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?

20 Responses to “DON No NJP Legal Advice Policy Rebuffed in EDVA”

  1. Sucker punch says:

    Reading this opinion, it appears the Gov argued that civilian prosecution is a different animal than military admin/discipilinary action. However, reading b/w the lines it appears it was the policy for the military SAUSA to take NJP DUI cases to trial in Federal court after the NJP was adjudicated IOT ensure that the violations were recorded on the relevant driving records. On its face, this seems like a bit of a sucker punch to tell a Marine on one hand that his “minor” offense will handled at NJP so he can avoid a federal conviction while on the other hand arranging a federal prosecution through the SAUSA. This opinion may get overturned and this NJP + federal court prosecution tactic may be legal but as a policy matter it seems to fail the “taint fair” test.

  2. Bill C says:

    Agreed. When I was on active duty in the Army JAG Corps DUI on base was either handled by NJP or Magistrate Court. Not both. The service member got a GOMOR either way, but was not punished twice. That policy stinks.

    I have done a good amount of work in District Court. Generally you have one magistrate for every 3-4 judges. If the government appeals it will go to one of “his” judges randomly assigned.

  3. John O'Connor says:

    Issues I see:

    1. These Marines had no “right” to court-martial. They had a right to refuse NJP.

    2. Given that, if you conclude that the Marines had a right to greater advice, and were denied that advice, isn’t thre remedy to invalidate the NJPs they accepted based on the faulty advice? The remedy here presupposes that the Marines had a right to refuse federal court prosecution, which they simply did not have.

    3. You could day that if the Marines had refused NJP, they would have been court-martialed, which in turn would preclude a federal court prosecution. But there is no reason a refusal of NJP could not have been met by a federal court prosecution instead of a court-martial, so I’m back to the remedy (assuming there is a lack of sufficient advice) is invalidating the NJP and not the federal court charges (though maybe any admissions made at NJP are excluded from the federal court prosecution).

  4. JAGermeister says:

    Seems like this legal opinion overlooks the fact that Article 15 does not give servicemember’s a right to counsel prior to accepting or declining NJP. JAGMAN 0109 specifically says “there is no right for an accused to consult with counsel prior to NJP.” Except for the special case of servicemembers embarked on a ship, all Art 15 requires is that they accept NJP and waive their demand for trial by court-martial. U.S. v. Booker came to the conclusion that due process required that a servicemember be informed that he or she could speak with an attorney prior to accepting or declinging NJP in order for evidence of the prior NJP to be admissible against him or her at a later court-martial. Booker did not require the military to provide free legal counsel. It only requires that a servicemember be informed of his or her right to meet with an independent counsel prior to accepting or declining NJP. Whether or not the servicemeber decides to exercise that right, Art 15 and due process under Booker are satisfied the waiver is valid once they have been informed of their rights at an Art. 15 hearing and are told they can meet with an attorney. Whether you like the practice of criminally prosecuting Marines with DUI after an NJP or not, unless there is some evidence they were misled by the defense counsel, seems like these waivers are valid to me.

  5. brian le chien says:

    Question: Was the SAUSA trying to use the Marine’s statements or the NJP findings as evidence in federal court?

  6. Stewie says:

    In general waivers are valid only if they are knowing. Saying “well they were given all of their rights under Art. 15 and Booker” does not per se answer the mail on whether a waiver is knowing.

    There is a nearly absolute right to refuse an Article 15, and thus servicemembers should have some basic information to make a knowing assertion (or waiver) of that right, including the legal basis of the charges against them, the relative strength of the government’s case, how courts-martial work, etc.

    Just meeting with an attorney does you no good if all they will discuss with you is the format of an Art 15 and/or court-martial. How does that contribute to a knowing decision on which outcome to pursue.

    And it’s word-play/semantics to quibble over “right to court-martial” versus “right to turn down an NJP.” No one is confused about what is meant here.

  7. Bridget Wilson says:

    Well, perhaps I talk to more individuals with problems stemming from the collateral consequences of NJP than some. For example, I spoke with a guy who discovered that his NJP showed up on a background check for a hunting rifle on the NCIC . He finally got his rifle but it took several months. He also discovered that there was no way to have the entry removed, so any background check will report the NJP. He had been unaware that the Article 15 would be reported to CJIS and therefore appear forever on the NCIC. (See, DODI 5505.11). It appears that many commands are also unaware of the requirement or simply reluctant to report, so my sense is that many if not most NJP do not get reported to CJIS. That is quite the collateral consequence for a procedure that is supposed to be administrative correction and avoid the negative consequences of a federal conviction.

    Perhaps I am just old – thinking back to when NJP genuinely was an administrative correction that was not intended to end the career of SPC Snuffy or SR Jones. Once upon a time NJP was a way to make an example of minor bad behavior and allow (in my region) the sailor or Marine to move on. Obviously that has changed. I wonder how many military counsel are advising their clients that an NJP may show up on an NCIC into perpetuity?

    A service member who finds that after agreeing to NJP that he still faces a federal court prosecution will likely walk away with a pretty negative idea of military justice-heads we win, tails you lose. It certainly does nothing to inspire confidence in the system. It may be naive, but there is some expectation of fair play among service members-at least in my experience. Turning NJP into a game of “gotcha” doesn’t seem like a good idea to me. But, that may stem from my long ago days of being SPC Wilson. IMHO.

  8. Dew_Process says:

    Then there’s the AF which provides counsel for all NJP’s and Summary C-M’s, unless affirmatively waived. If there is to be “uniformity” within the UCMJ, here’s a good place to begin. If not abused, the Navy’s exception for those “attached or embarked upon a vessel,” would seem to be appropriate BUT FOR the fact that it becomes a permanent “criminal” record, as Bridget notes above.

  9. John O'Connor says:

    Yeah, but Stewie the distinction here is important. You might think that everyone knows what’s going on, but any way you slice it these Marines had no right to insist on a court-martial that would preclude federal court prosecution. What they had a right to do was accept or refuse NJP. If their advice was constitutionally insufficient (and I note Booker only states what is required to use the NJP as evidence at a later court-martial), that might invalidate the NJP but it can’t somehow immunize the Marines from federal court prosecution.

  10. Charles Gittins says:

    When I was on active duty, I routinely ignored the JAGMAN and rules about providing substantive advice about the offenses for Marines seeking NJP advice. This decision validates my law school training, which told me that if you don’t advise a client or potential client with respect to his specific circumstances, it is a waste of time, and possibly malpractice. Waiving the right to trial by court-martial (the right provided in Article 15) cannot be a knowing waiver if the client is not provided substantive advice about his/her particular circumstances.

    In addition, I don’t like the idea that the G gets a waiver of the trial right and then goes into Fed Court seeking a conviction. It looks bad, smells and and reeks of overreaching.

  11. Stewie says:

    Can’t agree John, they had the right to force the military to go to court-martial if they wanted to punish them for the alleged offenses or to accept the NJP process. Is that a “right” to court-martial, semantically no, but that’s more or less quibbling and playing semantics. They have a right to choose the process by which the military prosecutes their alleged misconduct, NJP or C-M.

    The real issue was that by not understanding their right to turn down NJP, they were thus exposed to both NJP and civilian federal trial, but if they’d understood how C-M work, they might have decided to go to C-M thus avoiding civilian trial.

    Now a fair point might be made that since NJP does not per se preclude C-M on the very same charges (bad form but not impermissible so long as the punishment is factored in) that it shouldn’t preclude federal civilian trial, but a C-M absolutely does preclude federal civilian trial on the same charges.

    I’m just glad the Army doesn’t operate this way. It’s at best ill-advised and at worst an abdication of basic attorney responsibility to make sure a client makes an informed decision.

  12. Bill C says:

    Charlie: I assume SOL has run so you can’t be prosecuted for Dereliction of Duty. :) I did the same thing. It is malpractice to tell someone “These are your rights” without giving them the full picture. And while we can quibble over whether this case will be reversed, the bottom line is the policy is wrong: They are telling Marines “If you accept NJP you won’t be court-martialed and won’t have a federal conviction” knowing full well that they will be sent to federal court and will still have a federal conviction. It is deceptive and engenders the perception that the process is just there to screw the service member.

  13. Random TC says:

    Self inflicted Govt wound. Simple, don’t NJP people and then have your SAUSA take them to court. If it’s worth a court case, take them to court-martial. Read the rules SAUSA/TC/SJA, they cannot refuse SPCM. Another dumb decision by someone who probably shouldn’t be making the decisions in the first place.

  14. Cloudesley Shovell says:

    Bridget: Probably the main reason most NJP’s don’t get reported to the FBI is because no DoD criminal investigation organization (DCIO) was involved in the investigation of the underlying offense. I gave DoDI 5505.11 a quick read-through, and it looks like the reporting requirement only applies in those cases where the underlying offense was orginally investigated by a DCIO.

    The instruction also obligates followup reporting if a conviction is overturned by a CA or on appeal. Wonder how often that happens.

  15. Ama Goste says:

    As a former state LE agency employee, another reason most NJPs don’t make it into NCIC is because NCIC is a fingerprint-based system. If no fingerprints are taken/forwarded, no NCIC record appears.

  16. John O'Connor says:

    We can all probably agree that this is not a good process followed here. But it’s clearly untrue that the accused does not get to demand a court-martial and thereby grant himself immunity from a federal court prosecution. He can refuse NJP and thereby tell the military that if he is going to be punished within the militarty justice system, it must be by court-martial. That’s not quibbling, that’s just being faithful to the rules that exist.

    The accused doesn’t control the military and civilian justice systems, he just gets to decide whether he wants NJP.

  17. John O'Connor says:

    Change “untrue” to “true” in the last post.

    [I will proofread my posts . . . I will proofread my posts . . .]

  18. Brian Mizer says:

    With no chance this comment will have a substantial likelihood of materially prejudicing this case, I would suggest the practice is more than bad process or bad form. John, you are absolutely right that there is no right to demand court-martial even though paragraph 3 of Chapter V, Non-Judicial Punishment Procedure is captioned “Right to Demand Trial.” A servicemember has the right to refuse NJP, and the United States must then decide to prosecute him in either an Article I or Article III court. While I would also agree with you on the narrowest holding of Booker, that holding was based on the premise that the election of NJP or a demand for court-martial involved statutory rights and basic due process under the Fifth Amendment.

    The problem with the Quantico practice is that nobody ever sits down with the Marine when he makes an election involving due process and statutory rights and asks him in plain english whether he would like a federal prosecution or federal prosecution and non-judicial punishment. If due process is a shield against unfair and deceptive government practice, it is hard to imagine a more deceptive practice by the government, whether intentional or not.

  19. Mike No Man Navarre says:

    If BM didn\’t stand for something gross, I\’d <3 Mizer.

  20. Ed White says:

    Finally found time to read the Espinosa opinion. The magistrate spends a lot of time discussing NJP, court-martial & adsep (and getting a number of points wrong, along the way), but where the rubber meets the road, i.e. why the federal charges should be dismissed, he provides absolutely NO justification for his action. Even if everything he said previously was correct, none of that explains why dismissal of the federal charges is the right answer under the law, or what his authority is for dismissing the charges. Why isn’t the right answer ‘You may be prosecuted in federal court, because there is no legal basis for dismissing the federal criminal charges, but you get credit for your NJP against any sentence by this court.’?