In a decision by US Magistrate Judge Thomas Jones out of the EDVA, DON has finally been taken to task for its policy of not providing true legal advice to sailors or Marines facing NJP. See United States v. Espinosa et al., No. 1:10mj453 et al., slip op. (E.D.Va. Apr. 25, 2011) (here). In the 17-page decision Magistrate Jones calls the legal advice provided to the sailors and Marines facing NJP who were subsequently prosecuted in Magistrate Court, “seriously inadequate to permit them to make voluntary, knowing, and intelligent waivers of their right to trial by court-martial where that waiver would result in civilian prosecution.” For those unfamiliar with the DON policy, Magistrate Jones summarizes it:
[M]ilitary lawyers provided to accused servicemembers, in adherence to JAG Manual procedures, make every effort to avoid the creation of an attorney-client relationship. Their advice is limited to the technical aspects of a court-martial and non-judicial punishment. They do not discuss the particular facts of a servicemember’s case. The attorneys discuss the maximum penalties available at a court-martial and through non-judicial punishment, but do not discuss civilian prosecution beyond the double jeopardy implications of opting for a court-martial or the need for the servicemember to appear at his civilian court date. The military attorneys do not discuss the penalties available in civilian court; in fact, both Captain Doyle Feingold and Major Lee testified that they do not even know what the penalties available in civilian court are. Moreover, they do not discuss what further administrative action the military might take based upon the civilian case and/or its disposition.
Magistrate Jones dismissed the charges against the 5 Marines facing drunk driving charges, stating, “[t]heir waivers of trial by court-martial are accordingly invalid, and their prosecutions cannot stand, either.”
I have always thought the JAGMAN policy of avoiding an A-C relationship with NJP accused was fraught with peril. Now we have the confluence of the Denedo/Padilla v. Kentucky precedent, which while not mentioned seems to be the background for the decision, and a Navy policy that was always perilous. I am guessing the government will appeal this ruling . . . to a District Court judge? Does anyone know how judges are assigned in such a case?