An anonymous comment this morning asked what I take to be a sincere question:
Being a legal officer, not a JAG, I am always interested to read this blog. The military defense attorneys I know (and I have worked with a lot of them) seem to relish in keeping criminals in the service through trickery and technicalities. Yet they wear the uniform and claim to be honorable officers. Can anyone explain this to me? Do they really want these people in the same service they are?
There is a very long answer to this question and a very short answer to this question.
The long answer is provided by a booked called The Conscience of a Lawyer by Professor David Mellinkoff. It was recommended to me many years ago by my mentor and one of the best lawyers I know, John Holt, now of DOJ. It’s a book-length answer to the question, “How can you defend that guy?” And it explains the history, application, benefits, and faults of the Anglo-American legal tradition (and now professional obligation) that a defense counsel zealously protect his or her client’s interests. Unfortunately this wonderful book appears to be out of print, but used copies are available through Amazon here or through abe.com here.
I can’t find my copy of the book at the moment, which means it’s either at the office or I’ve lent it to someone. (If the latter, I might have to buy one of those used copies.) So I’ll have to do this from memory. Mellinkoff argues that our view of the defense counsel’s duty is shaped by Lord Brougham’s defense of his own defense of soon-to-be Queen Caroline when soon-to-be King George IV tried in 1820 to divorce her and prevent her from assuming the title of “Queen Consort.” Lord Brougham explained, in language that would come to be accepted as a lawyer’s ethical obligation:
An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.
2 Trial of Queen Caroline 8 (London, Shackell & Arrowsmith 1820-21). [A good description of George IV’s ultimately unsuccessful attempt to divorce Queen Caroline is available here.]
So part of the reason why defense counsel behave as they do is that the legal profession makes it their professional duty to zealously advance their clients’ interests without regard to the interests of the larger society. Again, read Mellinkoff’s book for a wonderful discussion of that duty, its benefits, and its costs. For current purposes, suffice it to say that our Anglo-American legal tradition views it as necessary to have a buffer between the crushing weight of the state and an individual citizen and that buffer is a zealous defense counsel. The defense counsel puts the government’s case to the test. We trust the adversarial give and take between a zealous defense counsel and a zealous prosecutor to reveal the truth. Sometimes, despite this adversary system, an innocent accused will be crushed by the weight of the state. Sometimes, despite this adversary system, a guilty accused will go free. But the American system of government views the possibility of some innocent accused being crushed and some guilty accused going free as a regrettable but necessary side effect of the greater good that results from using the adversary system to discover the truth.
But there is a much simpler answer to the question of why MILITARY defense counsel represent their clients even while others might perceive that representation to be against the greater interest of their military service: because it is their military duty to do so.
In my capacity as a Marine Corps Reserve officer, I currently perform military reserve duties supporting the Navy-Marine Corps Appellate Defense Division. And in that capacity, I represent Marines and Sailors who have been convicted by court-martial or who are currently facing court-martial on appeals before the Navy-Marine Corps Court of Criminal Appeals, the Court of Appeals for the Armed Forces, and the Supreme Court. That is a position in the Office of the Judge Advocate General of the Navy. And Congress, the President, and the Judge Advocate General of the Navy have all expressly told me what my military duty is. Congress has said, “Appellate defense counsel shall represent the accused . . . .” Art. 70, UCMJ, 10 U.S.C. § 870. The President of the United States has also required an appellate defense counsel to “represent the accused.” R.C.M. 1202(b)(2). And here’s what the Judge Advocate General of the Navy has required in a regulation that binds all Marine and Navy judge advocates: “Nothwithstanding a judge advocate’s status as a commissioned officer subject, generally, to the authority of superiors, a judge advocate detailed or assigned to represent an individual member or employee of the Department of the Navy is expected to exercise unfettered loyalty and professional independence during the representation consistent with these Rules and remains ultimately responsible for acting in the best interest of the individual client.” JAGINST 5803.1C, Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General, Rule 5.4(a) (9 Nov 04). So I have specifically been ordered NOT to consider the interests of the Marine Corps when representing a client, but rather to give my “unfettered loyalty” to my client. The Judge Advocate General has similarly ordered me to “follow the client’s well-informed and lawful decisions concerning case objectives.” Id., R. 1.2(c). And the Judge Advocate General has made clear that a judge advocate’s “representation of a client does not constitute an endorsement of the client’s political, economic, social, or moral views or activities.” Id., R. 1.2(d).
So let me give you a hypothetical. Let’s say I represent a client I absolutely know to be guilty. But, let’s say, the key piece of evidence against my client was the product of an unconstitutional search and I know that if I file the right motion at trial or make the right argument on appeal, my factually guilty client walks. Now, as I’ve made clear here many times, I don’t like the Fourth Amendment exclusionary rule. If I were ever somehow to find myself on the United States Supreme Court, I would vote for the proposition that the Fourth Amendment exclusionary rule isn’t required by the United States Constitution. That said, if I were to fail to use the exclusionary rule on my factually guilty client’s behalf or if I were to do so perfunctorily in the hope that the military judge or appellate court wouldn’t rule on my client’s behalf, I would literally be violating my military duty. Not only that, I would literally be committing a criminal offense under the UCMJ. Art. 92, UCMJ, 10 U.S.C. § 892. So raise the issue I would, and I’d fight like hell to win. And if I did win, I might even take some small measure of personal satisfaction for having performed my military duties well even while privately putting another check mark on my mental tally of why the exclusionary rule is a bad idea.
Similar statutes and Rules for Courts-Martial and regulations apply to all trial-level and appellate-level defense counsel in the United States military. So the next time you want to get mad at a defense counsel for performing his or her duty, don’t. If you must get mad, get mad at Congress or the President. Or, better yet, realize that Congress, the President, and the Judge Advocate General of the Navy had very good reasons for assigning those duties to defense counsel and don’t get mad at all.