Important Note: I’ve been advised that this article had some unfortunate edits made to it prior to publication that removed some key language. Specifically, it was supposed to discuss prosecutors and defense counsel, and career tracks for each, establishing career professional litigators in the judge advocate communities. The online version has been updated. This is also a longer research paper in the works discussing this proposal. I have also revised the title of this post to more accurately reflect the article.

Heritage fellow Cully Stimson wrote an interesting article a couple of days ago about the need to reform the military justice’s prosecution system, starting with the prosecutors:

To address a major part of the problem [of sexual assault in the military], Congress should fundamentally restructure a key aspect of the Judge Advocate General (JAG) corps. Congress should mandate the creation of career prosecutors within the respective services combined JAG corps. Unless and until that happens, many of the problems will persist.

He sees the steps the services as taking now, such as hiring HQEs to assist inexperienced prosecutors, the one-week prosecutor courses at the service JAG schools, and other measures, as inadequate.

Rather:

Congress should require the services to do the following:

  • Recruit talented law students who want to be prosecutors;
  • Require the services to establish a career track for prosecutors and keep those prosecutors in court for their entire careers as prosecutors;
  • Develop prosecutor-specific training protocols throughout the 20-plus-year career of those prosecutors;
  • Cease co-training with defense counsel;
  • Design a viable 20-plus-year career path for JAG prosecutors that gives the best performers the opportunity to attain the rank of O-6 (colonel/captain); and
  • Require that the service judge advocates send new prosecutors to larger commands first, where they will prosecute only misdemeanor cases for at least five years, including no felony cases that are referred to special courts-martial.

42 Responses to “Stimson on the Problem with Military Litigators”

  1. reformingmillaw says:

    I strongly agree with Mr. Stimson’s comments that advocate for a specialized career path for military prosecutors, as opposed to the generalist career progression that currently exists for the vast majority of military lawyers. I would suggest that his proposal should be modified to allow new military attorneys to practice in all core displines prior to the graduate course, but then specialize in a specific career path (i.e. military justice, administrative law, etc.). Then, around the time they reach the O-6 level they could transition into senior management type roles where they once again manage in a more general role, such as the time they reach the SJA level. The lack of generalized knowledge would be supported by experienced middle level managers and practioners, such as chiefs of different departments, who would provide the subject matter expertise. The military justice system does not need to be exactly like its civilian counterpart because there are differences, but specializing in a professional field is one area that it should adopt. I wouldn’t want a general practice doctor to perform open heart surgery, and likewise the Army and Soldiers could benefit from a specialized prosecutor as opposed to a general counsel.

  2. AFJAGCAPT says:

    I’m not sure how viable a solution this is, but inexperience and lack of oversight are definitely issues. I’ve been in four years and don’t claim to be a stellar litigator, but I shudder thinking about some of the mistakes I made with victim/witnesses as a very junior TC. In the AF in particular, it’s tough; we are thrown in the courtroom right away (a selling point for recruiters), but cases are just one of our responsibilities along with legal assistance, normal civil law regulation reviews, etc etc etc. Its a system that teaches a lot, but it definitely breeds mistakes.

  3. Lieber says:

    Some interesting ideas…but I guess he doesn’t know that JAs don’t do SCMs….also…even if they did…good luck on retention after five years of that.  We’d have to redo the UCMJ from scratch to accomodate that idea.

  4. Lieber says:

    Whoops, just looked at who the author is.  Ok, is there an Army/Navy difference that I’m not aware of?  There is simply no way, in the Army under the current system, that Judge Advocates could try “misdemeanors”…
    There’s also the problem that five straight years at Bragg or Bliss or Hood would do horrible things for retention…

  5. ResIpsaLoquitur says:

    I can’t speak for the other services, but it seems like the Air Force organically develops career prosecutors anyway.  Young attorneys who have a knack for and love of prosecution tend to get the lion’s share of cases and end up serving as a Chief of Justice.  They tend to end up as the ADC nominee and then go on to work as an STC, SDC, and then in one of the appellate branches.  These folks can easily end up with a decade’s worth of justice experience.
    I’m not sure what his beef is with “co-training with defense counsel.”  Other than the Air Force’s two-week TDAC course, I don’t think we have a heavy emphasis on any co-training.  Besides, requiring a prosecutor to do a stint as an ADC just makes better prosecutors, as it makes them a lot more conscious of appellate pitfalls.

  6. Anonymous says:

    Sounds like the article is merely proposing that lawyers not be treated as fungible assets.  Shocking concept.

  7. anon says:

    Is this really an issue? Is there any statistic data to support that inexperience from TCs is resulting in a higher rate of acquittals or errors during prosecution? Mr. Stimson appears to be a former JAG himself so not sure how the obvious issue of five years of “misdemeanor” trial practice before getting into the big leagues slipped by.  The issue with this type of article is it is adding to the misinformation out there and by the nature of its publication on the internet becomes the factual basis for collective confusion on the part of the media. 

  8. AF Capt says:

    @ Lieber:  FWIW, in the AF a JAG will try summary courts-martial.  The biggest benefit is to give experience in a low-risk environment for new JAGs. 
    @RIL:  I’ve heard the new word on the street is that people will do two base assignments before taking an STC/SDC assignment.  That would seem to slow development, even if it assists the dispersion of experienced litigators at the base level.

  9. aflapr says:

    OK – but when considering these broad proposals, please consider the Coast Guard. We had less than 30 cases go to special and general CM’s last year. There are not enough cases and not enough judge advocates to make that work. Now, expanding the MOA with the Navy to include trial counsel might be an option – but there still has to be a way for USCG judge advocates to get military justice experience or our senior folks will be deficient as SJAs.

  10. ARMYTC says:

    @RIL The SATAC course put on by TCAP and DCAP is co-training with TCs and DCs.
    I think the author is off base. I’ve seen new TCs who can spank any civilian prosecutor fresh out of ITAC, and I’ve seen “experienced” TCs who can’t find a coherent closing argument with two hands, a flashlight and written directions.
    I’m also not sure that a career “prosecutor” is the way to go. Maybe a concentration as a criminal law specialist, sure. I’ve been a TC for almost three years and I’m sure time as a DC could temper me some…and probably make me a better prosecutor.

  11. ResIpsaLoquitur says:

    @AF Capt–
    Eh, I’ve seen it go both ways.  I’ve known at least a few attorneys who do a base level assignment, move into the ADC slot, and then PCS into another base-level slot.  (In one case, I knew a former ADC who then worked as the Chief of Justice.  I think the prior position served that person well, as they were less overzealous and more “what can we actually prove in court?”)
    As to slowing development, I should point out that the Air Force’s philosophy has apparently been to treat every attorney as a potential TJAG in the making, meaning you actually want to broaden their experience, not focus it.  Like I said, people do seem to organically track themselves into certain fields anyway (justice being one of the better examples).  The downside is that an overfocus on justice risks creating a deficiency in other arenas.  If you’re someday working for a commander who has a critical issue on, say, your civilian SARC suing the base for sex discrimination or a multi-million dollar environmental lawsuit, you don’t want to punt and say “I’m not trained in that, but let me know if you have a rape victim come forward.”

  12. Some Army Guy says:

    @anon.  Good question.  I do believe that the Army JAGC could benefit from a core of dedicated litigation specialists, but I don’t know if that addresses any of the “problems” with sexual assaults.  When I look at the technical expertise of our Trial Counsels, Defense Counsel, and SVPs when handling sexual assault cases, it is much better than it was 10 years ago.  That being said, I don’t know if it has improved the product, because the facts, victims, and witnesses still suck.
     

  13. stewie says:

    We leave prosecution (and defense) in the hands of CPTs, maybe Majors once in awhile, then we move on to the Jack of All Trades everyone needs to be a DSJA and SJA model.  I concur that there needs to be more O-4s and O-5s even in the court room on both sides of the aisle as a viable career path for the most talented (which i won’t even pretend would be me).
    By the time we grow experienced trial litigators we first consign them to teach at best, but if they want to get promoted, we move them on to other areas of JAG practice.  That’s not conducive to doing anything but remaking the wheel every couple of years in training experienced advocates.

  14. NavyJO says:

    FWIW, Navy is actually doing this I believe with a new litigation track program. O-3s apply for it fairly early on, and if they get in, they get additional training/etc. It also is supposed to be a bonus when it comes time for promotion consideration, although I’m not sure if they have gotten to that stage yet.

  15. Christopher Mathews says:

    One of my better bosses used to go to gatherings of his fellow O-6 JAGs and tell them that, inasmuch as military justice is supposed to be a core competency and courts-martial are our primary (some would argue only) statutory responsibility, they ought to go into court a try a few cases from time to time.  Just to keep up their proficiency, like pilots.
    This suggestion was not particularly well-received.

  16. k fischer says:

    RIL, 
     
    Congress doesn’t call the Post Commander or TJAG onto the carpet for an employment and envirnomental lawsuit like they do for sexual assault.  Every SJA should be well trained for military justice, as that most likely, comprises the majority of each weekly SJA meeting with the CG.  What if Congress modified the UCMJ to create civilian prosecutors at a court martial, who could augment and provide experience and continuity to sexual assault prosecutions?  Why does the Trial Counsel have to be a Judge Advocate?  If there is a civilian with experience in SA cases who does not mind living in Killeen, Texas or Augusta, Georgia (no offense Bill), then they could provide the experience and continuity required to satisfy Congress’ desires to get SA convictions.  Warning:  whoever that civilian is will be hated by many.
     
    As far as Stimson’s proposals, if the current measures (which an SVP is included) are inadequate to ensure that a Judge Advocate is competent to prosecute a sexual assault charge, then neither is a TDS counsel.  For instance, the TJAG submitted a statement to the Senate in March 2013 that stated: 
    To provide continuity and develop expertise, we have assigned SVPs to 3- year tours and developed a strategy to assign former SVPs to positions that will utilize their skills. We are growing and developing a corps of Judge Advocates educated and experienced in the adjudication of these difficult cases. Looking to the future, we will expand and formalize the concept adding additional resources and personnel to establish a premier Special Victim Capability, consistent with NDAA ’13 direction.
     
    So, if TJAG justifies keeping prosecutorial authority with Judge Advocates because SVP’s are competent, whereas, otherwise, they would not be competent without the SVP training, then does that mean that regular old TDS counsel who have not been SVP’s cannot be certified as competent under Article 27 to defense an accused in a SA court martial?  
     
    Has anyone seen an accused bring a motion for attorneys fees to pay a civilian attorney because he did not believe that the JAG Corps could provide him a competent defense counsel or a defense counsel wtih similar qualifications as the trial counsel? (Obviously, this would be brought by a civilian defense counsel)

  17. ResIpsaLoquitur says:

    @Christopher Mathews–
    That idea gives me a bit of pause for concern.  Should we start prosecuting more cases just for the sake of JAG development, as opposed to doing so because it’s just, fair, and furthers the mission?  A good example would be drug prosecutions.  I can’t speak for the other services, but my experience in the Air Force is that we tend to only prosecute a drug case (as opposed to NJP) if it: a) involves a repeat offender, b) involves something “harder” than pot, or c) involves distribution or manufacturing.  The normal response is to hit them with NJP and an admin discharge to get them out the door as quickly as possible.
    Now, drug abuse cases involving admissions, witnesses, or UAs followed by a confession are great and typically lead to a guilty plea anyway, so they’re great for training JAs on the basics of a sentencing case.  We could easily train up young JAs by putting them on a few dozen simple drug cases every year.  However, I see two problems with that: one, we’re subjecting other human beings to an emotionally taxing process and the pain of a permanent federal conviction just to train ourselves.  This is potentially abusive, and makes me worry that we’re being bullies for the sake of benefitting ourselves with training.  (I am not opposed to drug convictions per se, but any prosecution takes a heavy human toll, and I’d rather we prosecute because it’s right and just than because we “need training.”)
    Don’t like that answer?  OK, number two is that commanders want to get these pot-smokers out the door, away from the guns and the dangerous instruments, and off the federal payroll.  They also want to get replacements in, which they can’t do until the pot-smoker is off their rolls.  NJP and an admin discharge gets them the hell off our backs and leaves the sting of a less-than-honorable discharge.
    I’m all in favor of more training and even more actual practice opportunities, but not at the expensive of the two reasons I just listed.

  18. ResIpsaLoquitur says:

    @k fischer–
    I can meet you halfway on that: I wouldn’t mind if we had more civilians doing non-justice work such as labor and environmental.  (Many bases are already doing this.)  The Air Force has largely flipped on labor: instead of military base attorneys doing 1-2 year rotations on EEO/labor, there now tends to be a JA doing some other job with labor as a collateral duty.  Much of labor is now at a central office with a lot of civilians who provide continuity and experience.  Environmental law hasn’t flipped yet.
    I could support a system where all labor, environmental law, and contracts are assigned to permanent civilian attorneys at a base so that the JAGs are freed up for justice, operations, and legal assistance.  The SJA and DSJA will still need to have a basic familiarity with those issues, as they are the primary focal point with the commander and responsible for the competent operation of all subordinate attorneys.
    However, I wouldn’t totally discount the importance of those issues to the JAG field.  No, they haven’t been called before Congress on an oil spill or discrimination suit…yet.  I have seen fairly significant discrimination claims and unionization issues which caused severe disruption to the base community and the commander’s ability to work the mission.  SA might trump a discrimination suit to most people, but tell that to the commander who hasn’t been able to fire an unproductive employee who’s also sic’ed the NAACP on him.

  19. Christopher Mathews says:

    @ RIL –  I don’t think the colonel was proposing to gin up a trial for training or proficiency purposes.  His point was that senior JAGs are often many, many years removed from the courtroom … something that he did not regard as a good thing.

  20. paleo says:

    I’m wondering if anyone is keeping statistics on 1) conviction rates pre and post Congressional attention on this issue, both for SA cases and others, 2) the availability and case load of prosecuting v. defense attorneys in the military justice system, prior to making suggestions that prosecutors should receive amplified training and opportunity without the same proposed for defense counsel, 3) in the future, if reforms are brought into place, how much commanders elect to move proceedings into administrative or other venues prior to a prosecutor or other making the decision on whether or not trial is necessary.
     

  21. LCDR X says:

    I fundamentally disagree with the premise of Stimson’s article, which is that the “problem” here is a lack of sufficiently experienced prosecutors.  I don’t think the government is losing sexual assault cases, or failing to prosecute them, because our trial counsel aren’t good enough at their jobs.  The problem is much more complex than that.  For starters, a good number of the cases we prosecute would never see the inside of a civilian courtroom, and that’s not because inexperienced prosecutors are recommending that the cases be tried – it’s because of a political environment that compels convening authorities to send these cases to trial.  When the cases do reach the courtroom, they’re often met with members panels that are vastly different than civilian juries due to their education, training, and the service culture they share with the accused and victim.  Finally, we let these cases drag out forever because we don’t adequately resource either our criminal investigation offices or our trial shops, and that ultimately has an impact on the viability of the case.  Stimson’s article amounts to saying that the JAG Corps is to blame for the military’s sexual assault problem, and that’s neither accurate nor fair.  Disappointing coming from a former JAG.

  22. Atticus says:

    I was a “career prosecutor” in the Marine Corps while I was on active duty, although they never called me that.  I was always warned that I would never get promoted unless I got out of the courtroom and “into the fight,” I guess meaning being an SJA for an operational command.  I avoided that like it was the plague.  I nevertheless made it to O-5 on the active duty side.  But I think people like me, at least in the Marine Corps, are rare.  It’s because your bosses constantly try to get you out of the courtroom.  And wanting to get promoted, people heed that advice.  Being technically proficient in the one core duty required by law is not rewarded in the Marine Corps.  That is why we have fiascos like Haditha.  We have a bunch of SJAs who are years removed from what actually happens inside a courtroom and they advise commanders to “tee up” cases that have zero merit.  That is the problem, not a lack of competent prosecutors.  Stimson is a former Navy JAG and he apparently belives the Navy’s career designation program actually means something.

  23. Ex TC says:

    Military justice is a dwindling area as the line simply won’t support it.  The glacial pace of cases makes it impractical for SPCM’s vice admin sep. Stimpson is a former Navy Jag, nice guy, but wholly out of step with the times. Simply put, the military does not have the case load to grow top notch experienced litigators akin to top level stae DA’s and AUSA’s.Without increased loads, who in the world wants to sign up for five years of limited or no litigation as an intro to a job career. I’m not saying ring up people for Jag experience but without good cases for litigators, commands, CID investigators to learn from, I fear much won’t change. Lots of cases happen, most commands and investigators are more than happy to take them right to that state DA, with many SJA’s thankful blessings. 

  24. rob klant says:

    And even less reason to waste scarce resources on courts-martial and counsel if commanders wind up having their authority restricted/eliminated.
     

  25. Marshall Wilde says:

    JAGs might get more courtroom experience with “misdemeanors” if we would appropriately prosecute domestic violence and DWI in courts-martial, instead of disposing of them with NJP.  I mention these in particular because there are important civil consequences for a conviction, which receives zero weight in the military calculus.  (Indeed, a CC who wants to keep a soldier after a DV incident might well be advised to AVOID a court-martial.)  The commander as employer has an essential conflict with the commander as disciplinarian in these cases.  Some guy wrote a law review article to this effect in 2007…http://www.afjag.af.mil/shared/media/document/AFD-081009-007.pdf.  

  26. Brendon says:

    In the AF, I doubt you could keep anyone in a career prosecutor track — they’d burn out from all the travel.  We don’t have enough courts to support a “career prosecutor” at each base, so you’d end up with a crop of folks who are, essentially, perminant Senior Trial Counsel and spending 200+ days a year on the road.  That won’t wash.
    As it is, its pretty easy to get on a litigation track in the AF.  Using myself as an example, I came in to my first base and was a TC.  Then off to being an ADC, and back after that to base level TC.  Then on to being a CDC (circuit defense counsel — now an antiquated term), a stint at Appelate Government and finally a gig as a Senior Defense Counsel.
    What we really need is a viable way to for senior O4s, as well as O5s and O6s 6 to get into court (as something other than the judge or the accused).  Litigation skills are perishable — creating a way to keep senior JAGs in the game be a great help to all involved.  
    Of course, our real problem is not with our prosecutors (though they could be better — couldn’t we all?) so much as the case profile they prosecute.  You just don’t see local DAs prosecuting “I/he/we were drunk in a dorm room” rape cases.  On the military side, those cases go to court all the time — in fact, they are probably the majority of the cases.  Now I don’t have a problem with that — druken date rape is rape and should be dealt with.  But we have to recognize going in that these cases have a high litigiation risk.  They are just inherently difficult to prove.

  27. ARMYTC says:

    @LCDR X, I agree with your assessment that a lot of our cases won’t make a civilian courtroom. A few weeks ago, I was covering for our SAUSA at a meeting with a military sex assault victim. She had been assaulted by her civilian husband. This was the type of case a military prosecutor salivates over. The victim was reliable and confident and there were text messages between the suspect and the victim that corroborated her story. Yet, the U.S. Attorney’s office would not prosecute. They had a rape case five years ago that went so poorly that the judges still mention it. They don’t want to take a “he said/she said” to court, especially one where the victim had been on medication at the time of the assault.
     
    Had the roles been reversed, and the accused was a military member, I have no doubt in my mind we would have prosecuted.
     
    That being said. The solution to sexual assault in the military is not to tip the scales in favor of the prosecution. The solution to sexual assault is TO STOP RAPING PEOPLE.

  28. SPV says:

    In his article, Stimson asks this question: “Why is there no ‘problem’ with investigating and prosecuting sexual assault cases in the civilian criminal justice system?” He then praises the experience of civilian prosecutors and the civilian system generally.
    Compare what happens at colleges across America regarding SA and the reported statistics by SMs for SAs before entering the military.  If you want to praise the civilian system, then follow the comparison where it takes you – which cannot stop at the point of convenience. 
    As some comments have already highlighted, what are the types of cases these experienced civilian prosecutors are winning in civilian court and what are the types of cases that these so-called inexperienced military prosecutors are losing at court-martial?  That issue should be relevant to Mr. Stimson but I am not claiming that military prosecutors are more experienced than civilian prosecutors.  I’m just not sure that’s the issue.
    There is a breakdown of the family structure and traditional values in America.  Watch TV, go to the movies, listen to the radio.  Our culture emphasizes sex at every turn and often denigrates women as sexual objects.  The military is made up of members of society, disproportionately young members, many of whom are brought up in difficult circumstances.  We can speak values of the respective services until we are blue in the face (and we should) but the reality is that society is speaking another set of values and that’s our recruiting base.  My point is that we won’t solve the real problem by changing all or portions of the UCMJ.  It’s about the proper place for sexual relationships and how we value each other as human beings. 
     
     

  29. John O'Connor says:

    I agree (and have personal experience with this as a TC) that commanders will refer cases for trial that have a low probability of success rather than be the one to be responsible for the victim not having her day in court.  I also have seen this happen in cases occurring out in town where the civilian authorities have declined to prosecute.
    The other thing that happens is that even where there is a low probability of a conviction, the facts often involve admitted conduct by the accused that is, if not criminal, highly dishonorable from a moral standpoint (e.g., denying rape but admittedly taking liberties with someone who was pretty drunk).  In those cases, a commander is sometimes so incensed from a leadership standpoint by the accused’s bad (but possibly not criminal) behavior that he’s not going to cut the accused any slack and will let the accused go through a trial to figure it out.

  30. Lieber says:

    Actually, SPV, a problem is that too many in the military, especially commanders, hold to sexist, archaic, patriarchal values and see our sex assault cases through that lens.

  31. k fischer says:

    John O’Connor, 
     
    That is an interesting point.  How often do defense attorneys have clients who are completely clean in a SA case?  I would venture to guess rarely.  A lot of times the accused was a part of a train, married, committing fraternization, having drunken or stoned intercourse or fornicating in a one night stand then acting boorish, so the Commander finds it easier to prefer charges and let the 32 officer tell him what to do.  
     
    As I’ve commented in earlier posts, I heard a commander tell a panel president that the rape case he sent up which resulted in an acquittal was a win-win because at least he didn’t have CNN knocking on his door asking why he didn’t do something about it.  Both this Commander and I truly thought the accused was guilty, but the panel saw it differently.  And, to make your point even more, the facts involved a 36 year old NCO meeting an 18 year-old girl on the internet who was looking for a date for her prom, taking her back to his barracks room where he engaged in consensual intercourse, then went once more into the breach dear friends, which she said was not consensual because he knew she had to be home for her curfew and he admitted in his own handwriting that he “heard her say ‘I really need to go you really need to Stop’ but continued having sex with her until she started crying.”  While he was not a very sympathetic accused, she was not the most sympathetic vic, either. 
     
    Change the facts to him being a 19 year-old PFC meeting an 18 year-old Senior, taking her to the prom, and having sex at a hotel, then perhaps the case would be different and charges would not have been preferred.

  32. Navy Defense Counsel says:

    Setting aside the ongoing debate on sexaul assault cases, the issue with “COMMANDER” Stimpson’s recent Heritage Foundation post is he is currently a Navy Reserve Military Judge assigned to the Navy-Marine Corps Trial Judiciary.  He still presides over Navy and Marine Corps courts-martial.  The original Heritage post argued arguing that the problem with military justice is the lack of career prosecutors.  The only mention of defense counsel wass he doesn’t think prosecutors should attend training with defense counsel.  This is the same CDR Stimpson that was forced to resign from his DoD Detainee Policy position after comments regarding the provision of legal services to detainees at Guantanamo Bay, Cuba, and that companies should consider firing any law firm that provided pro bono services to alleged terrorists.  See, http://www.cnn.com/2007/US/02/02/gitmo.resignation/.  The “clarification” was posted after some in the Navy and Marine Corps questioned his objectivity.  The obvious concern is this is another public statement by this military judge expressing a prosecution bias.

  33. Stu Couch says:

    For perhaps the first time reading this blog, I agree with every comment on this thread. We take cases to trial that would never see a grand jury in the Civ Div.  But then again conduct like United States v. Izquierdo (having sex in the barracks while others present) is punished because military justice is a commander’s tool to help maintain good order and discipline. I fear the SASC may deal a heavy blow to a good (but not perfect) military justice system if the proposed UCMJ changes tinker too much with the CA’s authority, all because one class of crimes like sex assaults are difficult to prosecute and defend. 

  34. Bean says:

    The idea of a military justice track is a good one but it isn’t original.  The article assumes or implies that conviction rates are low because TC are inexperienced.  That isn’t consistent with what I’ve seen, and many DA offices turn these cases because they don’t think they could win them.  Saying the military should adopt the DA model just won’t work in the military for a number of practical reasons. I hate to be blunt, but it reads like the author wrote this one-size fits all approach to appear hard-charging (and be expedient) rather than focusing on realistic and effective suggestions.  How about just build on the STC and SDC models? Sounds too measured.

  35. WWJD says:

    @Marshall Wilde Think it is a bad idea to CM members for DWI and simple assault – even domestic violence.  We already prosecute members for drug USE (failing a urinalysis) which is not a crime in most jurisdictions at all.  One could argue that a simple 15 and boot for these drug cases would serve the interest of Military Justice and save on resources.  TO the contrary I believe more offenses should be disposed with a 15 and boot.

  36. rob klant says:

    Sorry, but no: it’s not the training and experience of counsel — TC or DC — which is the issue in the present crisis.   It’s the system itself which, rightly or wrongly, is perceived as cloistered and self-serving as the Catholic bishops’ response to their own sex scandal.
    However much it would grieve me to see it, I’m leaning towards Professor Hillman’s view that there’s no effective way to address the issue except to remove military authorities — line commanders or uniformed prosecutors — from the disposition of these cases, entirely.
    It wouldn’t be the first time and it needn’t be permanently (Relford, etc. v. Solorio, anyone, as to the part perception and politics plays in the development of the U.S. military justice system?) 

  37. Just Sayin' says:

    a. as has been mentioned, a sitting judge should not be writing opinion pieces like this.  calls into question his impartiality, big time.  b. the Navy, at least, does not have the caseload to support his proposal. c. we aren’t losing sexual assault cases because of inexperience WE ARE LOSING BECAUSE THEY ARE HARD CASES TO PROVE BEYOND REASONABLE DOUBT.
     

  38. Contract Lawyer says:

    I think we all agree the misdemeanor proposal will not work and. It likely to be seriously considered.  My first case was a BCD special and good experience, but some of the charges would be considered felonies and most cases have charges that carry in excess of a year confinement, but rarely nets prison time.  Many Art 15s contain felony charges.
    This proposal would mean more JAGs and potentially greater promotion opportunities.

  39. Phil Cave says:

    As CL points out, and one of many flaws in A Few Good Men.
    The military doesn’t classify felony or misdemeanor.  It is the states that do that.  You can be convicted at SPCM and have a felony, and you can be convicted at GCM and not have a felony – it depends on the charges and comparison to state or federal law.
     
     

  40. Atticus says:

    It’s sort of ironic that Just Sayin says a sitting judge should not be offering his views on the quality of litigation in the DON, when sitting judges are in the best position to offer such viewpoints.  I am at a loss as to how it calls his impartiality into question.  This is exactly the type of baseless assertion that keeps our system from advancing.  Instead of listening to our trial judges we shout them down and tell them to keep quiet, lest they become the next Palmer, and we have a bunch of detached pontificators who get to determine things.  I disagree with the opinions Stimson offers, but I’d rather hear from a trial judge than some “law professor” who doesn’t try cases anymore.

  41. Just Sayin' says:

    Atticus, his article went far beyond commenting on the caliber of military litigants. Here…from the first paragraph alone: “Sexual assaults, including rape, are some of the most despicable crimes imaginable”.  Any defense counsel with even a modicum of experience would demand he recuse himself.  This isn’t about whether a judge can comment generally about the caliber of litigation…it’s about a sitting judge opining on the severity of a specific crime and offering solutions to guarantee more convictions for that crime. 

  42. Contract Lawyer says:

    I mean to say “not” or “isn’t” likely to be seriously considered. My iPhone must have corrected this for me.
    I recall with great fondness watching A Few Good Men when it was in the theaters.  We did an office outing with the SJA.  By the time they said “conduct unbecoming a Marine,” we were still trying to figure out the misdemeanor thing.  This is about as good as the soldier given an Art 15 for not losing weight, the specification read “in that PFC Snuffy failed to repair himself . . .”