Lots of interesting military justice articles were published recently:

  • A book review by our emeritus Dwight H. Sullivan, Trying Cases to Win in One Volume, Army Law., June 2014, at 56 (direct link to article). The first paragraph includes this sentence: “What Moneyball did for baseball and Thinking About Crime did for criminology, Trying Cases to Win in One Volume does for trial advocacy.”
  • Major Robert D. Merrill, The Military’s Dilution of Double Jeopardy: Why United States v. Easton should be Overturned, 219 Mil. L. Rev. 176 (2014) (direct link to article). Major Merrill analyzes CAAF’s opinion in United States v. Easton, 71 M.J. 168 (C.A.A.F. 2012), cert. denied, 133 S. Ct. 930 (2013). (CAAFlog case page), and argues that “Congress should amend Article 44 to align with civilian law. Not only was Easton decided on faulty logical grounds, but it also set a dangerous precedent in which the CAAF was permitted to ignore the Supreme Court’s interpretation of a core constitutional right, and on the flimsiest of justifications.” Merrill, supra, at 177.
  • Colonel French L.Maclean, The Seventh Annual George S. Prugh Lecture on Military Legal History, 219 Mil. L. Rev. 262 (2014) (direct link to article). The article is an edited transcript of a lecture delivered on April 24, 2013, and is “about a time, back in World War II, when Judge Advocates were the big dogs on the porch.” Id. at 263.
  • Major Scott A. McDonald, Authenticating Digital Evidence from the Cloud, Army Law., June 2014, at 40 (direct link to article). “This article describes the nature of cloud architecture, criminal aspects of cloud storage, and then addresses issues of authenticating evidence obtained from the cloud. Drawing parallels from the approved methods of authentication for e-mail and webpages, this article argues that despite some unique issues associated with data obtained from the cloud, authentication of cloud data should not present an insurmountable obstacle for counsel.” Id. at 41.
  • Major Jeffrey A. Gilberg, The Secret to Military Justice Success: Maximizing Experience, 220 Mil. L. Rev. 1 (2014) (direct link to article). The author conducted an anonymous survey of Army JAG Corps personnel in military justice billets. From this survey, the article “first identifies and substantiates the problem of inexperience in the Army’s military justice system. Second, it discusses the SVP program as a successful Army initiative already in place that effectively utilizes litigation experience. Third, by building upon the success of the SVP model, as well as the ideas and observations of others, this article proposes a detailed plan that directly addresses and solves the problem of litigation inexperience in the JAG Corps.” Id. at 3.
  • Major Elizabeth Murphy, The Military Justice Divide: Why Only Crimes and Lawyers Belong in the Court-Martial Process, 220 Mil. L. Rev. 129 (2014) (direct link to article). “This article explores the process and concerns with commanders’ UCMJ authority, analyzes recent legislation, and proposes a new military justice model by incorporating the spirit of the MJIA.” Id. at 134. The MJIA is the Military Justice Improvement Act, proposed by Senator Gillibrand and discussed here.
  • Major Frank E. Kostik Jr., If I Have to Fight for My Life—Shouldn’t I Get to Choose My Own Strategy? An Argument to Overturn the Uniform Code of Military Justice’s Ban on Guilty Pleas in Capital Cases, 222 Mil. L. Rev. 242 (2014) (direct link to article).

12 Responses to “Military justice articles in the recent editions of the Military Law Review and the Army Lawyer”

  1. stewie says:

    totally agree with much of MAJ Gilberg’s article…but would be shocked if they ever go to the justice track anytime soon. I think they should, but the folks in charge are pretty invested in the broadly skilled model. I think they are mistaken, although I understand the logic involved. I think there are plenty of folks who want to be SJAs who would do the broadly skilled route, and a limited enough pool of folks who want to do little but crim law, that they could accomplish both things with a crim law track (have a good pool for SJAs AND a good pool for folks who are crim law heavy).

  2. JTS says:

    (Disclaimer: I was one of the TCs surveyed).
    One thing MAJ Gilberg didn’t address is how the BJAs will fit into this new system (or at least I didn’t see a reference in there).  Right now, most unit TCs are rated by their BJAs, not the COJ, so a new system where a CP would be in a rating chain would just add some more confusion.  Also, it would introduce another master for a TC to report to, especially since your average TC is now answering to a BJA, a STC/CoJ, and an SVP.  Ideally, all of those people should be on the same page, but I know many TCs who have had to deal with balancing conflicting interests of all their masters (while feeling like they are getting pulled in multiple directions).  I think MAJ Gilberg’s plan had a lot of merit, and his statics confirm the antidotal evidence many of us have seen in the field.  But it will require a massive rethinking of JAG Corps philosophy and changing multiple relationships among the technical chain, many of which (i.e. the BJA) are relatively new and the emphasis of the leadership.  Its a great article though, and it makes you think.

  3. stewie says:

    I think as long as you are going broadly skilled, then BJAs are pretty much necessary to fit into that system. And that’s OK, I think they are necessary even if you go with a crim law track. (heck they become more necessary if you go crim law track). I think as far as TCs though, we should go back to the model where the TCs all go back to the main office, and the BJA remains as the main adviser to the BCTs. The TC becomes an adviser on court-martial related issues only, the BJA covers op/ad/fiscal law issues, and all is right with the world.
    Take the BJA out of the rating chain of the TC. Insert someone else in the technical chain (likely the COJ) who actually knows what they are doing. I dont think that requires a massive re-think or change (crim law track would absolutely be a 180 as right now, as too much crim law can be problematic).

  4. Gordon Smith says:

    Does anyone know how to get in touch with Major Frank E. Kostik Jr? I have a question about his article I’d like to ask him.

  5. Lieber says:

    We don’t have the personnel numbers to implement Gilberg’s scheme.

  6. stewie says:

    We don’t? I mean it doesn’t strike me that you’d have to add all that many extra folks. Admittedly, the extra “RDCs” you’d need is somewhat prohibitive, so I am sure you would need to tweak, and I think his regional alignment proposal is the weakest part of his argument, and the least necessary.
    So, I think the gist of his point is workable, even if the actual layout needs to be tweaked.

  7. andy p says:

    MAJ Kostik works at TDS, Fort Leavenworth  (913) 684-1860.

  8. Saul says:

    Stewie – most installations, at least the ones I’ve seen, have gone back to the TCs working out of the main office.  Totally concur that it’s the best setup for Military Justice.
    However, the BJA must be included in the rating chain.  The COJ usually will know the TC’s competence, courtroom prowess, technical skills and teamwork among the group’s TCs better than the BJA would.  But this is only part of the TC’s job.  The BJA usually will know the value the TC provides to the command in responding to small issues before they become show-stoppers, training, and following the Brigade Commander’s vision.  We call the position a Trial Counsel and not a prosecutor largely because we expect much more out of our TCs than to just prosecute cases. 
    That said, the COJ could be the intermediate rater for most TCs.  There will be circumstances where it makes sense to swap the roles – COJ rates, BJA serves as the intermediate rater and then the XO/DCO is removed.  But then you’ll have three attorneys rating and no input from the line officers, which is unlikely to go over well outside the JAG Corps.  We’re left in a position where the best practice is one of teamwork.   BJAs need to ask the COJ for an assessment of the TC’s competence and performance.  Then include those comments as appropriate. Although the old OER allowed for more commentary and the new OER will make that challenging.

  9. Lieber says:

    Actually, I’ve always been of the opinion that having non-lawyers rate lawyers violates at least the spirit of the professional responsibility rules.  I’m not exaggerating.  It’s a deeply rooted institutional problem with our practice (obviously it’s part of a larger issue).
    As for numbers, the number of personnel listed for both the government and TDS shops in MAJ Gilberg’s scheme are much larger than the actual number of personnel allocated to many of those shops.  So where are you going to get the extra personnel?  Throw in that JAs aren’t like line officers…you can’t just tell them where to go…they’ll leave (we have options on the outside).  If you can’t get 6 JAs with a certain ASI to go to Polk or Irwin or Sill then you can’t get them there.  PPTO will tell you this is an issue under the existing system with the existing allocations.  Throw in dual military marriages, EFMP etc…any coding of certain ASIs for certain positions in certain locations will always be aspirational. 

  10. stewie says:

    I don’t agree Saul. I do not think only the BJA “knows the value the TC provides to the command.” TCs working with BJAs aren’t really all that different from TCs working in other kinds of brigades. It’s not like an infantry brigade really has fundamentally different legal issues from a chemical brigade. Maybe differences in the types of crimes, or volume, but otherwise…
    So no need to treat TCs in brigades with BJAs any differently than TCs in brigades without BJAs who get rated by the COJ. I think you keep the Brigade Commander as the SR of the BJA, that makes sense to me, but I don’t really see the need for a TC. You say BJAs need to ask for an assessment, and you are right, because often the BJA knows very little about the TCs day to day work because they are up at the crim law shop working with the STC/SVP/COJ et al. I’m sure it’s not that way everywhere, but it’s that way in quite a few places.

  11. Brian LC says:

    Very much enjoyed Major Gilberg’s article, especially the pithy opening quote.  His survey of ALL Army military justice practitioners is pure gold for anyone considering changes to the Army’s structure. 
    I would echo what has previously been said here in similar contexts.  A contributing factor to the (generally accepted) Army dysfunction is that our trial counsel and defense counsel spend very little of their time being trial counsel and defense counsel.  To paraphrase CJ Roberts, if you want to have a system in which military counsel know how to try cases, start having a system where military counsel try cases.  If our TCs invest 80-90% of their time on items that don’t involve court, we shouldn’t be surprised by the return on that investment.  When picking a TC to try a contested armed robbery, should that decision be based on their experience, professionalism, and career development?  Or should it be based on what Brigade the accused is assigned to?
    If we fired half of our TCs and DCs, but had the remainder execute the duties that their title implies, I suspect we would see an overnight difference.  (The remainder could exclusively handle adseps, NJP, etc until they prove themselves ready for trial).
    Every service but the Army has developed some type of “regionalization” (i.e. professionalization) that MAJ Gilberg suggests.  The RSP recommended services consider adopting the Navy model of a career track.  My question is not whether the Army will change, but rather will it change only after some spectacular failure forces the issue.

  12. Saul says:

    Stewie – we’re approaching this from different perspectives and experiences.  If the Army changed like Brian suggests and the TCs no longer have the same requirements outside of the courtroom, it would make more sense to have the COJ rate the TC.  But as Brian states, TCs tend to spend the vast majority of their time with things not involving court.
    At first I was vehemently opposed to taking power away from the Brigade and subordinate commanders.  But, there is goodness in having a core group of prosecutors at the GCMCA level, outside of the Brigade, without the ankle biter concerns.  Hopefully the “remainder” who would remain in the Brigades doing the grunt work could get some experience 2nd chairing cases before moving on to become full time prosecutors.   But this will require a culture change from a decentralized operations focus to a more centralized one.