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A Brief Examination of Air Force Courts-Martial Data and Experience

11/30/2020

4 Comments

 
​ In light of the responses to the recent Task and Purpose article, I thought a look at court-martial numbers and experience in the Air Force might be appropriate. The data comes from the annual reports available on the CAAF website and on the Joint Service Committee on Military Justice’s website and my review of official biographies.
Over the last three decades, the number of courts-martial in the Air Force has dropped significantly, as has the conviction rate. In FY90, the Air Force tried 844 GCMs and 636 SPCMs for a total of 1480 courts. The conviction rate for GCMs was 93.4%.  In FY17, the Air Force tried 159 GCMs and 231 SPCMS for a total of 390. The conviction rate for GCMs was 70.5%. In FY18 the Air Force tried 177 GCMs and 213 SPCMs for a total of 390. The conviction rate for GCMs was 67.3%.  In FY19 the Air Force tried 217 GCMs and 198 SPCMs for a total of 415 courts. The conviction rate for GCMs was 70.6%. 
 
As a result of the reduction in courts-martial, litigation opportunities for JAGs have plummeted. While the Air Force now tries only 28% of the number of cases it did in FY90, the total number of JAGs has only slightly decreased from 1398 in FY90 to 1304 in FY19.  For Circuit Trial Counsel (CTC), the numbers have actually increased from FY90 to FY19 from 22 to 25.  Thus, in FY90 there were 38 GCMs tried for every one CTC. In FY19 the ratio was 8.68 GCMs for every CTC and in FY17 there were only 6.36 GCMs for every CTC.  Of course, not every GCM has a CTC assigned.
 
Even in Article 120 cases, only 90% had a CTC detailed to the case. Moreover, many of the GCMs will end in a deal or a naked plea rather than be fully litigated, further reducing the opportunity to present a findings case. Obviously, some SPCMs will have a CTC detailed to the case, but in my experience from being in charge of the CTCs for four years, JAGC leadership discouraged detailing CTCs to special courts.
 
The Air Force claims 109 of 127 GCM SJAs serving from 2014 to 2019 have previously served in military justice positions such as circuit trial, circuit defense, area defense counsel, military judge and/or chief of justice.  This warrants a closer look. First, being a chief of justice does not necessarily mean a JAG will be in court anymore than the other JAGs in a base office. In fact, typically it means they will be doing fewer courts than the other captains in the office.  CTC, Circuit Defense Counsel (CDC) & Area Defense Counsel (ADC) are the only assignments that would really indicate an SJA has more than minimal experience in the courtroom.  So, the real question is how many of the SJAs advising the GCMCA has significant experience and/or recent criminal litigation experience? The answer appears to be not many.
 
Just prior to my retirement in 2014, I reviewed the official biographies for ten GCM SJAs serving at the Numbered Air Force (NAF) level.  In the Air Force, the NAF GCMCA is the most likely convening authority to actually refer a court-martial versus the MAJCOM GCMCA for example.  I reviewed the bios of the SJAs for 2AF, 3AF, 5AF, 7AF, 8AF, 12AF, 14 AF, 18AF, 20AF and the Air Expeditionary Center. These 10 NAFs represent the lion’s share of GCMs referred that year.
 
I would note, that in the Air Force, unless a JAG is an ADC, CDC or CTC, they would typically not be detailed to a court-martial except when assigned to a base office as an assistant staff judge advocate or possibly as a deputy staff judge advocate.  My review found that 5 of the SJAs served as an ADC for an average of 1 year.  One of those also served as a CDC for 3 years. There were no former CTCs or military judges. The average time between the SJA’s last likely court-martial and becoming a NAF SJA was 15.4 years. In other words, only one had senior litigation experience and none had currency.
 
We can also examine six publicly available official biographies to further illustrate the lack of extensive or recent court-martial litigation experience in senior leadership -- those of the last three TJAGs and DJAGs. 
 
Lt Gen Richard C Harding never served as an ADC, CDC, CTC or military judge.  If he tried a court-martial as a DSJA, his last likely court-martial was in 1986.  Sixteen years later he became the 8AF SJA and 24 years after his last likely court-martial he became TJAG.
 
Lt Gen Christopher F. Burne never served as an ADC or CTC but served as a CDC for 10 months, leaving the position in 1990. This was likely the last time he tried a court-martial. Sixteen years later he became the 8AF SJA and 24 years after his last likely court-martial he became TJAG.
 
Lt Gen Jeffrey A. Rockwell never served as an ADC, CDC, CTC or military judge. His last likely court-martial tried was in 1992 when he was a DSJA. He has never been a NAF SJA. He became TJAG 26 years after his last likely court-martial.
 
Maj Gen Charles L. Plummer never served as an ADC, CDC, CTC or military judge. His last likely court-martial tried was in 2000. He has never been a NAF SJA and became DJAG 18 years after his last likely court.
 
Maj Gen Steven J. Lepper never served as an ADC, CDC or CTC. He served nine months as trial judge leaving the bench in 1989. Fourteen years after his last likely court-martial as a trial counsel he became 5AF SJA. He became DJAG 23 years after his last likely court-martial.
 
Maj Gen Dunlap never served as an ADC, CDC or CTC. He served 23 months as a military judge leaving the bench in 1989. His last likely court-martial was in March 1980.  Eighteen years later he became the 9AF SJA and 26 years later he became DJAG.
 
I’ll leave it to the reader to draw their own conclusions on the data and whether given the current number of cases it is appropriate to question the litigation experience and currency of the SJAs advising general court-martial convening authorities.  The JAGC does not make the official biographies of NAF SJAs publicly available, so I recognize this is merely a snapshot.
 
I have always been impressed with the talent level and dedication of the average JAG serving as an ADC, CDC or CTC, but with ever fewer courts, it is challenge for these JAGs to achieve and maintain the experience needed. ​

Don Christensen

Guest

4 Comments
Scott
11/30/2020 04:03:05 pm

Sir,

I greatly appreciate this response and, in particular, the focus on data rather than subjective or anecdotal impressions. I am sure that others will feel the same.

Many of us in the JAG or MJ worlds have strong opinions on this topic, but it’s important to realize that most such opinions have been formed by our own individual experiences. While these experiences are valuable, and often lead to common conclusions, they are by their very nature limited in scope and may not always be reflective of the wider world of MJ across time, services, and locations.

Concrete data like that you’ve compiled and summarized here is useful in giving a broader perspective and recognizing trends.

Of particular note, your point about the simple mathematics of the ratio between cases and counsel is a profound one. The number of cases counsel can try, and correspondingly their level of experience, is inherently limited by the total number of courts-martial tried by a particular service/jurisdiction/etc.

Several older/retired JAGs, particularly from the Air Force, have told me about caseloads in the 1990s far beyond what even the busiest JAGs see today. The numbers you’ve presented certainly illustrate why. I would be quite interested to hear your take on why the number of courts-martial have declined so drastically and, to the extent any wider conclusions can be drawn from the data, whether the reduction represents a positive change or a negative one (or, perhaps most likely, a mixed bag).

Finally, to your last point, I think it is important to note, as you do, that the quality of military counsel is largely a seperate question from their level of experience. Hopefully criticisms of the level of experience amongst JAGs are not taken personally or construed as attacks on the quality or dedication of military lawyers more generally.

Reply
Scott
11/30/2020 04:10:37 pm

Sir,

If I could venture a slightly off topic query as well, I would be quite interested in your thoughts on the DAC-IPADs recent conclusion that there is a systemic problem with cases being referred to court-martial with insufficient evidence to convict.

As I’m sure you know, there are many who feel this unsettling trend is a direct result of pressure from various sources to push Article 120 cases forward to trial as the “safe” course of action for senior JAGs and their commanders, regardless of the prosecutorial merit of the case (the Wright case comes to mind as perhaps the starkest example, though by no means an isolated one). Certainly I would not presume speak for you, but I imagine you likely have a different view and I would be most interested in your take on the issue.

Reply
DON CHRISTENSEN
11/30/2020 04:48:50 pm

Scott,

Thank you for your response and questions. Briefly, let me address the declining number of courts. Clearly, one driver is the Air Force is about half the size as it was in 1990, so one would expect a significant drop in courts. I think another major factor is commanders are more inclined to seek quicker resolutions through administrative actions vice court-martial. Secretary Mattis raised his concerns that was happening. Finally, I believe the court-martial has evolved into being almost used exclusively for common crimes, not discipline issues. What do I mean by that? I believe that most cases sent to courts-martial are for nonmilitary unique offenses like rape or theft. Military unique offenses such as fraternization rarely are referred to court now, especially as a stand-alone offense. Yes, I know there are exceptions, but when I started my career in 1991, I believe military discipline cases were much more likely to be referred to a court-martial than they are now.

I read the DAC-IPAD report with great interest. I am first and foremost an officer of a court, and I am troubled by any evidence that suggests charges are being sent to court without sufficient evidence to prove an accused’s guilt or in some cases without even probable cause. I take with a grain of salt the conclusions reached by the DAC-IPAD in that it is based on almost exclusively the report of investigations. As we all know, the ROI is merely the starting point, and often additional evidence is uncovered by trial counsel. However, it does raise troubling questions about the thoroughness of the investigations.

It is an interesting question as to whether external pressures cause convening authorities to send cases not supported by the evidence to court. The DAC-IPAD indicates that is both true and not true. Commanders took no action in 70% of all allegations of a penetrative sexual assault. That would tell me the commanders don’t feel that much pressure. On the other hand, if the DAC-IPAD analysis is correct a number of cases went to trial that shouldn’t have. It would be interesting to do a deep dive look at these cases to see why. Was it political pressure? Possibly.

Reply
Scott
12/2/2020 09:24:02 am

Sir,

Thank you for taking the time to response. I appreciate your perspective and insight on both issues.

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