I’m not bad. I’m just drawn that way.
Jessica Rabbit, Who Framed Roger Rabbit, Touchstone Pictures (1988).
There have been plenty of scandals in the military justice system over the past eighteen months. Examples include discovery issues (like Bowser, Stellato, and Hudgins), judicial bias (like Kish, Williams, and Loiacono), prosecutorial misconduct (like Salyer, Frey, Hornback, and Porter), unlawful command influence by senior Government officials, the disintegration of high-profile cases (like Sinclair and Tate), and outright absurdity (like Sauk and the Pendleton search).
As we’ve written about these scandals, numerous (mostly pseudonymous) commenters have called for a heavy-handed response: criminal prosecution or professional discipline of the military attorneys involved.
I think such a response would be patently unfair.
Americans are right to expect that our military justice system will work better than it does. That is, as I wrote last year, a reason to take a hard look at the leadership within the military’s legal communities. After all, accountability is (supposed to be) king in military service:
Accountability. DoD employees are required to accept responsibility for their decisions and the resulting consequences. This includes avoiding even the appearance of impropriety because appearances affect public confidence. Accountability promotes careful, well thought-out decision-making and limits thoughtless action.
JER, § 12-401(d). But there is a big difference between a stupid legal argument and an unethical or criminal legal argument. Even the best lawyers make mistakes – sometimes big mistakes – and it is simply not unethical for an attorney to make a bad argument, or even to persist in that argument beyond the bounds of sensibility.
There’s no evidence that the many recent military justice scandals are the product of anything more than bad argument. They only look nefarious because they’re drawn that way. I’m willing to acknowledge some responsibility for that, as I’m doing much of the drawing through blunt analysis (often written with the benefit of hindsight). But so far as anything I’ve written might be interpreted as a call for suspension, disbarment, or criminal prosecution of military lawyers who make mistakes in the course of presenting a case, that’s not my intent.
We lawyers often use awfully strong language to describe a losing proposition:
When a decision is announced, even in very complicated cases where batteries of lawyers have bombarded each other and the judges for weeks with careful argument and high megaton precedent, the opinion solemnly says that the losing argument was without merit, or devoid of merit, or had no merit.
David Mellinkoff, The Conscience of a Lawyer 8 (West Publishing 1973) (emphasis in original). So maybe the calls for discipline are hyperbolic. They certainly should be. There are important lessons that all of us can learn from these mistakes. We should give the attorneys who made them a chance to learn as well.