There is no military precedent to support the assertion by “Air Force officials” that defense attorneys do not have to be licensed by a state bar for a military verdict to be valid – unless they are looking at CMA’s 1963 decision in United States v. Culp, 33 C.M.R. 411 (C.M.A. 1963). In Culp, the CMA found that there was no sixth amendment right to counsel at courts-martial and that servicemembers were entitled only to the counsel that Congress gave them. The Court also discussed the Navy’s law specialist program and how the navy was unable to provide counsel to its sailors at special courts-martial because “of the distribution of its personnel worldwide, many in small ships upon which no qualified counsel are available.” Id. at 416.
All of that changed with the Military Justice Act of 1968. I am told that yesterday was the 39th anniversary of the founding of the Navy’s JAG Corps and that punitive discharges are no longer awarded to sailors represented by commissarymen who have attended a two-week law specialist program in Newport. And, although Culp has never been directly overruled, it is now generally accepted that at least those portions of the Sixth Amendment that deal with the right to counsel apply to servicemembers.
While the assertion by the Air Force that military attorneys do not have to be licensed for a military verdict to be valid is of dubious validity, there is at least civilian precedent that supports their second assertion that convictions of defendants represented by unlicensed attorneys may be upheld. In fact, the circuits have split on whether representation by an unlicensed attorney is jurisdictional error requiring per se reversal or whether, like in the Jackson case cited by Mr. Sullivan, such errors will be tested for prejudice under the traditional Strickland framework. Compare, e.g., United States v. Maria-Martinez, 143 F. 3d 914 (5th Cir. 1998); Vance v. Lehman, 64 F. 3d 119 (3d Cir. 1995); United States v. Stevens, 978 F.2d 565 (10th Cir. 1992); United States v. Williams, 934 F.2d 847 (7th Cir. 1991); United States v. Mouzin, 785 F.2d 682 (9th Cir. 1986) with, e.g., United States v. Novak, 903 F. 2d 883 (2d Cir. 1990); Solina v. United States, 709 F. 2d 160 (2d Cir. 1983); Harrison v. United States, 128 U.S. App. D.C. 245 (D.C. Cir. 1967).
Mr. Sullivan’s prediction that “we might see some additional case law develop in this area” may be a great understatement.