The Navy Times reports here that “General courts-martial for the most serious offenses have fallen by nearly half, from 172 in 2005 to 94 last year. Court cases for lesser crimes have fallen by even more, according to data provided by the Navy’s judge advocate general.”  Andrew Tilghman, JAG:  High-op tempo may cut courts-martial, Navy Times, June 13, 2010.

The Judge Advocate General of the Navy, Vice Admiral Houck, discusses possible reasons for the decline:

The Navy’s top lawyer said the decline is across the board and not caused by a large drop in any particular type of prosecution. A key reason may be that sailors are spending more time at work and on deployment than in past years.

“These people are busy,” Vice Adm. James Houck, the Navy’s judge advocate general, said in a recent interview. “Things that people can do in garrison environment they simply can’t do in a deployed environment.”

. . . .

“If a commander is busy and has a high op tempo and realizes that he can get essentially the same result … by taking somebody to an administrative forum as opposed to a court-marital, they may elect to go that way,” the JAG said.

The article also explains:

An actual decline in misconduct is at least partly driving the decline.

For example, the number of sailors facing drug-related charges has fallen by about 60 percent since 2001, according to data. At the same time, the Navy has seen a similar drop in sailors “popping positive” when faced with random urinalysis tests — positive tests are down by about 60 percent, according to data provided by Navy Personnel Command.

. . . .

Most drug cases are resolved by nonjudicial punishment. In 2009, nearly 2,000 sailors tested positive for drug use, yet only 453 cases ended up before a judge facing a charge under Article 112A, according to data provided by the JAG and Navy Personnel Command.

h/t Phil Cave’s Court-Martial Trial Practice blog

18 Responses to “VADM Houck discusses reasons for drop off in Navy courts-martial”

  1. Anon E. Muss says:

    The USMC has an even higher OPTEMPO, but courts have had much less of a drop off that the USN. I think Navy commanders have found that the juice just ain’t worth the squeeze for courts where even a single spec drug pop can turn into a $100,000 evolution with GMC witnesses being approved from all around the world. The MilJus system is many things, but certainly not an expedient tool for commanders.

  2. Brian the dog says:

    True that.

  3. Concerned Defense Counsel says:

    I wonder why the JAG did not mention the impact of closing courtrooms around the world, closing brigs, or the impact of the unfunded and unnecessary provisions of the security instruction? What about NCIS shifting jurisdiction to the locals… always! For example, if a case occurs at JRB Fort Worth (which got rid of its courtroom because the base CO was not going to pay to make it compliant), the command has to foot the bill to fly defense counsel, accused, and witnesses from JRB to one of the approved courtrooms – most likely Pensacola or Jacksonville. Then, after court, the command would have to transport to the accused to the brig in Charleston!

    If the JAGC is really concerned about preserving the miljus mission, wouldn’t JAG make it more convenient for commands to execute their miljus cases?

    Get ready for the end of courts and move toward adseps (which, btw, only come around if the client is smart enough to seek a persrep or elect a board)!

  4. Concerned TC says:

    Totally. I have had many a CA lately choose to simply adsep felony offenders. The costs (and pain) of flying the DC, accused, and witnesses several states over to the nearest courthouse then driving the convicted Sailor/Marine and his chasers several more states over to the nearest brig are just too high. A couple of years ago my docket was consistently in the 30s. Today I have a now-typical five – all pending NJP/BW deals.

  5. Dr. Horrible says:

    I wonder how this sharp decline will impact the MJLQ over time. Hard to argue that we need the # of experts we have when there isn’t much to do.

  6. Brian the dog says:

    Wow.

    94 GCMs in a year. Assuming that 90% resulted in guilty pleas, this means the Navy tried a whopping 10 contested courts last year.

    I’m sorry, but how can anyone participating in the military justice system (TCs, DCs, and, yes, MJs) aquire or maintain any skills when, on average, they are trying a contested case once every blue moon.

    The amount of the fixed costs that go into having a military justice system (including the salaries of all participants) are huge. This trend, if unchecked, will lead to the death of MJ.

  7. Phil Cave says:

    I think the court-room issue is a valid one for the Navy only. Their is a sense of insularity, isolation and barricading when trying to get in, out, or use a Navy court-room. I think they have successfully created various barriers to justice or the seeing of justice.

  8. Gene Fidell says:

    Note also the withering away of CAAF’s plenary docket.

  9. Anonymous says:

    There is a definite disconnect between the Navy JAG pushing for a MJLQ cadre of seasoned attorneys and the constant manner in which MJ is more difficult to administer. BRACing brigs is about the worst thing the Navy could have done if they wanted to build up a cadre of litigators.

  10. Anon E. Muss says:

    Come over to the Marine Corps – we still take cases to trial AND we have no courtroom security!

  11. any mouse says:

    Agreed. Although the idea of having a docket in the single digits sounds kind of nice.

  12. Anonymous says:

    Anon E. Muss, maybe if commanders didn’t squeeze the system for a single spec drug pop, they’d get more juice. Adseps are so much more expedient if that’s your goal.

  13. Paul says:

    Seems to me with a smaller docket you need more experienced counsel/MJs. Back in the day you could practice in a large AOR and learn as you went. However, with fewer cases you need fewer counsel but they certainly have to be more experienced. They can’t learn by OJT. Seems as if a smaller docket will solidify the need for MJLQ

  14. Anonymous says:

    Paul,

    You may have a point, but where do the experienced litigators of tomorrow get trained today? The idea of the MJLQ was to have experienced litigators train the junior folks. And just second chairing doesn’t cut it, since many junior attorneys get out (or, in light of recent JAG Corps correspondence are forced out). Assuming a 50% attrite rate, you would need 2 co-counsel on every case just to have the junior folks keeping up with the senior folks. Counsel table is going to become extremely crowded with 6 attorneys just to keep up the training. Litigation is something that can only be learned by doing. There is no substitute. Allowing our docket to shrink will ensure that tomorrow’s “expert” will be about as experienced as yesterday’s novice. The skill sets will atrophy, and we’ll all get really good at processing notification adseps (Legalman work). If the JAG Corps is serious about a litigation track it is best for the JAG Corps to get the fleet serious about litigating again, because that is the only way this is going to happen.

  15. Concerned Defense Counsel says:

    How do you get the fleet serious about litigating when you destroy the infrastructure necessary to ensure a smooth and efficient military justice system?

    I also too often see Trial Counsel over-promise, negatively endorse reasonable deals, and litigate for the sake of litigating – all things detrimental to the system and the line communities faith in the courts-martial process.

  16. Dr. Horrible says:

    there’s the rub…will folks try to bolster their MJ stats and push crap to trial that normally wouldn’t fly so that they can get selected into the MJLQ community?

  17. who's your daddy says:

    The USMC has always had the most courts; however, make no mistake, their numbers have similarly nosedived from the 1990s. Off at least 50% from 10 years ago.

    Interesting how the Navy added lawyers and maintains 7 or more trial counsel at Norfolk. They only need 3.

  18. Anon 12345 says:

    Don’t think the Navy wanted to add TCs, but it needed somewhere to stick all of the extra LTJGs and LTs. I don’t think you will find a RLSO or NLSO that isn’t over manned right now.