He’s an incredible story from Kate Wiltrout of the Virginian-Pilot, called to our attention by a friend o’CAAFlog.  A Navy lieutenant was being tried by a special court-martial in Norfolk.  As we all know, an officer can be neither confined nor dismissed by a special court-martial.  The TC nevertheless asked for a sentence that included confinement for 30 days.  Judge Carlos then adjudged a sentence that included confinement for 90 days — before realizing that he couldn’t and rescinding that portion of the sentence.

72 Responses to “TC asks for confinement in SPCM of an officer; worse yet, MJ adjudges it”

  1. Look, pal says:

    Typical navy…LOL. Hey, does this mean navy judges no longer get the “presumed to know the law” benefit of the doubt? LOL again!!!!

  2. Anonymous says:

    They are presumed to know the law…eventually.

  3. anon says:

    The SJA who advised the CA to take this deal is probably wishing they had consulted a MCM.The multiple levels of failure to understand even the simplest points of MilJus is staggering.

  4. Cloudesley Shovell says:

    Initially I wondered why defense counsel wasn’t objecting as soon as TC said anything about confinement, but then I realized that most likely DC was content to sit back and watch the train wreck.

  5. Matt says:

    I thought the same thing about the DC, then remembered my own days of letting the GOV think they were signing on to a deal they liked, only to have it implode. At least that’s the story the DC will be sticking with!

  6. Anonymous says:

    Absolutely sit and watch it happen.
    The failure to read the MCM down there isn’t limited to this case.

  7. Mike "No Man" Navarre says:

    Consider this a standing offer to provide free training to RLSO counsel on negotiating PTAs. At the world’s largest naval base and at a legal office that services USN, USMC, and USCG I know that frequently training and basic skills are at times lost on the OJT mentality that is required. I ws there and I remember when a certain TC at that office lost an Art 13 motion. I sympathize with the current state of affairs.

  8. Southern Defense Counsel says:

    At first I was inclined to agree with Matt and Sir Cloudesly that the DC was right to watch the implosion, then I thought about it. Let’s assume that the Judge didn’t correct himself, and the CA, relying on bum advice from the SJA approved and signed the confinement order, and my client got hauled off to the brig. How on earth could I have just helped my client? I didn’t. I committed malpractice.

    DC is JUST as guilty as the judge and the TCs and MJ. Now, it’s possible that TC went rogue asking for confinement and the SJA knew and advised the CA that confinement was not an option at a special, so I won’t throw the SJA under the bus just because their boss signed a SPCM deal. Perhaps the CA just wanted a criminal conviction. But DC had a chance to stop this crazy train. Especially since they go LAST during sentencing! The judge has accepted the plea, will sentence your client, and now, you have the job to tell him what sentence you think is appropriate. A simple, “As your honor is aware, confinement is not an authorized punishment at SPCM” would have sufficed.

    Now, I know, someone is going to say “SDC, come on, they knew the score. This was gamesmanship” I don’t think so. The judge announced the sentence on the record – no objection from the defense. If DC had waited until the MJ announced sentence and then objected – maybe they get a pass, but the article says they didn’t even do that. It looks like the MJ had a brain fart, then caught himself a moment later without prodding from the defense. Bad DC. Bad.

  9. Anonymous says:

    Finally, a voice of reason. They all blew it, including DC.

  10. Anonymous says:

    Methinks it is the same as the TC who argued for the 30 days. The SPCMCA’s down there do not necessarily have their own SJA and they use the regional experts at the RLSO.

  11. Anonymous says:

    The TC is the SJA for SPCMCA’s at RLSO Norfolk?

  12. Anonymous says:

    During the plea the MJ would have asked the TC what the max punisment is for the offenses. MJ would have asked the DC if he agreed with the max punishment. My gut tells me the DC thought confinement was authorized at the Court-martial. If not he would have corrected the TCs announcement of the max punishment authorized.

  13. Anonymous says:

    Yep, makes sense according to the Navy trial guide.

  14. Curious says:

    It has been a concern that the young uns are either not getting enough experience or training to know very fundamental concepts of mil justice. What sacres the pants off me is that an MJ and SJA don’t either.

  15. Stu Couch says:

    Anon @ 8:12 is absolutely right: if they were following the trial guide, any misunderstanding of the parties would have been caught before the providence inquiry started. But it shouldn’t take a trial guide to avoid mistakes like this one. All of the trial participants are to blame in this case.

  16. Anonymous says:

    Needless to say, understanding one’s bargaining position is critical to effective plea negotiation. I wonder what the deal would have been if either or both sides knew confinement was not on the table.

  17. Southern Defense Counsel says:

    Agreed. At that point in the script if DC said “The defense concurs” they were either a) unaware of the jurisdictional issue, or b) untruthful to the tribunal. I’ll assume ignorance over throwing an “E” bomb.

  18. Mike "No Man" Navarre says:

    If the officer spent one day in confinement I’d say that sitting back and watching the train wreck might be argued was malpractice, particularly since the case is per se subjurisdictional. Who are you preserving errors for? And at 30 days (or even 90 days) confinement the case wouldn’t even be back to the MJ for review before the sentence was completed. I am guessing the DC didn’t spot the error initially either.

  19. Bill C says:

    Imagine explaining to your client “yes, I thought you could go to jail but hey, it all worked out, right?

  20. Anonymous says:

    @ SDC, it depends on what the DC concurred with. S/he may have concurred with the proper max punishment at that point in the script. Do we know what defense concurred with? But is DC obligated to object when TC asks for confinement later at sentencing? Though I doubt the DC thought of this, if the accused was sentenced to confinement as requested by TC, maybe she’d fare better at the end of the day. When the MJ realized his faux pas, is the confinement the only adjustment he made? Since the govt didn’t get their pound of flesh via confinement, did the accused get a windfall?

  21. DC Steve says:

    Anyone remember last week’s discussion about the Navy only trying 94 GCMs a year?

    It is all well and fine to blame the TC, DC, and MJ. They should have known their jobs, and done better. However, this is exactly what we should expect from a system in which no one, (DCs, TCs, MJs, and SJAs) has any long term experience in their job (excepting some/most CDCs).

    Over the decades, we have made the administrative burden of trying cases harder (mostly a good thing). However, this has resulted in significantly fewer cases reaching trial. Instead of reacting to this by changing our personnel policies to allow practitioners to stay in the field for a long time, most of the services have shortened the TC/DC time – so that everyone gets a taste. After a few years of this, inexperienced TC/DCs become SJAs and MJs – the lack of experience climbs its way up the leadership chain.

    Most USA offices and district attorneys require their prosecutors to work minor crimes, and hundreds of cases, sometimes for a couple years before they can try felonies. For some reason, we continue to believe that new TCs, with numerous other mission distractions, can walk into a court-room, and be the next Darrow.

    These stories are funny, in a schadenfreude sort of way. But unfortunately, they are likely to get more and more common.

  22. Southern Defense Counsel says:


    You cannot read that sentence without pointing to the jurisdictional limits. That’s why the script deviates downward for SPCM automatically. Even though the max for drug use is 5 years and a DD, everyone agrees the max punishment at SPCM for an enlisted is 12 months and a BCD because the MCM modifies the max punishment ICO SPCM. Thus, if you know that the punishment is less, you can’t say, “I agree that the punishment can be as bad as you say it is.” You could shut your mouth and say nothing, but you cannot perpetrate a fraud on the court just in the hopes that the judge will take his pound of flesh out in a way that is not authorized.

  23. Anonymous says:

    Was there a PTA in this case? Wonder if it had a confinement cap in the quantum? Also, the MJ is reqired to go over the terms of the PTA with the accused. Part of this colloquy requires the MJ to ask the parties if the quantum contained any terms beyond confinement limitations. Anybody out there in the blogosphere have a copy of the PTA in this case?

  24. Anon 12345 says:

    DC Steve-

    I agree with you 100% (with the exception that CDCs know what they are doing). The question is, how do we get more cases to go foward to CM so practicioners get the experience? And is this in the best interests of a client?

    Perhaps the answer lies in the fact that the military is not a law enforcement organization and military justice is a timely and costly burden on all unit commanders.

    Do we give up the miljus mission? Do we stop telling JAG recruits that they will get the opportunity to litigate? Do we create a super-CA with a transient unit that handles all miljus matters? Anyone? Bueller?…Bueller?

  25. Former TC says:

    Simply put, all sides dropped the ball on this. Many of the posts so far hit the nail on the head—not enough experience due to the lack of MJ cases. Young counsel do not experience the weekly special dives because everything goes to NJP and/or adsep. Hopefully, this experience will cause STCs/SDCs and RLSO/NLSO leadership to reevauluate the need for continuous training. Unfortunately, counsel have developed the mindset that they don’t need the training because they have argued two adsep boards. This needs to be addressed from the top or nothing will change. Paid seats are going unused at NJS and courses put on by our sister services. CLE equals competence.

  26. Phil Cave says:

    DC Steve, hate to say I told you so, but in 1991-1993, I told you so. And again in 1998-1999. I was not the only one. And of course we were continuing our comments dating back to the stone age (or 1980 for me) when people discussed the issue of military justice wonks versus IL wonks. We said,
    Inexperienced “trial” lawyers would become inexperienced senior “trial” lawyers whose job was to teach the newbies.
    Inexperienced senior trial lawyers would become inexperienced (as to military justice) SJA’s.
    I predicted we’d “see” the results in about 15 years. I may have been off a few.

    I do see caseloads as an issue. Especially if you drill into the numbers to figure how many are guilty plea cases. Another issue is manning. In the late 1980’s at Norfolk we had enough cases and enough counsel to make them do admin boards (effectively a members contested case) and to second chair. But if you are one of two at a small office . . . . where do you get the mentoring? One of the things we used to do at Norfolk was bring in the Reserves. There are many seasoned trial lawyers in the reserve units who gave excellent one on one and group training.

    I see something similar on the AF side, except as to ADC’s.

    Army, Marine, Coast Guard don’t have the same institutional problem. Whenever they have a problem it relates more to an individual, and generally he/she is taken care of. I think a couple of things help, one of them being a strong RDC program. Look at John Baker for example. RDC on the east and headed to be The DC. A great mentor because of experience.

    I say go purple. I’m sure I’ll get the same response to that as the various times I’ve advocated that all of the JAG schools be consolidated into a purple one at Charlottesville. Never could quite figure out the attraction of Newport, RI, and certainly not Montgomery, AL.

  27. Anon 12345 says:

    Forgot to mention the fact that as TC, I once had a CDC advise his officer client that the max punishment included a dishonorable discharge…

  28. Dr. Horrible says:

    My question: would a fully-staffed, MJLQ-qualified TC/DC shop have fixed this? I imagine that Norfolk has its fair share of “anointed” folks who are supposed to be the front line of defense against such screw-ups…

  29. anonymous says:

    Can we get some Names please? TC, MJ and DC?

  30. anonymous says:

    This is the second case this month which makes me wonder whether the military justice system, at least in the Navy, is headed for a meltdown. Here’s a link to a report on the first (interestingly also involving Navy medicine).

    And, what could the CO of the RLSO have meant in the context of this case when he’s reported as saying, ““The convening authority can order a rehearing to the findings…”?

    “Angry victims say Navy misled them over doctor’s sex-crime sentence”


  31. anonymous says:

    LT Yang, TC and CAPT Carlos MJ.

  32. anonymous says:

    um…so is anybody going to have to explain all this to the JAG?

  33. Phil Cave says:

    LT Tang, not Yang.

  34. Phil Cave says:

    Technically that’s correct — or at least close enough is it not? If the SJA, ha ha, identified an error in the providency and wanted to moot the issue rather than get NMCCA to do it, then the CA could send the case back to the MJ to resolve an inconsistency in the guilty plea providency for example?

  35. anonymous says:

    I’d rather be a fly on the wall when this is explained to the convening authority.

    How long did this take to get to trial? And, how much time/money was spent?

    No wonder convening authorities are looking at alternate means of disposition.

  36. Southern Defense Counsel says:

    Not all of this is the JAG Corps’ fault though. NCIS / CID let cases sit around for months as though every case is a search for Jimmy Hoffa.

  37. Former TC says:

    But how is this an NCIS issue? This comes down to licensed attorneys not knowing procedure 101…

  38. anonymous says:

    Amen. I’m beginning to think the key to truly serving the convening authority’s interest is to bring everything in-house, where possible, and not to rely on the “support” offered by NCIS/CID and the RLSO.

  39. Anon says:

    I know how to fix this problem. Let’s create a Military Justice Career Path (no, let’s call it a “Litigation Career Path” so we don’t offend anybody) and that will give us the authority to have yet another Navy JAG Flag Officer! That way, an adult will be in charge of this mess. Oh, that’s right…we already did that.

  40. Anonymous says:

    Well, that’s all true but until we stop the jack of all trades mentality and allow folks to specialize/track in crim law, then we are going to have folks inexperienced in crim law at the O-3/O-4/O-5/O-6 level because we had to make sure they checked the block in AD law, and BCT JA, and OP Law, etc.

    Not everyone wants to do crim law. Identify those who do, and are good at it, and allow them to track.

  41. anonymous says:

    Maybe the problem could be fixed by eliminating the RLSOs as independent commands and making them directly accountable to the regional commanders?

  42. Phil Cave says:

    This was proposed, discussed, and rejected, is my recollection during the reorganization that broke the NLSO’s into NLSO’s and RLSO’s.
    This is essentially how the Army and AF operate. But beware, it does not solve the problem. You see the same issues in AF cases related to inexperience, etc. This is very much less a problem in Marine, Army, and Coast Guard cases.

  43. DC Steve says:

    Phil, I certainly don’t mind you saying “I told you so,” especially when I wasn’t around to hear it.

    However, I am not so confident that this problem is isloated to the Navy. (I will agree that the Marines, who court-martial anything that they aren’t trying to shoot, are not suffering from inexperience). At large Army posts, there is the depth of experience. However, I suspect that smaller posts are subject to the same issues you raise.

    Unfortunately, this is a problem that is likely to snowball. When you don’t know what a case is worth, when you are not able to adequately evaluate the strengths and weaknesses, you don’t want to embarrass yourself, and so you bargain a case away for less than it is worth. (New TCs always try to bargain a case away, and will succeed unless their is experienced leadership). Or, even worse, you overplay your hand and charge into court expecting the world.

    The end result: Inexperienced TCs beget inexperienced SJAs, which beget less trials, which leads to even less experienced TCs, etc, etc.

  44. Phil Cave says:

    Agree on the “small post,” and agree that it’s not completely limited to Navy.

  45. D'Contrarian says:

    Better yet, lets get the Transformation Office cracking on this (add 2 O-6’s), then build the results into the Life/Work Task Force (add 4-6 Mid-grades), and ensure the Task Force results are reviewed by exceedingly Diverse personnel (6-12 LTs). Touchdown Team OJAG!!!!

  46. anonymous says:

    Now that I think about it, maybe this focus on process is part of the problem.

    After the initial launch of various military justice initiatives, it seems that perhaps they’re just now running adrift, while attention is being diverted to whatever issues are deemed more pressing.

    I’ve noticed, for example, that the Navy’s Military Justice page on NKO seems to have lost it’s discussion board and hasn’t been otherwise updated in some time. If I recall correctly, apart from something about new procedural requirements for the handling of sexual assault cases and how to charge “spice” cases, I haven’t seen much else in the way of Code 20 support.

    Maybe it’s time to return to the basics. Constant training is critical to success, especially when real cases are few and far between.

  47. nomo JAG says:

    Since we’re all tuned in to MJ issues of late, I gotta say that things are not looking so good from top to bottom – CAAF issuing laughable opinions (Ayala, Lloyd) and trial-level practitioners revealing the crap-“justice” CAAF is trying to save. I wonder if this happened to make it to CAAF, would they have manipulated logic to find a way to find no error?

  48. Stu Couch says:

    Phil, the Marines are not immune to lack of experience in military justice.

    Here’s a solution: create a full-service “litigation office” at NAMARA.

    Seems to me that the Chief Defense Counsel (CDC) and Regional Defense Counsel (RDC) concept used by the Marines is good, and it should be replicated on the Government side — establish a Chief Government Counsel of the Marine Corps, and two Regional Government Counsel (RGC) for each coast. These RGCs will serve the military justice officer function, consolidated for each coast. This arrangement provides leadership,oversight, and standardization for the prosecution function Corps-wide. The Navy could implement a similar arrangement.

    Then, find some way to have a bullpen of experienced litigators over at NAMARA who can double hat as appellate counsel and traveling trial/defense counsel on an ad hoc basis. (On the defense side, these folks should be IMC’d so that local defense counsel are available to the accused, and gain experience working with senior experienced counsel.) The RDCs and RGCs will have authority to detail NAMARA bullpen counsel as they see fit.

    These bullpen counsel will also be used to provide periodic training at the LSSS / RLSO level, as well as an on-call resource for the local counsel with routine questions. On the Government side, set a policy that all GCM referrals will have one of these traveling TCs assigned as lead counsel.

    There will still be local TCs and DCs to handle the cases as they come in, and manage the routine administrative tasks of litigation. The difference is they will have a stable of experienced litigators with them on every GCM case, and available for consultation on all other cases.

    Tour length for the NAMARA bullpen should be long enough to cover lengthy trials — perhaps 4 years. Set a policy that a bullpen tour is a prerequisite for becoming a military judge, trial or appellate.

    I’m now standing by for slings and arrows on this idea.

  49. anonymous says:

    I’d forgotten about Ayala. You know we’re in trouble when it takes a convening authority to save his SJA. And now these other cases confirming that it’s the lawyers and their commands who really are the problem.

  50. anonymous says:

    I agree. It’s the intermediate (area and regional) levels of leadership which are missing, at least in the RLSO/NLSO model. I’m just not sure that vesting this function in NAMARA is the way to go, at least for the time being.

    I was intrigued, instead, by a note on NKO listing certain COs of RLSOs/NLSOs as something to the effect of trial/defense program managers. Maybe we could grow what we need from the bottom up, e.g. regular trial counsel/defense counsel virtual roundtables, etc. By mutual agreement, a particular RLSO/NLSO could be designated as something like a chief trial/defense counsel to perform the functions you describe, by pooling the collective resources of all participants.

    We could start today. It would cost nothing but the time and effort and require no one’s study and approval, apart from those who wanted to join in.

    That being said, these cases reveal a more fundamental problem: counsel and their chains of command are simply not doing the jobs they’re supposed to be doing now.

  51. Article16 says:

    I’ll admit I didn’t know this rule. Instead, I had believed officers could only be tried at a GCM…but I guess that mistaken belief would have been enough to make me look it up and get the right answer.

    Is anyone else reading this as a case with an agreement to plead guilty for the lower forum? I’d like to hope there was some strategy to the DC’s thinking.
    Also if the Navy has equivalent processes to the Army, the officer should still try to submit a Resignation in Lieu of Court-Martial.

  52. AF Reserve says:

    Has anyone verified this story? The other part of it that was funny was the line about her agreeing to resign her commission. If that is the case, why agree to that and then go to a court? Part of a bigger deal to get the case from a GCM to a SPCM? Which then begs the question, why did the Govt agree to such a deal? Why not just go to trial at a GCM? Sure GCM is more complex, but it is an officer case so it is going to be more high profile anyway? I can’t see any reason for either side to make such a deal in this case. Perhaps I am missing something.

  53. anonymous says:

    I think the only way this makes any sense is that each of the parties honestly believed that an officer could be confined at a special court-martial.

    Why bother with a GCM if you really could confine the accused for up to a year and give her an OTH on the way out (and you deemed that to be an appropriate disposition of the case)?

  54. anonymous says:

    Art. 16:

    I suspect there are actually quite a few counsel out there who are thinking this could have been them. Personally, I’ve known this for as long as I can remember, but it’s only because someone else more experienced told me. It’s certainly not because I had read it RCM 1003 and remembered it.

    If you hadn’t heard the rule (or some variation on it like yours), why would it even dawn on you to ask the question?

    What I can’t figure out, though, is how this ever got past the “maximum authorized sentence for the offenses to which you are pleading guilty” section of the trial gouge.

  55. Anonymous says:

    Concur on this being an error on all fronts. However, I think it is much to soon to throw in the flag on the MJLQ program. Anyone who doesn’t recognize the MJLQ as a long term plan that cannot possibly come to fruition in less than 5-10 years doesn’t understand Mr. Cave’s well put point about how long inexperience (and therefore it’s flipside, experience) takes to pervade the upper levels of the Corps. The question now is – what to do in the interim? I don’t concur in a purple MILJUS practice because, honestly, the needs are subtly, but critically different amongst the services. That said, I also think it is time to reconsider our “up or out” mentality for folks specializing in the area. Are we sending the best we possibly can to the bench right now with the experience they need to be effective? Or are we simply filling holes left when experienced MJs leave the bench for the appellate court or retirement. I ask you all this – can someone move back to trial from NMCCA without suffering adverse consequences? Should they?

  56. Southern Defense Counsel says:

    I would imagine that this was envisioned as a SPCM with a board waiver (hence resigning her commission). The benefit? CA gets their conviction and no more LT Loving, LT Loving gets reduced max sentence.

    No doubt this case was Tee’d up for an Article 32 and the parties negotiated for a SPCM w/ board waiver. The question is, who, if anyone, knew that the potential jail time at this forum was 0 months, and not 12? Clearly not the litigators (or at least TC). But it is possible that the CA just wanted a criminal conviction, and the jail time was not of import to them. That would explain the SPCM – still shows up on NCIC.

  57. Anonymous says:

    Interesting question, Anon 1606. Also of note, the USCG GCM judge, Captain Felicetti, was previously on the CGCCA, so it has been done in other services. Don’t know if going appeals to trial would be a career killer in the Navy. I would imagine it is though.

  58. anonymous says:

    I’m curious as to a procedural question. After announcing the illegal sentence, did the military judge then announce another sentence? Wouldn’t that sentence be as invalid as the first and, if the DC didn’t object, wouldn’t that be yet additional grounds for IAC?

    Of course, the story may have simply omitted the judge’s convening a post-trial session to revise/correct the trial proceedings and then ordering, over defense objection, a rehearing on the sentence, culminating in deliberations on and announcement of a new sentence, but I suspect that’s not the case.

  59. anonymous says:

    Assuming the convening authority was actually misadvised as to the maximum authorized punishment for an officer at a SPCM, wouldn’t this be a fairly substantial material misunderstanding which would support invalidating the PTA and allowing the convening authority to re-refer?

  60. Anonymous says:

    Doesn’t look like the MJ got the fines/forfeitures right either. The adjudged fine was $2K; adjudged forfeiture was $2400. Combined total is $4400. The maximum base pay for an O3-E is $6355. Two thirds of that is $4236. So even if she was an O3-E over 18 (the article only says she was a Lieutenant), since the combined total of fines and forfeitures at a special cannot exceed 2/3 pay, the most the MJ could adjudge was $4236. Maybe I’m missing something.

  61. anonymous says:

    Along the same lines, check out the responses to Code 20’s current military justice quiz posted on Navy JAG’s NKO site: about a third of respondents believe a sentence to forfeitures which is not expressed in a whole dollar amounts (i.e. one which is expressed in terms of a fraction of pay) is not improper.

    Just another illustration that it’s the lawyers fund of military justice knowledge that’s the issue.

  62. Anonymous says:

    2/3 for 12 months was the max for fine/fofeitures. The total amount in this case is well below the max. This part of the sentence is just fine.

  63. W says:

    Showing that sometimes it is the fund of military justice knowledge of the commentators that is in issue…

  64. anonymous says:

    Granted, but doesn’t this prove the fundamental point that this is a team effort and that no one is too experienced to learn something new?

    Maybe over the summer there could be a military justice “standdown”, with training conducted at all RLSOs/NLSOs by the circuit judges, according to a curriculum developed by NJS [LOL!] in conjunction with Code 20?

  65. Anonymous says:

    Is this the same Navy JAGC that wants to expand their authority over the Marine JA community because they are so AJ squared away and we are a bunch of knuckle draggers?

  66. low IQ Devil Dog says:

    Is this the same Navy JAGC that wants to expand their authority over the Marine JA community because they are so AJ squared away and we are a bunch of knuckle draggers?

  67. anonymous says:

    I hadn’t heard this. What’s the background: In what sense is Navy JAGC attempting to “expand” its authority over the Marine JA community?

  68. Anon 6:15 says:

    Anon 6:28: Right you are.

  69. Anonymous says:

    Sometimes as a DC you have to explain the severity of the punishment in terms the lay accused understands, even smart ociffers. A dimissal doesn’t sound too bad, but when you tell them it’s the equivalent of a DD, the worst discharge on the books by the way, the client gets it.

  70. Tami says:

    Was the officer a warrant officer? For W-1s, they are not commissioned, so they can’t get dismissal. Therefore, the only kind of punitive discharge a W-1 can get is a dishonorable.

  71. Kastenberg says:

    Major General Alexander Macomb, the commanding general of the United States Army in the late 1830s and early 1840s published, “The Practice of Courts-Martial, in 1841.” The roughly one hundred pages of text served as a guide for officers assigned as judge advocates or to courts-martial duties. Macomb reminded his readers that court-martial duties were “of the most grave and important character,” and all officers were bound by duty to acquire “a competent knowledge of military law.”

    In the aftermath of the Mexican-American War, Captain William Chetwood De Hart, a sometime judge advocate sometime artillery officer wrote, “a judge advocate is also counsel for the prisoner and has a duty to prevent, in many instances, the perpetration of injustice.” De Hart’s purpose in writing his text, in his own words was; “the observation of such irregularities which the author in his capacity as the acting Judge Advocate of the Army was frequently called to notice has been the leading cause.” The Supreme Court used to cite to this work until Winthrop published Military Law & Precedents

    And of course, Winthrop would have been appalled at the Navy trial counsel, defense counsel, and judge. He would have found this a dereliction of duty and ordered the judge advocate suspended from duties. He wrote, “a judge advocate must have a thorough knowledge of the law, of evidence, and of his ethical duties to the prisoner; failing such standards, the Department commander must relieve him from duty.”

    So why is the wisdom of the Nineteenth Century lost to us – and in this instance our Naval brethren?

    One can only wonder, but this is the sort of foolishness that puts the overall military justice construct at risk.

  72. Anonymous says:

    Isn’t one of our esteemed contributors the Department Head for this much maligned LCDR(sel.) TC? Haven’t heard anyone come to her defense with facts that would explain the lapse.