Last week I noted that the Chief of Naval Operations ordered a review of the leadership and performance of the Navy JAG Corps.

USNI News provides details here, including a copy of the CNO’s memo ordering the review (reproduced after the jump).

47 Responses to “Details of the CNO’s “comprehensive review of the Judge Advocate General’s Corps””

  1. Charlie Gittins says:

    It doesn’t impress me as a particularly searching examination. 

  2. JustinSayin' says:

    I wonder who they’ll interview – probably a lot of O-6’s and maybe a few reservists who got off of active duty.  I’d love to be interviewed – as someone who served 8 years on active duty and two in the reserves and got the hell off that sinking ship.
    Here’s what I would tell them:
    The JAG Corps plays lip service to trial attorneys and strokes their egos, but they’re pretty damn amateur.  I doubt there’s a single Navy JAG who does more than 3 contested jury trials – with separate facts – in a year. There are VERY few LTs who’ve done more than 10 trials during their first two tours – and of those 10, how many were the exact same he-said she-said “reasonable mistake of fact of consent” sexual assault cases?
    It’s no secret that the path to Captain is starting with orders to Norfolk/San Diego RLSO and then seeking progressively more important SJA tours.  How many of the past JAGs have been the 7th Fleet JAG?  You don’t get that job by staying in RLSO/NLSO world and trying cases. The saddest part?  All those senior SJA-types are convinced they’re going to get cushy jobs as in-house counsel after retirement.  Newsflash: Northrup Grumman isn’t going to hire some O-6 who’s worked 7:30-4:30 and never reviewed a contract.  They’re going to hire an atty from the firm that’s been assisting them for the past 10 years and knows the issues and pitfalls.
    The Navy loves to tout its MILJUS program – but by junior O-5 (~12-14 years in), they’re tasked with being judges or TCAP/DCAP.  And once again, they’re only trying 4-5 cases a year.  At the O-6 level, they NEVER try cases.  They’re COs of DSOs, doing twilight judge tours, or homesteading in DC at NMCCA/CAAF.  (Note: they’re not RLSO COs, b/c those jobs go to the senior SJA types).  In a 20-year career as a “military justice expert,” how many years were spent 1) doing a pointless, fruitless job at the Military Commissions, 2) teaching the same slides over and over again at the Naval Justice School, 3) doing a carrier tour as a #1 or #2, just to get a little “fruit salad” on their chest, or 4) XO at a RLSO/DSO who never tries cases and merely chops evals/awards?
    The Legalman rate is a joke.  In 10 years I didn’t have a single LN who was capable or reliable for doing anything other than making copies or filling out adsep paperwork (and even then, it was often done in error).  Most of the time they were too busy doing whatever “collateral” BS they had to do to get promoted – like running Season of Induction or planning the Navy Ball.  They’re not qualified to do investigations, nor do they want to.  They’re paper-pushers, incapable of thinking outside the box.  The rate should be merged with YN or PS.
    The Reserves is almost as worthless as LNs.  Reservists swoop in for two weeks at DSOs/RLSOs, pretend to give legal advice (which is outdated and unhelpful) and promise to “put in a good word” with whomever their employer is for the LT who’s contemplating his/her future.
    If a law student aspired to be a great trial attorney, I’d tell them to run away.  Will they get felony-level experience during their first tour?  Sure.  But I guarantee that by year 8, the average District Attorney has seen bigger, more complex cases, and gained FAR more trial experience.
    That’s my take on the current JAG Corps – I won’t even get started on the Convening Authority model, the Military Commissions, or the favoritism that’s given to the “hard chargers” who tow the party line and subordinate family life and spousal careers to their Captain ambitions.

  3. Cloudesley Shovell says:

    I dunno, Charlie, seems to be a pretty broad mandate, at least in theory.  All depends on what’s been said in private that doesn’t show up in writing. 
     
    Two things I can say for certain though. (1) VCNO won’t be calling me; and (2), won’t be calling you. 
     
    Kind regards,
    CS

  4. CDR X says:

    I’m truly conflicted about this.  On the one hand, there’s always value in taking a hard look at how we’re doing business and finding ways to improve.  On the other hand, I’m not convinced that’s what this is really about.
     
    It’s long past time that we take a look at the military justice litigation career track and ask ourselves if that’s giving us what we need as an organization.  I would submit that it is not.  When we can’t competently prosecute a law of war case, we’ve shown ourselves to be incapable of fulfilling one of our most basic reasons for existing.  As someone noted above, we’re just not trying the volume of complex and varied cases that it takes to build real litigation skill.  And moderately competent civilian defense counsel are regularly eating our lunch.
     
    Part of the problem is that we’re still organized as if it’s 2000 and we’re litigating a bunch of UA + drug pop SPCMs convened by ship and squadron COs.  Those cases don’t even sniff the courtroom anymore.  The docket is far smaller and almost entirely sexual assault and other sex crimes, GCMs convened by regional commanders.  But aside from the litigation career track and renaming NLSO/TSO to RLSO/DSO, what’s really different about how we manage military justice today? 
     
    That’s a worthwhile debate to have, but I doubt it’s what motivated this comprehensive review.  This smacks of the organization looking for a scapegoat after a series of damaging media stories.  JAGs aren’t responsible for Fat Leonard, Bad Santa, ships colliding in the Pacific, or SEALs suffocating wounded enemy combatants.  Those incidents are the result of cultural problems in specific communities and our senior leadership.  Even in the Barry debacle, for which we rightly bear the lion’s share of the blame, the convening authority wasn’t exactly a profile in courage.  These all strike me as symptoms of a problem that goes right to the top, and this review doesn’t suggest any appetite for the kind of introspection that would be required to address that.
     
    If we’re going to look at the quality of the advice that the JAG Corps is providing, then I think it’s fair to also look at what our senior leaders in the line community are doing with that advice.  Are they taking responsibility for the decisions they make, especially on questions of ethics and military justice?  Do they ensure that their JAG has a seat at the table and access to all the relevant information?  Do they actively seek out legal advice and establish an environment that encourages candid feedback?  Those are fair questions to ask, but I have no confidence that this review will reach them because it begins from an assumption that the underlying problem is internal to the JAG Corps.  It isn’t.
     
    I fear dark days are ahead for our community, and I worry about what that means for our Navy.

  5. Kafka, Esq. says:

    Hopefully, this spurs reviews into the other branches as well … and a meaningful conversation about the purpose of the JAG Corps across the entire DoD. 
    When prosecutors can run amok and be called out by appellate courts for blatantly committing prosecutorial misconduct but still make rank and get slaps on the back (looking at you, Air Force), and get caught with their pants down as they illegally monitor defense counsel emails and still get decs (over to you, Navy), maybe it’s time to just burn the whole prosecuting function/justice system to the ground. The fallout from Barry, Gallagher, Voorhees, etc. is just one more reason to scrap an antiquated and unnecessary military justice system that is led by spineless hacks who couldn’t litigate themselves out of a paper bag and get back to what JAGs do best … which is what, exactly? Playing H&R Block every spring? Drafting wills that monkeys could put together? Never telling a commander “no”? 
    During my time in the JAG Corps, I worked with some extremely competent attorneys who would excel in any environment, but by and large they aren’t in leadership. Most of them got out.

  6. Anon says:

    Its pretty sad it has come to this.  The people who need to be talked to will surely not be asked, let alone heard.  Mediocre attorneys who learn how to play politics advance, while the attorneys who actually have skills either don’t promote or get out.  There are some really good people out there, both active and reserve, but they are beaten down by a closed-loop culture that convinces itself that it is the best law firm in the world, when in reality, it is not even in the ballpark.  We are a laughing stock in our own Navy, whose existence is tolerated, but never really trusted.  The CNO will never hear any of that.  We could be so much more.  Sadly we are not, and even when this sort of opportunity to resolve problems arises, it will be stifled by leadership.

  7. Bill Cassara says:

    I am former Army, but in my practice I encounter JAG officers of all services. I have run across some incredibly talented and skilled attorneys, and I have run across some awful ones. The problem is multi-faceted. Many of those problems have been pointed out above.  Perhaps making assignments three years (as they were when I was on active duty) would enable young lawyers with families to not move every two years, and give them some semblance of a normal life. Perhaps allowing those who don’t want to litigate to still progress would be another. But I see too many 0-6 JAGs (and above) with little litigation experience sitting as either judges (trial and appellate) or SJA’s and making extremely important decisions.  Sadly, I don’t think this or any other review is going to solve the multitude of problems as senior leaders will just say everything is great. Because if they don’t, well it is their job on the line. But I ramble…

  8. JustinSayin' says:

    “a closed-loop culture that convinces itself that it is the best law firm in the world, when in reality, it is not even in the ballpark”

    Nailed it, afaic.  DCs filed the same template motions/objections in every case, followed by canned responses by every TC.  Admittedly, that was less true at appellate gov’t/appellate defense.  However, by the time a case was reviewed by NMCCA/CAAF, the TC and DC had long since left and were never accountable for their actions in a particular case.  Meanwhile, they’re all convinced they’re God’s gift to litigation.
    Similarly, NJS the instructors were rarely creating new/interesting products for the fleet.  Remember the Naval Law Review?  It hasn’t been published since 2015!  Instead, instructors are hosting the same courses year after year, teaching the same tired slides.  NJS detachments in Norfolk and San Diego are a unique hell: instructors teach the same 1-week course for senior officers/senior enlisted leaders over and over again, without variation.  Meanwhile, all those instructors (HQ and dets) are told they were hand-selected for NJS because they’re the “cream of the crop!”
     

  9. stewie says:

    Specialization is the way to solve some of these problems. If you want to be an SJA, then be broadly skilled, get a little of everything. If you want to do crim law, then great (just know you are probably not making O6). Same with contracts or NSL. Develop a mix of generalists and specialists. It seems to be starting to go that direction, at least in the Army.

  10. Bosque1 says:

    I was in the Air Force for a while and we had Article VI inspections which, I guess, the Navy does as well.  Granted these are internal inspections but they did look at training and performance of an office.  One boss did not get promoted because the officer and enlisted performance records were late in filing.  Another did not get promoted because the annual ethics forms that commanders are supposed to fill out (as well as those with a role in contracting) were not secured.  I am sure that in each case there was more than we were led to believe.  It strikes me that either we placed too much credence on those inspections and that other matters (such as failing to ensure that service-members convicted of domestic violence offenses were placed on the Lautenberg Amendment’s no-guns list) were overlooked; or that there was a system-wide deficit in something important like senior-level knowledge in litigation (I once had an O-6 at a NAF tell me there was no confession corroboration rule and we should press on with just the confession) that our shortcomings were viewed as normal.  I think the Navy review should bring in outside help such as a state attorney, judge, general, professor, FPD, or (A)USA, who knows something about military law.  I think each of the three services should do this because it wouldn’t surprise me if the AF or Army had a similar problem.  In fact, the TJAG investigated the base which failed to report the Lautenberg Amendment issue right after the failure occurred.

  11. Fisch says:

    This memorandum should have been dated September 6, 2018, not almost a year AFTER Navy TJAG was found by C.A.A.F. to have committed acts that resulted in the dismissal of a GCM sexual assault conviction of a US Navy Seal. 
     
    Good news is that the review is supposed to look at the past 4 years, so maybe we’ll see something about VADM Crawford’s actions that might discourage future TJAG’s from interjecting politics into UCMJ decisions far better than the milquetoast opinion C.A.A.F. delivered in Barry.

  12. Former says:

    Despite multiple personal complaints about poor leaders and treatment in the Navy JAG Corps, and continued belief that promotion is more related to social prowess than mission performance, some of the issues identified above result from systemic issues in the larger Navy.  The push for short tour lengths, individual deployments (when available), and statutory up-or-out requirement are antithetical to development of deep expertise in the law and naval service.

  13. LT Weinberg says:

    JustinSayin’ coming with that inconvenient truth.

  14. Kafka, Esq. says:

    One boss did not get promoted because the officer and enlisted performance records were late in filing.  Another did not get promoted because the annual ethics forms that commanders are supposed to fill out (as well as those with a role in contracting) were not secured.

    I don’t doubt this for a second.  Because this is the kind of nonsense that the JAG Corps truly cares about.  Sure, you might have subordinates violating the Constitution here and there, and you surely have young attorneys who are routinely committing malpractice thanks to their pitiful lack of training and the Corps’ failure to enforce even rudimentary professional standards, but by golly, you got your performance reports turned into the front office on time!  Enjoy that promotion, you earned it!  And who knows, maybe in a few years you too can be an immigration judge!

  15. Outsider says:

    I smell a rat.  While one of the Navy Times articles says Larrea had an accelerated change of command a private ceremony with admiral Crandall, didn’t a previous article say someone named Gary Sharpe actually presented the awards?  And didn’t that article also say Sharpe is the Chief of Staff of the Navy Jag Corps working for Crandall?  Wouldn’t it stand to reason then that Sharpe and Crandall both presumably knew about what led to these awards and didn’t object to them up front?  Only afterwards, at least one of them is shuffling Larrea out of the way quickly.  Hmm…..seems like there’s more than meets the eye.

  16. Well Duh says:

    Outsider,
     
    Of course OJAG knew, and of course OJAG is throwing Larrea under the bus. Just like DeRenzi absolutely knew when Crawford pulled his UCI shenanigans.  I mean, she did screw up pretty badly what with the whole lets spy on defense counsel thing, and the general shitshow that was this case.  But that’s not all on her.  As has been pointed out above, the navy does not have any jags experienced enough to be handling a case like this.  It was doomed from the start.  We have all these “military justice experts.”  Why didn’t OJAG detail one of them on temporary orders?  Why leave a LT as the “senor prosecutor”?  No offense to that LT…but how many cases had he tried to verdict before stepping up on this one?
    As for comments above about the competence of appellate activity… look at the “silver tongue” awards.  You are a leader for arguing how many cases?  Most appellate attorneys in DAs offices are arguing at least one a month.

  17. Concur says:

    Is it redundant to say I agree with… Well Duh and and Yogi Berra… Too coincidental to be coincidence.
     
    It seems Larrea and Czaplak were sacrificed to the media awful quick considering OJAG requires and received briefs on all high visibility cases every week, exponentially deep on those with media or Congressional interest with follow-up questions and Taskers.  Not even the courtesy of a ‘reasigned pending outcome’.  Also, no word about headquarters or other personnel involvement on a high visibility international armed conflict case with classified aspects.  
     
    On the flip side, it seemed awful convenient when CAAF wasn’t able to get around to Barry until the very end of the term, coincidentally Allowing Crawford to quietly retire with all three stars.
     
    Reading between the lines, this review appears targeted at Crawford as the ultimate acceptable level of accountability.  Why else put the 4 year period on it starting around the time he took over and culminating in Special operations cases, reputedly an interest area.  If it weren’t targeted and actually had anything to do with ensuring quality legal advice to the fleet and the country then in you would think they would have also asked to look into why the seals didn’t know or follow ROE and law of armed conflict or even report and investigate violations (unless that is being covered in the separate seal review).  Similarly, the review could also have included SJA aspects vice narrowly specifying OJAG/NLSC leadership since SJA’s could have avoided or resolved issues (especially in Barry where the SJA’s raised then failed to resolve their own issue via any number of standard SJA tools taught at their schoolhouse).  The government could even have taken this opportunity to figure out UCI, even if it meant major changes.  60 days will go by quickly.  Instead, Regrettably, this review probably won’t be very broad and appears limited to thinking inside the box of the existing JAG structure – so stand by for quick-turn taskers to document training and gapped billets and explain why this review revealed Navy JAG Corps is underfunded…

  18. 777-300ER says:

    @Kafka and @CDR X: This review needs to be extended to the Marine Corps Judge Advocate community, too. It’s all sorts of jacked up, whatwith senior leaders who have had toxic leadership (and avoided deployment) being promoted and seen as “awesome”, political players getting promoted well past where they should be, the truly gifted attorneys bailing out at 1 or 2 tours, while leaving the kiss-ups who go on to senior posts, the lack of respect the general Marine Corps population has for judge advocates (no continuation pay? Really? No special pay for a highly specialized job?).

    All your points…..apply to the Marine Corps….and the Marine Corps adds its own nonsense (“competitive” slots for education that the Navy basically begs their Judge Advocates to do? WHAT?!?) Told my family member to get out of that nonsensical organization as soon as possible; I did and got so disgusted with how things were run that I fly jets now (hence my name). Only the Corps can turn your dream job you want to have fun into something you despise and run away from as fast as Carl Lewis.

  19. Allan says:

    I am not 100% sure what throwing an O-6 under the bus means in reality.  The chances of becoming a O-7 are pretty small (especially, from what I have seen in this post, from the command this O-6 was in).  Most O-6s are simply put in slots until they retire.  I anticipate that this is what will happen with CPT Larrea.  It is just a matter of pride.
    An O-5 XO, however, is another matter.

  20. JustinSayin' says:

    An O-5 XO, however, is another matter.

    I think you’re spot-on about that.  I think there are good people who’ve been caught up in all of this and it pains me that their story won’t ever be told – because the JAGC will muzzle them.  I know CDR Czaplack and I believe he’s a skilled attorney and a good, honorable man.  Obviously, he made a really, really ill-advised decision, but I wonder what his side of the story is.  His name has been dragged through the mud – but what about his supervisory attorneys: CO/XO RLSO, TCAP, and even NCIS counsel?  Alexander Acosta, former US Atty for SoDistFL has been all over the news lately for the deal he gave Jeffrey Epstein.  But very little attention has been given to the line AUSA who also signed off on the plea. Shouldn’t the same logic apply here?  But as Allan noted, the Captains will be protected and retire at rank and the junior guys will get hammered publicly and never promote again.
    To my original point, JAG officers who speak to the press, or loudly voice their disagreement with the Corps are shunned pretty fast.  It’s the ooh-rah lifers that succeed, even if they’re telling their friends privately, “just one more tour and I’m done.”  The men and women I respect most?  The ones who did 12-14 years, even pinned on O-5, and then said, “For the good of my family and my desire to develop as an attorney, I’m getting out.”  That take cojones.

  21. Alfonso Decimo says:

    Wow. Everyone seems to agree about the Navy JAG Corps and you’re not wrong. I think we all know some less famous examples. Somebody should write a book.

  22. Seriously? says:

    “Comprehensive reviews,” just like Art VI inspections, are great in execution, but not what’s needed here.  I agree with the comment that they’ll only ask the “right” people the “right” questions and little will change.  What’s needed here is cultural change, and the best chance of that happening is if the public is watching. 
    Take the culture of detailing in the Navy MILJUS world.  I don’t think the Navy lacks the talent or experience to try these, or any, types of cases.  They have it, they just don’t use it.  It takes years in lit billets to gain the type of experience necessary to try a case like Gallagher.  But the Navy yanks these litigators out of the courtroom just when they’re needed there. 
    The Navy views litigation as something O5s and below do.  Once the O5 has done the STC/SDC job, their MJLQ future looks something like this: MJ, NMCCA, CO, SJA of some TYCOM, back to NMCCA, CoS or CJDON, retire.  In none of those jobs may those officers really contribute to the tactical litigation mission.  (The hope was that putting MJLQ JAGs as XO/CO of RLSOs/DSOs would assist with that.  But that’s not happened — not ONE MJLQ CO or XO of a DSO/RLSO has been able to invest fully in litigation.)
    Going to the bench helps a great deal, but those officers should then go back to the trial shops, providing senior, experienced litigators in the courtroom, in front of the bench.  Not COs/XOs with the administrative responsibilities of running a command, but as LITIGATORS who also train, mentor, and supervise.  Perhaps the STC/SDC billets become post-bench O6 jobs?  Until the Navy figures out a way to utilize the experienced MJLQ officers, it will continue to lose them to retirement or resignation because there’s no longer any litigation in their future.  What a waste.  Let’s hope this review recognizes that and leads to change. 
    When, for whatever reason, the Navy can’t put the right JAG on the case, it needs to be able to reach out to reserve JAGs, many of whom are skilled and experienced AUSAs and ADAs.  I personally know a few of these JAGs who would have jumped at the chance to come back on active duty and try the Gallagher case.  Why didn’t that happen?   
    Again, I’m not holding my breath.  “Reviews” tend to start off strong and peter with the public’s attention span.  The report remains “internal” and useful recommendations flounder because of resource or “personnel growth” limitations.  Such a review results in a waste of time, resource and opportunity–they’ll go through all the churn and the Navy’s “Chief Prosecutor” will still always be an AJAG with no MILJUS experience. 
    What the Navy should do instead is order a Court of Inquiry, at least into the prosecution of the Gallagher case.  Not only would this look into the detailing and other MILJUS issues, it will do so in the public square.  Due to a one-sided publicity and twitter blitz, many see NCIS and the JAGC as incompetent, lying, cheating government officials who tried to tear down a national hero to “advance their own careers.”  Perhaps true.  But if not, and if that narrative is unopposed, the Navy risks this public sentiment lingering, even unto Congressional action (HASC is said to already be looking into the Gallagher case). 
    An internal review is unlikely to resolve or avoid any of that.  But a COI will answer questions regarding detailing procedures, competence of counsel, legality of actions, use of reservists, etc., using subpoenas and sworn testimony in full view of the public. 
    Now THAT sounds worthwhile.   

  23. Concerned Defender says:

    I agree with the scathing indictments of the JAG Corps above. I hope all the services are hammered with investigations and revamped JAG Corp with an actual mission that makes sense.  The PC politics are infuriating.  Lawyers/Soldiers wasting time doing stupid nonsense when having valuable dual professions (officer and lawyer).  I recall endless hours of total buffoonery while I had actual real legal work to do and massive caseloads, compounding my long work weeks on a regular basis.  The politics, the nonsense, the ignored ethical violations by some counsel who go on to be promoted to bigger jobs, etc. is maddening for any competent lawyer/Soldier. Maddening mis-prioritization on the wrong things.  
     
    In the last 5-10 years there have been dozens(?) of reported confirmed serious ethics violations and I wonder if any of these lawyers were separated or disbarred?  Unlikely.  The total hackery and unreasonableness of some SJAs and those in “Military Justice” is something to behold.  I have so little respect for most of the Deputies and SJAs or Chiefs of Mil Justice I’ve dealt with that it’s a serious indictment to them all.  Taking endless really weak cases to trial just to gain trial experience at the cost of ruining the lives of service members.  And they can do so with impunity because of the total stacked deck the government has in the court room – a room filled with everyone convened by the CG, all pro-government types, Judges that are typically pro-government prosecution, and prosecution and defense with future jobs in mind.  Everyone knows where their bread is buttered.  A simple majority pro-government panel to convict on crimes that don’t even exist in the civilian world, or certainly not applied the same.  I digress.
     
    As others said, the best ones get so frustrated we (as I did) tend to get out and those great at dodging tough jobs and navigating politics and licking boots advance. 
     
    The JAG Corps needs a ground up revamp.  
     
     

  24. Fisch says:

    Most of these comments discuss career tracks and the level of trial experience and how actions by military attorneys in cases like Barry and Gallagher happen.  I don’t see the level of trial experience as an issue. 
     
    Disclosure of Brady evidence, attorney client privilege, and the special responsibilities of a prosecutor are concepts that every law student is required to know to pass their State’s bar and ethics exams, respectively, to become an attorney.  Then, you learn military specific ethics issues such as Unlawful Command Influence at your JAG Officer Basic Course or Justice School.  I could issue spot the actions these idiots have taken as a freaking Lieutenant in the Army JAG Corps.  
     
    The reason we see so much of this bs is because there is no accountability against the Government.  Just like a false accuser has no downside for making a false accusation against a Servicemember in an attempt to effectuate the desired end state of whatever her agenda is, military prosecutors face no downside for being so aggressive that they crossing the line.  Over the past 12 years, Congress has not been the slightest bit interested in any of the protections afforded a military accused, but instead have chipped away bit by bit the protections that were put in place of a system that had the appearance of being somewhat unfair by the casual observer.  Whether it be the actions of an O3 or an O8 makes no difference.  What makes the difference is whether it is the actions of one who supports the Government and Congressional intent as to what actions will be protected. 
     
    The worst action I have seen or heard about is CAAF printing Matt McDonald’s name in an opinion.  At least he was called out for actions he took openly in the Courtroom.  Heck, I can respect him for doing it out in the open.  You had AF TJAG and Navy TJAG making some really bad statements that they never thought would see the light of day, resulting in reversal and dismissals of convictions in sexual assault cases.  You had a Senior prosecutor on a high profile case tracking defense counsel e-mail.  What has happened to them?  Nada. Zilch.  They took actions that any Lieutenant would discourage if he wasn’t a complete and utter coward.
     
    It’s not about experience.  It is simply about a culture in each Service’s JAG Corp that can only be described as Nifongian.  But, the US Military’s respective JAG Corps are not like the North Carolina Bar, or the NC AG’s office.  And, until they are, this will continue.

  25. JustinSayin' says:

    Seriously? – You nailed it.  You’re clearly someone with knowledge of the system and I don’t disagree with a word you’ve written.
    Fisch – I feel like Hanlon’s Razor applies here – “Never attribute to malice that which is adequately explained by stupidity.”  I don’t think prosecutors are doing those things b/c they’re overzealous or b/c they’re not held accountable.  I think they do them b/c they don’t realize they’re doing anything wrong!  There wasn’t a more experienced prosecutor standing by to say, “Hey, that might not be a good idea” or “Hey, you should research caselaw regarding that issue.” 
    That said, you’re not wrong about accountability.  By the time the case gets reviewed on appeal, Trial Counsel has moved on to the next billet.  Consequently, no one assesses their actual performance.  Even if it didn’t amount to prosecutorial misconduct, if 80% of their cases are overturned, then they’re not a good lawyer! But alas, no one will ever know who the trial counsel on the case was and they’ll move on unscathed. 
    Maybe it’s time for opinions to name the TC/DC along with the MJ and Appellate counsel?  Maybe it’s time for TCs to start handling their own appeals, which is how it works in many USAOs?

  26. Philip D. Cave says:

    The Coast Guard CCA already does name names.

  27. 777-300ER says:

    “military prosecutors face no downside for being so aggressive that they crossing the line. ”
     
    ahem…….U.S. v. Salyer, anyone?  The trial counsel in that case not only did not face any downside, they got PROMOTED, SENT TO EDUCATION, and are now looked at in the Corps as “water walkers” or “the chosen ones”.  Heck, a whole lot of people involved in that case (including an O-5 and O-6 who were working the machinery behind the scenes to enact a personal agenda in that case) escaped serious scrutiny, and the subject O-5 is running around leaving a trail of chaos in their wake…STILL.

  28. Charlie Gittins says:

    Seriously:  “When, for whatever reason, the Navy can’t put the right JAG on the case, it needs to be able to reach out to reserve JAGs, many of whom are skilled and experienced AUSAs and ADAs”.  The USMC tried bringing back a senior JAG (ltCol) (I think from a USA office) to work and try the Haditha cases with another LtCol.  It was miserable; two LtCols with no real experience who allowed the worst offender to be granted transactional immunity (he admitted murdering several non-combatants and then urinated in their head wounds, who received no punishment whatsoever.  A young Captain with some TC experience would have tried that guy first.   

  29. Abe Froman says:

    There sure is a lot of tut-tutting from the commenters here (I know it is the Internet, after all). But you are starting to sound like Uncle Rico: “If [JAG]  woulda put me in we woulda won [that case]. No doubt. No doubt in my mind.”
    Sunlight is the best disinfectant. I would think that most JAGs  would welcome that review, especially in light of all of the MILJUS issues across the services over the last few years. The Navy is just the first in line. I’ll reserve judgment on its efficacy depending on WHO gets tasked to conduct the review/assessment.  

  30. Cloudesley Shovell says:

    @777-300ER– What?  A JAG who becomes a pilot?  Impossible I say!  Ridiculous! What man of right mind would turn his back on the majesty of the law to become a sky chauffeur, wearing ties with short-sleeved shirts like some second-rate appliance salesman?
     
    Who would abandon the tyranny of the billable hour and 6+ days a week slaving away in a cubicle for a messy cockpit with the last crew’s lunch all over the center console and floor (let’s not even talk about what’s migrated behind the rudder pedals), only 15 days off a month, and dozing for dollars in an augmented crew?  Not to mention the lousy widebody layovers.  A real man would at least be slogging it out on a domestic narrowbody with no meals and 11 hours in Bismarck or Akron.
     
    Insanity I say!  Madness!
     
    Kind regards,
    CS

  31. Fisch says:

    Fisch – I feel like Hanlon’s Razor applies here – “Never attribute to malice that which is adequately explained by stupidity.”  I don’t think prosecutors are doing those things b/c they’re overzealous or b/c they’re not held accountable.  I think they do them b/c they don’t realize they’re doing anything wrong!  

     
    JustinSayin’, I prefer Gibb’s Razor, aka rule #40:  If it seems like someone is out to get you, they are.  Nonetheless, I think the key word in Hanlon’s Razor is what may be adequately explained by stupidity.  Let’s dissect good ole’ Hanlon’s razor with Occam’s razor, which touts the simplest explanation as being superior. 
     
    Look at the O4 prosecutors’ resume who was removed from Gallagher’s trial taken from his LinkdIn page:
     

    Senior Trial Counsel, Region Legal Service Office Southwest
    September 2018 – Present 1 year
    San Diego, California

    Executive Officer, Defense Service Office Southeast
    July 2016 – Present 3 years 2 months
    Norfolk, Virginia
    Managing partner for a criminal defense practice of 30 attorneys and 30 support staff.

    Senior Defense Counsel, Defense Service Office Southeast
    July 2015 – July 2016 1 year 1 month
    Norfolk, Virginia
    Chief Public Defender for the largest Navy base in the world

    Senior Trial Counsel, Region Legal Service Office Northwest
    August 2013 – June 2015 1 year 11 months
    Bremerton, Washington
    Chief Prosecutor for Navy Region Northwest.

    Senior Defense Counsel, Naval Legal Service Office Europe, Africa, Southwest Asia
    March 2011 – August 2013 2 years 6 months
    Naples Area, Italy
    Chief Public Defender for all Sailors and Marines stationed in Europe, Africa and the Middle East.

    Defense Counsel, Navy Legal Service Office Mid-Atlantic
    October 2009 – March 2013 3 years 6 months
    Norfolk, Virginia
    Public defender for servicemembers in the Hampton Roads area.

     
    Seems like he spent the entirety of his 10 year career litigating Courts-martial, the majority of time as a Senior Trial or Defense Counsel.  Yet, I am supposed to accept that he was too stupid to know that the actions he took that resulted in his removal from Gallagher were improper.
     
    Certainly, I shouldn’t have to discuss the legal acumen of two TJAG’s of two different branches of our Armed Services.  It has been said in numerous opinions that Military Justice has  one mortal enemy:  Unlawful Command Influence, the appearance of which is just as bad as it actually occurring.  Yet, two TJAGs conduct resulted in the appearance of UCI, which led to two sex assault convictions being overturned.  I find it hard to believe that these two JAG Officers were ignorant of UCI or stupid.
     
    So, I think any explanation that attribute those actions to stupidity are inadequate, particularly when you have to explain away with complex arguments the bad actions on the part of people who are required to pass extremely difficult exams to uphold the laws and legal standards they are required to enforce.  Any explanation that these people are ignorant or stupid is inadequate because their ignorance would have to be willful considering they are lawyers.
     
    Occam would say the simplest explanation is that Congress has placed, so great amount of pressure on the military to prosecute certain cases which has created a culture where overzealousness is in the very least condoned or at the very worst encouraged (thanks for that fine example 777-300ER re: Salyer) because Senior Judge Advocates such as COJ’s, SJA’s, Military Judges,  Professional Responsibility Divisions, TJAG’s and Appellate Judges do not have the backbone to hold those who violate military Accuseds’ rights accountable. 
     
    And, I can think of a few scenarios where the culture has declined to such an extreme low that bad acts are considered normal, so that the population is truly ignorant and cannot comprehend that they are committing bad acts.  On a personal level, I am inclined to believe that someone is stupid before they are evil where the facts warrant it, so I too have seen attorneys do some really boneheaded things and I don’t run off and file a bar complaint or a motion for prosecutorial misconduct.  But, these are situations where I can understand how they might think what they are doing is okay due to lack of training or leadership.  I find it perplexing that a seasoned Court-martial attorney or two TJAG’s might think what they were doing is okay.    So, a lot of what you are saying might be congruent to what I am saying because how are military attorneys supposed to know just how wrong something is, unless the person committing the bad acts isn’t thumped in the public square, like Seriously? suggests.  

  32. JustinSayin' says:

    Fisch, I don’t actually think we’re too far apart on this.  I agree that the CA model is flawed: cases likely to embarrass the Navy (particularly sexual assault cases) are going forward with the Convening Authority and SJA hoping for and helping with a conviction (as evidenced by Salyer/Barry).  We don’t even see the hundreds of cases where a convening authority declined to take a case to court-martial and opted for an easy AdSep that wasn’t worth hiring CDC or subject to appellate review (except GCMCA review – HA!).  There, the CA’s desired outcome was all but assured. 
    For decades the SpecWar community took the opposite approach: CAs and SJAs buried cases that would have led to courts-martial in the surface/submarine/air communities in order to avoid publicity and reputation damage.  The chickens came home to roost, and now we’ve got Gallagher and the Green Beret death case.
    I still maintain that despite CDR Czaplack’s ~10yrs of experience in litigation, he didn’t have close to the experience that a district attorney/AUSA would gain in the same amount of time.  I don’t think he’s a government hack!  He doesn’t provide the number of contested courts-martial on his resume, but if he did, I’d wonder how many of them were: a) fully contested, b) with members, c) sexual assault cases with d) he-said-she-said witnesses, e) a “reasonable mistake of fact as to consent” defense, and f) against a junior O-4 or O-3 defense counsel. 
    Navy MILJUS is the proverbial flea in the box: they only jump as high as the lid.  There just aren’t enough courts-martial to prepare a senior litigator for a publicly-scrutinized murder trial with a media-savvy civilian defense counsel.

  33. Anonymous says:

    Trial track looks brutal if that is a representative career path.

  34. Well Duh says:

    Exactly. 
    You can call yourself a litigator for a decade. But it won’t matter unless you’ve actually tried cases. 

  35. ContractLawyer says:

    For this review, they can simplify things and just go to Netflix and watch reruns of JAG.  

  36. RobS says:

    JustinSayin’ – well-put and spot on!

  37. Well Duh says:

    Also, I’m looking at how these jobs are described on that resume.  Managing partner? Chief prosecutor?  Chief public defender?  The work of an XO/STC/SDC is in no way comparable to the civilian positions he tries to equate them to, and that’s part of the problem.  As has been pointed out above, the JAG Corps just doesn’t have the amount of cases necessary to become savvy litigators, but are constantly having their egos stroked with an end result of they don’t know what they don’t know until something like this punches them in the face.  And then there’s the OJAG problem.  I’m not defending Larrea.  I think it’s obvious she made some errors as a supervisor.  But one minute JAG Chief of Staff is out there giving speeches about the awards she’s presenting and the next she’s being …totally not DFC’d just moved out 2 weeks early with no end of tour award nothing to see here.  Larrea and Czaplack and whoever prepped that witness who confessed on the stand made some huge errors… but to say the JAG Corps leadership doesn’t bear a huge share of the blame in this would be inaccurate.  There’s been institutional rot for a while now.  It crept in with McDonald, simmered below the surface with Houck, took a major foothold with DeRenzi and is now a thriving rootstalk of corruption and incompetence.  This is not to say there are not phenomenally talented and smart JAGs, and many of them, but the leadership and mentoring piece from the top is not there.  I see it in practice all the time.  Good young attorneys getting ruined when they go to firms with abrasive hack partners who aren’t showing them the ropes and helping cultivate their talent.

  38. Guppy says:

    There’s no way Larrea was capable of overseeing and offering concrete advice to the RLSOSW trial shop.  She’s an environmental law attorney.  COs don’t try cases.  Nor do XOs, SJAs, Code 15, or Carrier JAGS.
    From https://archive.defense.gov/home/features/2013/0913_hispanic-heritage/:

    Commander Meg Larrea currently serves as the Executive Officer for Defense Service Office Southeast.
    She was born in Pittsburgh, Pennsylvania. Her father and mother are natives of Tampico, Tamaulipas, Mexico and Chicago, Illinois respectively. After moving around extensively, Larrea’s family moved back to Mexico, settling in Mexico City when she was eight years old. A graduate of middle and high schools located in Mexico City, she attended Texas Christian University, Fort Worth, Texas, where she graduated with a Bachelor of Science degree in Biology in 1988. She earned a Juris Doctor degree in 1996 from DePaul University College of Law in Chicago, Illinois. Finally, she received her Master of Laws in Environmental Law from The George Washington University Law School in 2008. She is admitted to the Illinois Bar. She was commissioned as an officer in the United States Navy through the JAGC Student Program in 1996.
    Larrea’s initial assignment after completing Naval Justice School in December 1996 was as Assistant Branch Head, Naval Legal Service Office Southeast, Branch Office Roosevelt Roads, Puerto Rico. There she served as the Legal Assistance Officer and Defense Counsel from 1997 to 1999. In March 1999, she did another overseas tour, as the Staff Judge Advocate for Naval Support Activity, La Maddalena, Italy.
    Larrea’s next duty station was the Office of the Judge Advocate General, Claims, Investigations, and Tort Litigation (Code 15) from 2001 to 2003, where she served as the Head, Military/Foreign Claims Branch. During this time, she spent three months TAD to Naval Station Roosevelt Roads, serving as the Officer-in-Charge and as a Special Assistant U.S. Attorney. Her next assignment was as the Officer-in-Charge, Trial Service Office Northeast Detachment Groton, Connecticut.
    In June 2006, she reported to USS GEORGE WASHINGTON (CVN 73) as the Command Judge Advocate, and in 2008 deployed with the ship for Partnership of the Americas and UNITAS during the homeport change to Japan. Larrea then proceeded to The George Washington University Law School for her LL.M. in Environmental Law, and in June 2009, reported as a Regional Environmental Counsel at Commander, Naval Region Southeast, Jacksonville, Florida. In March 2011, she deployed to Baghdad, Iraq, in support of Operation New Dawn at U.S. Forces-Iraq, Office of the Staff Judge Advocate, where she served primarily as the Division Chief of Rule of Law. She also assumed leadership of the Law and Order Task Force until end of mission.
    In June 2012, Larrea assumed duties as Executive Officer of Naval Legal Service Office Mid-Atlantic, which on 1 October 2012 became Defense Service Office Southeast.
    She is authorized to wear the Defense Meritorious Service Medal, Meritorious Service Medal (2 gold stars), Navy Commendation Medal (1 gold star), Navy Achievement Medal (2 gold stars) and various unit awards.

  39. Well Duh says:

    so again… blame goes to OJAG for having so little a concept of what real criminal litigation looks like that they put people in positions in which they are not qualified t adequately perform.  I doubt there’s an O6 in the navy with the complex litigation experience needed to really run a trial shop.  Despite the boasting, their numbers just aren’t that high.  I’ll give a comparison.  My first year in civilian criminal appellate practice I briefed and argued 11 cases.  Over half of which were murder cases.  Switching to trial work, in the last three years I’ve tried 4 murder cases to verdict.  And I’m the junior person in the office by far.  *I* would not feel I have the experience to take on the Gallagher case as anything other than a second chair/research and motions monkey for my boss, who has probably tried at least 20 murder cases to verdict, and has tried, in general, over a hundred felony cases to verdict.  It’s not a matter of brains or talent, it’s experience.  No one at that RLSO, and probably even the active duty JAG Corps, was qualified to try that case.  Period.  That this wasn’t recognized and the JAG Corps didn’t consider using any one of it’s prosecutor or defense counsel reservists is a failing of leadership way further up the chain than Larrea.

  40. Vulture says:

    I’ve seen this done before.  A mil jus shop goes so far over the edge that everyone there is conflicted out.  That “above the fray” COJ has plucked and dodged so badly that he is offering the SDC his thanks for driving off CDC.  Then they bring in a squeaky clean reservist to put on the facade of being ignorant.  No thanks.
     
    Is the Accused going to get his selection on retired IDC?  That’s what happened with Brian Miser isn’t it.  But I think he is already part of a DAD.  So can The Accused just say he wants a particular reservist with a bustling civilian practice?  Or is he stuck with CDC bills while the Government gets to pick and chose?
     
    Government has the Trial Counsel Assistance Program.  They have a Government uniformed judge.  They have the vehicle of Command.  If they can’t get their shit together, they deserve to fail.  That’s not what is going to happen, but that’s what they deserve.

  41. Well Duh says:

    given that no military defendant would qualify for a public defender in the civilian world, I don’t see the problem with CDC bills for a competent defense. 

  42. Vulture says:

    You still haven’t figured out how to get the Accused an IDC out of the reserves.  Get Admiral(Ret.) Crawford in the Defense chair on a dereliction of duty case, then we’ll talk.

  43. Well Duh says:

    your position is either trolling or ignorance. IDC has always been discretionary subject to the attorney’s availability. And I wouldn’t want Crawford defending me either. 
    Your position that because the deck is already allegedly stacked in favor of the side who also has the burden of proof beyond a reasonable doubt, they shouldn’t use prosecutors with actual experience is laughable. And again, if Petty Officer Timmy gets prosecuted in civilian court, he’s not going to qualify for a PD anyway so your claim a CDC bill is unfair doesn’t hold water. Frankly, if I were facing trial there’s no way in hell I’d be letting my detailed counsel do anything other than make non billable copies for my CDC. The military counsel lack the experience to get really good at litigating. 

  44. JustinSayin' says:

    I think the posters on this board who, by and large, are CDCs have drunk too much Defense Atty Kool-Aid™.  I don’t think the deck is  stacked against the accused much worse than it is in other criminal justice systems.  Sure, it has problems – particularly with respect to convening authorities not understanding their role.  But by and large, military prosecutors aren’t career prosecutors – they’ve seen both sides and I think they’re better off for it.  As I mentioned above, CDR Czaplak, despite his mistake, isn’t a government hack.
    IDC is a nice option, but it rarely works out.  Reservists brought onto active duty to assist trial shops aren’t all that helpful either – their orders are too short for them to really litigate a full case.  Instead, they swoop in to assist with a trial (the facts of which they know very little about), and are gone by Friday night.
    The fundamental issue is that MJLQ attorneys don’t have enough experience to handle big cases.  Some of that can’t be solved – there just aren’t enough courts-martial.
    Here’s how I’d fix the JAG Corps:
    MJLQ: 1) revisit the requirements of MJLQ certification to include post-appeal results of court-martial convictions, 2) limit assignments of MJLQ attorneys to trial-only billets (no SJA/NJS/War College/VLC duty), 3) insist that attorneys by-and-large handle their own appeals, 4) send the big cases to US Attorney’s Offices.
    Judges: I’d eliminate half of the military judges and insist they be O-6 and above.  They’d be based in Norfolk, San Diego, and Japan, and ride circuit to handle courts-martial when they come up.
    Enlisted: I’d eliminate the Legalman community and merge it with PS or YN.  At E-4, they could apply for an  MJLQ-equivalent track. Then best/motivated who were selected would go to resident legal training and then be detailed to trial shops and SJA commands.
    OJAG: 1) reduce Code 45/46 (appellate law)(since it’ll be handled by the atty who tried the case).  2) Entirely replace OJAG Codes dealing with Admiralty, Environmental Law, Administrative Law, Claims & Tort, and Disability Evaluation with full-time private attorneys who are subject matter experts.
    I’d hire investigators for the defense community – defense counsel SHOULD NOT be doing their own investigations.
    I’d eliminate detailed VLCs and replace them with civilian attorneys.

  45. Vulture says:

    Nope.  What I am saying is that anything that you do to make a change in the Government side needs a balancing measure on the Defense side.  The “Hey, let’s fix it by making the Government better.” angle is no more remedial than what the Commander wants.
     
    Now let’s back up and see who is the troller because I have asked it several times to posters that have a wide range of opinions: Is the UCMJ a tool for the Commander or a tool of the Commander?
     
    Enlighten my ignorance.

  46. Well Duh says:

    Not sure it’s wise to base qualification on win loss cases. Government shouldn’t be bringing garbage cases, so defense will lose more than they win. That’s where the deck is stacked. A really good case pleads. A pretty good case goes to trial. A bad case gets dropped. (Or should, anyway). 
    Trial attorneys doing their own appeals is another problem. It’s a totally different skill set. Very few attorneys excel at both.