Sen. Kirsten Gillibrand is making a push to attach a bill removing commanders authority to refer sexual assault cases to the 2015 NDAA, see NYT report here.  The bill faces opposition both from detractors of the concept of removing commander authority and those that think Gillibrand shouldn’t be the only Senator able to propose amendments. The prospect of new amendments to the already delayed NDAA could derail the entire process. Republican Sens. Rand Paul and Ted Cruz are co-sponsoring the bill. Here is AF Times coverage of Col (ret) Don Christensen’s appearance on the Hill in support of the Gillibrand bill.

The first Air Force officer’s court-martial is scheduled in the cheating and drug use investigation in the Air Force’s missile corps. AP (via Pitt Tribune-Review) reports here that the court martial is scheduled for Jan. 21, 2015:

Second Lt. Nicole Dalmazzi of the 341st Missile Wing at Malmstrom Air Force Base, Mont., is the first missileer, as launch officers are called, known to have been charged since the drug investigation was made public in January . . . .

The disclosures of alleged exam cheating and illegal drug use accelerated a wave of embarrassing news about the nuclear missile corps, which has been beset with discipline problems, low morale, leadership lapses and resource shortages. . . .

Dalmazzi was charged with illegal drug use and obstructing the Air Force Office of Special Investigations probe by dyeing her hair to “alter the results of potential hair-follicle drug tests,” according to Josh Aycock, a spokesman at Malmstrom. He would not elaborate on her alleged actions or the tests.

The DoD IG is investigating the Air Force Academy’s handling of sexual assault cases against Academy athletes reports the Colorado Springs Gazette (via Denver Post), here.

26 Responses to “Military Justice News for Wednesday, Dec. 3, 2014”

  1. Zachary D Spilman says:

    The text of Sen. Gillibrand’s most recent legislative effort (S.2970) isn’t available yet (the bill was introduced just yesterday), but when the text is available it will be available at this loc.gov link.

  2. Dew_Process says:

    @ Dalmazzi case:  In the context of the “obstruction” allegation, “timing is everything!”  See, e.g., U.S. v. Turner, 33 MJ 40, 42-43 (CMA 1991).

  3. RKincaid3 (RK3PO) says:

    RE: the Gillibrand bill–I really, really hope that her bill is NOT limited to removing a commander’s authority ONLY in the context of sex assault cases.  It must be removed in all cases or none–she has absolutely NO credibility in asserting that a commander’s authority is okay in all but sex assault cases.  Either commanders are doing it (referring cases) correctly or they aren’t–the problem is certainly NOT offense specific.  Half-in/half-out is half-ass and ineffective–more ill-considered, piece-meal legislative drivel that does more harm than good.  It is also ignorant of the history of the problems in the commander-driven prosecutorial model.

  4. Fromthesidelines says:

    What could go wrong with giving this authority to former supply officers who went to law school on active duty and have 1 or 2 years criminal justice experience?

  5. RKincaid3 (RK3PO) says:

    @ Fromthesidelines:  The 1-2 years-of-experience-JAG is NOT who would have the responsibility, but if it were the case, guess what?  That is more experience than any non-lawyer commander has ever had with making charging decisions and prosecuting cases.

  6. John O'Connor says:

    Taking court-martial referral discretion away from commanders has always struck me as a poor idea that is based on myths regarding how commanders exercise that power.  In my mind (and admittedly dated experience), commanders are MORE likely than JAGs to refer sexual assault cases where there is some doubt about the ability to obtain a conviction, which makes this an odd policy choice for legislators trying to avoid having sexual assault cases killed at the referral stage.  The THREAT of taking away commander discretion is the best leverage for deterring commanders from killing of sexual assault cases before trial.  If they actually do it, all of that leverage is gone.

  7. stewie says:

    Those folks wouldn’t be given the authority. O6s would be. Now, in our broadly skilled focused environment, those folks are not all going to be crim law experts, and that could be a problem, but it won’t be FLEP Majors making the final call.

  8. stewie says:

    Well, John, you and others of us have more experience (that is to say any experience at all) in the nuts and bolts of how court-martial referrals work.  To the members of Congress, they simply trust prosecutors more than commanders. That trust may end up being misplaced (in that JAGs end up no better or even worse from their perspective when it comes to referrals), but it’s there right now.
     
    Then again, perhaps Congress can live better with a trained attorney saying, there’s not enough here to go to trial, than with a non-trained laymen saying it. There’s nothing special about commanders that imbue them with the power to make these kind of legal calculations. Some of them certainly can do it well, others are already completely reliant on their JAGs anyways (and some don’t listen to them at all, for good or ill).

  9. Advocaat says:

    Questionable Premise 1:  There are 26K sexual assaults annually in the military (can’t wait to read the RAND update on that one and how the results will be twisted).  Questionable Premise 2:  Only a small number of SA allegations are prosecuted b/c commanders are sweeping them under the carpet.  Questionable Premise 3:  Replacing commanders w/ senior JAGs as CAs will increase the number of SA cases that go to trial.  Questionable Premise 4:  More SA prosecutions will increase the SA conviction rate.  Questionable Premise 5:  A higher conviction rate will reduce the number of sexual assaults in the military.  Questionable Premise 6:  Congress would never pass legislation premised entirely upon questionable premises.
     

  10. John O'Connor says:

    My concern is that this issue might be the thin part of the wedge that will (intentionally or not) undermine the entire justification for courts-martial.  If courts-martial are justified as a tool of good order and discipline, and then we take the decisions out of the hands of commanders, what’s the justification for having courts-martial?  Why not let those “vastly superior” civilian court systems deal with these issues?

  11. stewie says:

    Well, but that’s always going to be an issue. At some point, if enough people in Congress believe a civilian system is better at solving problem X (in this case, prosecuting sexual assaults) then there’s a real risk that’s what we get.
     
    However, I think the idea that the entire justification of courts-martial is tied to commanders having decision making authority is specious. I see no reason why that’s true. First of all, having a pool of folks with deep understanding of the military, military life, etc serving as panel members is pretty important in trying a military accused. Second, we still need the system to be portable to the combat zone. Third, there are special elements of military law and service that aren’t part of the civilian system or experience. Fourth, the military can’t wait around for two or three years for a civilian case to work through the system to determine if Soldiers are convicts to be discharged or acquitted to be folded back in.  I’m sure others can come up with other “non-commander” reasons why the MJ system is still relevant and necessary.
     
    Now, if your comment is more a sarcastic commentary on Congress being careful what it wishes for, then I’m right there with you, because we all know if the civilian court system handled sexual assault in the military things would be much worse all around.

  12. anon81 says:

    It seems as though some significant hurdles would remain if the court-martial process is abolished. Would we become strictly reliant on MEJA for offenses occurring at or near the battlefield/on foreign soil? And what about offenses that are committed on US Navy ships and submarines? Second and third order consequences aren’t being given much consideration here.

  13. RKincaid3 (RK3PO) says:

    A commander does NOT need to impose a federal court-martial conviction to enforce and maintain GOADITAF. The biggest problem with the UCMJ is that it conflates needlessly the issues of commander-discipline and crimes. GOADITAF is a discipline issue and crimes are a justice issue. Commanders should and will have disciplinary issues in their lane and would still have Art 15 authority. But there would be a bright line between disciplinary issues, what we traditionally call “military offenses,” such as disrespect, FTR, etc., NONE of which should lead to criminal records. But when it comes to crimes, which should lead to criminal records, those are justice issues.
     
    I don’t know anyone who seriously advocates giving prosecutions to civilians. That destroys one of the amazing features of the UCMJ–its mobility. Civilians won’t deploy to where the evidence and witnesses are—military prosecutors do. What I foresee is a system where there is a prosecution branch that like TDS is stove-piped out of D.C. and with subordinate regions throughout the world. When crimes occur in a particular region, that regional prosecutor works with the Trial Counsel already operating at the BDE in the relevant area. If a CM is the outcome, commanders at all levels only make a recommendation about what should happen–but they do not control what happens.
     
    The prosecution branch and defense branches of MJ would each have a senior prosecutor–a G.O.–who is assigned to the DoJ–the senior prosecutor G.O. would report to and be rated by the AG or delegee in the DoJ. The senior defense attorney would be assigned to and rated by the senior federal public defender or delegee in the federal public defender’s office. From there, would fall the regional prosecution and defense offices and sub-offices. TDS used to have 9 regions…prosecution regions could be similarly established.
     
    As for the offenses and differentiating between “crimes” and “discipline,” I envision a chart with three columns: two for differentiating crimes from disciplinary issues and a third for hybrid offenses. Those offenses in part IV of the MCM would be listed in either a “discipline” column or a “crime” column. Then the third column in between those two columns would be for those offenses which, if done in a deployed environment such as a combat zone where discipline is absolutely paramount for obvious reasons, some disciplinary offenses may be charged as crimes because of the circumstances at the time.
     
    When a Soldier commits a crime, the commander is relegated to making a recommendation as to outcome. If the prosecutor finds that for legal considerations, the case is not worth prosecuting, the matter is re-referred back to the commander for disposition via other means, including separation, GOMOR, NJP, etc. The prosecutor’s only authority is to say “yes” or “no” to prosecution. If the answer is “yes,” the commander watches how things play out and lives with the consequences. If the answer is “no,” the commander gets the Soldier back and figures out what to do with them short of a criminal trial. Only the command would know that the prosecutor has declined to prosecute, so the commander could still offer NJP with the threat of court-martial if turned down—but if a Soldier called a commander’s bluff on NJP, the commander could send the case back to the prosecutor for reconsideration and if that was declined, the commander would be stuck with Administrative and other actions.
     
    When a Soldier is a disciplinary problem the commander can exercise traditional command tools to discipline the Soldier short of judicial action. When a Soldier refuses to shape up to the point that court-martial is appropriate (i.e., the misconduct at issue rises to the level of a crime), the commander refers the matter to the local assigned regional prosecutor who decides, for legal reasons, whether and how to prosecute, what deals to make, what charges to prefer, etc., and as stated above, if prosecution is either unwarranted or success is unlikely, then the prosecutor re-refers the matter to the commander for whatever action they deem is appropriate.
     
    This is NOT that difficult a concept to either conceive or grasp–all we need is the will to forge the new way ahead. But for that to happen, people in leadership need to tell the people who make the rules to quit screwing up the UCMJ for petty political reasons and thereby quit maligning and short-changing service members of both sexes. So LEADERSHIP (with a upper case “L” is required—and I don’t mean the “jump-on-the-political-band-wagon” kind of following that sometimes today seems to pass for leadership (with a lower case “L”).
     
    Some sacred cows need to be slaughtered if the changes that need to be made are to be made. The common element to the mistrust in and the historic and recurring failings of the UCMJ and the Articles of War before it has been the commander-centric model of prosecution. Every major national public and congressional outcry of dissatisfaction with Military Justice that has led to congressional and presidential revisions since 1916 has turned around commander failures and shortcomings. It is a systemic problem that will require a systemic fix.  It is systemic for the following reasons:  When a commander focuses solely upon mission effectiveness and combat readiness (as he or she should!), they NECESSARILY (albeit, not even deliberately or for mean spirited reasons) ignore ALL other compelling and competing interests, such as the needs and rights of victims, accuseds, and society.
     
    Justice and law are too complicated to do as an afterthought, or as an “additional duty.”  No matter how great a commander is on a battlefield or in garrison, he or she is NOT a lawyer and is not qualified enough to make the fine, thoughtful and deliberate distinctions that are so much are part of, and necessary for, a just judicial process.  It is time to end the fiction that commander can do everything and anything better than anyone else.  They are human after all, and have limits.  Does anyone want a JAG making mass and maneuver decisions on a battlefield for armor or infantry?  Does anyone want a JAG computing firing solutions for artillery barrages on that battlefield?  NO—those as specialized professions that require years of specialized training, experience and energy to master.  So, why do we let commanders make legal decisions on the forensic battlefields that are the nation’s court rooms—legal decisions that are the result of years of similarly specialized education, training and experience?  Just ask any JAG who has tried and failed over and over again to explain the concepts of “intervening/supervening cause” to a commander who either can’t or won’t understand why he can’t legally find a Soldier financially liability for stolen TA-50 after it is stolen from a locked car trunk following the commander’s issuing an order to NOT leave TA-50 in motor vehicles, and why the only lawful punishment is “failure to obey a lawful order.”  The answer to those questions is that there is simply no good reason other than tradition—and even traditions that are time honored fall as society moves on.
     
    American society—down to the individual level—has moved on and will no longer tolerate our father’s and grandfather’s MJ models.  We have moved beyond accepting the past simply because it was the past and we decry injustice when we see it.  This change must occur (but for all offenses—not just for sex offenses) if only to keep American’s volunteering for the service because no one volunteers to be abused and mistreated—not even in the name of “tradition.”  Especially when that “tradition” is so disconnected from the battlefield success that has been enjoyed by the American military despite past historic departures from and weakening of the time-honored traditions of commander-driven, commingled issues of discipline and justice; and the imposition of traditional Anglo-American “justice” concepts.
     
    Make this change now…strike while the iron is hot. But that requires Congress do something besides cater to the petty politics on all sides of this issue—those who cater to the “victim” industry; those who cater to the “accused” industry; and those who cater to the “military tradition” industry. All those extremes must be subordinated to doing what is in America’s best interest—Americans who volunteer to serve must not be vilified or sacrificed on any sacred political alter, or America will suffer in the long run.
     

  14. Joseph Wilkinson says:

    <blockquote> The biggest problem with the UCMJ is that it conflates needlessly the issues of commander-discipline and crimes. GOADITAF is a discipline issue and crimes are a justice issue. </blockquote>
    <blockquote>I really, really hope that her bill is NOT limited to removing a commander’s authority ONLY in the context of sex assault cases.  It must be removed in all cases or none–she has absolutely NO credibility in asserting that a commander’s authority is okay in all but sex assault cases.  Either commanders are doing it (referring cases) correctly or they aren’t–the problem is certainly NOT offense specific.<blockquote> 
    Neither of these ideas is quite correct, but they make a good jumping-off place to see a better solution.
    Some crimes — including traditional military crimes — are most definitely a “discipline” issue and not merely a “justice” issue. 
    On my second Iraq tour (as a brigade TC/BJA), I had  to deal with four cases of desertion with intent to shirk.  Two went to court-martial (and got jail time with one BCD).  One went to FG A15.  The other got administrative correction, and he may’ve gotten some company-grade punishment, but I think the administrative correction was the main thing (part of his assignment was to research everything the commander could do to him…)
    Now, the decisions to refer charges or punish weren’t primarily made based on any lawyers’ considerations.  Desertion with intent to shirk is a very easy crime to prove, and I made that clear enough.  The questions instead were a mixture of what the Soldiers had done, what kind of Soldiers they had been, what they deserved, what the other Soldiers would think, and what the effect on the unit would be to see the deserter “get away with it.”  In one case, there was a lot of resentment around…the unit had to expend energy ensuring the troops left the deserter alone until trial took place…and they felt the need to show that this kind of behavior isn’t tolerated.  In another, there was very little resentment, but the offense showed the newly-minted E-5 was not ready to hold that authority.  These things mattered in deciding what level to take them to.
    The point is, these decisions were all about “discipline.”  The judgments that had to be made were commanders’ judgments.  And in some cases the crime is bad enough that Article 15 won’t cover it.  Misbehavior before the enemy, cowardly conduct, mutiny, disobeying orders – these also lie at the “discipline” end of the spectrum.  “Victims” and “society” (except military society) don’t enter into it.  The affront to discipline is the crime, and if it weren’t the armed forces with a need for discipline, they wouldn’t be crimes at all.  Some other crimes, like a Soldier-on-Soldier fistfight, obviously fall nearer this end even though they are also civilian crimes.  Understanding his troops, and how a trial or lack thereof will affect his troops, is very much part of the commander’s skill-set.  It is also his responsibility.  It is not part of the lawyer’s.  The commander should have the decision in these cases. 
    At the other end of the spectrum are shaken-baby cases, child abuse, forcible rape, and the like.  Nobody thinks we should decide whether to prosecute a real rapist or a baby-shaker based on how that affects troop morale.  The issue instead is whether we can prove it, and whether it’s right to prosecute on this evidence.   These issues are about “justice,” and while discipline may be affected, “discipline” shouldn’t get a deciding vote in whether to prosecute these kinds of cases.  (Neither should politics, ideology, or “public outcry” but that is another story.)   These really are lawyer-type judgments, and not commander-type judgments…because the things the commander knows best shouldn’t be the deciding factor in trying them.
    I certainly do “seriously advocate” giving those cases to civilians, especially when they are committed in peacetime, and doubly-especially stateside.   This gets rid of the “experience” issue…the cases can be prosecuted by experienced prosecutors and defended by (at worst) experienced public defenders (I trust their offices to give the harder cases to the more experienced lawyers).   It also cuts against the problem of trying cases on weak evidence.  If a civilian prosecutor has a docket that covers the whole county, and all the rape allegations in it, he doesn’t have time for crap cases, and he certainly doesn’t have to prove that “the military is doing something.” Instead, he can sort them all together, try the strong ones, and drop the weak ones, which is how justice should be done.
    Now is there a case for sometimes doing those cases overseas at a court-martial?  You bet.  In wartime, in a combat zone, where you can’t trust the locals to try a case fairly (because the local justice system is too primitive), but there’ll be a big diplomatic effect if you don’t try them.  Say a bunch of Soldiers in occupied territory are accused of raping some locals; the command is afraid there’ll be a huge backlash from the friendlies if we don’t put them on trial, which will affect their cooperation and our military strategy; there isn’t time or resources to ship them back for a stateside trial, given the needs of the military mission; and a trial now is better than a trial later. 
    But even there, the decision to try a case “out here right now” instead of “back home like a MEJA case” is based on strategic military needs…diplomacy, resources, and so on.  If those don’t apply and there are time and resources to ship the case back to civilian-land, so much the better.  (The coalition JA’s I met my first tour, from England, Australia, and Japan, told me they shipped all their court-martial business back home, and MEJA cases do happen, so this kind of thing is possible.)   That means the decision to do a serious “justice” case at court-martial is based on commander-type judgments about diplomacy and strategy, not lawyer-type judgments (though the lawyers must provide important input…”suppose we try it; can we prove it?”).   So even there, if it’s going to court-martial rather than civilian trial, the commander should keep that decision.  

  15. stewie says:

    I think sir you underestimate the “primitiveness” of the local civilian criminal justice system in the small towns outside many of our military installations.  If you are at Bliss, or Gordon, or JBLM, or other similar locations, then you have a mature, experienced criminal justice system (of course you also have a back-logged, slow, inefficient CJ system in many of those places).  If you are at Polk, or Leonard Wood, or Irwin, or Bragg, or Drum, or a lot of places, then you have quite honestly questionable justice systems. 
     
     

  16. Advocaat says:

    The RAND survey results have been publicly released here.  Participants were deemed to have been sexually assaulted in the year prior if (1) they had experienced one of six unwanted behaviors, and (2) the participant believed the event was intended for abuse/humiliation or sexual gratification AND the alleged “offender” used one of several coercive methods (See Top-Line Estimates at p.9 & Vol 1. Survey Design at p.47). 
    That struck me as a sensible approach until I read the questions designed to elicit this information (See Vol 1. Survey Design starting at p.107).  The behaviors encompass an unwanted open-mouth kiss as “penetrative” (Q.118) and being touched on the butt/inner thigh through clothing as “non-penetrative” (Q.120); thus alleged acts are linked directly to the extremely broad, imperfect definitions of Art. 120.  However, the coercive methods listed in the survey do not always track with Art. 120 and include the participant’s subjective belief he/she was too drunk to understand what was going on (Q.134) or that the participant consumed so much alcohol that the next day he/she could not remember what happened (Q.137).  RAND made a broad construct even broader.
    My initial take is that RAND’s attempt to mirror Art. 120 was a step in the wrong direction, and one that went too far.  In addition, there is still no data on whether the alleged “offenders” are/were subject to the Code, which is a critical flaw when everyone knows the survey is going to be used as evidence of military justice shortcomings (and it begs the question why Art. 120 was used as a baseline).  Finally, it would be helpful if RAND released its detailed results so we have a greater degree of fidelity for specific behaviors and so that the survey can be subjected to peer review.  I can accept military members experienced 20K unwanted touchings of some variety over the past year; it is way too far of a leap from what I’ve seen so far to label them all sexual assaults.

  17. Tom Booker says:

    I am no expert on military justice matters; however, I did serve 28 years in uniform, credentialed as an operational law attorney and, coincidentally, presiding over 400+ courts-martial and participating in appellate review of another thousand or so.  I say all that simply to put what follows in context.  We must not lose sight of the fact that the UCMJ is one of the things that distinguishes Soldiers, Sailors, Airmen, Marines, and Coast Guardsmen (and the occasional civilian accompanying the armed forces) from “unprivileged” or “illegal” combatants.  If one bothers to trace the international agreements to something a bit older than the Geneva Conventions, one sees that a principal qualification of a combatant is that he is subject to the orders of a responsible commander.  A “responsible commander” sees to discipline but also sees to it that the combatant conducts his operations in accordance with the law of armed conflict.  The law of armed conflict outlaws murder, rape, theft, and multiple other “common law” crimes; the Geneva Conventions refer to these sorts of crimes as “grave breaches,” and they require the parties to the Conventions to have an effective means of investigating and punishing grave breaches.
    One can say what one will about the merits of military prosecution versus civilian prosecution, but one should keep in mind that we have a Uniform Code of Military Justice for more reasons than to ensure that service members don’t smoke dope in Colorado and Washington.  But I’m no expert.

  18. stewie says:

    Respectfully (and know that I don’t advocate turning over MJ to civilians) but does that mean the Brits or the rest of our European allies who have effectively turned all or most of their handling of criminal matters to civilian jurisdictions means that their Soldiers are not distinguished from unprivileged or illegal combatants because they don’t have a UCMJ? I don’t know that I agree that having a UCMJ is per se what keeps us from violating the LOW/LOAC. It would seem to me that so long as there is some means to punish, who does the punishing matters less.  Having said that, there are a plethora of reasons why I think a MJ system is preferable to civilian justice for Soldiers.

  19. Tom Booker says:

    I repeat, I’m no expert.  I simply mentioned the issue of the interplay between the UCMJ and the law of armed conflict because I believe not enough (if anything) has been said about the matter.  It is well for those who would revise the system to understand all the effects, third-, fourth-, fifth-order and beyond, that such changes might work.

  20. Joseph Wilkinson says:

    I think sir you underestimate the “primitiveness” of the local civilian criminal justice system in the small towns outside many of our military installations.  If you are at Bliss, or Gordon, or JBLM, or other similar locations, then you have a mature, experienced criminal justice system (of course you also have a back-logged, slow, inefficient CJ system in many of those places).  If you are at Polk, or Leonard Wood, or Irwin, or Bragg, or Drum, or a lot of places, then you have quite honestly questionable justice systems. 
     
    I may be, I may be.   Though I do think there’s a world of difference between “American primitive” and “Afghanistan primitive.”
     
    We must not lose sight of the fact that the UCMJ is one of the things that distinguishes Soldiers, Sailors, Airmen, Marines, and Coast Guardsmen (and the occasional civilian accompanying the armed forces) from “unprivileged” or “illegal” combatants. 
     
    I believe the doctrine you’re referring to — it’s part of Common Article 4 of the Geneva Conventions — is that lawful combatants who can get POW treatment have to conduct themselves in accordance with the laws and customs of war.   Military justice is certainly one way, and I believe is usually the best way, of punishing Law of War violations, but as Stewie points out it is not the only way.

  21. stewie says:

    Surely there is a difference between Afghani and American primitive, but quite frankly there’s too wide a delta v between American jurisdictions. Racism, sexism, money, how we put together civilian juries, how we run public defender offices, a lot of problems. I don’t think the MJ system has all of that 100 percent licked, but there’s a lot of things we try to do to reduce or even eliminate in some cases those things.  For example, I’d stack up our TDS attorneys against your average public defender’s office any day of the week, not necessarily because the former is intrinsically filled with better people/attorneys, but because the system and the organizations are set up differently.  One’s designed to try and get quality representation, the other is set up to run grist through the mill.

  22. Don Rehkopf says:

    @ Stewie – Having represented numerous clients at Ft. Drum, to include in the surrounding civilian jurisdictions, you nailed it.  Believe it or not, in this day and age Town Justices do not have to be lawyers to be elected Town Justice.  Yet, they can send a person to jail for up to one year, etc.  In the Drum area, depending on pure fate (or bad luck) of geography, one can literally appear before Judge Smith, a dairy farmer by day; or one mile down the road, before Judge Jones, a successful civil litigator in a medium sized Firm in Watertown. Some “courts” consist of moving a dump truck out of the Highway Dept’s garage, setting up folding chairs and folding tables for counsel and the “bench” and if there’s a jury trial, some padded folding chairs for the jury.
     
    But, I must respectfully disagree with you with respect to TDS vs Public Defenders [PDs], in general – with the obvious exception of some of the chronically underfunded PD offices in the South.  First, I’m assuming that your remarks were directed to State PD offices, not Federal Public Defenders, because those folks are highly screened and generally come out of large PD offices.  I spent 11 years in the Violent Felony Bureau in a large [55 attorney] PD office and I was an AF ADC twice during my active duty days.  I was a lateral hire with 10 years of experience trying cases when I went into that position.
     
    There is a large systemic difference between the TDS attorneys and most medium to large PD’s offices, and that is experience.  I am not denigrating many of the fine, talented and intellectual military defense attorneys that I have encountered over the years, either as co-counsel, or counsel for co-defendants, but by and large – and an even bigger problem in the AF – is that the experience level is exponentially different.  E.g., in the PD office that I was in, one would first spend 2-3 years in Town, Village and City courts, doing misdemeanor cases, but case-loads were monitored, trials routinely took place and except for a couple of courts where large malls were nearby and thus “shop-lifting” court was indeed a mill; people got quality representation.  Folks then moved into the non-violent Felony Bureau – again generally for another 2-3 years. Thus, by the time one went to the Violent Felony Bureau, i.e., murder, rape, armed robberies and major drug cases, an attorney would have had at least 5 years of experience, at least 5 felony trials as lead counsel, etc.  The military system – as currently set up – doesn’t provide for that kind of training or experience unless it is for the prosecution, e.g., Col (ret) Christensen’s office.  Yes, there are SDC’s and RDC’s, but many of them have little defense litigation experience as well.  Again, this isn’t a criticism of the folks involved, just the realities of the system.
     
    Both systems have their advantages and warts.  But both are light-years ahead of places like Louisiana, Mississippi or Georgia, where some PD’s have case-loads that they can’t even count.  But, both suffer when attorneys assigned to defend someone lack the experience to spot issues, understand complex forensic issues, etc., and that is a function of how military defense attorneys are assigned to that billet in the first place.  But, in your defense, once someone’s got 5 years of MJ experience on both sides-of-the-aisle, that attorney is generally going to hold their own on just about any case that gets dropped into their lap.

  23. stewie says:

    My comments were mostly about the system. All the experience in the world doesn’t help if you have five minutes to talk to your client (and I’ve seen that firsthand with a relative). I don’t have enough experience to fully discuss the relative experience levels between TDS and PD (and yes Federal PDs are a whole different kettle of fish). However, I think the training and supervision TDS counsel get these days may be a little more of a equalizer than you know. It’s pretty extensive. And I think the time dedicated to each case also equalizes things (experience often only/simply means you recognize issues more quickly or without supervision).
     
    And, unfortunately, a lot of the Army’s bases are in the south or other, less developed, places. (Sorry Southerners).

  24. k fischer says:

    Are you saying that Southerners are sorry, Stewie??????
     
    Let’s eat Grandma vs. Let’s eat, Grandma.  Punctuation is paramount……

  25. stewie says:

    Little column A,…
     
    :)

  26. k fischer says:

    I saw what you did there…….you are about the enter into a zone…..of danger………………danger zone.  Speaking of Archer, it would be really awesome if Archer went down to Jupiter to bid on Burt’s Firebird and red leather jacket from Smokey & the Bandit, seeing how he is having an auction of his movie memorabilia.  
     
    Speaking of Burt Reynolds…….Burt…..Fischer……..hmmmmm….I need to put that on my wife’s list of boy baby names………