Attorney William Harrison joins producer/host Coralie Chun Matayoshi to discuss who is investigating the murders of two military wives, whether their husbands will be tried in military or civilian courts, what kind of punishment they could face if convicted, and role of the Command in military cases in deciding whether an offense should be charged and how offenders should be punished. Q.  Two military service members in Hawaii are charged with murdering their wives.  Who is investigating their murders, will they be tried in military or civilian courts, and what kind of punishment could they face – court martial, prison, or death penalty?  First, does it depend on what kind of crime is committed?  Yes.  When a crime is directly connected with an individual’s service in the military, like mutiny, sedition, disobeying orders, or insubordination, the Uniform Code of Military Justice (UCMJ) exclusively applies.  Violation of these crimes can result in court-martial in a military court. Q.  Does it matter where a crime is committed? The federal government has exclusive jurisdiction over crimes committed on a military reservation like Schofield Barracks or Kaneohe Marine Corps Base.  Crimes committed on military reservations by military service members are handled by the military police and Criminal Investigation Department (CID), Office of Special Investigations (OSI), or Naval Criminal Investigative Service (NCIS) (in cases of serious crimes), investigates the incident and decides whether to file criminal charges within the federal system.  In the case of the Kaneohe Marine Corps service member whose wife was found dead on-base, both military and local police are actively investigating the case and the command is fully cooperating with the investigation. The Military, Federal and Civilian authorities all have concurrent jurisdiction, however since the crime was committed on base by an active duty servicemember unless the military abdicated authority, the Uniform Code of Military Justice (UCMJ) would be invoked to prosecute in the military courts. Q.  What if the crime is unrelated to the military and is committed off-base? There is concurrent jurisdiction for all crimes committed within the State that can be characterized as a State crime. Military courts have jurisdiction over offenses committed by servicemembers on duty or on military property. Federal courts have jurisdiction over crimes committed off-base or involving civilians. The military and the civilian authorities have a liaison office. They work closely with one another to decide jurisdictional.  In cases such as DUI offenses, if committed off-base, the civil authorities have primary jurisdiction, on base solely the federal authorities.  Schofield Barracks soldier Dewayne Johnson is facing multiple charges, including murder of his pregnant wife Mischa Johnson and unborn child.  Her body has not been found and the Army Criminal Investigations Division is investigating and has even offered a $10,000 reward for credible information that can lead authorities to Mischa Johnson’s whereabouts.  In this case, there is concurrent jurisdiction and both jurisdictions may prosecute Johnson for the charges.  As he is an active duty service member, Johnson can face court martial and criminal murder charges for the same offense. Q.  What is the role of the Command in military cases? Unlike civilian communities, military commanders exercise discretion in deciding whether an offense should be charged and how the offenders should be punished. The disposition decision is one of the most important and difficult decisions facing a commander. The commander has a number of options available for the resolution of disciplinary problems. Briefly summarized, they are as follows (Source:  https://vwac.defense.gov/military.aspx): The commander may choose to take no action. The circumstances surrounding an event actually may warrant that no adverse action be taken. The preliminary inquiry might indicate that the accused is innocent of the crime, that the only evidence is inadmissible, or the commander may decide that other valid reasons exist not to prosecute. The commander may initiate administrative action against a soldier. The commander might determine that the best disposition for this offense and this offender is to take administrative rather than punitive action. Administrative action is not punitive in character; instead, it is meant to be corrective and rehabilitative. Administrative actions include measures ranging from counseling or a reprimand to involuntary separation. The commander may dispose of the offense with nonjudicial punishment. Article 15, UCMJ, is a means of handling minor offenses requiring immediate corrective action. Nonjudicial punishment hearings are non-adversarial. They are not a "mini-trial" with questioning by opposing sides. The commander conducts the hearing. The service member may request an open or closed hearing, speak with an attorney about his case, have someone speak on his behalf, and present witnesses who are reasonably available. The rules of evidence do not apply. In order to find the service member guilty, the commander must be convinced beyond a reasonable doubt that the service member committed the offense. The maximum punishment depends on the rank of the commander imposing punishment and the rank of the service member being punished. The service member has a right to appeal the imposing commander's decision to the next higher commander. The commander may dispose of the offenses by court-martial. If the commander decides that the offense is serious enough to warrant trial by court-martial, the commander may exercise the fourth option, preferring and forwarding charges. The commander may chose from three potential levels of court-martial: summary, special, or general court-martial. These courts-martial differ in the procedures, rights, and possible punishment that can be adjudged. A summary court-martial is designed to dispose of minor offenses. Only enlisted soldiers may be tried by summary court-martial. A single officer presides over the hearing. The accused has no right to counsel but may hire an attorney to represent him. A special court-martial is an intermediate level composed of either a military judge alone, or at least three members and a judge. An enlisted service member may ask that at least one-third of the court members be enlisted. There is both a prosecutor, commonly referred to as the trial counsel, and a defense counsel. In addition, the accused may be represented by civilian counsel, at no expense to the government, or by an individually requested military counsel. Q. How does the process of initiating charges differ between military court-martial and Hawaii’s penal system? In the military, charges are initiated through a process called “preferral,” where a commanding officer formally accuses a service member of an offense. This is followed by an investigation and, if warranted, a referral to a court-martial. In Hawaii’s penal system, charges are typically initiated by law enforcement through an arrest, followed by a prosecutor filing a complaint or indictment. Q.  What are the main types of court-martial in the military, and how do they differ from civilian courts? In the military, there are three main types of courts-martial: summary, special, and general. Each type varies in severity and the level of offenses they handle. Summary courts-martial deal with minor offenses and involve a single officer acting as judge and jury. Special courts-martial are akin to misdemeanor courts and involve a military judge and at least three members. General courts-martial handle the most serious offenses, similar to felony courts in the civilian system, and involve a military judge and at least five members. In contrast, civilian courts, such as those under Hawaii Penal rules, typically include district courts for misdemeanors and circuit courts for felonies, with a judge and jury system. Q.  What are the key differences in the rights of the accused in military court-martial versus Hawaii’s criminal courts? Both systems uphold fundamental rights such as the right to counsel and the right against self-incrimination. However, military court-martial have unique aspects, such as the right to be represented by a military defense attorney at no cost, in addition to a civilian attorney if desired. In Hawaii’s penal courts, defendants are entitled to a public defender if they cannot afford an attorney. Q.  How do the rules of evidence differ between military courts-martial and Hawaii’s criminal courts? Military court-martial follow the Military Rules of Evidence, which are similar to the Federal Rules of Evidence but include specific provisions for military context, such as handling classified information. Hawaii’s penal courts follow the Hawaii Rules of Evidence, which are based on the Federal Rules but tailored to state-specific legal standards. Q.  Can you explain the role of the convening authority in military court-martial and how it compares to the role of a judge in Hawaii’s penal courts? The convening authority in military courts-martial is a commanding officer who has significant control over the court-martial process, including referring charges, selecting members, and reviewing the verdict and sentence. In Hawaii’s penal courts, the judge oversees the trial, ensures legal procedures are followed, and imposes sentences based on the jury’s verdict. Q.  Are military service members entitled to a jury of their peers and who selects them? The military justice system does not have a "trial by a jury of your peers". Instead, military court-martial use a "court member panel" that is appointed by the accused's commanding general. The panel is made up of commissioned officers and enlisted service members, and the number of people on the panel can vary.  Panel members must be senior in rank to the accused, except in cases where it is impractical to do so.  Unlike trials in civilian courts, the jury verdict in military court-martial is not required to reach a unanimous verdict in order to convict, unless it’s a death penalty case. Q.  What are the differences in sentencing and post-trial procedures between military courts-martial and Hawaii’s penal system? Sentencing in military courts-martial can include unique punishments such as reduction in rank, forfeiture of pay, and confinement in a military prison. Post-trial, the convening authority reviews the case and can approve, disapprove, or modify the sentence. In Hawaii’s penal system, sentencing follows state guidelines, and posttrial procedures include the right to appeal to higher courts. To learn more about this subject, tune into this video podcast. Disclaimer:  this material is intended for informational purposes only and does not constitute legal advice.  The law varies by jurisdiction and is constantly changing.  For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.