31 March 2009

UCMJ -vs- MEJA: Two different justice systems

The San Diego Union Tribune, a few hours ago, reports here that the trial of Marine Corps Sgt. Ryan Weemer continues today with the prosecutor's opening statements. Weemer is being prosecuted under the Uniform Code of Military Justice for unpremeditated murder and dereliction of duty involving a 2004 incident in Falluja, Iraq. Weemer could receive life in prison if convicted.

Last year a civilian federal jury acquitted Marine Corps Sgt. Jose Nazario in the same incident. I wrote commentary on Nazario's case which appeared in the Los Angeles Times here. Nazario was prosecuted under the Military Extraterritorial Jurisdiction Act, or MEJA, and not under the UCMJ because he was no longer in the service. The two justice systems MEJA and UCMJ have entirely different procedural due process protections. Nazario had a jury of 12 peers. Weemer's jury was handpicked by the same officer that is convening his court-martial. Unanimous verdicts in the UCMJ are only required in death sentences otherwise it's two-thirds to convict. Whereas Nazario's jury would have had to have been unanimous because it was in U.S. district court regardless of whether or not the death penalty was sought.

When the House of Representatives passed the Equal Justice for Our Military Act of 2007 in the last Congress, Rep. John Conyers, the chair of the House Judiciary Committee, noted differences in MEJA versus the UCMJ. "Adding insult to injury, while a servicemember is not able to obtain Supreme Court review if he or she loses at the court of appeals . . . a former servicemember who is tried under Military Extraterritorial Jurisdiction Act in civilian court for crimes committed while on active duty also has a full right to petition for Supreme Court review." said Conyers. The debate record and Conyers statement can be found here.

As previously indicated in the post below the House-passed bill failed in the last Congress because Senator Lindsey Graham (R-SC) would not permit it to be placed upon the unanimous consent calendar for a full vote in the Senate. Legislation has since been reintroduced in both Houses of this Congress: HR 569 and S 357.

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