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Commitment to Service Takes Federal Judge to War
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Judge Frank Whitney presiding in his Bagram Airfield courtroom, Afghanistan.
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Body armor replaced judicial robes for travel in Iraq or Afghanistan. In this photo, Judge Whitney boarded a Blackhawk helicopter to fly from Al Faw Palace—US Forces Iraq HQ—to the US Embassy in Baghdad.
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Judge Whitney, center, stands with the lawyers who participated in the last U.S. court martial in Iraq. The court martial was held in southern Iraq at Contingency Operating Base (COB) Adder. The trial went 16 hours—starting at 0800 and ending at 2357 hours.
Army Colonel Frank Whitney came home from war last month. He took off his body armor, laid down his weapon, and returned to the bench in the U.S. District Court for the Western District of North Carolina—although he never really left the bench in the 7 months he was called up to active duty.
According to the U.S. Army, Whitney was the first active federal judge to serve as a military judge in a theater of war; in this instance, in Kuwait, Afghanistan and Iraq. Presiding over 25 courts-martial in his time overseas, he conducted the last military trial in Iraq before the withdrawal of American troops.
Whitney has been a member of the United States Army Reserve since 1982, joining right out of college as a reserve military intelligence officer. In 1993, he transferred to the reserve JAG Corps and became a military judge in 2008. As a military judge, he has presided over special courts-martial at Fort Jackson, South Carolina, and Fort Gordon, Georgia. Although he was appointed to the federal bench in 2006, being a federal judge didn’t automatically qualify him to be a military judge.
“All military judges are required to go through a certification course at the U.S. Army JAG school in Charlottesville, Virginia, before they can preside over courts-martial.” said Whitney. “Once certified, active component military judges preside over courts-martial throughout the world, handling both general and special courts-martial. Reserve military judges usually only preside over special courts-martial, which are akin to misdemeanor trials.”
But the Army was in need of a reserve military judge to deploy into theater who could fill the service gap between the assignments of two active duty military judges and preside over all courts-martial, both general and special. Whitney was their man.
“When my country asked, I felt a personal obligation to serve. My father had served in World War II, and my grandfather had served in World War I,” Whitney said. Due to retire from the Army Reserves this May, he also knew this would be his last opportunity to serve in a combat zone.
“I’d never done a general court martial. So the first two months I was in theater, I overlapped with my predecessor who patiently trained me on the nuances of a general court martial,” he said. As a five-year veteran on the district court bench, Whitney was comfortable running a courtroom. “The training was to make sure I followed the correct procedures, including the military rules for a court martial,” he said. “And there are some striking differences between the military and federal justice systems, particularly when it comes to pleas and sentencing.”
For example, in the federal system, a plea hearing, or Rule 11 hearing, is a relatively straightforward proceeding that might take 30 minutes. “It involves a district or magistrate judge asking the defendant a series of yes-or-no questions or short-answer questions. The judge does most of the talking,” said Whitney.
The plea hearing equivalent in the military system is called a providence inquiry. “We’re checking to make sure the plea is provident,” Whitney explains, “which means the soldier not only fully understands his or her rights and admits guilt, the soldier must also explain in his or her own words how he or she knowingly committed the crime. The soldier does most of the talking, not the judge. As you can imagine, it is hard for a soldier to explain in detail how he or she committed the crime, especially if it is a violent crime like rape. No one likes to openly speak about doing something wrong.” As a consequence, hearings can take 2 to 3 hours.
There are other differences. Unlike in the federal system, there is no grand jury. Instead, there is an Article 32 proceeding, which is basically a mini-trial to determine whether charges should be referred to a court martial. It is a contested proceeding with a defense counsel and the accused in the room, where the defense has the opportunity to cross-examine the witnesses.
“Most of these additional procedural requirements in the military system exist to prevent what is known as ‘undue command influence’—that is, the pressure of the military command structure either openly or subtlely rushing the criminal proceeding to a wrong or inappropriate result,” Whitney said. “It ensures that the accused is not pleading guilty under pressure from his chain of command or being charged because his chain of command is improperly pushing the prosecution. These safeguards make sure the soldier is charged and prosecuted because it is the just and right thing to do.”
Whitney presided over 25 courts-martial in the over six months he was in theater. “I might do 25 sentencings in a week in federal court, but in the military system, 25 courts martial including sentencings is a pretty heavy caseload,” he said.
Why hold court proceedings in a theater of war?
“In a combat zone in particular,” Whitney explained, “you want a criminal justice system that can quickly deter misconduct. If there is a place where order and discipline is most necessary, it’s at the forward operating areas of a combat zone. Soldiers have to understand that if they fail to follow orders in theater, they will be punished in theater, not flown out to face prosecution in Europe or the United States.”
From a practical standpoint too, holding courts-martial in Europe or the United States means pulling soldiers—both witnesses and panel members (the military equivalent of jurors)—out of a combat zone, affecting the ability of commanding officers to carry out military operations.
Although Whitney spent most of his time at secure installations in Kuwait, Iraq, and Afghanistan, safety could not be taken for granted. Whenever he travelled long distances or went “outside the wire” in Iraq or Afghanistan, he wore body armor. The roof of the building where he held court at Bagram Airfield was four feet thick, built to absorb mortar or rocket rounds. Outside, 12-foot tall concrete T-walls, like over-sized Jersey barriers, provided fortress-like security. But just before he arrived in Iraq, five soldiers were killed at an entry gate to Victory Base Complex, and mortar alerts were frequent. Two weeks into his mobilization, the Marine son of his North Carolina court’s deputy clerk was killed at a combat outpost in Afghanistan.
“That was probably the toughest moment for me overseas,” Whitney recalls. “I talked with his mother right before I left North Carolina. It was a reminder to me of how serious a business we were involved in.”
Afghanistan may have been the most hostile area. “The dangers were greatest there and you were a little more cautious,” Whitney said. “I was always wearing a weapon.” During the day, he’d move between secure buildings, but there were constant reminders of the war.
“We rarely had a mortar round hit inside the central area where I worked, but occasionally one did. For example, at Bagram Airfield, a dud hit a tree on the side of the round on which we all ran in the morning. They left the dud there, sticking out of the tree, as a reminder to everyone.”
Whitney is home in North Carolina now, settling back into the routine of a district court judge. What did he miss most about his court? “I missed having my wonderful staff who took care of so many things,” he says.
In theater, he worked without the assistance of law clerks, judicial assistants, and deputy clerks of court. He had to maintain his own docket and set all his hearings. He researched legal issues himself and drafted all his orders. Without a certified court reporter, he had to review every word of a transcript for accuracy.
“I had no idea how much work went on behind the scenes to make court happen,” he says. “I have a new level of appreciation for our court staff here in the Western District of North Carolina.”