The Navy JAG Corps leadership has put out this memorandum rejecting the formation of a Trial Defense Command following a pilot program.  The memo indicates that the program’s drawbacks — including challenges to “mentoring across large geographic areas and providing IA opportunities for defense counsel and RLSO legal assistance attorneys working in small offices” –outweighed the limited improvements in quality and efficiency that the pilot program achieved.

20 Responses to “Navy JAG Corps nixes Trial Defense Command”

  1. Anonymous says:

    And it might get in the way of funding the JAG’s international law empire.

  2. Anonymous says:

    The real problem – not even a terminal CDR would take the job as CO.

  3. Anonymous says:

    We don’t hav

  4. Anonymous says:

    Sorry about that — we don’t have problems supervising DCs at distant locations or deploying defense counsel in the Corps, although our RDCs are not COs.

  5. Southern Defense Counsel says:

    I think the Navy JAG got this one right. And no, it’s not because “even a terminal CDR would not take the job as CO.” In fact, some of the Navy’s best officers took jobs in these billets.

    This was just a bad idea given the Navy’s structure, and fortunately it went the way bad ideas should.

  6. MJW1 says:

    SDC,

    You must be privy to the metrics which indicated the “limited improvements in quality and efficiency” which the rest of us pine for as support for your sweeping opinion. Please enlighten the rest of us.

    I’m curious to see how the Navy measured efficiency from the TDC’s standpoint. Could it be, as a young LT friend of mine at a NLSO was told by HIS CO “You are not getting your clients to plead guilty quick enough?” Is that the measure that the Navy used? How did the Navy measure efficiency of the program? Surely it was not by using Lean Six Sigma.

    Was the pilot funded with discretionary dollars, so at the very least it could contact potential expert witnesses without being beholden to the Govt?

    Any young TDC at the pilot, please provide your input. Also, as I am aware that other services run a defense command I would be interested in hearing their thoughts.

    This was a golden opportunity lost to establish a more “independent” (I use quotes because there is obvious career aspirations that get in the way) and constitutionally required defense service which ultimately assists in the continued legitimization of its military justice process.

  7. Southern Defense Counsel says:

    MJW1,

    Unfortunately, I am not privy to the overall metrics the JAG Corps used. What I can tell you is this: the Navy’s idea of falling in line with the other services raised two unsolveable problems.

    1) The problem of conflict of interest in a command services environment when mixed with LA

    2) The problem of the lone LA attorney who gets to do only LA for 2 years in his/her first billet.

    As for your LT friend, I have never encountered such a situation. I won’t deny that it has happened, though I’ve never heard of it.

    Most NLSO attorneys are legitimately pro-client. The only way to completely remove any perception of bias by DC or their superiors is to take defense out of the military’s hand and civilianize.

  8. Anonymous says:

    One “metric” of importance would be, did the “aquittal” rate increase in the test areas?

    Back in the day when the AF had a “robust” defense program, the acquittal rate in one MAJCOM reached 33% – and of course, the powers-that-be, panicked. Hence, the rule that Circuit Defense Counsel were detailed to every GCM was repealed, even though close examination of the actual “metrics” showed that about 75% of that 33% were acquittals by MJ alone trials. GIGO!

  9. MJW1 says:

    SDC,

    So the two unsolvable problems were those that had no bearing on the effectiveness of TDC representing their clients in a trial defense command. Subordinating justice for an accused for other, what can be characterized as governmental interests?

    Not the stellar endorsement I was hoping for.

    And Anon 1755’s comments are extremely disturbing and most likely accurate.

    When will the powers that be realize that they jeopardize the future of military justice by not embracing the most effective and zealous representation of courts-martial accused, in both competency of counsel and institutional process allowed.

  10. Mike "No Man" Navarre says:

    I usually don’t weigh in one these threads, but I have to agree with MJW1 in his assessment of SDC’s two metrics. I hope those weren;t the actual results of the pilot program and were just SDC’s take on what may have happened. I really don’t see how continuing to create unwaivable conflicts of interest from re-occurring on a yearly/monthly/weekly/daily basis could be justified by those two metrics. I’ll leave you with this quote from Maj. Gen. Thomas Bruton, AF TJAG on formation of the AF Defense Command, which I think suggests the metrics that would be appropriate and were hopefully used by the Navy, “It is not the job of the defense counsel to assist or make it easy for the government to establish or present its case. To the contrary, the independent defense structure pioneered by the Air Force was in part established to enable defense counsel to freely make those many difficult and sometimes challenging decisions without fear of command interference or reprisal.”

  11. Anonymous says:

    What possible problems could the Navy have that are “unsolvable” that the Army wouldn’t also have, and that weren’t clearly solvable?

    I cannot understand how you can’t have a separate TDS and call yourself a proper defense bar.

  12. Southern Defense Counsel says:

    Again, I don’t know what the JAG made his decision on. They are my problems with the TDC. And as for the army “solving” the problems, I would say with respect to 1) they haven’t, they just ignore it, and with respect to 2), they have 1000 more JAGs than the Navy, so it’s easier to give proper mentoring and not leave an LA attorney in LA hell for two years with no hope of going anywhere.

  13. Anonymous says:

    Many attorneys in the Army start off in LA. Many spend 12-18 months in LA. I personally spent 18 months there before moving on to crim law and I wasn’t the only one just in that office to do so. (Granted part of that time was as the Chief).

    I’d say the Army certainly has solved the problem of independent TDS counsel, and I’m not aware of any circumstances where LA was conflicted with the command/SJA’s office. The same confidentiality was maintained there as in TDS.

  14. Southern Defense Counsel says:

    I fail to see how reabsorbing the legal assistance mission somehow lessens the independence of the NLSO system. I think it increases it.

    As far as no conflicts with the SJA’s office, the reality is that they can and do exist. As a hypo – client comes in with debt problems. Come to find out the debt is a result of bank fraud. If command knew, client would be separated. Attorney has an obligation not to tell the command, which means obligation not to tell his boss, who is often the SJA for the command. I fail to see how the Army gets around this. Many clients come to the NLSO for LA advice and end up seeing the defense JAG.

  15. Anonymous says:

    A wall is built. You don’t tell the SJA about your clients because you have a duty to them. The SJA doesn’t go around asking you. More importantly, generally if your LA client starts to want to talk to you about a possible crime, you point them immediately in the direction of Trial Defense.

    Rare that a LA attorney will be dealing with criminal issues in more than a–you should go talk to TDS or a civilian criminal defense attorney manner.

    It’s a much less problematic area than ACTUALLY representing someone in criminal court(martial) as a trial defense attorney when your boss is the SJA.

    But we’ve gotten off-track so I will repeat my question. What problems are so unsolvable about having an independent Trial Defense Command or Service or what name you place on it, that the Army can do it, and the AF can do it, but the Navy cannot?

  16. MJW1 says:

    There was a time when Navy DC and TC were all in the same command and had the same reporting senior. The ABA pushed for multiple years for the Navy to create a command structure where TC and DC had separate reporting seniors. I suspect before that the attorney who garnered favorable results for an accused may not have been rated as highly as a TC representing the United States of America.

    Anyway, the Navy either realized that it was best for the system or was ultimately shamed to change, but the result is the present day NLSO and RLSO structure (although the RLSO was formerly called the TSO). The TSO’s only duty was prosecution and when it morphed it added command services, but with a “wall” between the TCs in the RLSO and those that performed the traditional SJA duties. The “stated” rationale for the TSO to RLSO change (after pilots were done) was due to regionalization that the line BOSS functions were also doing. Ultimately the Navy was able to cover prosecutorial and SJA services with less attorneys in the aggregate.

    In sum, the Navy made a change that was beneficial to accused and went a long way to stave off those who suspect the system as being rigged for the G. Could you imagine the heat the Navy would be in today if TDC were being competitively ranked against TC by the same person. Things like this have the ability to bring done the entire house of cards. That is why I say that any opportunity to increase Defense independence, funding, access to witnesses, etc., is good. Not because I am some bleeding heart, but because I believe in the “real” purpose of the UCMJ and do not want the integrity of the system to be undermined by bureaucratic decisions. We need the very best to defense services to ensure that we can still maintain a constitutionally viable justice system in the military.

  17. Anonymous says:

    No Man — the AF Area Defense Counsel program was started in 1976 – Maj Gen Bruton was not the TJAG back then – but, I have no doubt he said what you quoted.

  18. Southern Defense Counsel says:

    Anon 1830,

    I think MJW1 hit the nail on the head, but in case he didn’t, here it is. The Navy’s system has a separate defense bar. No SJA has any authority over any DC. Just, in the Navy, DC may also be doing LA. I fail to see the problem, and it avoids needing to “build a wall” around your LA clients so your SJA boss doesn’t know about it. A “wall” that the ABA would likely find objectionable.

    That is the problem that the AF, and Army have not solved, IMO.

  19. Anonymous says:

    As a more senior DC who was in the TDC, I observed the following: clients received better defense services because the attorneys were normally experienced second or third tour counsel and the leadership was litigation focused. This may (or may not) have led to more acquittals or better PTAs, but the Government often had to stand and fight even on small procedural issues. The main problem with the TDC was that the geographic areas were so large that counsel often had to take two or three days out of the office to do a simple adsep board at a remote base; unlike the other services, the Navy does not have DC at every base. Moreover, the costs associated with the travel, which must be paid by the client’s command, unreasonably increased the cost of doing business. Just like the RLSO structure, the traditional NLSO structure is more flexible and more responsive to the needs of the client.

  20. Anonymous says:

    As a NLSO attorney at a far flung branch office, I’m happy with the result. Although we could outsource defense to a regional DC who had to travel back and forth, or to a single, lone DC stuck on the base, I’m confident (at least in our office) that either answer would significantly worsen representation for our clients.

    And I, at least, have not found any conflicts that raise concern. Acquittals have never made the SJA scorn my LA clients.