Military Justice Comes to Attention

By Richard Lacayo

The wheels of military justice have begun turning in the Moscow embassy sex- for-secrets spy scandal. At the Marine base in Quantico, Va., a closed pretrial hearing resumes this week in the case of Sergeant Clayton J. Lonetree, the former embassy guard accused of providing Soviet agents with entry to the building's most sensitive areas. At a similar session two weeks ago, military authorities began outlining their case against Corporal Arnold Bracy, Lonetree's alleged accomplice. In each instance, a Marine reviewing officer will consider whether the Government's case justifies a court-martial on espionage charges, which can carry the death penalty for servicemen.

The fact that the two Marines' march to justice will be played out to a military drumbeat has cheered many civilian observers and dismayed as many others. For the same reason: the no-nonsense procedures of military justice would get right to the punitive point, without being deflected by wimpy legal niceties. But that vision of military law is at least naive. Sergeant Lonetree and Corporal Bracy may in the end face a grimmer outcome at the hands of a court-martial, but before that can happen, they will enjoy some advantages they would not have in civilian courts.

Recognizing the special requirements of discipline in the ranks, the Constitution authorizes separate legal regulation of the military forces. Each branch of the service had its own system until 1950, when the Uniform Code of Military Justice was adopted in response to complaints about disparities among the services. Since then, architects of military law have been moving it closer to civilian standards of trial procedure and evidence. Even before the U.S. Supreme Court's Miranda decision, military defendants were required to be informed of their rights before questioning, and the military contends that Lonetree and Bracy were properly informed of the right to silence.

Officials say, however, that both men made admissions that are crucial to the charges against them. That may not help the prosecution though. Defense sources indicate that Bracy has withdrawn significant portions of his statements, and military law, unlike federal civil procedures, requires some corroboration before an admission can be introduced as evidence. Because of the nature of the case, corroboration will be difficult. (The prosecution is seeking classified CIA information, some of which the agency may be reluctant to provide, and that reluctance is not greatly eased by the fact that the tribunal is military.)

Perhaps the greatest advantage to the defense is the "Article 32" pretrial hearing now under way in both cases. A grand jury proceeding, the nearest civilian equivalent, hears the prosecution's case without the defendant or his lawyers present. At Article 32 hearings, the defense is not only present but can challenge witnesses and call its own. Even William Kunstler, the activist attorney representing Lonetree, concedes that "at the end of Article 32, the defense knows almost everything that the prosecution has."

Military courts are more lenient, however, in admitting hearsay evidence that a witness claims to have heard from someone else, which may work against the two Marines. Lonetree reportedly made damaging statements about himself and Bracy to a Marine buddy. While many civilian courts continue to require a unanimous jury verdict, only two-thirds of the jurors in a court-martial are needed for conviction -- meaning less chance that the defendants can fall back on one stubborn holdout.

The court-martial consists of a judge, who must be a qualified lawyer, plus no fewer than five jurors -- normally all officers, unless an enlisted defendant requests otherwise. The prosecutor and defense counsel must also be lawyers. But critics say the entire proceeding is conducted in the shadow of command influence. "All the paper guarantees pale compared to the weight of lots of brass," says Washington Attorney Gene Fidell, a specialist in military cases. Stories abound of unit commanders pressuring trial authorities to produce guilty verdicts and heavy sentences. In fact, the superior officer convening an Article 32 proceeding can order a court-martial even if the hearing officer recommends against it. And court-martial judges enjoy neither fixed assignment nor life tenure, making them vulnerable to the influence of superiors who decide the course of their careers.

"It's possible to get a fair trial in a military court, but it depends on good will and just intentions," says Charles Bumer, a longtime military-court civilian lawyer. Kunstler is less sanguine. He may seek to have Lonetree's case moved to federal courts. But Defense Attorney F. Lee Bailey, another civilian veteran of the military courts, thinks that may be a mistake. Tongue just slightly in cheek, he maintains, "If I'm guilty, I want a civilian trial; if innocent, military justice is superior."

With reporting by Bruce van Voorst/Washington