Having grown up Navy I tend to initially revert to Navy thinking, and then because of my preference for Army training I look to the Army next.  So, as a result of the arguments over the recent dismissal of a case, I thought I’d take another and closer look at the Air Force rules of professional responsibility.  I have also invited Dew_Process, and he’s agreed, to participate with me in this post.

We think the Air Force has sought to exempt itself from a broader enforcement of constitutional based and other discovery obligations, certainly as a matter of professional regulation.  Bear with us.

The introduction to the Air Force Rules of Professional Conduct, issued August 2005, note that, “The AFRPC is directly adapted from the American Bar Association (ABA) Model Rules of Professional Conduct, , with important contributions from Army Rules of Professional Conduct for Lawyers and the Navy Instruction: Professional Conduct of Attorneys Practicing Under the Supervision of The Judge Advocate General.”  The introduction does give a subtle note that an ABA rule may be “altered,” and shown to be “modified.”  (Note: we are referring to the version of the rules linked to at CAAFLog.)

One would think that the ABA’s own comments and formal opinions interpreting its rules would be dispositive of the intended meaning.  Here the Air Force notes that the ABA comments are not incorporated, but, “counsel are encouraged to consult them for guidance and assistance in placing the Rules in context. In doing so, counsel must be aware that the AFRPC was specifically adapted to the unique needs and demands of Air Force practice, and not all of the ABA comments will be helpful.”

A rule or rules of civility may be partly found in Rule 3.4(d), which is a shall not: “in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent efforts to comply with a legally proper discovery request by an opposing party[.] (Insert here my standard reference to RCM 103 definitions regarding what “shall” means.)

More importantly Rule 3.8 lays out the, “Special Responsibilities of a Trial Counsel.”  Here is where the ABA and other Service’s Rule and the AF diverge.

The ABA rule 38(d) states.

make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal[.]

But the AF rule states, “at sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the trial counsel, except when the trial counsel is relieved of this responsibility by a protective order of the tribunal[.]” (Emphasis added) — that’s it.  Clearly there has been a deliberate choice made here, without comment or explanation why it is necessary to diverge from the ABA rule or the rule applied in the other Services.  Surely a valid military reason to limit Rule 3.8 ought to be disclosed, and perhaps applied by the other Services as well if there were in fact a military necessity a reason.

Thus, in our view the AF has attempted to relieve itself of the Brady burden as a matter of professional ethics and responsibility.

Not so the Coast Guard, in COMDTINST M5800.1, they adopt the ABA language.

Not so the Army, in AR 27-26, they adopt the ABA language.  They do however provide that a TC may request a protective order.

Not so the Navy & Marine Corps, in JAGINST 5803.1D, they adopt the ABA language.

I mentioned to D_P that Virginia is undergoing a robust debate of discovery rules in criminal cases.  So as a Virginia licensed attorney I thought I might see what our Commonwealth Attorneys are required to do.  VA RPC 3.8(d), requires the prosecutor to:

“make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence which the prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment, except when disclosure is precluded or modified by order of a court[.]

So, I’m going to suggest that there may be a regulatory basis for why AF TC’s seem ethically challenged when dealing with discovery issues, compared to their brethren from the other four Services.  I say this with reference to several items that should go on the Worth the Read list.

I have linked to ABA Formal Opinion 09-454, dated 8 July 2009.

I have linked to Bruce A. Green, Prosecutors’ Ethical Duty of Disclosure in Memory of Fred Zacharias, 48 SAN DIEGO L. REV. 57 (2011).

I have uploaded and linked to Donald G. Rehkopf, Jr., “Brady, Ethics, and Prosecutorial Misconduct; A Modern Day Witches Brew,” Syracuse Annual Fall Trainer, N.Y. State Association of Criminal Defense Lawyers (2012).

It appears that, intended or not, the AF has followed the course of a now discredited DoJ policy, which attempted to exempt DoJ attorneys from provisions of State Bar ethics rules.  In the case of Matter of Doe, 801 F. Supp. 478, 488 (D. NM 1992), the Court observed: “In holding to ethical standards, an attorney for the Government cannot be a mere minion of the Government.” Plain and simple, federal lawyers in the Executive Branch, be they AF or DoJ, cannot exempt themselves by an internal rule from their professional responsibilities imposed by their State bars.

The Court in Doe also stated:

Recognizing a Government lawyer’s role as a shepherd of justice, we must not forget that the authority of the Government lawyer does not arise from any right of the Government, but from power entrusted to the Government. When a Government lawyer, with enormous resources at his or her disposal, abuses this power and ignores ethical standards, he or she not only undermines the public trust, but inflicts damage beyond calculation to our system of justice. This alone compels the responsible and ethical exercise of this power.

id., at 480. The District Judge in Doe then held:

 Today, in the context of a disciplinary proceeding, the Government threatens the integrity of our tripartite structure by arguing its lawyers, in the course of enforcing the laws regulating public conduct, may disregard the laws regulating their own conduct. The irony of such an assertion not only fuels public discontent with our system of justice, but the insolence with which the Government promotes this as official policy irresponsibly compromises the very trust which empowers it to act. It falls to this Court to disabuse the Government of its novel self-conceived notion that Government lawyers, unlike any other lawyer, may act unethically.

Id. Accord, United States v. Lopez, 4 F.3d 1455 (9th Cir. 1993).  See also, Beyond Brady: Using Model Rule 3.8(d) for Discovery of Exculpatory Information, Nat. Seminar for Federal Defenders, June, 2010.

Most writers on the topic of Rule 3.8 agree that the rule imposes a broader obligation on prosecutors, than might be found in Brady and its progeny.  According to the National Association of Criminal Defense Lawyers, “In Formal Opinion 09-454, which took effect Jan. 1, 2010, the ABA settled the point, which for years had created some confusion and uncertainty among courts, state Bar Associations, and even prosecutors.”

We have not surveyed every state rules that adopts or is similar to ABA Rule 3.8, and as adopted by the Army, Navy, Marine Corps, and Coast Guard.  But there does some to be enough support for the statement that many states have adopted the ABA rule in its entirety or closely enough.  As and additional part of this process a number of states are now adopting the ABA proposed ethical obligations to disclose post-trial in Rule 3.8(g).  See e.g., Supreme Court of Wisconsin, June 17, 2009.

We close with reference to the Memorandum, Guidance for Prosecutors Regarding Criminal Discovery, issued 4 January 2010.  No, actually we close with a recommendation of our own.

 MEMORANDUM FOR: Chair, DOD Military Justice Review Group

SUBJECT: The Congress should adopt a military uniform code of professional responsibility for all lawyers practicing in courts-martials, and their assistants.  This Code to be administered and regulated by the Court of Appeals for the Armed Forces, in the same or similar manner to how the Supreme Court of the Commonwealth of Virginia administers its professional discipline, once a lawyer has been certified and sworn by the Judge Advocate.

etc., etc., etc.

23 Responses to “Thoughts on the special responsibility of a prosecutor-in the Air Force”

  1. DCGoneGalt says:

    While I am aware of the deviation from the ABA standard I do not see how that exempts AF TC from the Brady line of cases or state rules.  Rather than the trend representing a principled stand, I see the issue as more of a hard line stance to win at all costs in sex cases.  Call me crazy but I, and the TC I have worked with, complied with Brady and I engage in early and full discovery because I have no reason to hide the truth and have always seen the role of prosecutor as seekin justice.  As a DC I enjoyed finding out and springing things at an Art 32 or at trial on TC that they thought they were hiding.  

  2. Dew_Process says:

    @ DDGG – You are correct, it doesn’t exempt them per se.  But like a cop with a defective warrant, it gives (in their opinion) them a perceived “good faith” defense if a Bar complaint is lodged.  Until at least 2 years ago, the AF JAG leadership saw nothing wrong with a senior MJ NOT being in “active” status in his State Bar.  Perhaps the Mike Murphy fiasco had some impact – perhaps not.
    Our point is that – especially for young TC – they get the false impression that they’re doing “the right thing” if they’re in compliance with the AF RPC’s.  The question becomes, just why does the AF think it necessary to deviate from the ABA guidelines?  If there’s a principled reason, then state it.  Considering the fact that Brady is of constitutional stock under the Due Process clause, it stretches credulity to think that such a reason in fact exists.

  3. Charlie Gittins says:

    The problem is an institutional problem — the TC are concerned with winning and drink the Kool Aide to convince themselves that by winning they are “doing justice.”  That is bass-ackwards reasoning. and they get no leadership from their seniors.  Doing justice means dismissing BS cases;it means producing exculpatory evidence.  It means being a Government advocate for justice.  There is precious little TC training on what this duty means.  I won’t waste time with my experiences of failure to disclose exculpatory evidence, but is was not remote and unusual.  I nearly got sanctioned in the SMA McKinney case by pressing so hard with the MJ until the light bulb finally came on in the MJ brain housing group, but it resulted in an instruction to the members that they could consider on the issue of findings the failure of the prosecution to disclose exculpatory evidence that clearly should have been disclosed to the defense prior to trial but was discovered by the defense and disclosed to the court during trial.  The best part was the non-plussed P’s trying to figure out how I found out what they didn’t disclose. THAT was priceless.

  4. Gene Fidell says:

    It’s amazing that the services have been unable to agree on purple professional responsibility rules. This is a major failing on the part of a generation of TJAGs.

  5. Zachary D Spilman says:

    Let’s start by acknowledging that this isn’t a problem unique to the military.

    There is an epidemic of Brady violations abroad in this land. Only judges can put a stop to it.

    United States v. Olsen, 2013 WL 6487376 (9th Cir. Dec. 10, 2013) (ord. denying reh’g en banc), (C.J. Kozinski, dissenting) (link to slip op.) (link to ABA Journal article about the dissent). Note that this quote is only six months old.

    Phil and Dew_Process write about the Air Force Rules of Professional Conduct, and they highlight an interesting deviation from the standard ABA language for the Government’s well-settled and nearly-limitless duty to disclose evidence favorable to the defense. One can only wonder at the staff work that produced this Air Force text. But while I bang my head against my desk over the sheer nonsense (why limit it to “at sentencing”?!?), I can’t agree with the conclusion that “the AF has attempted to relieve itself of the Brady burden as a matter of professional ethics and responsibility,” because I think Rule for Courts-Martial 701(a)(6) is quite clear:

    (6) Evidence favorable to the defense. The trial counsel shall, as soon as practicable, disclose to the defense the existence of evidence known to the trial counsel which reasonably tends to:

    (A) Negate the guilt of the accused of an offense charged;

    (B) Reduce the degree of guilt of the accused of an offense charged; or

    (C) Reduce the punishment.

    R.C.M. 701(a)(6) was promulgated by Executive Order 12473 of April 13, 1984, 49 Fed. Reg. 17152, and I doubt anyone in the Air Force judge advocate community really thinks themselves above President Reagan. Moreover, Rule 3.4 of the Air Force Rules states:

    A lawyer shall not: (c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists.”

    So the Air Force Rules include a duty to abide by the Rules for Courts-Martial, which include a Brady duty. Problem solved.

    But I do agree with you, Charlie Gittins, when you talk about inadequate training. So did I, in a December 2011 post titled: Where are the teachers?

  6. Advocaat says:

    Thus, in our view the AF has attempted to relieve itself of the Brady burden as a matter of professional ethics and responsibility.

    CAAFLog normally sponsors sound arguments rooted in reasonable interpretations of fact, except in this case.  I commend the post for pointing out the 3.8 discrepancy (which should be changed) but to leap to the stated conclusion is absolutely ridiculous and unfounded.  Is it anyone’s position or experience that sentencing evidence gets turned over after findings?  Is there a case you can cite where an AF TC relied on AFRPC 3.8 to withhold Brady evidence?  Is there an AF policy memo that disseminates such an interpretation?  Did this analysis also consider the AF Standards of Criminal Justice, or were they ignored?  Are AF TC really worse than the other services’ TC when it comes to discovery?  Do you have facts to back up such a conclusion?  Come on, man.

  7. Dew_Process says:

    @ Advocaat:  the AF Standards are advisory aspirations, not obligatory rules such as the RPC.  I have defended cases in every Branch of the service and was an ADC and SDC.  While most military TC are honorable and ethical, the few problematic ones are in my experience, AF.  I have a PCR case now where the AF TC not only withheld significant evidence of long-standing mental health problems and treatment (to include medications to treat such) but told the MJ that “as an officer of the court” there was no Brady material contained in them.
    There was a time in the AF – probably before your time – That AF TC argued that unless there was a conviction, that they didn’t have to turn over “sentencing evidence.”  That involved a lot of useless, needless and stupid litigation, which probably convinced the AF/JAJ folks to at least put that in AFRPC 3.8.
    Let me flip the argument – what principled reason can you articulate for the AF to omit the ABA’s model language in RPC 3.8?  What feature of “military necessity” could possible justify such a position?  Phil and I couldn’t come up with one, but we’d be happy to hear you out.  We were both JAGs at the time of the Doe litigation over a similar position that the USAG took. When you have some time, research the material that the so-called “Thornburgh Memorandum” generated.
    Finally, I’ve got a transcript from a deposition in an AF case where my client was facing LWOP, Brady information was brought to the TC’s attention that under the circumstances was quite relevant, who in turn told the witness to “forget about it,” and advised her “not to tell the defense” about it.  You guessed it, that caused a “crisis of conscience” and she subsequently called me.  I’ll see if we can’t post this FYI.

  8. DCGoneGalt says:

    Is this really a practical issue in the AF?  I found the issue to be a matter of dealing with isolated individuals rather than a systemic institutional problem.

  9. Nathan A. White says:

    Phil/Dew, great highlight of the variance between AFRPC 3.8(d) and the ABA rule in the aftermath of the recently dismissed court-martial at RAF Lakenheath.  You stated that there was no explanation for the variance, but the discussion section of AFRPC 3.8 states the rule was varied changed to conform to military practice.  Military justice is a rough form of justice, indeed.
    The main point for posting is to highlight the irony of members of the defense bar advocating a reasoned position to defend against claims of prosecutorial misconduct WRT discovery obligations.  Your argument is completely unpersuasive, but it’s a credit to your willingness to defend the truly indefensible.  As I think you Navy squids would say…Bravo Zulu!

  10. Zeke says:

    I find it hard to believe young AF TC are not turning over Brady evidence in discovery because a hyper technical reading of a set of ethics rules, which they probably haven’t read that closely to begin with, would allow them to wait until presentencing to do so.  I think it’s more likely to be incompetence than anything snowbell thought out.  Occasionally it might be just plain knowing unethical conduct, but that’s probably rare.  “Never attribute to malice that which is adequately explained by incompetence.” Hanlon’s razor.  Of course, “Any sufficiently advanced incompetence is indistinguishable from malice.”

  11. stewie says:

    Zeke and I agree! I am pretty sure that’s one of the signs of the Apocalypse.

  12. k fischer says:

    People like to use Hanlon’s razor to rationalize Government misconduct.  I’m inclined to do so, as well, as it provides an excuse as to why I have yet to file a bar complaint against a fellow attorney, but it really is more of a “but for the grace of God go I” mentality that I am more forgiving of bad Government acts.  I will file motions, though, but not bar complaints.  
    Seems like Government sympathizers with regards to Hanlon’s razor always focus on the words “Never attirbute” instead of “adequately explained.”  Because for the life of me, I cannot fathom an adequate explanation that a Prosecutor who knowingly withholds Brady evidence from the defense is merely incompetent.  
    And, I wish Prosecutors were quick to use Hanlon’s razor when a complaining witness accuses a fellow Servicemember of rape when both engaged in intercourse while severely intoxicated, or when she did not express an enthusiastic consent to sex, yet did not say, “No” to intercourse.  I guess Hanlon’s razor is of the disposable variety.

  13. Advocaat says:

    @D_P, I agree AFRPC 3.8 should conform with the model language; I nonetheless maintain it is overreaching to conclude the AF is institutionally attempting to sidestep Brady through the present rule.  And please forgive the cranky retiree tone of my earlier post; I’m simply resisting the urge to single out one service over another when it comes to the actions of individuals who aren’t living up to their obligations, no matter which uniform they wear.

  14. Anonymous Air Force Senior Defense Counsel with initials NM says:

    In comparison to some of the great attorneys who post to this blog, I have been litigating in the Air Force for about all of 5 minutes.  However, I don’t see any institutional attempt to sidestep Brady.  Remember, the Air Force as an institution is not made up of buildings or airplanes, but people.  The people I have encountered in the AF JAG Corps are overwhelmingly of high integrity and genuinely want to do the right thing.  Therefore, I can only conclude the same to be true about the AF JAG Corps as an institution.  We are blowing this incident at Lakenheath out of proportion.  
    However, all that being said, in the 10 years I’ve been doing this I do admit that it seems trial counsel are more junior and are under more pressure than they used to be.  I don’t think you’ll find that the TC in this case would’ve acted differently if the AFRPCs were drafted differently.  To focus on the AFRPCs is to miss the target here.  To overreact by “TC bashing” misses the target as well.  
    IMHO we ought to be discussing why the AF doesn’t have a career litigation track.  All AF TCs could benefit from the trickle down effect of having more mentors who are career litigators.  Really, we should look at all this and discuss whether there’s a better way to improve our institution.  That would be more helpful than discussions about, “was the TC unethical or incompetent.”  

  15. Zeke says:

    @ stewie – I suspect we agree on more than not; if this forum had a “like” button capability, that might get borne out more often, since I’m typically simply too lazy to write a concurrence.
    @ k fischer –  I think you’re right to focus on the “adequately explained” portion of Hanlon’s razor.  But, adequately explained does not mean the incompetence has to be excusable – merely that it’s causes are rationally identifiable.  You articulated the cause for prosecutorial misconduct in these cases (understanding that prosecutorial “misconduct” can exist without intent, much less malice) – inexperience and systemically inadequate supervision.  Thus,  think it likely that Hanlon’s razor is an apt tool for diagnosing this ailment.  Ascribing the sickness to ill-intent rather that systemic incompetence aids nobody because it offers a convenient scarp goat for avoiding the pain inherent in any substantive reform.  I agree, we need a criminal litigation track, and if the individual services lack the case loads necessary to build a core of readily available and highly experienced prosecutors, then prosecution should become a purple endeavor, with regional joint offices handling prosecutions for all DoD installations in a geographic area.  Get base level offices out of the prosecution business and turn it all over to a military “district attorney” who has at his or her disposal a staff of JAGs who have dedicated their entire career to the administration of justice.  That model would dovetail nicely, by the way, with the plans of a certain Senator and her colleagues to give prosecutorial discretion to JAGs rather than commanders…

  16. Dew_Process says:

    @ Advocaat & AAFSDC:  Perhaps it depends on which side of the window one is looking through. For many years, Phil and I were on the “inside looking out;” now, we’re on the outside looking in – the picture is quite different. I defended my first court-martial in 1976, about a week after I became an ADC.  Most SJA’s back then had significant trial experience thanks to the Vietnam “spike,” and took an active role in mentoring and supervising young TC’s.  Those days are long gone in the AF by-and-large, and AAFSCD, your point on a lack of a career litigation track is well-taken.  Circa early 1980’s during an Article 6 “visit,” I asked the then TJAG point blank why we didn’t have one and was “politely” told that AF JAGs had to be “well rounded,” meaning a jack-of-all-trades and master of none.  For reasons unknown, that philosophy seems to be self-perpetuating.
    It isn’t that Phil and I were “picking on” the AF, it was just that in our combined experience, that in the last 4 or 5 years, most of the significant Brady problems we’ve encountered have been with AF TC’s — that’s not to say that there aren’t the occasional ones in the other services as well, because there are, see, e.g., Behenna. Some are a result of the lack of training, others from a lack of adult supervision or mentoring, and others are indeed institutional.  Unless you are also doing appellate work in the AF, you do not see some of the outright uncivil and (for lack of a better legal term) junk that comes out of the AF Appellate Government shop — the office that arguably provides guidance to the AF’s TC.  Now that’s going to stir up yet another hornet’s nest, but one can be a forceful and zealous advocate without calling opposing counsel names or overtly denigrating defense pleadings with words such as “patently absurd,” etc., and my point isn’t to broaden the issue, but to look into the “how and why” this apparent problem came to be.
    The AF JAG “leadership” made a conscious decision in 2005 to tinker with and remove salient portions of Model Rule 3.8 — that was no accident or oversight. The actual rationale was never explained, but as that process was being “staffed,” a major Brady violation surfaced in mid-2004 in an AF case where my client was facing LWOP.  After a lengthy hearing with the media present, as part of the remedial action the MJ ordered the STC to refer the matter to the AF TJAG’s “Ethics Committee.”  The AF TJAG got personally involved on that and another contentious discovery issue.  Perhaps it was a coincidence – perhaps not, our point being that if there was a bona fide “military necessity” [that none of the other Services appear to have recognized] for this modification, then state and explain it.
    Based upon my personal experience, the Lakenheath case is not an aberration or the action of a rouge TC.  And we can only wonder just what prompted whoever it was that made the decision to refuse to allow the notes to be examined in camera, by the MJ, or if anyone had ever actually read the seminal case of U.S. v. Nixon, 418 U.S. 683 (1974). There the Court held that an Executive claim of “privilege” did not trump the right of the trial judge to conduct an in camera inspection of the materials before making a ruling on them.

  17. Phil Cave says:

    There is also the case of United States v. Vanderweir, 25 M.J. 263 (C.M.A. 1987), that I have used a couple of times in the past in seeking TC witness interview notes.

  18. Christian Deichert says:

    In the three years I taught at AFJAGS (2010-2013), no hairs were ever split over Brady obligations and AFRPC 3.8 that I ever saw.  To the contrary, the rule was, have an open file policy, don’t hide the ball, and when in doubt, turn it over to defense.  This is how I taught it, and that’s how the Air Force instructors (the majority of whom had more experience as defense counsel than trial counsel) taught it.  I don’t think it was different before I got there, and I don’t think it’s been different since I left.
    It is interesting to see the nuance built into AFRPC 3.8 versus the other Services’ rules.  But as far as I know, AF TCs were never taught to exploit it.

  19. RKincaid3 (RK3PO) says:

    A fellow defense attorney had one of the Abu Ghraib cases in Iraq where an accused was alleged to have kicked and stomped on a detainee quite hard.  There was a foot print bruise left on his back.  The government used the resulting foot print bruising evidence to do a comparison with the type of footwear issued to the accused by the Army.  For months, the Army had the resukts from the evidence analysis.  The night before trial they finally disclosed the results to the DC accused–to say the least–what a mess.  The forensic examination of the footprint on the victim’s back revealed that the actual attacker had a different size foot/shoe size–and not just a little bit different–and proved that the accused was not the attacker. As if that delayed disclosure of significant Brady evidence wasn’t enough, after the defense dealt with the late disclosure, the government tried to impeach its own evidence by arguing, among other things, that the forensic evidence was not accurate enough to trust.  That was a shameful win-at-all-cost prosecution-to hell with the truth or the justness of the process. Fortunately the judge made quick work of that issue but I have always wondered why there was no ethical follow-up to that incident. It was almost a “no-harm-no-foul” mentality on the effect of legal ethics. 

  20. David Bargatze says:

    Base-level trial counsel are often quite busy with contract reviews, environmental issues, labor concerns, legal assistance, and detailed analyses of private organization bake sales. I find it difficult to believe that many of them even know there is a difference in the rules. Even if they did, it would be only considered in passing, because waiting until the last minute (a) is contrary to everything they’ve been taught (at least from my experience), (b) could result in a continuance when DC asks for time to rebuild the sentencing case, (c) runs afoul of their state bar rules, and (d) is likely to get them crushed by their SJA for being a jerk. Although STCs try cases as their day job and are more likely to catch the nuance, I’ve only seen one (maybe two) who might consider this. That kind of individual and special knuckleheadedness isn’t limited to prosecutors, either.
    While I don’t think there’s a conspiracy to actively exploit the discrepancy, I’m curious about its genesis and troubled by the fact that it exists at all. The ABA language has been nearly unchanged since Ethical Consideration 7-13 in the old Model Code of Professional Responsibility. I can’t figure out what unique aspect of AF practice would need the rule to be modified in this way. I’m not convinced that it was an attempt to evade responsibility, as it’s laughably ineffective at that. Still, whatever rationale existed for the difference likely is longer valid, and it reinforces an incomplete narrative pressed by some corners that “convictions = justice.” A high body count doesn’t necessarily mean you’re winning the war.
    This aberrant rule is a distraction, if nothing else. It should be changed to reflect what AFJAGS and Air Force SJAs have been preaching for years (for metrics reasons if nothing else): don’t hide the ball.

  21. stewie says:

    I always told my trial counsel: it’s an open system, defense counsel is going to get it anyways, so as long as it’s relevant and especially if it falls under Brady or the various requirements under the rules. I don’t understand any other advice/way to do it, and so one wonders how do we get to discovery violations? It’s not like eventually the stuff isn’t going to get to the DC anyways, and you waste time and energy on motions and hearings that could be used talking to witnesses and prepping your case.

  22. Johnny Ringo says:

    What Stewie said…  I was given that same excellent advice as a junior counsel and have done everything I can to pass it along to my TCs now that I’ve been doing this for a while. 
    From an improving the practice of MJ POV, even if the AFJAGC wants to maintain a system which prepares generalist SJAs, changing the average experience level for the Chief of MJ job would alleviate some of the basic mistakes that are occasionally highlighted on this blog.  Right now, it’s generally viewed as a career negative for a sharp, young AF JAG coming off of an ADC assignment to move back into a base legal office.  It happens from time to time at the busiest bases, so it’s not a career ender, but it is unusual.  Instead, as someone else mentioned, its more common to see that important role filled by a first or second assignment JAG who may (if lucky) have half-a-dozen litigated cases under his belt.  That can be OK if there is a DSJA or SJA who has a litigation background, but trouble can start when the attorneys filling those slots are similarly inexperienced in the courtroom or have been out of MJ for too long.  Having senior O-3 Chiefs of MJ who have learned to anticipate issues by seeing them and fighting for clients from the defense side of the aisle guide junior TCs through trial prep and the administrative portion of courts-martial would go a long way to reducing unforced errors brought on by inexperience and ignorance. 

  23. Charlie Gittins says:

    I agree with Ringo.  Inexperience, combined with a lack of mentorship, combined with a culture that it is important to win, vice do justice as it the USG precept has damaged the system, across all services.  I do not recall the counsel’s name, but during Tailhook he refused to prosecute an accused because he doi not believe he could prove guilt beyond a reasonable doubt.   He was removed and relieved of his duties.  NO ONE was convicted in any Tailhook court-martial.  Like I said, I cannot recall his name, but he is a GIANT of military justice.  And at the end of the day Judge Vest crucified the CNO and SecNav, who both witnessed alleged misconduct and did nothing about it.  The Sec Nav — Garrett — was offered a polygraph bv NCIS and refused, so draw your own conclusion about his credibility.  This was a low point of Navy leadership, but a high point of JA/civ counsel MJ work