay for defense experts or
witness travel.

Unlike civilian courts, where jurors are picked randomly, military jurors
"must outrank the defendant, and they're picked by the commander," said
Kenneth Gale, a former Army lawyer who now practices in Wichita, Kan.

All of this leads to claims of so-called "command influence."

"The commanding general is the guy who decides to seek the death penalty,"
said Dwight Sullivan, a former Marine Corps lawyer now with the American
Civil Liberties Union of Maryland. "And then he selects his subordinates
who are going to be jurors in the case, knowing that the commanding general
wants the death penalty."

As a result, you can't tell if a military defendant is getting a fair
verdict, said Kevin Barry, a former Coast Guard trial and appellate judge.

And while legal counsel is free, the lawyers are often inexperienced, a
number of former military lawyers said.

"Once you start doing a good job, you get promoted" out of defense work,
said Thomas Ciccolini, an Akron lawyer who practiced in the military.

Defense lacks experience

In December 1998, the U.S. Court of Appeals for the Armed Forces sent back
for reconsideration the case of Army Sgt. James Murphy - sentenced to death
by an Army court for murdering his estranged wife and two children - after
learning that neither of the two captains appointed to represent him had
experience in capital cases. Likewise, in King's espionage case, where the
death penalty could have been an option, the Navy appointed two young
officers with less than a year of experience as defense lawyers, before
Turley volunteered to help.

"The attitude is that anyone that can do an AWOL case can do a murder
case," Cave, the former Navy lawyer, said.

Many lawyers said that lawyers on the front lines of the civilian justice
system - especially public defenders and prosecutors - tend to be as young
and inexperienced as their military counterparts. But in federal courts,
they're not allowed to handle death penalty cases.

When Congress wrote the Uniform Code of Military Justice 50 years ago,
providing new laws and rules to cover America's fighting men and women, it
envisioned armed forces engaged in conflicts across the globe. Military
justice was to be carried out efficiently - whether on an aircraft carrier,
in a tent in a desert or at a California Marine base - by an institution
often lacking the luxuries of comfort or time.

That's why prospective jurors are picked by commanders or their
subordinates. During war, officials say, it could be impossible to call a
large, random panel

"The classic balancing in the military justice system," said Maj. Gen.
William Moorman, the Judge Advocate General, or top legal officer, in the
Air Force, is between "the rights of the service member, which we have to
protect," and the need for combat readiness.

The system works best, said David M. Brahms, a retired Marine Corps
brigadier general and a lawyer, in the hands of commanders who are
intimately acquainted with the military mission - and who are not lawyers.

Appeal for changes

But the military has largely stayed out of combat for nearly 30 years, and
the overwhelming majority of today's cases are for violations common to
civilian criminal courts: assaults, sex offenses, drug crimes, and bad
checks written by new recruits, lawyers say. Military justice has not kept up.

"I think the military justice system is a system of people trying to police
themselves," said John D. Hodson, a lawyer in Vacaville, Calif., who
practiced in the Air Force for 20 years.

Periodically, high-profile cases thrust the problems into the public eye.
Navy commanders purposely botched their probe of the widespread sexual
groping, assaults and "debauchery" at the 1991 Tailhook aviators
convention, a Pentagon inspector general's report said, because they didn't
want to embarrass the service. In 1989, the Navy was quick to blame a man
from Cleveland, Clayton Hartwig, for causing the explosion that killed 47
crew members aboard the USS Iowa, saying he was a gay gunner's mate bent on
suicide. After the General Accounting Office said obsolete equipment and a
lack of training may have been factors, and scientists said hydraulic
loading of the 16-inch guns may have been to blame, an embarrassed Navy
concluded it could not determine the cause.

Military appeals courts are full of lesser-known cases with equally serious
questions about justice. For example:

Army Capt. Holly Baldwin was on trial, known as a court-martial, in 1998,
accused by commanders of running up $13,000 on another officer's credit
card. In the middle of the court-martial at Fort Bliss, Texas, base
commanders ordered all officers, including Baldwin's jurors, to attend a
class on ethics. Among the topics discussed: how courts-martial were too
lenient.

The jurors convicted Baldwin, who spent six months in prison for conduct
unbecoming an officer. Earlier this year the U.S. Court of Appeals for the
Armed Forces questioned whether the "ethics" training amounted to jury
tampering and sent the case back to the Army.

Air Force Capt. Donna L. Butcher, a nurse, was accused of stealing
Percocet, a prescription painkiller, from the medical center at Lackland
Air Force Base in Texas. During her 1998 court-martial, the judge attended
a party at the home of the military prosecutor.

The next day, the prosecutor and judge got together again, this time for
tennis.

Butcher's lawyer asked the judge to leave the case, citing military law
that says judges can be disqualified if their "impartiality might
reasonably be questioned."

But Judge J. Jeremiah Mahoney would not leave. His refusal is being appealed.

Military judges are supposed to be independent enough not to be swayed by
friendships that naturally occur on any base. But critics say that any
judge who wants to advance in the military knows he or she will ultimately
need a commander's recommendation - and commanders want law and order.

"Most of the judges do the best they can," said Cave. "But they do serve in
the military, and they want to be promoted. There is some sort of
unquantifiable bias there."

Army Spc. Ronald Gray is on death row in Fort Leavenworth Kan., for murder,
rape, robbery, sodomy, burglary and theft. Six military jurors - half the
number required for capital juries in every other U.S. court - determined
his fate in 1988. Military juries with anywhere from five to 12 members can
decide capital punishment cases.

Though few people weep for this killer, the Bar Association of the District
of Columbia and other authorities criticize the military for allowing so
few jurors to sentence a defendant to death. In 1991, Judge Eugene Sullivan
of the U.S. Court of Appeals for the Armed Forces wrote in an unrelated
death-penalty opinion, "The value of a soldier's life is surely equal to
the value of the life of his fellow citizens. Nevertheless, neither the
Constitution itself, nor Congress in legislation, nor the President by
regulation, has mandated a 12-member panel in a military capital case."

Maybe Congress should - or so says the Cox Commission, the panel that last
month appraised the state of military justice.

Panel has influence

If any single review is likely to prompt change in the system, lawyers say,
it is the Cox Commission's. The group has no official power but several of
its members wield influence: Cox, appointed to the appeals court by
President Reagan, was chief judge for four years; retired Rear Adm. John S.
Jenkins was the top legal officer of the Navy and now is senior associate
dean emeritus at George Washington University Law School; and retired Navy
Capt. Guy R. Abbate Jr. now is a senior instructor at the Naval Justice School.

The commission formed at the request of the National Institute of Military
Justice, an association of lawyers, but it operated autonomously, said NIMJ
president and Washington lawyer Eugene Fidell. Other commission
recommendations included selecting jurors randomly; appointing all judges
to fixed terms of office, and giving them power over courtrooms well before
trials start; finding money to hire experienced death-penalty lawyers, and
telling juries that they may not consider race when deciding on death
sentences.

"The racial disparities of military death row mirror the disparities
evident in civilian criminal jurisdictions that impose death," the
commission report said. "Of the six service members currently on military
death row, four are African American, one is a Pacific Islander, and one is
white. All were convicted for killing white victims."

Most of these changes would require an act of Congress, which worries some
lawyers. Retired Adm. Jenkins says Congress has shown little interest in
military justice as the number of veterans has declined.

Key congressional committees have not acted on the report, and a spokesman
for one said Congress might wait to hear first from the military. The
Marine Corps' Sokoloski, who chairs a committee of military justice leaders
from all the services, said he and the others would review the recommendations.

Cox, now retired in Florida, is guardedly optimistic, saying that
relatively soon - in three to five years - Congress could come around. But
defense lawyers are impatient.

"Politicians talk a good game about doing all we can for our men and women
in uniform,' " said Turley, King's lawyer. "In reality, Congress has
allowed sailors and soldiers to be routinely abused in a system that gives
them a fraction of the rights afforded to civilian defendants."