And the Tony doesn't go to . . . the Journal of Military and Veterans Law

Every year, the American Theatre Wing awards one Tony for Best Revival of a Play and another for Best Revival of a Musical. If there were a third award from Best Revival of an Online Law Review, the Tony should not go to the Journal of Military and Veterans Law.

The original electronic journal by that name debuted in 1999. But it now seems to have disappeared from the web without a trace. If you go to its old URL, the William & Mary server will tell you, " The URL you requested was not found on the William & Mary webserver." Perhaps this is a cautionary tale for would-be web authors. I had an article in Volume 1, No. 1 of the Journal of Military and Veterans Law. I might as well have shoved my manuscript into a bottle and thrown it into the Chesapeake Bay.

But now there is a revived version of the Journal of Military and Veterans Law on the William & Mary server, though curiously without any links to content from the old journal of the same name. The web site tells us:

The Journal of Military and Veteran Law is a student edited electronic legal periodical published by the Military Law Society of the College of William & Mary Law School. The purpose of the Journal is to publish insightful and relevant essays and articles in the areas of national security, military and veteran law.

The first article in the revived JMVL is Commander (Ret.) Wayne L. Johnson, JAGC, USN's piece with the inharmonious title of Sailors and Marines Have Fewer Legal Rights than other Military Members as Their Military Lawyers Are Restricted in the Pre-Article 15 Advice They May Provide. 1 J. Mil. & Vet. L. 1 (2007).

More is wrong with the piece than its title. Nevertheless, as I will discuss below, every Marine Corps and Navy defense counsel and every civilian counsel litigating a Marine Corps or Navy court-martial should read the first two-and-a-quarter pages of the piece.

The article is short -- just 8 single-spaced pages -- and unscholarly. Normally both of those traits might be assets, but the article breaks with scholarly conventions so abruptly as to become a liability. The writing is overly alarmist, highly anecdotal, and casual -- at one point even using an exclamation point (an exclamation point!): "What made the matter even worse from the military's point of view was that Fairchild had admitted to his illegal drug use from the start!" Id. at 6. To quote the guru: "An exclamation mark is rarely justified in legal writing except in a direct quotation." Bryan A. Garner, The Redbook 1.72 (2d ed. 2006). The article's exclamation point was not the exception that proves Garner's rule.

The article concerns Booker's requirement that for a record of nonjudicial punishment to be admissible at a later court-martial, the servicemember must have received an opportunity to consult with counsel about whether to accept NJP. United States v. Booker, 5 M.J. 238 (C.M.A. 1977), modified by United States v. Mack, 9 M.J. 300 (C.M.A. 1980). On the authority of a little-cited 1987 Federal Circuit opinion, the author claims that the Department of the Navy's current pre-NJP counseling practice leaves the service vulnerable to "being sued in the federal courts for potentially hundreds of millions of dollars." Id. at 2. When I read this, I had two thoughts. The first, of course, was of Dr. Evil raising his pinkie to his lips and demanding "hundreds of millions of dollars." The second was roughly the same as General McAuliffe's reply to the Germans at Bastogne.

Here is the essence of the article's argument: "The court in Booker held that for Article 15 results to be admissible in a subsequent court-martial in aggravation, the accused must have been afforded an opportunity to consult with a military attorney as part of his or her decision to accept the Article 15 process or refuse it and request a trial by court-martial." 1 J. Mil. & Vet. L. at 2. "Currently Navy and Marine military lawyers are specifically forbidden from forming an attorney-client relationship" when providing pre-NJP advice. Id. at 2-3. "Specifically, they are forbidden from addressing the facts of the case or recommending whether the accused should accept Article 15 punishment or demand trial by court-martial. All they are allowed to do is explain to the accused what is already on the Article 15 (mast or office hours) rights form." Id. at 3.

That is the golden nugget in this article. In any Navy or Marine Corps court-martial sentencing case where the government seeks to introduce an NJP in aggravation, unless the accused was embarked on or attached to a vessel at the time of the NJP or (as is quite frequent) waived his or her right to consult with counsel, this provides a potential means to challenge the NJP's admissibility. The argument would be that admitting the record of NJP would be inconsistent with Booker and Mack because the naval service's pre-NJP advice does not rise to the level of "consultation."

But having delivered that golden nugget, the rest of the article offers only pyrite. It includes such clunkers as: "Many legal experts consider a decision from the Federal Circuit to be almost as good as one from the Supreme Court." Id. at 5. That sentence seems at once overly aggrandizing and overly dismissive. Most of the legal experts whose work I read refer to the D.C. Circuit, not the Federal Circuit, as the second most powerful, important, influential, and prestigious court in the land. On the other hand, I am struck with the mental image of a flashing neon sign on the Tayloe House reading, "The Federal Circuit: Almost as good as the Supreme Court!"

The article delivers this odd description of the Federal Circuit in an apparent attempt to lend gravitas to the crucial opinion of Fairchild v. Lehman, 814 F.2d 1555 (Fed. Cir. 1987) -- the decision that in the article author's imagination makes the United States government vulnerable to lawsuits worth a sum worthy of a Dr. Evil blackmail demand. Fairchild was published 20 years and 7 months ago. Shepard's tells us that in that time, it has been cited in 16 judicial opinions. An opinion that ventures out into the light of day less often than Punxsutawney Phil would seem an unlikely vehicle for a nine-figure judgment. And an unlikely vehicle it is.

In Fairchild, the record indicated that a Marine Corps lawyer provided pre-NJP advice to then-Sergeant John A. Fairchild and incorrectly advised him about the potential to be discharged based on the NJP. The Federal Circuit (Almost as good as the Supreme Court!) tells us: "Fairchild was misinformed when he was told that if he elected nonjudicial punishment he 'could not receive an adverse discharge.' Although Fairchild received the advice of military counsel, the advice he received was erroneous." Fairchild v. Lehman, 814 F.2d 1555, 1559-60 (Fed. Cir. 1987). The Federal Circuit then concluded: "On the basis of this advice, Fairchild waived his statutory right to trial by court-martial. We do not think that an accused can execute an intelligent waiver of his statutory right to trial when he has been misinformed of the consequences of electing nonjudicial punishment by counsel provided by the military." Id. at 1560. So the Federal Circuit upheld the District Court's ruling setting aside the NJP which, because Fairchild's admin discharge was based on the NJP, warranted setting aside the discharge as well. Id.

Here is the article's description of Fairchild:

Fairchild v. Lehman dealt with the insufficiency of pre-Article 15 attorney counseling involving urinalysis testing showing marijuana use. The resulting Article 15 was the basis later for an administrative discharge in 1983. . . . Fairchild filed a lawsuit in the Federal District Court for Eastern Virginia challenging the validity of his discharge that same year. In 1985 the District Court ruled in Fairchild's favor. The Navy appealed but the Court of Appeals for the Federal Circuit, in a unanimous 3-0 vote, upheld the lower court's decision. . . .

The Fairchild court expanded Booker and Mack to apply it [sic] to administrative discharges with an Other-Than-Honorable (OTH) characterization of military service.

1 J. Mil. & Vet. L. at 6 (footnotes omitted).

Wrong. The footnotes both preceding and following the reference to the "Fairchild court" in the paragraph above are to the opinion of the Federal Circuit (Almost as good as the Supreme Court!). And that is the relevant Fairchild opinion, of course, since in the event of any inconsistency it trumps the opinion from Judge Williams of the Eastern District of Virginia. And here is what the Federal Circuit actually said:

Because we affirm the district court's judgment with respect to nonjudicial punishment, and because Fairchild's Administrative Discharge Board proceeding was predicated upon the nonjudicial punishment he received, we find it unnecessary to discuss the district court's rationale for vacating the BCNR's decision on the Administrative Discharge Board proceeding.

Fairchild, 814 F.2d at 1560. So Fairchild most certainly does not apply Booker and Mack to administrative discharges.

But that is small potatoes compared to this howler: "All shore based Article 15s where the accused was never given the right to see a lawyer are also challengeable, as Fairchild creates an absolute right to an opportunity to consult with a lawyer as part of the Article 15 process. If not allowing a service member to fully consult with an attorney is improper, not allowing him or her to see one at all is far worse." 1 J. Mil. & Vet. L. at 7. This passage simply ignores what Fairchild actually said--indeed, what Fairchild was actually about. Fairchild didn't create a right to consult with a counsel. In Fairchild, the Marine had consulted with a counsel. Fairchild was actually about acting on the basis of erroneous advice from a military officer provided to the servicemember by the military.

And simply because the law recognizes a remedy for misadvice doesn't mean the law would provide any remedy for non-advice. Consider, for example, the collateral consequences doctrine. As a general matter, the law will not recognize an ineffective assistance of counsel claim based on an argument that the counsel failed to advise a criminal accused of collateral consequences that may flow from a conviction. BUT some courts recognize a misadvice exception to the collateral consequences doctrine. The Second Circuit, for example, has observed: "We have held that an attorney's failure to inform a client of the deportation consequences of a guilty plea, without more, does not fall below an objective standard of reasonableness. At the same time, we have implied that an attorney's affirmative misrepresentations on the subject might well constitute ineffective assistance." United States v. Couto, 311 F.3d 179, 187 (2d Cir. 2002) (citations omitted). So the article is wrong to extrapolate a right to be affirmatively advised of the consequences of an NJP from a right not to be misadvised about the consequences of an NJP.

In addition to this major problem with the article's thesis, it suffers from other smaller legal problems. For example, the article states that "monetary damages could be given for any restriction or extra duty punishments that were levied as well." 1 J. Mil. & Vet. L. at 8. The article fails to discuss how such damages could be awarded in light of the Feres doctrine. And the article contrasts NJPs with courts-martial by observing that a conviction is harder to obtain at the latter "as the standard to convict is 'beyond a reasonable doubt' and the formal rules of evidence apply." Id. at 1. The author appears to be unaware that an Army Regulation expressly applies the "beyond a reasonable doubt" standard to NJPs as well. U.S. Dep't of Army, Reg. 27-10, Legal Services: Military Justice para. 3-16(d)(4) (16 Nov. 2005).

Much like the Lost Colony of Roanoke, the original JMVL has disappeared. For the most part, the marketplace of ideas wouldn't suffer if Volume 1 of the revived JMVL suffered the same fate. But the Roanoke colonists at least left behind the word "Croatoan" carved into a tree. Perhaps before the revived JMVL's introductory essay disappears, someone can carve the following message into a tree outside the NLSO building at Naval Station Norfolk, which is a mere 90 miles north of Roanoke Island: "Challenge admissibility of naval NJPs based on limitations on Booker counseling."