The life of a military appellate counsel — sitting in a room reading records of trial day after day — may not sound riveting. But fortunately, records of trial often provide entertainment. My colleague Capt Mike Burnatt found this amusing exchange in an Air Force ROT:

(After Trial counsel’s findings witness testified):

MJ: Trial counsel, you may proceed.

TC: Argument, sir.

MJ: Well, we’re still at evidence now. Does the government rest? Do you have any additional evidence?

TC: We’ll go with sentencing evidence.

MJ: We’re in findings now. So, you’re trying to convince the court that . . .

TC: No, sir, nothing, no further evidence.

MJ: So the government rests?

TC: Yes, sir.

13 Responses to “Court-martial follies”

  1. Bill says:

    Sadly, I see this sort of colloguy regularly. It seems many trial counsel have little or no experience these days.

  2. Anonymous says:

    I see the bigger issue as DC have less experience. I an excuse the government from being poorly represented but not the accused.

  3. Anonymous says:

    As caaflog has pointed out, too many law schools, too many lawyers. This isn’t an experience problem – go down to your county courthouse and you see the same thing – some people just have no business in the courtroom.

  4. John O'Connor says:

    My experience, though ten years old, was that there were a lot of trial counsel and trial defense counsel who were geared toward standing up and arguing facts to the judge and jury, but who didn’t really understand the law and didn’t really follow developments in the case law. I think that is part of the reason why I saw so little motions practice.

    One thing I didn’t think NJS covered all that well was the structure of the court-martial system and how the various written authorities (UCMJ, MCM, JAGMAN) related to each other. Having a good sense of legal structure makes many answers to questions sort of intuitive, and I think there was not enough effort in imbuing that strucutral understanding in judge advocates.

    And, folks, trial counsel and defense counsel are taken from the same pool of JAGs, as are appellaet government counsel and appellate defense counsel. So it’s not really all that helpful (or true) to refer to one side or the other as mouth breathers, mongoloids, etc. The strengths and weaknesses in military counsel basically go across the aisle because both sides are drawn from the same pool of talent.

  5. Anonymous says:

    I see this type of think in Marine courtrooms all the time, not so much in Navy courtrooms.

  6. Anonymous says:

    I use a little cheat sheet for evidence still. Somethimes you just get ahead of yourself.

  7. presley o'bannon says:

    I see overweight and out-of-shape servicemembers in Navy courtrooms all the time, not so much in Marine courtrooms.

  8. Dew_Process says:

    I agree with O’Connor – I frequently do CLE’s for “young” military defense counsel, who are amazed to learn, that they can justifiably ignore a RCM, if it conflicts with a statute or constitutional principle.

    Case in point, RCM 701(b)(2)’s requirement to give notice of “innocent ingestion.” Aside from flying in the face of both the Fifth Amendment and Article 31, most are astounded to find out that such a notice is “an admission” by counsel of an underlying element [use], and raises even thornier ethical issues.

    I think it goes beyond Bill’s comments on experience – there seems to be a lack of “cerebration” in preparing your case, whether it’s the prosecution or the defense. E.g., last week, an Army Trial Counsel argued – in response to a double jeopardy motion, that Watada did not apply because there had been no “mistrial” in our case – just the Convening Authority ordering a rehearing over Defense objection – not because of any structural error, but because there was no verbatim record due to the Court Reporter’s gross negligence, and the SJA really wanted a Dismissal in the case.

  9. Anonymous says:

    Dew Process,

    Since it’s the dc, and not the accused, who notifies the government of an innocent ingestion defense under 701, it is not an admission, nor does it violate the 5th Amendment or Article 31.

  10. John O'Connor says:

    Anon 0754:

    Why do you conclude that an innocent ingestion notice wouldn’t be an admission? I haven’t researched it, but the DC is the accused’s agent, so it seems that the DC is someone who is legally able to make admissions on the accused’s behalf.

  11. Anonymous says:

    The Marine has never been considered an abstact intellectual. One doesn’t need brain power at TBS.

  12. Anonymous says:


    The notice under 701 would say that the defense intends to utilize an innocent ingestion defense, and would list the relevant facts about that defense. It does not include an affirmative statement saying this is what happened. How is that an admission? How would it be introduced to the members? Under what possible circumstances could that even be relevant? Does the fact that an accused/d.c. demonstrated an intent to use an innocent ingestion defense make it more likely that the accused knowingly used drugs?

    -Anon 0754

  13. Anonymous says:

    Anon 12:53 and Presley O’Bannon have hit on exactly what the lawyers fron the Navy and the USMC strive for. The Navy: not to sound stupid in court; The USMC: not to look fat, not caring whether sounding stupid or not.