Top 10 military justice stories of 2008 — #10: The Army’s adoption of military justice additional skills identifiers
This is the first in an end-of-year series of posts looking back at 2008 and setting out what I think are the ten most significant military justice stories of the year.
On 21 July 2008, the Judge Advocate General of the Army issued a memorandum establishing military justice additional skills identifiers (ASI). A copy is available here. The memo offered words dear to any military justice wonk: “Military justice is our Corps’ statutory mission.” The military justice ASIs are designed to encourage Army judge advocates “to set goals to achieve greater skill in litigation and expertise in military justice.” It establishes four mil jus ASIs: Basic Military Justice Practitioner, Senior Military Justice Practitioner, Expert Military Justice Practitioner, and Master Military Justice Practitioner. This produces a career progression that “encourage[s] counsel to seek out litigation-related assignments to deepen their level of military justice training and experience.”
ASIs won’t be rigid assignment requirements, but they will be considered by PPTO (the Army’s equivalent of monitors or detailers) when filling billets.
As the Super Muppet of Appellate Advocacy discussed here, the program is similar but not identical to the Navy JAG Corps’ Military Justice Litigation Career Track program, which then-RADM MacDonald established in 2007 in this instruction.
In my experience, military attorneys generally do an excellent job in run-of-the-mill cases. As I’ve observed before, for many civilian defendants, Gideon v. Wainwright is a false promise. Appointed counsel are generally provided only to the indigent. But in Maryland, the indigence cut-off was well below the poverty line. The working poor often earned too much to qualify for a public defender but not enough to hire a lawyer. As a result, when waiting for my cases to be called in Maryland circuit and district courts, I would often see unrepresented defendants tried, convicted, and sentenced. That just doesn’t happen in the military, where everyone has a right to a free counsel.
But while the military justice system does an excellent job with run-of-the-mill cases, I’ve noticed over my roughly 21 years in the military justice system that it tends to do a poor job in the big cases. Consider, for example, that in 2 of the 10 military death penalty cases that have completed direct appeal under the current system, the death sentence was set aside because apparently no one in the courtroom knew — or could figure out — the proper instruction for voting on the sentence in a capital cases. Or that another 3 of those 10 death sentences were reversed at least in part on IAC grounds. In all, 8 of the 10 have been reversed; the military justice system is batting the Mendoza line in capital cases on appeal.
The Army’s military justice ASI program and its Navy predecessor appear to recognize the system’s difficulty with the big cases and take reasonable steps designed to shore up that weak spot. These programs also appear to recognize the danger of a military justice brain drain as operational law is increasingly perceived as the career enhancing, sexy specialty for military lawyers. Hence then-Major General Black’s reminder that “[m]ilitary justice is our Corps’ statutory mission” — not, mind you, one of its statutory missions.
It will take years to determine whether these programs are actually successful. But merely recognizing the problem and seeking to fix it makes this one of the ten most significant military justice developments of 2008.