Coming in at number 6 [sorry, I can’t replicate the Casey Kasem voice in WordPress] is the focus on Navy-Marine Corps’ legal services that began with the congressional direction to the Defense Department to:
study of the policies and management and organizational practices of the Navy and Marine Corps with respect to the responsibilities, assignment, and career development of judge advocates for purposes of determining the number of judge advocates required to fulfill the legal mission of the Department of the Navy.
See Public Law 111-84, Sec. 506(b)(1) (National Defense Authorization Act for Fiscal Year 2010). As we anticipated nearly 14 months ago, here, there was a gathering storm about Navy and Marine Corps judge advocate billets when the FY2010 Defense Authorization Act was in Congress. As Congress was passing the NDAA, the Senate was directing another investigation by the DOD IG into Navy-Marine Corps’ post-trial processing–which was also requested in the Senate Report for the FY2010 NDAA, see here.
What was the driving force behind all of this commotion about Navy-Marine Corps judge advocates and the administration of military justice? As commenters that attended the 506 Panel hearings noted, it was primarily preventing another situation like our #4 Military Justice story of 2009, the United States v. Foster debacle. The Senate Report (at 131-32), in fact, laid out the painful history and reason for its direction to the DOD IG:
The committee believes that action is long overdue to analyze and correct longstanding problems with the post-trial processes for preparation of records of courts-martial and for appellate review of court-martial convictions within the Department of the Navy. The United States Court of Appeals for the Armed Forces (C.A.A.F.) in the case of Toohey v. United States, 60 M.J. 100 (C.A.A.F. 2004), established standards for assessing whether convicted service members had been denied due process under the Fifth Amendment to the Constitution as a result of denial of reasonable appellate processing of their cases. Since then, a succession of Navy and Marine Corps cases, including, but not limited to, United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005); United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006); United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006); United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006); and, most recently, the unpublished case of United States v. Foster have addressed extremely lengthy delays in appellate review. In the Foster case, the conviction of a Marine was set aside because his conviction for rape “could not withstand the test for legal and factual sufficiency.” This Marine had been confined for more than 9 years awaiting appellate review of his case. These cases demonstrate that cognizant legal authorities in the Department of the Navy have not taken necessary and appropriate steps to ensure that the resources, command attention, and necessary supervision have been devoted to the task of ensuring that the Navy and Marine Corps post-trial military justice system functions properly in all cases.
The committee recognizes that a series of Navy Judge Advocates General have attempted to overcome the systemic challenges associated with preparing, authenticating, tracking, and forwarding records of trial from numerous commands entrusted with court-martial convening authority and ensuring that the appellate review process comports with all legal standards. The committee is convinced, however, that intervention is needed by departmental civilian and military leaders to definitively resolve these chronic administrative problems and that action should be taken immediately to resolve these issues.
This year saw those efforts produce a “hard hitting” report from the DOD IG, here, that called out the Navy-Marine Corps’ judge advocate community for “los[ing] sight of its core mission.” The IG concluded that:
There was a consistent failure in leadership and inadequate institutional vigilance, supervision and oversight at all organizational levels involved in administering military justice. The failures also represented a deviation from fundamental principles of professional responsibility, which require diligence, competence and timely representation of clients’ interests in the criminal justice system.
The DOD IG made several recommendations for continued reform, and also applauded the Navy-Marine Corps’ legal community for some reforms that are already in place.
Part 2 of the process should conclude in early 2011 as the final 506 Panel hearings come to a close and the Panel publishes it’s final report. A current draft of the report, here, and additional information available in our prior coverage here, suggests that the 506 Panel will not be nearly as critical of the Navy-Marine Corps community. The current draft conlcusion in the Staff Draft Report states:
The General Counsel, the Judge Advocate General, and the Staff Judge Advocate to the Commandant of the Marine Corps are committed to full cooperation in finding the most efficient and effective ways to provide legal services for the Department of the Navy. Appropriate common directives and guidance, bolstered by shared training through the Naval Justice School, exist and are sufficient. The existence of common practices and procedures, and legal training enhance the ability of the two Services to consider and efficiently implement teaming efforts in support of Department of Navy missions.
Another facet that made this, for me, a Top 10 story for 2010, beyond its potential for long lasting effects on military justice practitioners and all DON judge advocates, was the evolving under-current of the 506 Panel. The unexpected (and unwelcome, at least for one 506 Panel member) push by the Marine Corps’ legal community during hearings, and in submissions, to have Marine Corps’ JAs be considered for the DON JAG and DJAG positions makes this a very interesting story that reveals historic tensions in the DON judge advocate community. While we don’t anticipate Jerry Springer moments at the Jan. 7, 2011 final public hearing, the subtle jabs by Navy and Marine Corps judge advocate leaders have been interesting to watch.