MAJ Derrick W. Grace’s piece in the December Army Lawyer is my favorite kind of law review article — it reports new empirical research that expands our collective knowledge.  See MAJ Derrick W. Grace, Sharpening the Quill and Sword:  Maximizing Experience in Military Justice, Army Law., Dec. 2010, at 24.  MAJ Grace sent a survey”to all Senior Defense Counsel and Chiefs of Justice,” receiving 107 anonymous responses detailing the military justice experience of the judge advocates in those billets.  Id. at 24 n.3.  Among the findings: 

• “53% of TCs tried less than ten total cases; 78% prosecuted less than five contested courts-martial.”  Id. at 25. 

• “Forty-three percent of defense counsels responding to the survey have less than one year of MJ experience; 39% have tried fewer than five total courts-martial; and 62% have less than five contested cases (81% have less than 10).”  Id. at 26. 

• “Senior trial counsels (STC), senior defense counsels (SDC), and chiefs of military justice (COJ) possess much more experience, on average, than the TC and DC, but even their statistical data is troublesome. Seventy percent of STCs have less than ten contested courts-martial and 30% have less than two years MJ experience; 22% have less than five contested cases; and 44% have less than ten contested cases. Eleven percent of SDCs have less than one year total MJ experience; 11% have less than five contested cases; and 55% have less than ten contested courts-martial.” Id.

Among the changes the article proposes to deal with the Army’s dearth of military justice experience are:

• “[P]lac[ing] experienced litigators on all contested courts-martial” to ensure proper mentorship of inexperienced counsel. Id. at 31.

• Making some senior military justice positions “‘coded’ billets” requiring specified Additional Skill Identifiers. Id. at 32.

• Placing warrant officers in charge of post-trial processing. Id. at 33.

• Creation of “regional military justice practitioner (RMJP) position[s] at major installations with area jurisdictions.” Id.

The article also concludes that [p]erhaps the best way to ensure that the JAG Corps is providing quality military justice counsel is to implement a military justice career track similar to the Navy’s.” Id. at 34.

7 Responses to “Article on whether the Army needs to change its approach to growing military justice practitioners”

  1. Dew_Process says:

    This was a very good and informative article, with one slight flaw, i.e., the failure to discuss TJAG “certification” IAW Art. 27(b)(2). A more robust requirement, versus rubber-stamping, would go a long way. At one point in time, the AF required a JAG to second-chair at least 5 trials and have 2 MJ’s and the SJA attest that the individual was qualified to be certified. That was not a panacea of course, but it kept a few folks who had zero courtroom skills (and generally interest) from being certified.

    One other point – one of the “named” people responding, MAJ J.J. Merriam, is one of the finest trial attorneys I’ve ever had the privilege of working with.

  2. Stewie says:

    My two favorite recommendations, removing the COJ from doing post-trial (thus freeing them to do solely training/mentorship of counsel) and creating a criminal justice track.

    There will still be plenty of people interested in an SJA track, and there appears at least to me to be a large amount of my peers who actually prefer being a BJA or doing other jobs to doing criminal justice.

    I think those two things alone would go a long way.

  3. Matt says:

    I attended a conference at USACIL once and spoke to a girl who was about to move over to TDS. She had spent three years doing legal assistance and was now about to be a defense counsel, having never once done a court-martial.

    I can’t see how that is a good idea. While I obviously never witnessed her in trial and she may have been great, it didn’t make much sense to send someone who had literally no court experience into the fire as a defense counsel.

  4. Stewie says:

    that’s pretty much how I rolled, LA to TDS.

    I think it is mitigated somewhat by the support/training system TDS has. Conferences twice a year (one national/one regional) an RDC who’s only job is training/supervising, an SDC who’s main job is training/supervising, and a region of counsel you can call to get help.

    The government simply doesn’t have that. The SJA has other things on their plate than just crim law, the COJ’s main job is post-trial, and the STC may have six months more experience than the TC they are supervising.

  5. Anon says:

    While it may be true that military justice practitioners are less experienced than 10 yrs ago (I’m not so sure I agree with that major premise), I doubt the Army is going make wholesale changes based on a survery conducted with 107 responses. There are major resources (conviction rates, appellate overturn rates, IG and ethical complaints) which were not considered and there is no historical data included. Not to sharpshoot, but it is a scholarly law review article with some pretty shallow source material.

  6. Eric Coulson says:

    One of the huge challenges facing MJ – or at least it was for me in my jurisidiction is convincing CoC’s to prosecute. There was an article in Army Lawyer about deployed justice not to long ago discussing the challenges. One of them is a serious lack of willingness to prosecute based on the resources such cases take. I think that carries over into a garrison envrionment.

  7. C says:

    The MJ shops should absolutely be moved out of the post trial process . . . but it makes too much sense so it won’t happen.

    I think the problem is really the JAGC’s focus for so many years on operational law to meet the needs of commanders in the field. We as a JAGC moved away from our statory mandate, criminal law. Now we are playing catchup on training and trained personnel.

    @Anon 1625 – What do conviction rates and IG complaints show you about MJ experience? 10 yrs ago OPLAW was a niche market and no one had ever heard of a Brigade Judge Advocate, but everyone could tell you who the COJ was and when the next Crim Law OPD was being held. Now, we are trying to catch up with shifted focus the past few years. Should we really be mesuring the degree of experience the JAGC has simply by the rates of conviction/appeal? What shows more experience a higher or lower rate? Why???

    @Eric, do you really believe the problem is convincing the commands to prosecute??? Maybe the cases you have aren’t CM-worthy? After all, the UCMJ is the commanders’ tool we are merely advisers. I will agree the calculus is different downrange, but come on the problem isn’t an unwillingness to prosecute!