A pair of articles published by the War on the Rocks blog debate whether the military justice system can handle serious cases.

Professor James Joyner and retired Marine LtCol James Weirick write Sexual Assault in the Military and the Unlawful Command Influence Catch-22:

For minor offenses — many of which aren’t crimes in the civilian world — the uniqueness of the military occupation, exigencies of location, and considerations as to whether an individual is otherwise a “good soldier” make the longstanding practice of commanders having a heavy influence vital for “good order and discipline.”

But felonies are a different matter. There, the aim is punishing transgression and separation of a bad egg from not only the military ranks but society at large. The civilian courts, lacking the conflict of interest inherent in military command, are simply the better venue for dealing with that.

The shared experiences of our allies — the United Kingdom, Canada, and Australia — have demonstrated that removing felonies from their systems of military justice has increased the fairness and transparency of criminal trials, while maintaining the commander’s ability to ensure good order and discipline.

Retired Air Force Major General Charles Dunlap responds with: Civilianizing Military Justice? Sorry, it Can’t – and Shouldn’t – Work:

Consider that the Supreme Court has observed (albeit in a different context) that the “complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments” adding a key reflection: “it is difficult to conceive of an area of governmental activity in which the courts have less competence.” Yet these are the very areas in which military discipline is so important.

Separate out “military” offenses from “civilian” offenses? Been there, done that. The Supreme Court finally gave up in 1987, finding that the military justice system had jurisdiction over all offenses committed by those in uniform. This could be an implicit recognition that in the extraordinarily complex task of preparing people to kill other human beings in the name of the state, the disposition of “civilian” misconduct cannot be separated from overall troop development and combat readiness. Savvy military leaders keenly understand the holistic nature of their leadership responsibilities, along with the imprudence of outsourcing discipline to civilians not equipped to deal with it appropriately and who do not bear the responsibility for battlefield success that is so intrinsically linked to a well-disciplined force.


29 Responses to “Opposing views on civilianizing military justice”

  1. Iuris Consulti says:

    One major flaw I see with the Joyner/Weirick approach is it equates felony with serious offense in the military, but they are not necessarily synonymous.  Under the Federal system, many minor offenses under the UCMJ would be low-level felonies (failure to obey a G.O., false official, minor drug use, just to name a few).  It is a drastic oversimplification to say removing felonies from our system will solve any problems.  At least under the current MJ structure, that appears to be a somewhat arbitrary distinction. 

  2. Concerned defender says:

    The real issue is the lack of competence among people making the decisions to prosecute.  Commanders often have minimal legal training and are extremely biased.  They then bully a junior officer Judge Advocate Trial Counsel.  This plays out like this: an 06 COL Brigade Commander and senior rater with 19 years of experience is shooting for a promotion and good OER.  He has an allegation that one of his male E4s groped a civilian woman in a dance club.  No evidence, just an allegation.  He then tells his significantly subordinate 03 Captain (that he rates) to do everything possible to prosecute or kick this E4 out.  Of course the Captain has probably minimal experience and no leverage to do the right thing, but instead to just please his master in order to further his reputation, effectiveness is the unit, and his own OER and career.  So he ruins the E4, regardless of the lack of evidence.  
    There seems at least a need for some form of total separation from this chain of command.  Maybe a mandatory cross unit Trial Counsel program where the rater and the Trial Counsel are from different units.  It’s also problematic that the Trial Defense is part of the same nepotism of the entire system.  If the Convening Authority walked into a Court Room, he would have superior power and rank to every person in that room and everyone knows it – the Military Judge, the Panel Members, the Trial Counsel, the Trial Defense Counsel, the Accused, and heck even the Civilian Attorney on base at the permission of the CG.  There is a lot of UCI in his position alone. 
    But this has to be balanced with unit efficiency and one would hope that the TC has the guts to do the right thing – but sadly many are total wimps and pushovers and simply follow implied orders and the wishes of their leaders, rather than preserving justice.  I don’t know how practical it is for the civilians to suddenly take on all of these military cases.  And there is significant benefit to having a well-trained and experienced JAG Corp, and that experience comes from handling cases and making decisions.  I believe there really just needs to be adult leadership, which is sorely lacking at the POTUS level, the General Officer level (for example, how many GOs have been removed for misconduct lately, about 10?  Seriously, come on folks), and at the Senior Officer and Senior Enlisted level.  After about 05 and E8 it becomes all about politics, which is not how it should be.  That seems to be a root problem.  We have demonstrated we aren’t even a competent fighting force, frankly, and that is a real problem.  I present to you the total catastrophic mess with Iraq, Afghanistan, Syria, ISIS, Russia, Iran, China…  good grief.  What a disaster we’ve created in just a few short years on ineptitude on a macro level.  On the micro level, I remember carrying UNLOADED weapons in Iraq under orders.  I recall that being among the most asinine of leadership.  And as a result, Service Members died when Al Queda infiltrated bases and killed unarmed SMs.  Repeatedly.  Again.  And Again.  Total ineptitude.  Look at the garbage ACU uniform.  More ineptitude.  I have zero confidence in the decisions of the leaders when they repeatedly, on the micro and macro level, cannot figure out the simple stuff.  As for the JAG legal mission, how are we to execute the legal mission in the JAG Corp, which is failing it’s mission and ruining the careers and often convicting and imprisoning SMs who are innocent?  I’ve seen it many, many times and it’s just heartbreaking to watch.  I’ve often brought on board after the dust has settled and am puzzled how these Soldiers could have been so badly mistreated by the legal system. 
    It’s a real problem and I don’t pretend to have the answers – but it needs to be solved, especially in the era of SHARP and the war on men because it is ruining the military from the inside out.  Men are totally emasculated by the power of a 120 allegation even in the absence of any extrinsic evidence.  I realize it’s not going to be perfect, just as fair as possible.  

  3. Ganthet says:

    Professor Joyner and LtCol Weirick would have had a slightly more compelling argument if they got their comparisons accurate.  The UK (https://www.judiciary.gov.uk/about-the-judiciary/the-justice-system/jurisdictions/military-jurisdiction/) and Canada (http://www.forces.gc.ca/en/news/article.page?doc=independence-in-the-military-justice-system/hnea75sg) still have a military justice system which can try accused service members for a variety of offenses outside of the strictly military ones.  Australia recently created a military court with civilian judges (http://www.austlii.edu.au/au/legis/cth/bill/mcoab2012314/).  
    In all three of these countries, however, military prosecutors in a separate office from the commanders file the formal court-martial charges (if they go that far) and decide what and what not to charge.  Legal professionals given the responsibility of making professional decisions.  What will the world think up next?
    And given the global deployments and presence of the armed forces of the UK, Canada, and Australia, the old canard from Maj Gen Dunlap about how no other country’s military spans the globe like the U.S. and this being a prime justification for our current system is laughable.  The sky hasn’t fallen for the UK, Canada, or Australia despite the commander only having very limited power to decide what and what charges go to court-martial.  Somehow, against all conceivable odds, military discipline survives in those three countries.  It’s just that the commanders don’t get to write the OERs of the military prosecutors, thus getting to dictate or de facto dictate key legal decisions.

  4. K FISCHER says:

    Take heart my friend.  I was reading Isaiah 29:21 (NLT) this morning and saw this:  “Those who convict the innocent by their false testimony will disappear. A similar fate awaits those who use trickery to pervert justice and who tell lies to destroy the innocent.” 
    I think the option of giving it to the civilians would impede the mission to greatly.  The UCMJ is portable anywhere in any country.  What would happen during a deployment?  Do you send the Servicemember home and let him be indicted by civilians?  Logistically, it would be a nightmare getting witnesses to testify.  You could kick the Servicemember out of the Army administratively, then let the civilians handle the criminal side, but this would wind up being like how Colleges handle sexual assault in a presumption of guilt star chamber.
    On the other hand, the Weirick and Joyner bring up a good point about UCI.  It sucks.  And to say that the judiciary held POTUS feet to the fire is laughable.  One Navy Judge, namely Marcus Fulton, called out POTUS on UCI.  I am not familiar with anyone else doing so, even though that was the most blatant case of UCI I have ever seen, which shows an utter lack of knowledge about the UCMJ and the military by our Commander in Chief. 
    But, I do think Commanders should have prosecutorial discretion taken from them and given to trained military lawyers.  Create a stovepipe organization like CID.  HELL, make a military DA’s office and give them CID as prosecution investigators.  That’s how CID acts now in practice anyways.  Then, panels will not feel pressured by the Command to convict.  They will have no allegiance to their Commanders.  They certainly won’t feel an allegiance to Judge Advocates; well, not the overly aggressive ones anyways.  Panels will look at military lawyers the way they look at CID and be more inclined to give the Accused the benefit of reasonable doubt they are required to give.
    So, both articles raise good points, but in my opinion the solution, while still imperfect as every system of justice, lies somewhere in the middle.  You need military prosecutions for when units are deployed.  But, you also need to find a way to eradicate the personal interest of Commanders who are prosecutors in their career and UCI.  Lawyers will feel those pressures to, but at least they can feel the sting of disbarment if they go rogue like Mikey Nifong.

  5. Concerned defender says:

    I’d say one solution would be to entirely remove the JAG from the rating chain from the unit.  I never understood why the unit CDR rated the lawyer anyway.  Maybe as an immediate rater, fine.  But the senior rater should be a JAG who is not influenced by the day-to-day nonsense like formations and footmarches in the unit.  The lawyer should be rated almost entirely on the success of the legal mission.  
    Related, my leadership and I at one unit were sideways quite often.  They were a rogue outfit wanting to break laws.  I was their OP law and UCMJ lawyer.  Talk about a conflict.  I told them “no” frequently, and I suffered their wrath.  

  6. Thewritesofweiss says:

    I’m enjoying watching all the gnashing of teeth by people who are all now out of the military or retired. No offense to Kfischer or concerned defender, you all are great. But other than the defense chiefs who testified before the RSP on 8 Nivember 2013, no one else in senior leadership seems to have publicly raised concern about the decimation of the rights of the accused. Now, when article 32s have  gone he way of the dinosaur and clemency from the convening authority has been castrated, we are now in a Martin Niemoller situation where “finally, there was no one left to speak for me.” All I can say to service members is that if you can’t remain abstinent before, during, and after marriage, then audio record every sexual encounter you ever have and don’t major Dave Chappelle contract. Otherwise, you’re going to end up as fodder. Oh, but if you see an Afghan Warlord ass raping a little boy…don’t dare hit him.

  7. Zeke says:

    There is no need for our redundant, and therefore unnecessarily expensive, separate service-specific military justice apparatuses.  There is also no need for individual commanders to exercise prosecutorial discretion so long as the military institution itself retains that discretion.  If the employment of a slow and uncertain criminal justice processes is what happens to be necessary in a particular case in order to vindicate the interests of discipline, then a centralized prosecuting apparatus is capable of cranking those gears at least as easily as a commander with no legal training could.  We ought to establish a joint command to handle all court-martial duties – charging, empaneling members, judging, prosecuting, and defending.  That joint command ought to establish standing courts-martial with controlled-tour staff, judges, and counsel, located at strategically-intelligent locations throughout the United States, Europe, the Pacific, and in the AORs.  Members should be selected by that joint command and put on TDY orders using that joint command’s budget.  Each of the service JAG Corps ought to have their number of billets and their budget reduced to the minimum level necessary to handle all legal work other than courts-martial.  Responsibility for handling the tools of agile-discipline, which is anything that doesn’t involve the possibility of incarceration, should remain with installation-level service-specific JAGs.  By agile-discipline, I mean measures such as NJP, administrative discharges, administrative demotions, and administrative reprimands.  But, complicated and slow criminal justice processes, where incarceration is a possibility, should be centralized and specialized.  We’ll get better at it as an institution, and we’ll also become more fiscally responsible with taxpayer resources by eliminating service redundancies.  

  8. Vulture says:

    “In acquitting a former Marine of killing four Iraqi prisoners, The Los Angeles Times reported that the jurors “did not feel qualified to judge a Marine’s actions in the midst of a battle.” Plainly, it doesn’t appear that they considered themselves a suitable jury of peers of those who served. Given that less than 8 percent of Americans have any military experience, Joyner and Weirick’s proposal invites repetition of that same conundrum.” 
    By that statistic almost any jury of 12 would have at least one service member representing at or about a sample of service members in the population. 

  9. Charlie Dunlap says:

     Thank you so much for taking the time to comment on my piece.  As I am sure you all know, writers crave feedback, so even negative feedback – especially when, as here it is largely constructive – is welcome. 
    Iuris Consulti:  Good point, thanks. 
    Ganthet: Thank you for digging out the links to show that our allied militaries still have more of a MJ system than the J &W piece suggests.  I knew it existed but just didn’t have the time to dig them out, so your finding them is especially helpful for future reference.  Actually, I did not say that the scope of the US military’s mission is the “prime justification” for our MJ system, but I do disagree with you about the notion that the differences between the militaries are laughable; actually, I don’t think that even our allies think those differences are laughable, but very real.  And, yes, the ability to conduct trials overseas is, I think anyway, something the US needs even if our allies think they don’t.  As I said in the piece, I think it is the wrong incentive for a fighting force to have the commission of a serious offense become an automatic ticket home. 
    K FISCHER: I did think about the Marcus Fulton case, but wasn’t able to find out how it was resolved.  Does anyone know?  Regardless, I do seem to recall that in that case the Navy argued that Article 37 by its own terms did not apply to the President.  Since a literal reading of it would seem to support that interpretation, I think it needs to be amended to include the President and others who have that ability to improperly influence a case. 
    Vulture:  You make an interesting point.  But what do you think would be the impact on a jury of one former military member trying to steer the results?  My bet is a lot more hung juries…or other problems in the former military juror becoming an expert witness of sorts inside the deliberation room. 
    Zeke, Concerned defender, et al.  I think that what we need to keep the purposes of the separate MJ system.  At the end of the day, building an effective fighting force is the paramount concern.  I just think that discipline is simply too important to slough off onto a staff officer (e.g., JAG), or to some joint agency that may or may not understand the dynamics of a particular unit.  Commanders has the ultimate responsibility for battlefield success, and this is why discipline is commander’s business – which has been the mark of every successful commander over 5,000 year of military history. 
    ThewritesofweissI am sorry that you are so critical of retired officers still interested in making the MJ system better.  I would simply say that it is easier for retired people to attach their names to their positions, and that is often what it takes to initiate real change.  We really just want to help because – honestly – there isn’t much in the way of incentive in the retired ranks (to include academia) to do much about the MJ system.  Civilians are not unhappy with what they perceive it to be, and – again, candidly – are not all that interested in the issues. 
    That said, I do think there is a real problem with the imbalance between the government and the defense these days. 
    Regarding UCI in specific, I think that there is a serious UCI issue regarding special victims counsel.  Among other things, how does holding oneself out as a specialist square with state licensing authorities of the SVCs themselves?   
    More to the point, doesn’t it create the appearance of UCI where the government, based solely on an allegation and before any adjudication, declare someone to be a “victim” – when that has yet to be investigated or proven?  Has that been litigated?  If it is ok just to pick names out of the air, can defense counsel call themselves, Counsel for the Innocent or Counsel for the Falsely Accused – just to counter the appearance of UCI in the SVC designation?  
    Also, isn’t it fundamentally unfair for the accused to have to defend him/herself against two different government financed advocates operating under different agenda’s and different ethical codes?  Should the accused get a Special Defense Counsel whose duties would be to counter the SVC so that the assigned defense counsel could concentrate on countering the prosecution?  
    Has all this already been litigated? 
    Anyway, thanks again to all!!!!

  10. Alfonso Decimo says:

    FisherKing – Based on the article in the September 2010, Army Lawyer, Non-Deployable: The Court-Martial System in Combat from 2001 to 2009, and data from other sources, I believe the practice has been to transfer the accused and the witnesses to non-deployable duties, at least for serious felonies.  Although the TJAGs have been banging on the “deployable” drum at hearings in response to Senator Gillibrand’s initiative, this really has not been a convincing argument.  Zeke – You raise a great point that we could save significant taxpayer dollars by consolidating the JAG Corps of the various services. WriteWeiss – As one of the retired commenters on this blog, I find the retired status liberates me to comment freely. I think it would be a positive trend to staff the various JAG HQ with retired judge advocates. The TJAGs would benefit from experienced attorneys who are somewhat insulated from the wrath of unwelcome advice, as described by ConcernedDefender (I mean “CD”).

  11. Phil Cave says:

    I did think about the Marcus Fulton case, but wasn’t able to find out how it was resolved. 

    If recollection serves, there were two cases, both appealed by the gubmint.  NMCCA sent them back and upon reconsideration the MJ changed his opinion.

    Also, isn’t it fundamentally unfair for the accused to have to defend him/herself against two different government financed advocates operating under different agenda’s and different ethical codes?  Should the accused get a Special Defense Counsel whose duties would be to counter the SVC so that the assigned defense counsel could concentrate on countering the prosecution?  

    Yes.  But Congress (and the TJAG’s) seem to have forgotten that they actually have a dual role in military justice.  They do have a duty and right to take actions to promote the welfare, security, and safety of miltiary personnel.  But at the same time they have a duty to ensure a fair military justice system that is consistent with the Constitution and common standards of a right to a fair trial.  They take an oath to support and defend the Constitution.  That means ensuring constitutional principles of the presumption of innocence, the right to confront witnesses, the right to present a defense, and I think it can be said a right to a fair panel,  So yes, the Congress and others have abdicated their dual responsibility in favor of one over the other.  That was something of a discussion at the CLE yesterday.  Although the same ethical codes apply, it’s just the consequences that are different.  That is the question.  Has Congress and the Services created a third “party” to the litigation, different than the definition in RCM 102, to the extent that you can get certain kinds of discovery?  Is the SVC representing a private party, or a “prosecutor” in which case Brady may or may not apply.  I’m not sure it’s the funding that matters but the status of the person being represented.  Perhaps we need to go back in history where in Europe and early Continental times and still in some states a party can be the equivalent of a prosecutor and bring criminal charges in a private capacity with all the discovery rules that attach.

     it equates felony with serious offense in the military, but they are not necessarily synonymous.

    Agreed.  This is similar to the misperception wrongly conveyed that a SPCM is a misdemeanor court and GCM a felony court. The better distinction is between common law crimes and military crimes, if you want and can make a distinction.  I think you’ll find that’s what’s going on in the “other” countries.

    More to the point, doesn’t it create the appearance of UCI where the government, based solely on an allegation and before any adjudication, declare someone to be a “victim” – when that has yet to be investigated or proven?  Has that been litigated?  If it is ok just to pick names out of the air, can defense counsel call themselves, Counsel for the Innocent or Counsel for the Falsely Accused – just to counter the appearance of UCI in the SVC designation? 

    Yes, litigated many times.  The current resolution seems to be that in front of members the term “alleged” or “complaining witness” or “accuser” is to be used.  In the event of a conviction, then there is a victim.  This appropriately makes a distinction between how people are encouraged to deal with those who complain and the legal definition in a criminal proceeding.  Others have discussed this as well, but there is a significant difference between believing the “victim” for theraputic and treatment reasons (psychologists and psychiatrists doe that all the time) and believing the facts alleged to be true.  Psych’s basic approach is to believe the patient and not to investigate and not to challenge.  That’s the only and best way to form a theraputic relationship and deal with the issues.  Psych’s will admit that it doesn’t matter whether the facts are true or not to the treatment plan.  Certainly they would not confront the patient and say you don’t have a problem because this didn’t happen because of these facts or lack of facts, etc., etc., etc.

    Those who convict the innocent by their false testimony will disappear. 

    To a new duty station.

    I’m enjoying watching all the gnashing of teeth by people who are all now out of the military or retired.
    I am sorry that you are so critical of retired officers still interested in making the MJ system better.  I would simply say that it is easier for retired people to attach their names to their positions, and that is often what it takes to initiate real change. 

    A number of us retirees had been saying the same things while on active duty.  As are people still on active duty.  I’ll note that some retirees still aren’t comfortable using their real names even on this blog and thus putting their name and experience behind the comment.  Don’t mistake the absence of public comment, internet postings, and social media blurbs en clair as meaning something isn’t being addressed — or attempted within as without.  Don’t mistake lack of success with lack of effort.  

    There is no need for our redundant, and therefore unnecessarily expensive, separate service-specific military justice apparatuses.  

    Yes, yes, yes.  I’ve always been an advocate of going purple.  Started that aeons ago with the suggestion all the military legal training schools be joined at TJAGsA.  Can’t be rice bowl politics and certainly not a senior senator who wanted something built in Alabama.  On the issue of Service nuances.  I would hold up my experiences and those of my civilian colleagues.  We are not limited in which Service courts we practice.  How is it we can cope with “nuances” of the different Services and the military lawyer can’t.  Sure it takes a little practice and learning and experience.  But a purple TJAGSA with Navy week, Marine week, Army week, AF week, CG day (as the NDU does for joint schools) can feather that out IMHO.
    Having been there, done that, the military and military justice and military discipline did not fall apart during the O’Callahan/Relford to Solorio years.  A few cases were dismissed, some weren’t prosecuted in the military, but the military got by.  I’d sooner see the decisions in the hands of prosecutors than as it appears Congress intends the complaining witness who apparently now has or will get a definitive say in that?  (Zach I may had misinterpreted that part of the new-new-new-new victims rights provisions?)

    Should the accused get a Special Defense Counsel whose duties would be to counter the SVC so that the assigned defense counsel could concentrate on countering the prosecution?  

    How about this?  No ex-parte communications with the CA, any communication must be served on the defense and also the defense has an equal right of access to the CA and to comment on SVC/”victim” submissions.  What’s wrong with that?  Wait, I’ve got it, the CA might be better informed.  With the gutting of the 32 Congress has done most of what it can to prevent the CA decision maker being fully informed when making a decision.  The idea being to insulate the CA from all of the facts and issues.  So why not allow the defense that last opportunity (like in federal death penalty cases) to suggest a different resolution.
    Oh oh, got a deadline CBDR, gotta go.

  12. stewie says:

    CD, it’s beyond annoying the level of vitriol and just plain untruths you constantly level against the entire collective of judge advocates on both sides of the aisle. There are certainly bad apples, and there is certainly a systemic problem with a lack of overall criminal justice experience and the fact that crim law experts, particularly on the defense side, become so at their own promotion peril these days. Having said that, the vast majority of trial counsel are not wimps or bullied (hard to bully someone who has zero decision-making authority), nor are they unethical. Junior? Sure. Inexperienced? Yep. Are those problems? Absolutely. Are the senior level JAGs often little more experienced? Yes. Problem? H*** yes.  But you go so far beyond the pale in describing a lot of good, decent people that I have to say something.
    And defense counsel are NOT under the authority of the CG at their installation. All DC in the Army for example fall under the UCMJ authority of the MDW.  So no, the judge, SJA or CA can’t touch the DC other than complain to their superiors in DC.  And the quality of military defense counsel is a lot higher than you appear to want to admit, and I suspect the civilian DC on here would back me up on that one. Are they perfect? Of course not, no attorney with less than 10 years experience would be. But for young attorneys, they are IMO uncommonly good and definitely well-trained.
    I hate the post-07 changes. With a passion.  That doesn’t mean the entire system needs to be torn down.

  13. k fischer says:

    Stewie, I agree that the vast majority of defense counsel are competent, and many are, dare I say, very skilled litigators. 
    Nonetheless, I have met my share of TDS counsel who ought to be ordered to carry around a ficus to replenish the oxygen on this earth they are wasting and stealing from us all. I know…..hyperbole.
    Alfonso D,  We have been fortunate for the past some odd 70 or so years to be engaged in wars where we had the luxury of quick victories and rotations of specific Divisions in and out of the occupied territory. So, that model works pretty well, now.  But, what happens in a WWII situation where 16 million Servicemembers go and spend an average of 16 months deployed overseas, and we don’t know when its going to end?  Or how about a rape reported by a Servicemember victim that occurs on post in Germany or Korea where those countries don’t have any skin in the game?  I think allowing the civilians to handle the trial in the good ole US of A could cause some jurisdictional problems, or in the very least, some logistical problems, or at least some problems with the Constitutional rights of the Accused.

  14. Alfonso Decimo says:

    FisherKing – Maybe you’re right. In a 1943-ish scenario, maybe we could justify a system developed in 1949 and 1967, but we’re having a hard time defending it right now, when we don’t try courts-martial (for serious offenses) in the warzone. When you add-on the fact that technology allows for video-conferencing, etc., we may just be horse-and-buggy experts in the age of the Model-T.

  15. Vulture says:

    General Dunlap. 
    Then you are right, we are at a conundrum.  Either the jury has no military experience and lacks perspective or has military experience and has perspective.  Congress extended the avenues for prosecution beyond time in service to the civilian courts.  So we can suppose that they struck a balance.  But the 5000 years of military experience has produced a stratification that is prohibitive of entrusting peers with determinations of guilt.  At least in the military a cross section of society is not guaranteed in a jury/panel.  That is well established.  Then a civilian court counsel could work for a jury that weighs to some impertinent character and, oh by the way, stick on a veteran.  Taa-daa: its a jury of your peers.  And it is well established too that a hung jury is not justice.
    But the LA Times case is demonstrative that a Jury would reach an acquittal without the influence of a prior service member.  Would it be better to prevent a prospective increase in hung juries to the deference of MJ that doesn’t hang?  For now I will say that giving an Accused a panel/jury amenable to doubt is as it should be.

  16. k fischer says:

    Alfonso D.,
    Hopefully, you are right. I’m just thinking about a system of Military Justice one second after EMP’s take out all the videos………and the conferencing…………..

  17. stewie says:

    kf you just described every profession ever…some of the members aren’t competent, but the presentation being made by some is not that simply some of any profession are not competent, but something much broader and quite frankly it’s inaccurate, unfair, and it detracts from real, tangible problems.

  18. Concerned defender says:

    This is in response to Stewie’s comments directed at me.  My experience at my last duty huge installation for 2.5 years was as follows: 
    Military Judges who were a running joke at how they were government hacks, and never deployed in their 20+ year careers.  How exactly does one dodge a deployment from 2001 forward in the US Army, anyway?  Trial counsels consisting of a grossly overweight female who was on fake profiles since OBC (according to everyone who knew her), and who had a reputation for being entirely unreasonable and a joke; a TC who lost 5 contested Courts Martial; an environment that encouraged having TC hide evidence and not turning it over until forced (this happened to many lawyers, on many occasions); a Chief of MJ who everyone knew was preferring every charge to inflate his numbers and he was bucking for a title promotion to SJA, which he secured; routine and systematic violation of accused rights, which our TDS office repeated won reversals and corrections, but it was systematic; several TCs who had reputations for being totally unethical, including backing out of verbal OTP deals and contacting defense witnesses claiming to be a defense lawyer; an MJ office that due to sour grapes having lost a full contest, they then filed a permanent GOMOR in an accused file; and here’s a good one – I had the DSJA directly lie to me and back out on a material promise to the grave detriment of my client. 
    I’ve also seen rampant laziness and incompetence be rewarded due to nothing more than plain old fashioned ass kissing and carrying the water.  That absolutely disgusted me.  
    I could go on, and on, and on….  
    But this was the flavor of just my last duty station.  I am unapologetic at being VERY suspect of the OSJA in general.  I’ve just seen too much unethical shady practices to have any faith or trust.  

  19. stewie says:

    Sorry I don’t believe you. Harsh but there it is. If these folks were THAT ridiculously bad you should have reported the lot of them to their various state bars. I have no idea why “overweight female” means anything. How does a CoJ get a “promotion” from the SJA in a world o DA centralized promotions? Do you mean bucking for a top block on an OER?  I find your tale somewhat incredulous.
    But let’s assume it’s all true…that’s one installation over more or less one tour of duty, and you’ve decided based on that sample size the entire MJ system must be like that…and you think that’s a logical position to hold?

  20. thewritesofweiss says:

    The irony of people accusing others of acting without integrity, all the while doing under psuedonyms if a bit much.  My experience is that the overwhelming majority of judge advocates on both sides are ethically sound.  That said, the type of people who are slimy on one side tend to keep those same traits when they switch sides.  Also, contrary to what a lot of prosecutors say, they sometimes like to win more than they want to “do justice.” All said, I think compared to the civilian criminal system, we are heads and shoulders above them.  We do not hear about cases like Mike Nifong or the Texas judge who just got disbarred and a day in jail for hiding evidence.  Of course, this all goes to why I think we should have a separate trial defense system for all the armed forces, and it should be led by the office of the federal public defender.  Eventually, it just gets too incestuous and personal sometimes when your adversary one year is your boss the next year and vice-versa.

  21. K fischer says:

    Stewie, unless CD was stationed at Benning TDS between 2005-2007, then I can attest to two installations being quite similar.  Weiss,  The reason why nobody has the gumption to call people out on Mike Nifong tactics is that it is career suicide because nothing will happen to a JAG who hides evidence because nobody cares about the rights of the accused.   There is a total focus on the rights of the complaining witness.  So when nothing happens to the person against whom you complain, then the person becomes your boss, it becomes quite uncomfortable and possibly career ending.  There is a tendency for everyone to argue for everyone to just get along that permits the bad actors to continue until they become a military judge or an SJA who continues what has worked for them in the past.  Click on this link.  http://www.kylesfischer.com/f/exparte_communication.wma  This person is now a military judge, and she wasn’t half as bad as her COJ who also became a military judge for a very short period of time.  And their SJA was the Sith who finally retired after 5 years at the same duty station.  And I was the only counsel filing UCI motions and misconduct motions, not because there wasn’t other misconduct, but because nobody wanted the target on their back that was on mine.  And I really did not blame them because having an entire SJA’s office focused on how they can stop you by any means necessary is a precarious position to be in.  
    If these people who did this prior to 2007, were transported to today’s Army, they would probably all get Legions of Merit for their performance.  My boss between 05-07 earned a Legion of Merit, but probably got an MSM.  She was great at keeping a leash on me while making sure our collective clients’ right were protected.

  22. Phil Cave says:


  23. DCGoneGalt says:

    Anyone know when the AFs Wright case goes to trial?  That case could make the Radley Balko list Mr. Cave posted and has been hidden from the TJAG docket site.

  24. DCGoneGalt says:

    Wright is on the public docket site.  Set for trial 19 Oct.  I hope media are there to cover it.  Any folks in the DC area able to attend/keep tabs on it?

  25. K fischer says:

    On October 19th (my birthday), I’ll be sitting next to Governor Barnes in a settlement conference for the certified class action against Community Loans of America for violating the Military Lending Act by charging our four member class over 140% interest.  But if the Air Force is anything like Ft. Benning’s OSJA, I’m sure the entire crim law shop will be sitting behind Trial Counsel furiously scribbling notes to the TC’s.  Maybe we can get an update from one of them.

  26. Alfonso Decimo says:

    WriteWeiss – Having practiced both in the state criminal courts and in courts-martial, in my anecdotal experience, I can’t agree that our court-martial practitioners are heads-and-shoulders above the state court practitioners. State litigators have so much more experience, not just in years but in volume and variety. As for ethical behavior, I believe the two groups are about even.  As for CD’s experience in some large Army base, I find it hard to believe so many individuals were so flawed and he loses credibility with the irrelevant comment about fatness. However, I do believe CD may have run into multiple bad-actors and I thank God we had awesome leadership when I was a young JAG, b/c our leadership recalibrated us and kept us on the right path. Back then, there were so many more courts-martial and (nearly) every one of us joined and stayed for the criminal law trial experience. Subsequently, as court-martial numbers declined, the JAG Corps invented the fictional “operational law” to keep JAG personnel numbers high. Later, military justice was re-discovered to be important, as the Moreno (often mis-pronounced) decision revealed military justice was being under-resourced. Then, for the past 10-years, the Navy has struggled to develop a group of MJ experts. The big impediment remains the low number of courts and the resulting lack of experience and related wisdom. Let me just throw out an idea: hire former JAGs as civilian TC and DC teams and send them out as the “team from Dover” (MASH movie reference) to litigate each complex (i.e, sexual assault) court-martial. Why?; b/c we will never, never develop court-martial litigators from a pool of young JAGs, who can handle not only the litigation part, but the wise administration-of-justice part. Of course, this won’t work unless we also give the prosecution team the prosecutorial discretion currently held by the military commander (really, his SJA).

  27. Charlie Dunlap says:

    I think that civilian prosecutors vary a lot, and quality/effectiveness can be personality dependent.  However, simply because a civilian prosecutor has more cases, that doesn’t mean they are necessarily better litigators.  Take a look at civilian trials that are occasionally broadcast and I think you will see much that is not impressive.
    I also beleive that when we talk about ‘experienced’ civilian prosecutors, we have to keep in mind the often unsophisticated juries they try their cases before, as opposed to military court-martial panels where virtually every officer has a college degree (and often more).  Lots of things that may fly in a civilian trial would crash and burn in a military court. 
    Personally, I think it is much more difficult and demanding to try a case before a panel of officers than a typical civilian panel. But reasonable people can differ about this one.
    That said, developing military trial practitioners in a era of fewer (but more complicated) trials and many PTAs is a challenge.  I’ve finally come around to the idea that there needs to be a core group in which significant investments are made to develop deep military justice/trial expertise, along with a career path that permits them to largely stay in this part of the discipline.  Sure, I think that they very senior JAG leadership will often necessarily come from those with a broader range of experience, but deep  expertise in military justice is a capability that we must do whatever it takes to acquire and maintain.

  28. stewie says:

    From your lips to TJAG’s ears. If allowed to continue in crim law I’d stay forever, but it’s my crim law specilization that will mean I’m out soon.

  29. Zeke says:

    General Dunlap said:

    I’ve finally come around to the idea that there needs to be a core group in which significant investments are made to develop deep military justice/trial expertise, along with a career path that permits them to largely stay in this part of the discipline.  Sure, I think that they very senior JAG leadership will often necessarily come from those with a broader range of experience, but deep  expertise in military justice is a capability that we must do whatever it takes to acquire and maintain.

    It’s nice to hear someone who was not so long ago in a position of authority within the service espouse the concept of specialization.  I hope you’re talking to your peers who are still serving.  It’d be awesome to have someone who is still pulling levers within the institution act on that suggestion.  I am also fully appreciative of your earlier point against the suggestion of having a centralized joint military justice authority to handle prosecution, defense, and judging of courts-martial.  As I read your post, you seemed to be concerned that a centralized authority would “not understand the dynamics of a particular unit.”  That is certainly true, though it does not concern me as much as it does you.  I’m certain that’s due to my inexperience.  But, at least in the Air Force, I’m not convinced that even authorities as close to the ground as SPCMCAs have a understanding of the “dynamics of a particular unit” when they refer charges.  They tend to make charging decisions based on the severity of the alleged offense, the desires of the pre-declared “victim,” if there is one, the service record of the accused (though that’s now curtailed a bit since character of the accused is no-go), and the advice of the command’s SJA regarding the strength of the evidence.  I haven’t seen a lot of consideration by referring commanders of “the dynamics of a particular unit” at the SPCMCA level, and I’ve seen none of it at the GCMCA level.  So, I’m not sure that’s a good argument against centralization – prosecutorial discretion is already centralized up and away from the unit’s commander, who is the one person who presumably has his or her thumb on the pulse of the unit.  I don’t see much danger of a loss of fidelity in terms of considering “unit dynamics” if we were to move that prosecutorial decision up even further to a joint command.  There’d be no loss of fidelity on that front because “unit dynamics” is, as far as I can tell, not a significant factor in charging anyway.  A joint command where prosecutors, defense counsel, and jurists can be sent for controlled tours would, I think, be the best option for, as you put it, “develop[ing] deep military justice/trial expertise, along with a career path that permits [practitioners] to largely stay in this part of the discipline.”  Courts-martial are down across DoD, so we can’t continue to justify expensive separate service apparatuses to handle what could effectively be done by one joint command.  I think that’s especially true when what we’re supposed to be enforcing is a Uniform Code for all of DoD, and the benefits of centralization would include increased effectiveness of the military justice system’s uniformed practitioners.  With those benefits, I don’t understand why we haven’t taken a joint approach to executing the “uniform code of military justice” already.  The cynic in me makes me wonder whether it’s about protecting service budgets and JAG Corps manning levels at the expense of actually better serving the Nation.