# Soldier found guilty in court martial, judge recommends clemency, none given. Why? **URL:** \ **Category:** Factual Questions\ **Created:** [February 7, 2009, 6:53pm UTC](https://boards.straightdope.com/t/soldier-found-guilty-in-court-martial-judge-recommends-clemency-none-given-why/484824 "2009-02-07T18:53:12Z")\ **Posts on this page:** 9\ **Page:** 1
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [February 7, 2009, 6:53pm UTC](https://boards.straightdope.com/t/soldier-found-guilty-in-court-martial-judge-recommends-clemency-none-given-why/484824/1 "2009-02-07T18:53:12Z")
[This](http://www.news4jax.com/news/18644227/detail.html) story says a soldier was found guilty of cocaine use in a court martial. The soldier’s defense is that the cocaine was found in his system because he drank a tea with coca leaves in it, and that when he drank it, he didn’t realize he was ingesting cocaine. The story says that a judge at a clemency hearing said > [@](#): > > The innocent ingestion evidence that was put forward by the defense was extremely credible, quite believable and in and of itself worth of a not guilty finding. But the story then says “Nonetheless, the commanding officers stood by the jury’s decision.” My questions are about military judicial proceedings. What exactly does or can a clemency hearing accomplish. What is the scenario according to which a judge at a clemency hearing says what was quoted above, and yet the soldier is not granted clemency? What is the role of commanding officers in this? What judicial powers do they have in cases like this? Are they able to override judge’s decisions in some cases? The story doesn’t explicitly say there was a formal granting or recommendation of clemency from the judge. But if there wasn’t one, what was the role of the statements made by the judge, quoted in the story? Just basically, what’s going on here? Maybe after saying what was quoted above, the judge went on to say “But other evidence in the case shows him to be guilty”? Wouldn’t be the first time a news story omitted important information for the sake of drama… -FrL- ---
**Author:** ![Snnipe\_70E](https://avatars.discourse-cdn.com/v4/letter/s/b5a626/32.png) [@Snnipe\_70E](https://boards.straightdope.com/u/Snnipe_70E)\ **Post date:** [February 8, 2009, 12:30am UTC](https://boards.straightdope.com/t/soldier-found-guilty-in-court-martial-judge-recommends-clemency-none-given-why/484824/2 "2009-02-08T00:30:24Z")
The judge is da judge. Why did the judge not go with a directed vertic or dismiss the charges. And what do the CO have to do with it. The CO is the CO has no standing in a trial. There is something to this story that is not being reported or is being distorted. ---
**Author:** ![flyboy](https://avatars.discourse-cdn.com/v4/letter/f/4da419/32.png) [@flyboy](https://boards.straightdope.com/u/flyboy)\ **Post date:** [February 8, 2009, 1:46am UTC](https://boards.straightdope.com/t/soldier-found-guilty-in-court-martial-judge-recommends-clemency-none-given-why/484824/3 "2009-02-08T01:46:34Z")
I’ve sat on the jury of a Navy Courts-martial I can’t really answer these questions, and like **Snnipe** I don’t understand what CO’s the article is referring to (the base CO, maybe?) and what role they’re supposed to be playing, and why there is more than one. Something is being misreported in some way. In any case, had my peers and I been counseled by the judge in the manner of this article, I know that I, for one, certainly would have leaned toward doing what he wanted. I’m surprised by the finding here, but then, it’s hard to comment when I have no idea what went on, and more importantly, in my mind, if the Petty Officer took the stand for himself and if so, how he came off. It’s easy to assume some of these guys under the gavel are crooked; if he took the stand and the jury didn’t really believe him, then he’s shit outta luck. If he didn’t take the stand, I’d probably not understand why he didn’t and lean toward a guilty verdict. My major lack of understanding is why the two weren’t simply masted, or punished via Non-Judicial Punishment. Not sure if it’s automatic courts-martial time with a pop-positive (too lazy to research that), but if not, then it’s possible this pair was set for NJP and elected to go the courts-martial route instead. If that’s the case, then, well, you roll the dice and get what you get. Also, we have no idea how these guys were viewed in the command. The command may well work to keep its rising stars, but punt at the first opportunity with its dirtbags. I.e., if these guys had marginal or bad records to begin with, then I can sort of understand this outcome. Bottom line–to much info missing to assess what happened here. And it doesn’t sound like the reporter knew anything about the military. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [February 8, 2009, 7:30am UTC](https://boards.straightdope.com/t/soldier-found-guilty-in-court-martial-judge-recommends-clemency-none-given-why/484824/4 "2009-02-08T07:30:17Z")
Here’s the Navy Times article, which answers some of the questions brought up. [http://www.navytimes.com/news/2009/01/navy\_cocatea\_011709w/](http://www.navytimes.com/news/2009/01/navy_cocatea_011709w/) > [@](#): > > Both Trevino and Lee refused a non-judicial punishment and opted to take their case before a jury at a special court-martial. > [@](#): > > After the jury found Trevino guilty in November, the judge made a rare on-the-record statement disagreeing with the finding. The panel included two officers and one chief. The judge, Marine Col. William Rapp, said the convening authority should disapprove the guilty finding because “real doubt exists about the element of knowledge.” > > “The innocent ingestion evidence that was put forward by the defense was extremely credible, quite believable, and in and of itself worthy of a not-guilty finding,” Rapp said, according to the record of trial. > > Nevertheless, the case’s convening authority, Capt. Aaron Bowman, commander of Naval Station Mayport, formally approved the jury’s verdict Jan. 9. > > Lee’s special court-martial ended Monday, when a panel of five jurors found the petty officer not guilty of taking cocaine. Bowman is the convening authority in both cases. He could reconsider Trevino’s punishment in light of Lee’s verdict. > [@](#): > > All sailors who test positive on a urinalysis are processed for potential separation. Under the Navy’s “zero tolerance” policy, failing a drug test for cocaine is grounds for dismissal. Trevino thinks he’s been wrongly condemned by what he claims is the Navy’s overzealous culture of drug abuse prevention. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 8, 2009, 2:36pm UTC](https://boards.straightdope.com/t/soldier-found-guilty-in-court-martial-judge-recommends-clemency-none-given-why/484824/5 "2009-02-08T14:36:54Z")
> [@Snnipe\_70E](#): > > The judge is da judge. Why did the judge not go with a directed vertic or dismiss the charges. Does a judge in the military system have the right to direct a verdict when the facts are in dispute? That’s not usually the case in other types of jury trials. Directed verdicts are usually only available when, even if all of the prosecution’s case is factually true, it does not meet the elements of the offence, so it never goes to the jury. That’s not what happened here - there was evidence of cocaine in the accused’s system, but the accused gave an innocent explanation for how that happened. Where the facts are in dispute, it’s the jury’s role to determine innocence or guilt - not the judge’s role. Sounds like the jury didn’t believe the accused’s explanation. ---
**Author:** ![Capa](https://avatars.discourse-cdn.com/v4/letter/c/eb8c5e/32.png) [@Capa](https://boards.straightdope.com/u/Capa)\ **Post date:** [February 8, 2009, 5:08pm UTC](https://boards.straightdope.com/t/soldier-found-guilty-in-court-martial-judge-recommends-clemency-none-given-why/484824/6 "2009-02-08T17:08:59Z")
This is a story local to here. When I read a huge multi page article about it in the paper, my first instincts said,“what a load of crap”…but as I read the story, the serviceman in question has a great record (according to the story), and was about to leave for civilian air traffic control to spend more time with his family. Now, that career path is in jeopardy. On one hand, it seems to be a pretty common knee jerk explanation for getting popped on a drug test-“opiates? Oh, I ate some poppy seed muffins!”…and the amount ingested is so pathetically low (I did the math when I read the story, drinking cup after cup for several days would eventually mean you had consumed 1/20 of a gram of coke) that part of me still thinks his story is bullshit. Does a normal drug test have the ability to pick up that small of an amount of coke? The size of line that you typically see done on TV or the movies(and real life) is probably about 1/6-1/10 of a gram, so this guy had well UNDER a typical single line, ingested over several days…would that really even show up? On the other hand, he has a clean record, is a family guy, and with no history to show otherwise, and a career of his choice looming, it’s hard to believe he would take a chance on losing it all like this. ---
**Author:** ![ExTank](https://avatars.discourse-cdn.com/v4/letter/e/35a633/32.png) [@ExTank](https://boards.straightdope.com/u/ExTank)\ **Post date:** [February 8, 2009, 6:04pm UTC](https://boards.straightdope.com/t/soldier-found-guilty-in-court-martial-judge-recommends-clemency-none-given-why/484824/7 "2009-02-08T18:04:50Z")
> [@Capa](#): > > On the other hand, he has a clean record, is a family guy, and with no history to show otherwise, and a career of his choice looming, it’s hard to believe he would take a chance on losing it all like this. I’ve seen plenty of servicemembers like him do incredibly stupid things (like try cocaine or heroin while they are “short,” on the theory they won’t get tested and popped). Not saying they’re lying, but there’s ample precedent of smart, bright people with promising futures throwing it all away over something seemingly trivial or petty to outside eyes. ---
**Author:** ![casdave](https://avatars.discourse-cdn.com/v4/letter/c/c6cbf5/32.png) [@casdave](https://boards.straightdope.com/u/casdave)\ **Post date:** [February 8, 2009, 9:12pm UTC](https://boards.straightdope.com/t/soldier-found-guilty-in-court-martial-judge-recommends-clemency-none-given-why/484824/8 "2009-02-08T21:12:12Z")
What sort of test was it, because if it was a dip test, I doubt it would be sensitive enough. If the sample was sent off for specialist testing, this might well pick it up, however it should also be able to recognise the differance between very similar substances. I have seen tests sensitive enough to recognise the differance between synthetic and organic opiates for example. Even down to the brand name of the diazepam. ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [February 9, 2009, 4:15am UTC](https://boards.straightdope.com/t/soldier-found-guilty-in-court-martial-judge-recommends-clemency-none-given-why/484824/9 "2009-02-09T04:15:04Z")
I think I understand some of the confusion about the clemency issue. I must admit I have only vague knowledge of the military justice system, and I’m probably wrong on several of the details. The civilian justice system has regularly established courts, so when the prosecutors want to charge someone, they go into the court and things proceed as usual. In the military, there are not fixed system of courts martial. Rather, some senior commanding officer (I believe it has to be a general or admiral for general courts martial, those for the most serious offenses) has to order that the court martial be convened, that officer being known as the convening authority. Once the trial is held, it goes back to the convening authority for him or her to review, and that officer has the authority to reduce (but not increase) the sentence, or even reject a conviction. I believe that some officers in the chain of command above the convening authority also have the opportunity to review, and if appropriate reduce, the sentence. This is separate from the military appeals process in which military appellate courts review whether the trial was conducted in a legally appropriate manner. It sounds like what happened is the base commander ordered the special courts martial to happen. One resulted in an aquittal, and that was the end of that. The other resulted in a conviction by the military jury, that the military judge thought was too harsh. I believe that the judge did not have the authority to reduce the sentence, but he did request that the base commander do so, but the base commander declined.