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Fort Hood Shooting April 2014: How Soldiers are Prosecuted


Four people were reported killed and fourteen injured yesterday at Fort Hood, (Killeen, TX). According to the LA Times, the shooting was “soldier on soldier” indicating that military personnel were involved in the shooting.,0,799195.story#axzz2xmQW1q9v.  Apparently, the man identified as the shooter was reported dead from a self-inflicted wound.  Is it only the military of the Department of Defense that has the jurisdiction to investigate the circumstances of the shooting?  If the shooter survived or there is potential third party criminal liability, does DOD have exclusive jurisdiction, or can an outside agency or department of government, such as the Department of Justice, have concurrent jurisdiction.  This blawg entry will examine these legal ramifications of the shooting.

Jurisdictional issues in military crimes are significant for all concerned.  There are several substantive and procedural differences between military courts and civilian courts.

If the crimes were committed by military personnel and against military personnel exclusively on the military base, then the Department of Defense only may handle the matter.  If civilians were involved, the Department of Justice will get involved. See Article 2 of the Uniform Code of Military Justice, (Section 802 of Title 10, US Code). Since the crimes violate not only the Uniform Code of Military Justice, but also the criminal laws of Texas, as well as other federal law, theoretically DOD, the State Attorney and the DOJ could all prosecute the crimes. Investigative and prosecutorial decisions would involve the DOD, District Attorney’s Office and DOJ. The MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENTS OF JUSTICE AND DEFENSE RELATING TO THE INVESTIGATION AND PROSECUTION OF CERTAIN CRIMES (August 14, 1984), lays out jurisdictional variables and delineates the nature and location of the crimes committed. Pursuant to Section C.2. “CRIMES COMMITTED ON MILITARY INSTALLATIONS” “a. Subject(s) can be Tried by Court-Martial or are Unknown – Crimes (other than those covered by paragraph C. 1.) committed on a military installation will be investigated by the Department of Defense investigative agency concerned and, when committed by a person subject to the Uniform Code of Military Justice, prosecuted by the Military Department concerned.

The Department of Defense will provide immediate notice to the Department of Justice of significant cases in which an individual subject/victim is other than a military member or dependent thereof.” “b. One or More Subjects cannot be Tried by Court-Martial – When a crime (other than those covered by paragraph C.1.) has occurred on a military installation and there is reasonable basis to believe that it has been committed by a person or persons, some or all of whom are not subject to the Uniform Code of Military Justice, the Department of Defense investigative agency will provide immediate notice of the matter to the appropriate Department of Justice investigative agency unless the Department of Justice has relieved the Department of Defense of the reporting requirement for that type or class of crime.”

Paragraph C.1. of the Memorandum of Understanding relates to offenses of corruption, bribery, etc., and not to homicide and related crimes. Accordingly, if the case is, in fact, “soldier on soldier” exclusively, it will more than likely be handled internally in a military court of justice without the involvement of the DOJ. However, if civilians were killed or injured, the DOJ will enter the investigation and prosecution. The jurisdictional consequences are significant. The Uniform Code of Military Justice contains the same crimes we see in state penal codes as well as additional crimes aimed at the higher standards to which military personnel are held.

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