Court Martial Lawyers Battle over constitutionality of a court martial
Judge rejects constitutional challenge to court martial of Canadian soldier
BY JULIET O’NEILL, CANWEST NEWS SERVICEFEBRUARY 10, 2010 11:27 AM
Posted at http://www.vancouversun.com/news/Judge+rejects+constitutional+challenge+court+martial+Canadian+soldier/2545635/story.html
GATINEAU, Que. — A military judge on Wednesday dismissed a constitutional challenge to the jury selection process in the court martial of Capt. Robert Semrau, the first Canadian soldier charged with murder for an alleged battlefield killing.
Court was adjourned to Monday, Feb. 15, giving prosecution and defence lawyers time to try to come to an agreement on whether the trial should be moved to the Canadian Forces base in Afghanistan, closer to the location of the alleged crime, or to CFB Petawawa, the Ontario community where the 36-year-old captain serves in the 3rd Battalion, Royal Canadian Regiment. If the lawyers cannot agree, they will present their arguments to judge Mario Dutil Monday and he will decide.
It is alleged Semrau fired two shots into a “severely wounded” disarmed Taliban insurgent on Oct. 19, 2008, after a battle in Afghanistan’s Helmand province. He is alleged to have violated the military code of conduct by failing to collect a wounded person from the battlefield.
He is charged with second-degree murder, as well as attempted murder, behaving in a disgraceful manner, and negligently performing a military duty. The penalty for second-degree murder is life imprisonment.
Dutil ruled that the process for choosing a panel (the military version of a jury) may be relevant for military law reform, but “does not violate” the constitutional guarantee for accused persons in the Charter of Rights and Freedoms to a fair hearing by an independent and impartial tribunal.
Semrau’s lawyer, Maj. Steve Turner, had argued that Semrau’s rights are violated because the pool of military personnel eligible for panel duty is not representative of a cross-section of the Canadian Forces. The pool excludes some reservists, officers below the rank of captain and non-commissioned members below the rank of warrant officer.
“Certain groups of people who may be very experienced, say a sergeant with 25 years, is not even eligible to serve in any circumstances,” he said in an interview. “We see lower rank members, corporals with four years experience, who are expected to make monumental decisions out in the field who might be kilometres away from the nearest officer. . . . The notion that a corporal or sergeant could never serve on a panel, just doesn’t make sense.”
The judge cited four previous recent rulings that rejected the argument that restrictions on panel eligibility is a charter violation.
“A court martial panel is not the same as a jury,” prosecution lawyer Maj. Tony Tamburro told reporters after the ruling.
Impartiality and random selection applies, but representative membership does not.
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Michael Waddington is a court martial lawyer – court martial attorney that defends military personnel worldwide as well as deployed civilian contractors subject to the UCMJ. He defends Army, Navy, Air Force, Marine, Coast Guard, and civilian contractor court martial cases. He has successfully defended military personnel as a court martial lawyer Army Navy Marine & Air Force court martials in Germany, England, San Diego, Norfolk, Jacksonville, Fort Bragg, Fort Jackson, Fort Stewart, Fort Gordon, Italy, Iraq, Kuwait, Korea, Okinawa, Japan, Yokota, and throughout the United States.
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