Tuesday, March 10, 2009

Why the military justice system probably does a better job on average than civilian criminal justice systems

I've previously offered my anecdotal argument for why the military justice system handles the average case better than civilian criminal justice systems do:
[F]or 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.
Today's WaPo includes this op-ed by former Vice President Mondale making a similar point about Gideon's promise is unfulfilled due to unreasonably low income level cut-offs for appointed counsel. Vice President Mondale cites this report from the Brennan Center for Justice analyzing this problem.

In the military, however, only an accused who really, really wants to go pro se appears without a lawyer. As a direct result, the military justice system is fairer to the average accused than are many civilian justice systems. (Note, however, that I also believe that much like the Buffalo Bills in the 1990s, the military justice system doesn't handle the big ones well.)


Anonymous said...

What do you mean by "doesn't handle the big ones well"? Are you speaking in terms of results?

Anonymous said...

Concur with Dwight. Military doesn't have the legal resources to do the big ones well - capital litigation, for example, should be left for the feds.

Anonymous said...

Disagree with this sentiment, as to the Air Force...for recent examples, see US v. Hill, US v. Whitt, US v. Novak. Exceptional counsel in all three (particularly on the defense side, but I'm partial).

Anonymous said...

The feds hardly ever do capital litigation, try the states especially Texas

Cully Stimson said...

Once again, I find myself agreeing with Dwight.

I have seen the criminal justice system in America from a number of different vantage points; military defense and trial counsel; prosecutor in California, Maryland (where I tried cases in Frederick County, Baltimore County, an on occasion Washington County and Montgomery County); and prosecutor in the U.S. Attorney’s Office in DC.

My impression, based on those varied experiences, is that the military justice system does a much better job making sure that an accused is represented by competent counsel than its civilian counterpart. There are, to be sure, outstanding public defender offices, like in San Diego. But even the best public defender offices don’t take all defendants as clients because of rules regarding income thresholds and the like.

We don’t have those types of problems, or issues, in our military justice system.

That said, Dwight is correct to point out that the military justice system does not handle the “big ones well.” That is not because we don’t have smart, qualified counsel practicing in our military justice system; we do. The bottom line is we don’t have the volume of cases, and thus the wide variety of issues to deal with, that an average Assistant District Attorney or Assistant Public Defender has.

In a typical big city DA/PD’s office (like San Diego), a rookie will spend the first 1-3 years doing the following: handling misdemeanor jury trials; papering (charging or not charging) cases; handling preliminary hearings (sometimes a dozen a week or more); trying wobblers (cases that can be charged as a misdemeanor or a felony, thus they “wobble” or straddle on the misdemeanor/felony fence); doing a tour in plea court, where she will plea out hundreds of cases a week; doing a tour in juvenile court, where they will try serious felonies---including homicide; and other responsibilities.

All of this takes place BEFORE the attorney will try her first felony case. This type of career development allows counsel to gain valuable experience in the criminal justice system before tackling the harder cases. She will, on average, try more cases in those three years than most JAGs try in their entire career.

Of course, large city DA/PD offices also have units that specialize in various types of crimes, such as homicide, child abuse, sex crimes, financial crimes, elder abuse, domestic violence, and the like. It takes years to develop a professional, top-notch child abuse prosecutor or public defender, even in the best of offices. Similarly, it takes years (much of a career) to develop a world-class homicide prosecutor or public defender. That means, among other things, that you have to try lots and lots of those types of cases.

We simply don’t have the volume, or career specialization, in the JAGs Corps, to handle the big ones as well as our civilian counterparts.

That is not to say that we don’t have some awesome defense and trial counsel, especially considering the lack of volume. But it cannot reasonably be argued that experience, and volume and specialization, don’t matter, or that mere education is an adequate substitute.

Anonymous said...

If you really believe the military system is better than the civilian counterpart, you should be on the other side, in your briefs. You can't simply attack the convening authority by day and blog about how great the system is by night.

Anonymous said...

Anon 1328 - great point, except that you're an idiot.