Updated: On the Air Force JAG Corps

11/27/2020

Friends of CAAFlog Prof. Rachel VanLandingham, Prof. Joshua Kastenberg, and Don Christensen weigh in here: https://taskandpurpose.com/news/william-cooley-air-force-sexual-assault

Their main criticism is that the regular rotation from job to job prevents the development of expertise in criminal litigation.

Update: A response from Gregory Speirs here.

Editor's note:
There can be no doubt--these people are experts. Prof. Dunlap should explain his repeated use of scare quotes around that word, which is a departure from norms of academic civility.

15 Comments

Nathan Freeburg

11/25/2020 07:17:09 pm

"“The Army is smarter than the Air Force in this area,” she said. “They develop military justice experts who do nothing but that.”

This is news to me. (The later statement.) Both the Army and Air Force have people doing two consecutive tours in MJ. I was one of very very few to do three.

Scott

11/26/2020 10:36:23 am

Exactly. The Army definitely does not have people who do nothing but MJ. Maybe a small handful of people who, likely to the expense of career advancement, do mostly MJ.

Nathan Freeburg

11/26/2020 02:44:56 pm

Unless she is talking about judges. Sure, you can be a judge for ten consecutive years. But you were out of the courtroom for a bit before taking that gig. But that's true of all the services.

The statement re: the Army simply isn't accurate.

Greg Speirs

11/26/2020 06:51:12 pm

https://sites.duke.edu/lawfire/2020/11/25/guest-post-two-retirees-question-the-competence-of-todays-jags-heres-why-thats-off-the-mark/

A reply to Task & Purpose. Request this gets pushed on front page of CAAFlog, if possible.

Happy Thanksgiving to colleagues around the world!

Best,
Greg

Scott

11/27/2020 08:23:02 am

The contrasting quotes from the author of the original post are clever.

To the wider point, however, nothing in the article changes the fact that military counsel have, with few exceptions, quite limited justice experience.

The focus on “the team” that gets the job done is absolutely true - it is the team that makes the system function. And the system does function. But a functioning team with strong institutional unity does not change the lack of experience at counsel table - and a functioning system is a far cry from an ideal system. I would respectfully opine as well that SVCs, paralegals, and SJAs do not add as much to the court-room competence of counsel as the author seems to imply... these individuals have roles to fill but their roles have limited impact on the specific area of discussion.

Honestly, I really don’t see how anyone who has watched a representative number of Air Force courts martial (or any other service) can say with a straight face that the counsel have sufficient experience. The author encourages people to go watch some courts martial and judge for themselves - I completely agree - but I’m not sure the conclusion is likely to be the one the author suggests.

Don Rehkopf

11/27/2020 03:45:04 pm

"[N]othing in the article changes the fact that military counsel have, with few exceptions, quite limited justice experience."

I tried my first court-martial in July of 1976, so yes, I'm an old fart. No disrespect to anyone here, but 43 years ago when Charlie Dunlap and I were both in Korea, we probably averaged 4 trials/month. Bases upon two tours as an AF ADC, it was decided for me, that I needed "career broadening" and my follow-on assignment was to be a Numbered AF "Claims Reviewer." It's a decent gig if that's your thing, but I am a trial lawyer, so I left AD and switched to the Reserves as an IMA. I practiced in Germany then for about 4 more years doing nothing but US courts-martial and boards. I then returned to the US as a lateral hire into the Violent Felony Bureau of a public defenders office, doing nothing but homicides, rapes, armed robberies, and major drug cases for another 10 1/2 years, I quit counting trials at the 250 mark.

I offer this solely to point out that Scott's quote which I began with, is spot on. And, from my perspective, having tried cases in all branches (to include the CG), and handled appeals in all branches except the CG, the quality of the "lawyering" in the AF is abysmal. Yes, that is in the eye of the beholder. but I've "beholden" a lot.

The rebuttal notes this: "CTCs [Circuit (Senior) TC] land in town shortly before trial and hit the ground running." Unfortunately, that is true and any litigator (prosecution or defense) knows-or SHOULD know-that good and effective trial prep cannot be done a couple of days prior to trial. I am working on an AF appeal right now, where both the CTC and CDC arrived at the trial venue 3-4 days prior to the start of a 120 GCM.

* of the 4 counsel involved (not counting the SVC), none had been to the crime scene which turned out to be important;

* No one had done a crime scene diagram, or taken photographs of the scene;

* No one (including AFOSI) had collected any forensic evidence from the crime scene;'

* No one had bothered to find out why there wasn''t a SANE exam or what the applicable protocols for such were . . . .

It went downhill from there . . . but as the above notes (and this is not an isolated case as my colleagues can attest to), those were things that experienced counsel - regardless of which side of the aisle you're on - simply do not fail to ensure as part of competent trial prep.

Sure, there is a prosecution "team," but 90% of those folks haven't been in a courtroom for years and the other 10% probably - at least in my recent experience - have 10 or less litigated trials under their belts. But, what does it say when one of the AF's leading lights on military justice (and, an exceptional scholar btw), Col Jeremy Weber publishes a law review article [worth the read as well] entitled, "Court-Martial Nullification: Why Military Justice Needs A “Conscience of the Commander”, 80 AF L. Rev 1 (2019). When you have a senior, and highly credentialed AF JAG suggesting that "jury (Member) nullification" needs to be incorporated into military justice practice, there's a problem, and imho, part of that problem directly flows from the low experience levels of AF litigators.

Just my 2 cents . . . . and, no more.

Philip D. Cave link

11/27/2020 04:46:24 pm

As a member of the civilian defense counsel mafia now for 21-years, let me ask, is the Air Force engaging through puffery about military justice?

1. There are good lawyers, bad lawyers, and the rest of us are somewhere in between--some you have heard me say that.

2. Litigating a court-martial is different than doing administrative law--umm, I think we know that.

3. Entering an AF case I feel like the hamster on the wheel, or perhaps you all remember Groundhog Day—the movie. There will be a certain number of basic issues that will come up, come up so often that now I have a standard motion-in-limine for filing on common objections.

4. When I retired in 2000 and started to do AF and Army cases I learned how differently they operated especially with pretrial agreements—the AF idea is not to give anything. With that there is little incentive so that is from where I pushed the idea of litigate-to-mitigate.

5. Entering an AF case compared to an Army case I know I am going to have discovery problems. And then this caught my eye.

“CTCs land in town shortly before trial and hit the ground running.”

Oh-so-true. That is because they must “hit the ground running” to begin preparing their case. I have the impression that little is done prior to that week or so before trial. The flurry of last-minute activity seems to indicate a lack of constant or ongoing preparation. It is within that week or so that the discovery dam seems to break, and that new witness’s pop-up, and new “notices” come flying. This is when the defense gets the 4000-page discovery a day or so before trial with a TC objecting to any delays to review the evidence.

6. During 2019, we can see something of what’s going on in the AF military justice world from the Air Force Report on the State of Military Justice Matters for Fiscal Year 2019, found in Reports of the Services on Military Justice for Fiscal Year 2019, to the General Counsel, Department of Defense, from the DoD Joint Service Committee on Military Justice.

https://jsc.defense.gov/Portals/99/Documents/Article%20146a%20Report%20-%20FY19%20-%20All%20Services.pdf?ver=2020-05-06-113632-833

a. “SVU-CTCs have litigated an average of 59 courts-martial.” Question: how many of these were guilty pleas and thus NOT litigated cases?

b. “During FY19, the Division was staffed with 83 ADCs, 73 DPs, 17 CDCs[.]” See USAF at 9.

c. Now, during this time AF had 118 referred GCMs and 53 SPCMS=171 (for 83 ADCs to deal with).

d. Also, 217 GCMs were “tried” as were 160 SPCMs for a total of 377÷83 ADCs possibly doing 4.5 cases each. Yes, it may well be that ADC at a base only did one of these cases and a more active base ADC had a heavier load. Again, of these we do not know how many pleaded guilty. Also, am I right, of these 232 were MJA. You ain't a litigator until you are regularly doing members cases.

e. It appears there are 25 authorized CTC but that only 20 do cases. It is my understanding that CTC are not usually assigned to a SPCM. So, 20 CTC did 217 GCMs in 2019 at an average rate of 10.5 each and again, we do not know how many of these cases were guilty plea cases—but Shirley some had to be GPs? So, assuming a two-year gig that’s a total of 21 or so of which how many were contested, and contested with members?

f. Interesting the AF also “tried” 71 SCMs—I hope that is a mischaracterization. If ADC represented the client at the SCM they just got the client a federal conviction.

g. Note, we are talking court-martial litigation, so BOI/AdSeps do not count (but I would give some credit because you are practicing some litigation skills in a contested board).

I appreciate I may be interpreting all the numbers wrong but there don't seem to be a lot of cases to practice on. And, all puffery aside, there are some good lawyers, bad lawyers, and the rest somewhere in between.

Scott

11/28/2020 08:47:14 am

Phil, those statistics are certainly illuminating. Certainly in Army, it is rare to find a trial counsel who has tried more than 10 contested cases - and a surprisingly large percentage trial counsel never try any contested cases through an entire tour.

Defense counsel seem to fair slightly better because (1) there are fewer of them, and thus they each try more cases and (2) in many cases they are on their second MJ tour (although that trend seems to me to be waning).

CoJs / STCs / SDCs / SVPs obviously tend to have tried more cases, but not always drastically more.

Another third rail issue in the Army is the Funded Legal Education Program officers who often join as senior O-3s and are immediately filtered into leadership positions, including MJ leadership positions. While the experience of these Officers in other branches is certainly valuable, they are often placed in supervisory MJ roles without the requisite technical knowledge to truly supervise and mentor their counsel.

Scott

11/28/2020 08:33:13 am

Could the services address the seemingly never-ending issue of lack of experienced counsel by something as “simple” hiring a relative handful of GS 14/15 attorneys to serve in senior prosecutor and senior defense counsel roles at each major Instalation? The uniformed JAGs could still sit first chair and be assisted/mentored by the civilians.

Much like what SVP/STC roles are billed as - but with true experts and true specialists.

Presumably these individuals could carry a heavier case burden than an equivalent JAG, reducing the need for a roughly equivalent (or even somewhat greater) number of billets to those added (and presumably being roughly cost neutral).

One might object on grounds that we need a deployable justice system but (1) in practical terms we have not tried many significant courts-martial in deployed environments for a long time, (2) there wouldn’t have to be a civilian on every case, (3) civilians can and do deploy and there’s no reason why that couldn’t include litigators.

JAGs would not be “ruined” by specialization, JAGs would still get MJ experience (probably better experience because they could learn from true experts), and there would always be an experienced litigator on hand.

To me the extreme consequences to Soldiers’ lives wrought by the MJ system simply demands a more serious approach to ensuring competent and experienced counsel on both sides. For years the proposals to accomplish this goal have focused on specialization within the services, but there seems to be extreme pushback to those proposals and seemingly limited results to the specialization programs that have been enacted. It seems many of the objections to cultivating specialized JAG litigators could be overcome by refocusing these efforts into civilian hires.

I’ve even seen proposals to create geographically permanent terminal O-4 or even O-3 positions so that litigators wouldn’t be ruined for later administrative leadership jobs. If you’re going to create Officers who do not PCS and do not compete for promotion, we have a name for that already: civilian employees.

There is something attractive about the idea of a purely uniformed system. But the attraction of the idea fades considerably after you see enough cases/lives by eminently avoidable mistakes.

Don Rehkopf

11/28/2020 01:03:46 pm

Ironically, I just saw this in the current edition [Vol. 4] of the Army Lawyer:

"In 2017, Lieutenant General (LTG) Charles N. Pede, The Judge
Advocate General (TJAG) of the Army, announced a shift in the
Army Judge Advocate General’s Corps (JAG Corps) career model
to deliberately develop expertise in one or two particular areas. . . . While the “expert and versatile”
model applies to all the JAG Corps legal functions, the renewed
emphasis on expertise has particular significance for the practice of
military justice. The military justice system’s recent evolution demanded this shift away from the generalist “broadly skilled” model
to address concerns pertaining to litigation inexperience, career
progression, and victim care throughout the court-martial process."

2020 Army Law. (# 4) at 83.

Phan of DC

11/30/2020 11:23:56 am

Thank you to the editors of this blog for keeping it professional and to your comment about ret-Gen Dunlap who might want to try doing the same. Experts duel on a variety of matters across the scope of knowledge (medicine, law, ... heck. archeology) This doesn't and shouldn't devolve into a mirror of the political season. I would add to Captain Greg Spiers that in adding a rather gratuitous and unprofessional comment about the motives of people he has never met he undermined his own position. And with it, a departure from the expectations of officer professionalism. I am still on active duty and I had a conversation with my peers about the article. We do not agree with ret Col Christensen's position though we respect him,. And we noted that all three of the contributors served honorable careers which included deployments, the contributions to professionalism, and extensive military justice. But we - who outrank Capt Speirs - find his comment about the so-called motives utterly disagreeable. In a nutshell captain - "grow up"

Brenner M. Fissell

11/30/2020 11:44:56 am

Thank you for this comment. As you point out, there are multiple layers of professionalism that should operate to elevate the discourse here and should make personal attacks beyond the pale:

1. Almost all of us are attorneys and members of the bar, and are therefore bound by various ethical rules.

2. Many readers (like you) are commissioned military officers, who are bound by even more elaborate rules.

3. Some readers (like myself) hold academic appointments, and are expected to engage with the substance of an argument civilly without reference to ad hominem.

Poster

11/30/2020 11:31:44 am

In Whiplash, J.K. Simmons says to a drumming student, "There are no two words in the English language more harmful than 'Good job.'"
For context:
https://www.youtube.com/watch?v=taS98UbC_EU
Most musicians look at the movie and go 'meh.'

There are no five words more harmful to military justice than "Harmless beyond a reasonable doubt." It doesn't produce better attorneys. It doesn't motivate. That phase doesn't inspire.

It sucks the life out any meaning to the concept that says there is no error without remedy. And this has been a refrain that has been tossed around a lot lately. Good attorneys from both sides would have to question whether the idea of harmless is harmful.

Maybe with the broadly skilled paradigm the JAG corps is looking for the next Charlie Parker. But a diligent trainer recognizes that he can't wait for the next prodigy. At the stage when people are doing trials, a swoop in in the last four days won't cut it. And they can't learn under a negligent system.

Carrie Bradshaw

11/30/2020 11:47:58 am

“I couldn’t help but wonder, was harmless the new harmful.”

I can only assume from context that “Wiplash” is a high school drama about underprivileged drummers overcoming a lack of funding for the arts through hard work and team spirit. A poor man’s “Drum Line” if you will.

Poster

11/30/2020 11:52:53 am

I wouldn't replace the words "Good job." with "Grow up."

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Updated: On the Air Force JAG Corps

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