While the case of United States v. Sean P. Bright had no Montana connection, one of the judges hearing it did. Judge Charles “Chip” Erdmann was a University of Montana School of Law graduate and former state Supreme Court justice before joining the Court of Appeals in 2002.
He was one of four panel judges who heard the case in the packed Castles Center on the UM campus. The Court of Appeals only leaves its base in Washington, D.C., twice a year, and this was the first time it has come to Montana.
“In 157 pages of testimony, there's nothing in the record that she tried to stop this,” Gittins said. “This is a 23-year-old female responsible for her own body.”
Government prosecutor Capt. Teresa Phelps countered this was “a textbook constructive force case,” referring to a legal theory of using superior rank and authority to coerce someone's consent. Phelps said the drill instructor used his boot camp authority and threats of punishment for the woman's entire platoon to make her have sex with him.
The four judges were judicious in attacking both arguments. Neither attorney got much more than a minute into prepared remarks before the judges started firing questions. Judge James Baker wanted to know the page number of one claim Phelps made. Judge Scott Stucky asked how it could not be consensual if the woman rented the hotel room, ordered the pizza and beer, and drove herself to the meetings.
Gittins got pushed the other direction, with questions about how a private could ever consider herself at liberty to confront a drill sergeant. Chief Judge Andrew Effron asked if a threat of physical harm was required, or the simple superiority of higher rank was enough to make the woman's objections futile.
University of Montana student Charlie Cromwell got to add a third side to the case by filing a “friend of the court” brief. In it, Cromwell advised the judges to carefully consider the accused's rights of due process in light of controversy over the military's treatment of prisoners at Guantanamo Bay and elsewhere. That got a prickly response from the panel.
“You think it's wise for us to be playing to the court of public opinion?” Effron asked Cromwell. The student replied that the public looks to the Court of Appeals for policy direction about how it treats those under its jurisdiction.
The government and appellant each had 20 minutes for their arguments, with a green-and-red warning light system on their podium to enforce the limits. Cromwell got 10 minutes for his presentation, and Effron allowed him a few extra seconds to answer after his red light blinked on.
“That's one of the few prerogatives I have as chief judge,” Effron joked. Once the arguments were finished, the judges said they would privately debate the case. A decision could come in one to six months.
“Our appeals court is not that much different than other appeals courts in the state or federal system,” Erdmann said after the court adjourned. “There are some unique military crimes or military procedures, but I find the practice almost the same.”
That's not the case for much of the outside world, though. Erdmann said when he was serving in the Office of High Representative in Bosnia and Herzegovina in 1998, court staff there based much of their impressions of the American legal system on TV shows such as “Law and Order” and “JAG.”
“They'd ask me about specific episodes and decisions and characters,” Erdmann said. “But you're not going to find any JAGs (judge advocate generals) who jump out of helicopters onto ships to try cases.”
And you're not going to find a court system as busy as the civilian system, he said, especially with active fighting going on. Erdmann said since the institution of the all-volunteer military, the number of offenses has dropped compared to the draft days. They've fallen even further with the tempo of operations in Iraq and Afghanistan, as fewer troops are “sitting in garrison with time on their hands.”
Erdmann added that courts martial peaked at nearly 1.7 million cases during World War II. Many of those citizen soldiers had no legal representation, and they legislated big changes to the military court system when they returned home. The result was a series of Uniform Code of Military Justice reforms between 1950 and 1960 that moved the military justice system much closer to its civilian brother.
While all current members of the Court of Appeals for the Armed Forces have military backgrounds, Baker said they had all resigned their commissions or otherwise left the military before taking seats on the bench. Lower military courts are led by uniformed officers, but the appeals level is part of the civilian oversight of the military.
One member of the audience asked how the court handles matters involving international treaties and foreign judicial systems. Effron replied the court rarely gets into that situation, because it deals mainly with criminal matters and not acts of war.
Baker observed that the military courts don't get as much critique from law school journals and others in the “academic bar” as civilian courts do. He appealed to the UM Law School audience for greater interest.
“Criticism hurts sometimes, but it's a way of making sure the system is performing,” Baker said. “Otherwise, who's telling you whether the emperor has no clothes?”
Reporter Rob Chaney can be reached at 523-5382 or at rchaney@missoulian.com.
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