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Report obtained by CTV News shows lack of confidence in military justice system

Inspir

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https://www.ctvnews.ca/mobile/canada/report-obtained-by-ctv-news-shows-lack-of-confidence-in-military-justice-system-1.3754529

Report obtained by CTV News shows lack of confidence in military justice system

The military justice system, operated by the Canadian Armed Forces, is where troops are supposed to find justice, but an internal report obtained exclusively by CTV News reveals a lack of confidence that extends to the highest levels.

Ordered in May 2016, the 560-page draft document titled “Court Martial Comprehensive Review Interim Report” was completed in July 2017 but it still has not been released to the public.

Senior commanders have criticized the military justice system for being slow, light on punishment, and failing to protect victims’ rights.

The head of Canada’s special operations forces, Maj. Gen. Mike Rouleau, who has had first-hand experience with the military justice system, called it “intolerably slow,” and Canada’s most elite operators raised concerns that the system is run by officers (lawyers and judges) with no combat experience.

Other senior military commanders said the system is “broken” and often hands down “lenient” sentences for those convicted.

Sailors on one Canadian ship noted that the court martial process is seen among the ranks as “a way to escape the consequences of misconduct.”

The report also outlined concerns about the speed of military justice. It takes, on average, 434 days from when charges are laid to completion of the court martial, compared to the median 112 days from first appearance to completion of the trial in civilian criminal cases.

One alleged victim of sexual assault says she has been waiting nearly two years since charges were laid against the man she says attacked her for him to appear in court.

“I felt like I’ve been failed by the system, they forgot about me. I felt like I’m not important in that process, there was nothing that was geared towards helping me… and knowing that it’s so long, you can never move on,” she told CTV News.

Another issue raised in the report is the cost of the military justice system. Calculations in the report show that the cost of conducting a trial within the current court martial system is approximately 30 times more expensive than conducting a trial in civilian criminal courts.

Some senior military brass told the report’s authors they believed some serious offenses would be better handled in the civilian justice system.

With a report from CTV’s Mercedes Stephenson in Ottawa






 

Jed

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Inspir said:
https://www.ctvnews.ca/mobile/canada/report-obtained-by-ctv-news-shows-lack-of-confidence-in-military-justice-system-1.3754529

Well, it sure took a long time for this to surface. It has been a lame duck system for decades.
 

Journeyman

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Unfortunately, the Report is not publicly available to allow for a more well-versed response.

However, I tend to agree with the sentiments presented, with one exception:
I think that "raised concerns that the system is run by officers (lawyers and judges) with no combat experience" is a bogus argument.  Where could we possibly get sufficient numbers of lawyers and judges with combat -- especially SOF -- experience?  Until somewhat recently combat experience was scarce, yet the system worked. 

What has changed (based on my personal view), is that our legal system has shifted from "MILITARY lawyers" to "military LAWYERS."

One clear example is the recent legal precedents that have been established when Senior officers have been charged with improper weapon storage or a negligent discharge.  In both cases, where a Cpl would have been justifiably punished, both LCols walked without even a hand-slap. 

The military focus appears to have been grossly minimized.



I'll let others ponder why that may be, whether greater concern for Supreme Court overturning the verdict, some form of 'reverse-Stockholm Syndrome' (where, after years of dealing with the lesser-side of military personnel, they believe that our military ethos is offensive), or some other reason.
:dunno:
 

Jarnhamar

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[quote author=Journeyman]

One clear example is the recent legal precedents that have been established when Senior officers have been charged with improper weapon storage or a negligent discharge.  In both cases, where a Cpl would have been justifiably punished, both LCols walked without even a hand-slap. 

[/quote]

I've spoken with privates who couldn't tell a Coleman lantern and stove apart yet but know the specifics of those stories. The ND case gets brought up constantly.
 

Oldgateboatdriver

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I agree with you Journeyman.

In my mind, there is a way to ensure that military justice (read "discipline") is served through officers (and I mean anyone above able seaman by "officer") with  combat/military experience: Start the Standing court martial at 5 members and make the general one a seven member panel. In other words, eliminate any trial by military judge alone. Considering the number of court martial held, as opposed to summary trial where it is already held by an officer with military/combat experience, it would not be that much of problem to do.

And also, since the process is fundamentally a military disciplinary one at its base, we should eliminate the need for a unanimous finding by the court martial panel members. A majority should be sufficient.

All you have to do then is couple the whole thing with powers for a Superior officer/ Senior commander (not the member's direct CO, but one level above - at least) to actually refer more important criminal accusations without a direct military nexus* to actual civilian criminal courts to be dealt with by civilian authorities.

*: For instance, an member accused of murdering another military member in the course of an operation would be dealt with by court martial, while one who murders his spouse, even on a base, would be sent to civilian courts. Similarly, a member charged with drunk driving causing death while in Canada would be sent to civilian courts, etc. etc.
 

RCDtpr

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Oldgateboatdriver said:
I agree with you Journeyman.

In my mind, there is a way to ensure that military justice (read "discipline") is served through officers (and I mean anyone above able seaman by "officer") with  combat/military experience: Start the Standing court martial at 5 members and make the general one a seven member panel. In other words, eliminate any trial by military judge alone. Considering the number of court martial held, as opposed to summary trial where it is already held by an officer with military/combat experience, it would not be that much of problem to do.

And also, since the process is fundamentally a military disciplinary one at its base, we should eliminate the need for a unanimous finding by the court martial panel members. A majority should be sufficient.

All you have to do then is couple the whole thing with powers for a Superior officer/ Senior commander (not the member's direct CO, but one level above - at least) to actually refer more important criminal accusations without a direct military nexus* to actual civilian criminal courts to be dealt with by civilian authorities.

*: For instance, an member accused of murdering another military member in the course of an operation would be dealt with by court martial, while one who murders his spouse, even on a base, would be sent to civilian courts. Similarly, a member charged with drunk driving causing death while in Canada would be sent to civilian courts, etc. etc.

So if I'm reading this correctly something like a murder with a military nexus should be handled via court martial and someone's freedom for 25 years should be decided by majority rather than beyond reasonable doubt?

Not trying to come off as confrontational, just looking to clarify if that's what you're getting at.
 

Oldgateboatdriver

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As bizarre as it may sound, exRCDcpl, my answer would be "yes", majority decision. My reasons for doing so is that anything with a military nexus is, and should always be, disciplinary first. Unlike the civilian courts, the purpose must always be to instil and maintain discipline, not to show societal reprobation, as civilian laws and courts do. So, for the maintenance of discipline, I much rather send a soldier who "most likely" (that is what a majority decision vs unanimous decision would entail) killed his mate on an ex. to Edmonton than have absolute proof before ending him out to a Federal penitentiary. The non unanimous nature of the decision can be taken into consideration in deciding the appropriate military sentence.

Quite willing to accept that other people will think I am wrong on this one, as it is purely personal view of the purpose of the Code of Service Discipline.

But I am also willing to bet, here, that officers with combat experience can distinguish between, say a "fragging" and an accidental shooting in action resulting in a blue on blue, much better than civilians would be able to.
 

RCDtpr

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Oldgateboatdriver said:
As bizarre as it may sound, exRCDcpl, my answer would be "yes", majority decision. My reasons for doing so is that anything with a military nexus is, and should always be, disciplinary first. Unlike the civilian courts, the purpose must always be to instil and maintain discipline, not to show societal reprobation, as civilian laws and courts do. So, for the maintenance of discipline, I much rather send a soldier who "most likely" (that is what a majority decision vs unanimous decision would entail) killed his mate on an ex. to Edmonton than have absolute proof before ending him out to a Federal penitentiary. The non unanimous nature of the decision can be taken into consideration in deciding the appropriate military sentence.

Quite willing to accept that other people will think I am wrong on this one, as it is purely personal view of the purpose of the Code of Service Discipline.

But I am also willing to bet, here, that officers with combat experience can distinguish between, say a "fragging" and an accidental shooting in action resulting in a blue on blue, much better than civilians would be able to.

So I guess my counter question to you would be this.  If you or someone you loved was sent to prison for 25 years because a panel decided you (or they) "most likely" murdered someone, you'd be ok with that decision and accept your punishment even though nothing was actually proven beyond the subjective opinion of people who aren't trained in law, evidence etc. since it maintains discipline?

This is of course keeping in mind that first degree murder carries a mandatory 25 year sentence and therefore the unanimous nature of the decision cannot be taken into consideration for sentencing purposes.
 

Oldgateboatdriver

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Interesting way of phrasing your position, but in practice, civilians are judged subjectively by a jury of their peers who also have no training in law or in matters of evidence (in fact, having a legal background is an automatic ground for exclusion from jury duty so you don't unduly effect the deliberations). That's what the judges instructions to the jury are there for: to tell them how to go through the evidence that was properly put before them. It's also why any decision on what evidence can be adduced at the trial or should be denied is left in the hand of the judge and why, when the circumstances so warrant (i.e. there is clearly a missing piece of necessary evidence), the judge can direct a verdict of acquittal.  All of these would still hold true before a court martial.

Don't think for one moment, however, that civilian juries are better at "getting it right" just because their verdict (one way or the other, BTW - all 12 must agree to acquit for an acquittal also. Anything that is not 12-0 one way or the other is hung jury) must be unanimous, and that their decision is therefore not subjective. There are many books written on the dynamics of juries (unfortunately, I can't refer you to any right now as they are all somewhere in my boxes of law books up in the garage attic  ;D), and it is clear that getting it right is far from being the leading leitmotiv.

However, getting back to your specific question: Yes, send him/her to jail for 25 years. The idea here because it is military code of discipline, is that even if it is not 99% sure, but you think at 75% he/she did it, you would rather have all other members of the  military thinking "you can't get away with this sh*t" than think "unless they have near absolute proof, you'll get away with it". Look at what the report says about one Navy ship 's view of court martials: "It's a way to escape the consequences of misconduct". Is such a view good for discipline?

Also, keep in mind that in the very large majority of cases, the evidence is pretty clear and one sided, for one thing, and that if it is clear that the jury/panel didn't get it right, the appeals court can overturn. It's just that it is more difficult to overturn findings of facts by jury/panels because you don't know their reasons for finding what they found, than the findings of facts of  judge who must explain his/her reasons.
 
 

RCDtpr

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The problem I have with your argument is you seem to believe the Code of Service Discipline supersedes the Charter of Rights and Freedoms.  None of us have given up our citizenship upon joining the CAF and to argue any of us should not be afforded the same rights as all other Canadians so that an example can be made if necessary, I'll never agree with.

We already have a farce when it comes to summary trials and don't need the court martial system becoming a kangaroo court of "march the guilty *******" in as well.

Having said all that, I do absolutely agree our court martial system is broken when it comes to timeframes etc. and I can't understand why.  RMP has a fraction of the files cross their desk for prosecution as their civilian counterparts yet they take 3x as long to get anything done.

Edit to add the caveat that when I refer to us being afforded the same rights and any other Canadian I'm referring to serious allegations that can result in criminal records and jail time.  I understand I gave up certain rights upon joining such as refusing unsafe work in combat, being where I'm told to be when I'm told to be there, grooming standards at work etc.
 

daftandbarmy

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Must be a slow news day for the CBC. There's a lot of this stuff already out there:


Canada’s military summary trials are frozen in time

Military summary trials are ancient, outdated, and unfair—and they are insulated from judicial scrutiny.

http://mdlo.ca/wp-content/uploads/2016/02/Summary-Trials-frozen-in-time.pdf
 

FJAG

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daftandbarmy said:
Must be a slow news day for the CBC. There's a lot of this stuff already out there:

Canada’s military summary trials are frozen in time

Military summary trials are ancient, outdated, and unfair—and they are insulated from judicial scrutiny.

http://mdlo.ca/wp-content/uploads/2016/02/Summary-Trials-frozen-in-time.pdf

When I saw the comments that you quoted I immediately knew who the author of this article would be.

As usual his article is, in my humble opinion, filled with pejorative language and exaggerations which are not borne out by the reality of the situation. The Canadian summary trial system, like its courts martial, has been revised over the years to fit the changing nature of both Canadian justice and its military. Are our trial systems perfect? Nope, but not for lack of reviews and debates (including consultations with the chain of command).

Pretty much every justice system has some flaws and there will always be cases where at least someone will be dissatisfied with the outcome, whether too lenient or too harsh.

Quite frankly, I don't know what the author of that article really wants. I've heard him call down the system and our leadership for years but never seen him offer any practical solution that would more perfectly balance the needs of the chain of command for expedient disciplinary proceedings and the individual's right to a fair hearing. What he puts forward here is that:

. . . Canada should follow the example of many of our NATO Allies and modernize summary trials by making them fair and compliant with the constitutional and Charter requirements.

We already have done that. Our system is both constitutionally and Charter compliant. The reference to NATO is a red herring used to try to incorporate concepts from the European Court of Human Rights which do not apply to us. Our Supreme Court is already quite competent. Within the CF whenever the liberty of the accused is at risk, he must be given an election that allows him to remove the matter from his CO to a court martial where all the legal procedural safeguards are available. While an accused has no right to legal counsel at a summary trial there is involvement by legal officers at all key points along the way: during charge laying, during the election, post trial and at a s108.45 Review.

I won't make any comments about the new study until I've had a chance to see it for myself but I'm not surprised that in any such study there will be people at both ends of the scale who rely on anecdotal evidence to explain their views.

I will say that I do agree entirely with the comments that it takes far too long for a matter to get to trial at court martial. Considering how few cases there are and the large number of judges, prosecutors and defence counsel we have, proceedings should move much more quickly. It's a known problem in the branch which has been addressed over and over but with only minimal success. The trouble here is that notwithstanding the delay, it's still less than the delay in civilian courts.

One additional comment from above which relates to the heavy use of "Standing Courts Martial" (or "judge alone trials") and the fact that they do not have input from "combat" or "military" officers. The use of Standing Courts Martial has gone up dramatically over the last few decades (we used to have four CMs: General, Disciplinary, Standing and Special General) Disciplinary Courts Martial were the workhorse but when we streamlined to two SCM and GCM, SCMs took over most of the lower end cases. In large part the chain of command was supportive of this because it reduced an administrative load of providing large panels of officers to choose from and to sit on trials.

As I said before, there is no shortage of opinions when it comes to the CF justice system. I also don't doubt that it could use some fine tuning (especially trial delays). Where I draw the line though is when I hear ridiculous statements that line officers aren't competent or fair when conducting summary trials, or that legal officers don't really understand what the disciplinary system is supposed to do or that the chain of command and the legal branch do not consult and modify the system when it becomes appropriate to do so. These are all knowledgeable and professional people doing their best. There may occasionally be a hiccup that appears bad to an outsider (or even insider who doesn't fully understand either the requirements of a disciplinary system or fundamental justice issues of the case) but that doesn't mean the system is broken.

:cheers:
 

Inspir

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https://www.ctvnews.ca/canada/investigation-underway-on-whether-top-military-lawyers-suppressed-damning-report-1.3756272

Investigation underway on whether top military lawyers suppressed damning report

Top military officers are under investigation over whether they unlawfully suppressed a report that is critical of the military justice system, CTV News has learned.

The Judge Advocate General (JAG) oversees the administration of military justice in the Canadian Armed Forces. High-ranking officers within the office of the JAG are the focus of the probe, which is looking into how officials responded to a request for a 560-page draft document that revealed a lack of confidence in the justice system.

Days after the report was completed in July 2017, an Access to Information Request was filed. But the JAG's office denied that the report existed.

Hiding documents from an access to information request is illegal.

Now, police and prosecutors are trying to determine if the military lawyers broke the rules.

CTV News obtained the internal document and reported details of its findings on Wednesday. 

Sources tell CTV News’ Mercedes Stephenson that an RCMP officer embedded with the Military's National Investigative Service has taken the lead on looking into the allegations.

In a statement, military police said they will not "discuss, confirm or deny the existence of ongoing investigation(s)."

Today, Minister of National Defence Harjit Sajjan insisted he is confident in military justice and the JAG.

“When our new JAG was elected she has a vision. And I'm going to give her the space and time to conduct a thorough review,” Sajjan said.

The report, titled “Court Martial Comprehensive Review Interim Report,” examined the Courts Martial system and found a lack of confidence in military justice from rank-and-file to top commanders.

The report criticized the system for lenient sentences. Some went so far to call the system broken.

The report also highlighted significant delays within the military justice system. On average, it takes 434 days from when charges are laid to completion of the court martial, compared to the median 112 days from first appearance to completion of the trial in civilian criminal cases.

The report’s authors were told by some senior members of the military that they believed some serious offenses would be better handled by the civilian justice system.

Sources say the Judge Advocate General’s office was concerned that releasing the report would breach solicitor client privilege. Sources added that the JAG was not happy with the conclusions of the report and wanted more concrete recommendations.

Former military lawyer Rory Fowler said issues of fairness in the system must be seriously addressed.

“Nothing really comes as a surprise because we’ve heard a lot of these complaints before,” Fowler said. “I would want to see a much more comprehensive review of military justice writ large.”

With a report from CTV’s Mercedes Stephenson in Ottawa

 

Furniture

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I have no experience with CMs, but in my experience with Summary Trials too many of the sentences are far too lenient. When a repeat offender gets a fine of $500-800 for being late for duty watches, but is making $1800 in tax free allowances a month on top of their pay(now also tax free) the sentence sends the wrong message. Our fines are stuck in the '80s while our pay is now in 2018...

We are forced to rely on administrative action to enforce discipline and the disciplinary system is seen more as an administrative step.

 

Remius

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It's worse in the PRes where troops can end up making more than they get fined...
 

QV

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WeatherdoG said:
I have no experience with CMs, but in my experience with Summary Trials too many of the sentences are far too lenient. When a repeat offender gets a fine of $500-800 for being late for duty watches, but is making $1800 in tax free allowances a month on top of their pay(now also tax free) the sentence sends the wrong message. Our fines are stuck in the '80s while our pay is now in 2018...

We are forced to rely on administrative action to enforce discipline and the disciplinary system is seen more as an administrative step.

Ok, describe the punishment you believe is fair for the capital crime of being late.  A $500 hit (and likely a ton of extra duties) is not out of the realm of reasonable.  Discipline is a constant and needs to come in more ways then a summary trial. 
 

Journeyman

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FJAG said:
... notwithstanding the delay, it's still less than the delay in civilian courts.
The news story 'claims' that "On average, it takes 434 days from when charges are laid to completion of the court martial, compared to the median 112 days from first appearance to completion of the trial in civilian criminal cases."*

FJAG said:
...in any such study there will be people at both ends of the scale who rely on anecdotal evidence to explain their views.
The overarching topic is "the lack of confidence" in the system;  people, writ large, often base opinions (such as non-quantifiable degrees of confidence), on anecdotal evidence. 

The two senior officer examples I alluded to (LCol Nauss - ND and LCdr Carlyon - Wpn Storage) are public record, readily available via CanLII.  Now, a lawyer could read those decisions and conclude, "yep, the judge was brilliant; nothing to see here".... but to a mere  soldier, the results contribute to that whole "lack of confidence in the system" and, as Jarnhammer mentioned, increased "anecdotal evidence" as the troops shake their heads and spread the story.

Now, perhaps if the only thing wrong is so many people having a poorly-informed lack of confidence, the Legal Branch only needs more Public Affairs officers to explain how sunny everything actually is.



* [ 'claims' in ellipses because it's acceptable in some circles to simply dismiss anything disagreeable as fake news]
 

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The reason I see that we still look at the decisions of summary trials as forgone conclusions (walk the guilty ***** in) is because very few charges proceed to that point unless there is a relative certainty of a conviction. According to the statistics on the JAG site, on average 87% of summary trials end in a finding of guilty. Could the overall thought process be why waste everyone's time if the outcome is not going to produce the desired results of the CoC? Unfortunately, I often find that the desired result is to mete out discipline, and not see the disciplinary system upheld. It is just as important for members who have been investigated have a chance to be acquitted, and a cloud removed from over their head, rather than for charges to just disappear, or the whispers of that they just didn't have enough on him/her to make something stick. 
 

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captloadie said:
The reason I see that we still look at the decisions of summary trials as forgone conclusions (walk the guilty ***** in) is because very few charges proceed to that point unless there is a relative certainty of a conviction. According to the statistics on the JAG site, on average 87% of summary trials end in a finding of guilty. Could the overall thought process be why waste everyone's time if the outcome is not going to produce the desired results of the CoC? Unfortunately, I often find that the desired result is to mete out discipline, and not see the disciplinary system upheld. It is just as important for members who have been investigated have a chance to be acquitted, and a cloud removed from over their head, rather than for charges to just disappear, or the whispers of that they just didn't have enough on him/her to make something stick.

I have provided numerous testimonies in summary, court martial, and civilian trials and can say that based on my experience charges that go to summary are foregone conclusions because the CoC decided that, not the evidence.  I can think of several examples I personally investigated, recommended to the unit CO no charges be laid, and because that didn't fit the narrative they were looking for, charges were laid and the individuals convicted.  One trial particularly stands out to me in which the presiding officer used all of his "legal" knowledge he learned on his week long presiding officer course to twist my testimony in a manner he could use and outright ignored anything that didn't point to the culpability of the accused.  I personally did not believe the accused was the individual responsible for the crime.

After the trial I was chatting with the major who was acting as the presiding officer and he made the comment to me "thankfully we were able to convict that bag of ****."

That was the day I lost any faith or respect for the summary trial system I may have had left at that point.

Keep in mind I'm only sharing personal experiences of issues I've seen for summary trials conducted in which the investigator was trained.  I haven't even taken into account summary trials in which the accused was "investigated" by an investigator whose only skill was being the first Sgt or above the CoC saw on the morning they wanted the invest done.
 

FJAG

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Journeyman said:
The news story 'claims' that "On average, it takes 434 days from when charges are laid to completion of the court martial, compared to the median 112 days from first appearance to completion of the trial in civilian criminal cases."*

I didn't take the 112 days statistic very seriously because it just doesn't have a ring of truth to it. (Nor anecdotally in my experience - there's also a difference between "charge laid" and "first appearance" albeit the difference should be small but frequently isn't as things run differently). Attached is a link to a chart issued by the Senate which provides some statistics respecting civilian courts and you can see that the median days for "completion time" in Provincial court (lower end cases) is stated as 123 days and superior court (higher end) 514 days.

http://sen.parl.gc.ca/portal/pdf/LCJC-Cases-Consequences-e.pdf

I don't think we need to argue the point as we both agree that the time is too long. In my view there is a better explanation for delay in civilian court because the case load is very high while in the military the caseload per prosecutor is quite low. Incidentally, I also agree with the "cost" criticism which is directly tied to the number of people per case we have working the CM system.

Journeyman said:
The overarching topic is "the lack of confidence" in the system;  people, writ large, often base opinions (such as non-quantifiable degrees of confidence), on anecdotal evidence. 

The two senior officer examples I alluded to (LCol Nauss - ND and LCdr Carlyon - Wpn Storage) are public record, readily available via CanLII.  Now, a lawyer could read those decisions and conclude, "yep, the judge was brilliant; nothing to see here".... but to a mere  soldier, the results contribute to that whole "lack of confidence in the system" and, as Jarnhammer mentioned, increased "anecdotal evidence" as the troops shake their heads and spread the story.

Now, perhaps if the only thing wrong is so many people having a poorly-informed lack of confidence, the Legal Branch only needs more Public Affairs officers to explain how sunny everything actually is.

* [ 'claims' in ellipses because it's acceptable in some circles to simply dismiss anything disagreeable as fake news]

I can't agree that the 'overarching topic is "lack of confidence" in the system".  I haven't read the report but only the article which, like most articles, cherry picks support from the report for it's own premise. Once I've read the actual report I might change my mind about that although I tend to think I probably won't. Anecdotal evidence has a big problem. Things that function the way that should do not attract any attention. People rarely stand around the water cooler and discuss a court martial that played out the way that it should but will immediately start criticising one where they believe the accused was treated unfairly or was let off too easily. As a result the minority of cases which might be problematic enter into mythology and are seen as representative of the status quo when they really aren't. I take some satisfaction from the fact that complaints about the system come from both sides, those that think accused are treated to leniently and those who feel to harshly or unfairly. Again, I look forward to seeing the final report.

:cheers:
 
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