Just a few weeks ago, this blog noted that CAAF had been so “unsettled” by the courtroom behavior of a military prosecutor in United States v. Sewell, No. 16-0360 (CAAFlog case page)that the Court named the prosecutor in the decision. However, ultimately, the Court found the conduct was harmless beyond a reasonable doubt and affirmed the conviction and sentence.

On February 21, the Sewell case was featured in an article published in The Daily Signal, which is the Heritage Foundation’s “digital-first, multimedia news platform.” The article, entitled “Latest Case of JAG Malpractice Shows Pressing Need For Reform,” was authored by the Manager of the Heritage Foundation’s National Security Law Program, Charles “Cully” Stimson, who is also, according to his Heritage Foundation biography, a senior naval reserve JAG. An article dispersed exclusively online by an entity derived from a political “think-tank” and aligned with a Political Action Committee will not normally constitute the sort of scholarship this column covers. However, this piece is an exception because it so precisely critiques a fundamental aspect of the military justice system, and because The Heritage Foundation reportedly “wields clout” within the new administration. For those reasons, it is worthy of note even if it is a bit polemic.

The article takes pains to publicly name the offending prosecutor from Sewell, and, in its opening volley, stridently declares:

The Court of Appeals for the Armed Forces (the top military court) has slammed another Army trial prosecutor for egregious misconduct in an Army court-martial.

Id.  

The article then asserts:

[Sewell] is only the latest in a string of disturbing high-profile cases that deal with the issue of prosecutorial misconduct.

Id.  As support for that contention, the article points to CAAF’s 2015 decision in United States v. Stellato, 74 M.J. 473 (CAAFLog case page), where the Court found that military prosecutor’s conduct to be “deeply troubling.” For that case, too, pains are taken to prominently name the offending prosecutor. The article then posits:

Both cases involved supposedly experienced Army prosecutors, one of whom was a special victims counsel and former military trial judge. Both cases involved serious felonies. And in both cases, the prosecutors engaged in gross misconduct that every single misdemeanor civilian career prosecutor in America knows is forbidden, unethical, and outrageous behavior.

Id.

Having framed the problem, the article also reveals The Heritage Foundation’s policy. Specifically, the Heritage Foundation, through The Daily Signal, has repeatedly called for legislation that would require the Army and the Air Force to establish a career litigation track for military justice practitioners. See C. Stimson, Army and Air Force JAG Corps Need Career Litigators Now, The Daily Signal (May 2, 2016); see also C. Stimson, Army and Air Force JAG Corps Need A History Lesson and Career Litigators, The Daily Signal (May 10, 2016). The article asserts that the Navy, in contrast, does not need coaxing since it “established a career litigation track years ago.” See C. Stimson, Latest Case of JAG Malpractice Shows Pressing Need For Reform. The article laments that the litigation track legislation ended up being “gutted . . . at the behest of the Army and Air Force, turning the track into an ineffectual ‘pilot program.’” Id.  The “pilot program” being referenced was codified as section 542 of the FY2017 National Defense Authorization Act, which can be found on page 127 of the enrolled bill version of that law.

The Daily Signal’s piece ends as stridently as it began:

One would think that, given the widely publicized decisions in Sewell and Stellato that demonstrate such institutional inexperience and gross incompetence, the Army, Air Force, and their former JAGs on the Senate Armed Services Committee would admit that the civilian practice of developing career litigation specialization has merit, and be willing to consider bringing their JAG programs in line with the best practices embodied by their civilian counterparts in district attorney and public defender offices across the country.

After all, they should have a vested interest in creating a highly professional and fair system that is just for victims and defendants and generates confidence in the military justice system. However, their lack of action and the persistence of such poorly handled cases are further proof that the current system is not producing experienced career litigators, and won’t, unless Congress mandates it.

Id.

The counter-argument, that judge advocates should be generalists rather than litigation specialists, has also been the subject of media coverage, though not as recently. The most recent media coverage I could find for that point of view is a 2007 interview on National Public Radio’s Morning Edition show in a report called, “JAGs Take a More Central Battlefield Role.” That report featured the following exchanges between NPR reporter Ari Shapiro and (among others) Major General “Charlie” Dunlap, then-Brigadier General “Butch” Tate, and then-Lieutenant Colonel “Mike” Lacey:

Brigadier General BUTCH TATE (U.S. Army Judge Advocate General’s Legal Center and School): When I started, commanders didn’t quite know how to use us in a deployed environment.

SHAPIRO: JAGs handled military justice issues back on base – trials and legal paperwork. Tate says they still do that, but now…

Brig. Gen. TATE: Lawyers are embedded now closer to the ground commander than they’ve ever been before.

SHAPIRO: Lawyers may be advising their commanders on every decision in the field. Colonel Lacey says that means JAGs now have to be generalists on a massive scale.

L[ieutenant Colonel] LACEY: He’s giving the commander advice on military justice – you know, sir, you should court martial that guy. He is giving him environmental law advice. He is giving him advice on fiscal issues – you know, sir, you can use money to do that, but that is not what that money was appropriated for. He is giving him advice on the law of war. He is doing every area of the law that you could possibly imagine.

***

SHAPIRO: The JAG School in Charlottesville is specifically for Army lawyers. But in every branch of the military, JAGs are now in the thick of combat decision-making. Charlie Dunlap is the Air Force deputy JAG.

Major General CHARLIE DUNLAP (Air Force Deputy Judge Advocate General): The good news is the senior commanders very much value the advice of the judge advocates. The bad news is they very much value the advice of the judge advocates. And it puts a tremendous burden on us to make sure that we have people not only in conversant in the law, but expert in the military piece, the aircraft, and the weapons, and so forth, the strategies.

SHAPIRO: He says it’s not a bunch of guys in pinstripes haggling over the legality of a bombing target.

Maj. Gen. DUNLAP: What really happens is you’re sitting there in the command post, for example, and the commander will turn to you and ask you a question in what I call fighter pilot speak.

SHAPIRO: The commander expects an instantaneous response.

Maj. Gen. DUNLAP: And so you have to be that familiar not just with the law, but with the methodologies, the strategy, the weapons, and so forth, and munitions and what their effects are, so that you can get that instantaneous advice.

The Heritage Foundation’s most recent declamation calling for a military justice career track did not include any discussion of that counter-argument.

31 Responses to “Scholarship Saturday: The call for military justice litigation career tracks”

  1. Law Student says:

    Jack of all trades

  2. Alex Absurdo says:

    See also MAJ Jeff Gilberg’s 2014 Military Law Review article advocating and laying out a specific blueprint for an Army track: https://www.jagcnet.army.mil/DOCLIBS/MILITARYLAWREVIEW.NSF/20a66345129fe3d885256e5b00571830/ad2057a768a6375e85257d0f004f2e88/$FILE/By%20Major%20Jeffrey%20A.%20Gilberg.pdf
     

    Among MAJ Gilberg’s findings regarding the Army JAGC:
    • 78% of military justice practitioners had tried 10 or fewer contested cases
    • 89% of trial counsel had tried 10 or fewer contested cases
    • 73% of defense counsel had tried 10 or fewer contested cases
    • Only 40% of Chiefs of Justice had tried more than 10 contested cases

     
     
    As noted earlier, it is preposterous that the following would happen in a case like Ahern (17+ year sentence for aggravated sexual assault of a child), argued in front of CAAF this past Wednesday. From a 39(a) session:
     
    MJ: What part of the witness examination are we in, government?
    TC: Direct, sir.
    MJ: Can you lead on direct?
    TC: No, sir.
    MJ: How many times have I sustained a leading objection?
    TC: Several, sir. It won’t happen again, sir.
    MJ: Are you [Assistant Trial Counsel] prepared to take over the direct examination of this witness?
    ATC: If necessary, sir.
    TC: Your honor, I—I absolutely will not lead this witness again. I will be very, extraordinarily cautious.
     
    This is not an isolated problem. It cries out to be addressed.

  3. Javert says:

    While I agree in principle that we need to gain more expertise in the JAGC in criminal litigation, I don’t think <I>Sewell</I> is a good indicator of this.   The Trial Counsel there is one of our most experienced litigators, with extensive experience as a Chief of Justice, SVP, and military judge <B>before he engaged in the prosecutorial misconduct</B>.   He would meet the standard recommended by Mr. Stimson.   But this interferes with the narrative.  

  4. Vulture says:

    I haven’t read the article yet but the author may be other bona fides.  Didn’t the Navy try an exploratory program of making a separate command for legal defense some years back?  I have to look for the article but it didn’t really show that it would be beneficial so they dropped it.

  5. Vulture says:

    … may have other bona fides …

  6. Phil McCoy says:

    Well, the Army also elevated the TC in Stellato to Senior TC at another installation. Something needs to break the cycle, and I believe that thing is a track.

  7. Ed says:

    The conduct of the TC in Erik Burris (sub judice) is  more egregious. A litigation track will not alone solve the problem of unethical conduct by TC’s Only putting the word out and then enforcing a policy that the TC’s role is to advocate in a fair manner and that deviations from that will not be tolerated will begin to  solve the problem. I have also advocated before and repeat that defense counsel but particularly CDC’s should consider state bar grievances.

  8. Arnold Becker says:

    What folly.  A truly skilled litigator won’t be happy making 100k/yr.  You see it all the time in the AUSA world.  The talented folks who take this track will spring to the private sector just when they’re hitting the their groove.  Why?  B/c they want a Porsche…

  9. Orrin Bach says:

    Indeed, Mr. Becker. 

  10. Vulture says:

    Closing on my above post, CAAFLog did an entry on it, http://www.caaflog.com/2009/07/26/navy-jag-corps-nixes-trial-defense-command/
    The 2009 Report of the Navy on the State of Military Justice references it here: https://archive.org/stream/202355-militaryjustice/202355-militaryjustice_djvu.txt.  And the recommendations mirror those suggested as the Military Justice Track.
    The
    Either way, great job on Scholarship Saturday Isaac.  More new and rare posters on the site means more discussion in the community, which is probably as effective as remedies at the departmental level.

  11. Will Fischbach says:

    I left the JAGC almost ten years ago to practice civil and commercial litigation, but have taken a handful of criminal cases over the years–some serious, some not–for select clients.  And in just those few cases I have been stunned at how brazenly civilian prosecutors engage in conduct that most junior trial counsel would know is wrong.  So I don’t accept the notion that these “prosecutors engaged in gross misconduct that every single misdemeanor civilian career prosecutor in America knows is forbidden, unethical, and outrageous behavior.”  The JAGC, whatever its flaws, was always an ethics driven organization that made it a priority to grow ethical prosecutors, if only because so many senior TCs and Chiefs of Justice had also done stints as TDS attorneys.  Sometimes the lessons don’t always stick.  But good luck trying to get the local county or city attorney’s office to discipline their own prosecutors for misconduct.
     

  12. Mr. Sparkle says:

    The problem with the Navy’s career litigation track will be manifest in either (a) What good ol’ Arnie Becker is saying or (b) burnout.  How many career litigators are going to want to defend/prosecute butt grabs for 20 years?  And, it seems that the more the Navy’s program grows in numbers the less spots there are at the top for any sort of meaningful jobs. Only so many litigators can be military judges, etc…What’s the incentive to stick around? 

  13. Brian Sabina says:

    For being such a paragon of ethical advocacy, the Army JAGC sure hired a Highly Questionable Expert in Eleanor Odom:
    http://reason.com/archives/2010/11/22/the-cake-is-a-lie
    http://volokh.com/2010/11/11/happy-birthday-dear-murder-victim/

  14. Shawn says:

    It’s obvious that much thought and a huge amount of research went into this well-crafted post.  It deserves to be published more widely.  An annual compendium — A Year of Scholarship Saturdays — would be nice and would not require a full 52 entries.

  15. stewie says:

    But that’s the whole point. Everyone won’t want to be a career litigator.  But the ones who will, will love and yes will want to do it for 20 years. I certainly do/would, and I know others like me.

  16. Muad'Dib says:

    Think about what some of the above commenters are arguing for a second:
    “If we have a litigation track, our litigants will become so skilled that they will be able to make more money in the private sector. Then we will not have any litigants. Therefore, the better policy is to hamstring our soldiers’ skill development. That way they will not be able to leave and we will not be able to hire new people.”This thinking is insane. Picture applying it to the medical field. “We can’t have career heart surgeons because they will leave the Army. It is therefore better to have generalist doctors who split up their 20-year careers between half a dozen different specialties.” Or cyber specialists. Or virtually anyone. This thinking accepts, as a given, that it is perfectly okay for our litigants to be under-qualified.
    If you are worried about retention, improve their quality of life, improve their pay, offer them bonuses and incentives. If your answer to the retention question is to deliberately sabotage JAG officers’ skill development so they don’t leave for the private sector, you are an obstacle to a fairer UCMJ system.The point is moot, anyway. The JAGs who can run off to make double/triple the money after 4-8 years leave anyway. They aren’t sticking around for the girls and the waterskiing.

  17. Lieber says:

    When it comes to docs, retention actually is a primary concern for the military.  Thus pro-pay, moonlighting permitted, paying for additional specialty schooling (unlike the mostly useless grad degrees paid for for JA’s and line officers)…all in exchange for ADSOs that take them through 20.

  18. Bill Cassara says:

    Will Fischbach’s excellent post deserves comment. First off, having practiced against Will in one of the most complex murder cases you could imagine, he “walked the walk.”  And having practiced alongside him at DAD, he did the same. But more to the point, his comments are true.  I have run across some prosecutors in both the civilian and military side who crossed the line.  So it is not endemic to the military. And as the article points out, LTC MacDonald was not exactly a junior TC who hadn’t been taught better. He was a former MJ and Chief of Justice.  Ethics are drilled into the military prosecutor from day one.  Those who cross the line will do so regardless of how many times they are told not to.

  19. k fischer says:

    Brian S.,
     
    I had not heard of her.  Until I read the name, I thought you were referring to this Army HQE who was suspected of coaching a witness to give a secret signal in a murder case.
     
    In response to the article, I’m not sure that creating a career criminal litigation track would really solve the problem of what I like to refer to as “JAGs Gone Wild.”  The prime example given by Mr. Stimson to create this career track involved someone who for all practical purposes was on a career criminal litigation track, i.e. he was a TC, DC, COJ, Military Judge, and SVP, just as Javert said. 
     
    A good start would be to hire HQE’s for the Government who haven’t had appellate opinions about their actions at trial with the descriptor word “misconduct” in them.  Generally, if you got people who are ethically challenged teaching SVP’s about trial strategy, its going to be garbage trained in and garbage coming out at trial.
     
    Perhaps, there should be a push for MJ’s to be more concerned about ethics.  The Birthday Cake prosecutor in the article @ Brian Sabina above could probably argue, “Well, the DC didn’t object, and the judge did not sua sponte interrupt my actions, so why am I being accused of misconduct?”  And she would have a pretty good point.  When I was active duty in my criminal justice career track, between ’02 and ’07, I found that MJ’s were a little more concerned about the appearance of a fair trial and the rights of the accused than they are now, which is that the majority, if not vast majority, relegate the rights of the accused to the backseat, and allow the victim to ride shotgun.
     
    I had a case where the Government wanted to get the accused’s statement into evidence that was irreparably entwined with the fact that he took and failed a poly.  Basically, he was asked why he failed the poly.  Answer: I got skeletons in my closet.  I’m not going to tell you mine.  The Government gave me Section III notice that they were going to introduce those statements into evidence.  After a Government motion in limine IAW 403 and a 412 motion of a prior false allegation by the alleged vic that I lost but believed should have been granted in favor of the defense, I remember I felt relieved that the MJ granted my motion to prevent the Government from asking any questions about “skeletons in a closet.”  That is how bad I perceive it has gotten for Accused facing Courts-martial in today’s Army.  I actually felt relieved that I won a motion that I would have not even contested as a TC. 
     
    If I were an appellate judge sitting in the TOC at ACCA, I would make sure I was locked and loaded with bayonets affixed because there are quite a few sentries, i.e. MJ’s, COJ’s, SVP’s and SJA’s, who are asleep at the metaphorical “vehicle access point” of trial convictions.  But, after reading the facts in US v. Erikson in the view of the Accused and the Government and seeing that the conviction was summarily affirmed, I won’t hold my breath.
     
    If you want to help ensure cases are not resulting in innocent men going to prison and having to register as a sex offender for crimes they didn’t commit because JAG’s are out of control, then make it painful on them when they commit misconduct.  Just like there are ZERO consequences for any woman to falsely accuse her husband, baby daddy, ex-boyfriend, or co-worker of sexual assault for whatever crazy selfish reason they have to do so, there is little consequence to a JAG prosecutor from committing misconduct.
     
    Ed, do you have the appellant’s brief in US v. Burris (sub judice) or a link to it?  Always interesting in reading about allegations of unethical actions by prosecutors.

  20. Mack says:

    Been a long time since I’ve posted on here, but as good a time as any to return…  I think one danger of the career litigation track is that it is perhaps the domino that sets off the handing off of military justice to civilians. A couple of thoughts behind that: (1) an implicit benefit of doing something other than litigation is you begin to ‘understand the mission’ and the community in a way that you do not get when isolated in a justice shop, particularly when you’re CONUS and once the duty day is done you get in your car and drive off the installation and don’t see another servicemember until the next duty day. We can debate whether that’s important, but if we do away with it, I think we implicitly concede that it doesn’t take any special understanding of the mission to handle these cases and (2) I’m thinking out loud here (dangerous on this forum), but I think we can’t ignore that usually the sentences in the military are less severe than the corresponding civilian one would be, the investigators are usually less capable, and so to a small degree, while I would hope every accused has a perfect criminal justice system, we don’t see many folks begging the military not to take jurisdiction over a serious allegation against them. While professionals should aspire to perfection, I think we’ve created this weird implicit agreement: accuseds face a less capable prosecution team (which means less skill in pursuing conviction but also less understanding of their obligations) in exchange for a reduced risk of prosecution (non-120 offenses at least) and lower sentence and the government benefits by providing enough litigation training that it develops the skills a Judge Advocate needs to be a useful CJA/SJA one day.

  21. President Comacho says:

    I’m currently filming Idiocracy Dos and need to verify something.  Tell me the Army did not hire the cake baking prosecutor as a HQE to train prosecutors (TCs) how to be prosecutors. If this happened, then I will have to redo the entire script.

  22. stewie says:

    Can’t agree Mack. I’ve been in the jobs you list to “learn the mission” and it did nothing to make me better in the courtroom. The mission ain’t that hard to understand. It’s a lot harder to do criminal law than op law or ad law, it just is.

  23. k fischer says:

    Don’t worry Mack.  I agree with you. I read Stewie’s comment before reading your comment, and I thought to myself that getting to know the people on post who conduct the mission who are all potential panel members provides some good litigation intel.  I have found that doing different legal jobs, such as admin law, will help with prosecutorial discretion when choosing between an admin sep or Court-martial.
     
    On the flip side, a good TC doesn’t sit isolated in the justice shop.  A good TC ought to get out and go to luncheons with the Brigade or the units he advises, and learn the unit’s mission.

  24. stewie says:

    Eh, I’ve gone out and done that, it’s had little to no effect on my recommendations. The facts of the case, the accused, and the alleged victim do, but whether it’s an infantry unit or a quartermaster unit will only make a difference in narrow ways in special cases.
     
    Getting out in the units is way less about prosecutorial discretion, and much more about gaining the trust and respect of commanders.
     
    Doing Ad Law is not going to make you better except for the fact that you need to understand the various admin ways of solving the what do we do with this guy other than a court-martial, but again, it ain’t rocket science…and any crim law expert will know all about those myriad other paths because they all fall as much under crim law as they do ad law.

  25. k fischer says:

    I guess I was referring back to the good old days when Courts-martial involved cases like AWOL and Desertion, barracks larceny, and drug distro.  You know, that long ago era where every flyer didn’t have to have at least one Article 120 on it to see the inside of a courtroom and cases were tried at the lowest appropriate disposition for the preservation of good order and discipline and less about what those non-veterans like Senator McCaskill and Senator Gillibrand desire in their quest to malign military justice.
     
    But, you’re correct.  Article 120 cases don’t really require knowledge of the Accused’s unit’s mission.

  26. stewie says:

    How are any of those cases unit or job dependent? All of those things are the same whether done by an infantry Soldier or a cook.

  27. Callous Civilian says:

    Based on what I’ve seen of the military justice system, the whole bizarre and cowardly system should be disbanded, and all the practitioners fired, and all courts martial outcomes can be determined by one of those church fair fundraising wheel-of-fortune type spin wheels.
     

  28. k fischer says:

    Well, an AWOL has a more prejudicial impact on an Infantry line unit, than some joker working at the chow hall for basic trainees.  Barracks larceny at a basic training company is much more different than a barracks larceny at the Ranger Regiment when the victims are deployed fighting, although you might want to deal with the Accused expeditiously with the Rangers to prevent a murder.  Drug distro by a hospital pharmacy worker is more egregious than some idiot at a TRADOC unit selling meth to an undercover CID source.  Much of my prosecutorial discretion was knowing how these crimes would be perceived in the Courtroom based on my litigation skills.  Of course, I was a TC for 7 Colonels from the 75th Ranger Regiment, Basic Training Unit, 29th Infantry Regiment, MP’s and Martin Army.  I had a lot of different missions I had to account for.  Nowadays, you don’t see that kind of diversity…or autonomy.
     
    I’m not saying claims, being a hospital JA, admin law, or Op law experience is absolutely required to be an able advocate in the courtroom.  But, I disagree that the other experience does “nothing to make me better in the courtroom.”   In my experience, the two year break I had teaching, recruiting, and being a military magistrate, gave me a much fresher mind when I moved to TDS.   If your point is that the longer you spend doing non-litigation jobs makes you rusty, then I can see how that could work for you if you live to argue, which you seem to (not an insult), and a break doing another job would result in diminishing returns when you got back to the courtroom.  I can see how you might be sticking pencils in your eye as a Legal Resistance, OPs, or Claims Attorney, doing a great job, yet treading water until the next courtroom slot opened, so you could get back doing what you love. 
     
    I hate litigation unless I’m confident that my case is good enough that I’m going to win.  Even then, I don’t like it because you never know what’s going to happen when you step into the courtroom.  And, its a lot of work.  I get to know my clients and their families because I think that helps me in the Courtroom, so then the pressure mounts to make sure their son/daughter/husband/ wife/father/mother doesn’t go to jail.  My wife’s mad because I keep her awake tossing and turning for the week before trial and week of trial.  And, if I think the case is total BS, then I tend to take it personally, and what kind of attorney would I be if my innocent client got convicted?

  29. stewie says:

    How so? If the infantry unit is sitting in garrison, how is it more prejudicial? If deployed or deploying, sure, but that’s not a unit argument, it’s a deployment argument. None of what you typed, saved maybe the pharmacy worker, was job dependent, but none of it was rocket science either.
     
    I don’t need to know much about an infantry unit to know that if they are deployed and someone goes AWOL, there might be some aggravation there.
     
    You learn something in every job, but yes crim law is absolutely a perishable skill, and it’s a lot easier to lose than the ability to suss out some of the fact scenarios you list IMO.

  30. k fischer says:

    You learn something in every job, but yes crim law is absolutely a perishable skill
     

    I certainly cede this point to learned and able counsel, particularly where the UCMJ, R.C.M. and M.R.E. referencing sexual assault claims seem to be amended on an annual basis or at least every other year.