Soldiers accused of rape and murder in Iraq facing military justice

McClatchy NewspapersJuly 20, 2006 

WASHINGTON—Four soldiers from the Army's elite 101st Airborne Division, charged with raping a 14-year-old girl and murdering her parents and 6-year-old sister, are going to face justice, military-style.

That means they'll be judged by fellow soldiers who know the stresses of combat. It means they'll have certain legal protections that civilian defendants don't. And it means, if history is a judge, that they're likely to be convicted.

The four are Spc. James Paul Barker of Fresno, Calif.; Sgt. Paul E. Cortez of Barstow, Calif.; Pfc. Jesse V. Spielman, whose mother lives in Chambersburg, Pa.; and Pfc. Bryan L. Howard, who's from a small town northeast of Houston. A fifth soldier, Sgt. Anthony W. Yribe, from a small town south of Ketchum, Idaho, has been charged with dereliction of duty but not with the rape and killings.

A former soldier, Steven D. Green, the alleged ringleader in the incident, has been arrested in North Carolina and charged in federal court.

The courts-martial of the five active-duty soldiers will differ from Green's civilian trial because the Uniform Code of Military Justice has different rules and procedures from those used in civilian courts.

It ensures that the five will be tried and judged by fellow soldiers, and the four accused of capital crimes can choose between panels composed of officers or of a combination of officers and enlisted personnel.

The military panels, legal experts say, tend to eliminate the theatrics and emotion that civilian lawyers sometimes use in high-profile cases such as this one.

"The `jury' pool is far superior to the average jury in a federal district-court trial," said Robert Turner, a former Army officer who's the associate director of the University of Virginia's Center for National Security Law. "Not only are officers virtually all college graduates, but people who are willing to put their lives on the line for their country tend to have strong commitments to concepts like truth, honor and justice."

"I suspect the defense will tend to have an easier time convincing a military panel to set aside emotion and follow instructions," predicted Christopher F. Wilson, a former Army prosecutor who's in private practice in Southern California. "The panel members have seen death and killing, most likely. They know the stress of service in a place like Iraq."

Experts also say the UCMJ, as it's known, has been relatively progressive since it was first drafted in 1950.

For example, the first step toward trying the four will be a so-called Article 32 hearing, the military equivalent of a grand jury. Unlike civilian defendants, the accused soldiers can present arguments and cross-examine witnesses at this early stage.

"The greater rights of an accused in the Article 32 investigation obviously allow the defense to challenge the government's case before the (senior officer) even makes the decision to refer the charges to trial," said Scott Silliman, a Duke University law professor and a former Air Force judge advocate.

The defendants' attorneys will be drawn from the Army's pool of 130 active-duty and 170 reserve lawyers. Special field offices have been set up to handle the growing number of cases out of Iraq, Kuwait and Afghanistan.

"The defense team will be much stronger, ordinarily speaking, in the military context," Wilson said. "In a serious case, the Army's trial-defense service generally makes its best and brightest available for service as defense counsel, with pretty much no limits on the numbers of hours that can be spent on the case."

While some worry that a military jury in such a high-profile case may feel pressured by Pentagon higher-ups, Wilson said the prosecution of the five soldiers might have "less political overtones" than a comparable civilian prosecution would, in which the elected district attorney may be eyeing higher office.

"The charges will be fully investigated by an impartial officer appointed by the brigade commander," said Maj. Nathan Banks, an Army spokesman. "The U.S. Army is committed to thoroughly investigating and resolving the matter fairly."

Nevertheless, the odds are against the four, who in addition to the rape and murder charges are accused of arson because they allegedly burned the body of the rape victim, Abeer Qasim Hamza al Janabi.

Last year, according to Pentagon records, the Army tried 825 soldiers in general courts-martial; 777 were convicted, a rate of 94 percent. The Navy and Marine Corps also recorded conviction rates of about 94 percent.

By contrast, 80 percent of civilian murder defendants were convicted in 2002, the most recent year for which statistics are available, according to the Bureau of Justice Statistics.

"It only takes two-thirds of the panel to convict under the Uniform Code of Military Justice, rather than a unanimous verdict in a civilian trial," Silliman said.

In capital cases, however, the code does require a unanimous verdict.

Silliman, the executive director of Duke's Center on Law, Ethics and National Security, added that the high conviction rate shows how the military "filters out some cases that would otherwise go to trial in the civilian system" by giving defendants additional rights at Article 32 hearings.

Because they're soldiers, three of the five are facing a uniquely military charge in addition to rape, murder and arson: violating "Multi-National Division Baghdad General Order Number One." Prosecutors allege that the three drank alcohol before they broke into the Iraqi family's house in the town of Mahmoudiya.

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You can find the Uniform Code of Military Justice online at www.army.mil/references/UCMJ1.html

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(c) 2006, McClatchy-Tribune Information Services.

Iraq

McClatchy Newspapers 2007

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