Monday, April 06, 2009

Spring 2009 Military Law Review now available

The Spring 2009 issue of the Military Law Review is now available here. Military justice wonks will be particularly interested in this article by Major Fansu Ku: From Law Member to Military Judge: The Continuing Evolution of an Independent Trial Judiciary in the Twenty-First Century, 199 Mil. L. Rev. 49 (2009).

Major Ku concludes that legislation providing for a permanent military judiciary is neither necessary nor desirable. She considers and rejects the proposal suggested by Professor Fred Lederer and then-LT Barbara Hundley in An Independent Military Judiciary--A Proposal to Amend the UCMJ, 3 Wm & Mary Bill of Rights J. 629 (1994). MAJ Ku argues that "current personnel practices indicate that military judges are unlikely to be influenced by their interests in future promotions and assignments." 199 Mil. L. Rev. at 62. To support this conclusion, she observes that "eligibility requirements preclude most Army Judge Advocates from applying for judgeships until late in their careers." Id. Additionally, "no concrete evidence supports a threat to military judges' independence, by TJAG or anyone else." Id. at 63.

She also rejects the notion that military judges should be removed from normal military personnel policies, arguing that "the status of military judges as commissioned officers in the armed forces is vital." Id. at 65. She makes an interesting argument that if military judges were cloistered away in judicial duties, Weiss might suggest that military judges' duties are no longer germane to being a military officer, thus possibly requiring a second appointment (which would have to be made by SECDEF or the President) to satisfy the Appointments Clause. Id. at 70 (citing Weiss v. United States, 510 U.S. 163 (1994)).

While rejecting major changes of the sort suggested by Professor Lederer, MAJ Ku points to several lesser changes that might be helpful in promoting the military judiciary's independence. She writes favorably of the Army's decision to grant military judges a fixed term of office by regulation. See id. at 71-74; see Army Regulation 27-10, Military Justice, ¶ 8-1.g (2002). This section of the article, however, appears to contain an error. MAJ Ku writes, "None of the other services currently provide for tenure or a fixed term of office for their judiciary." Id. at 73. But as the Air Force Court has observed, "the Coast Guard provides for 3-year assignments for military judges except when they are reassigned 'under the normal personnel assignment process based on the needs of the service.' Commandant Instruction M5810.1D, Military Justice Manual (17 Aug 2000), ¶ 6.E." United States v. Paulk, 66 M.J. 641, 642 n.2 (A.F. Ct. Crim. App.), petition denied, 67 M.J. 169 (C.A.A.F. 2008).

MAJ Ku also writes favorably about the Army's recently established judicial apprenticeship program. 199 Mil. L. Rev. at 74-77. She then offers the Navy JAG Corps' military justice litigation career track as a model to be emulated and discusses the Navy's judicial screening board and new position of Chief Judge of the Navy. Id. at at 78-83. She then discusses a proposal that the Code Committee is considering to expand military judges' contempt powers. Id. at 83-85. Finally, she sets out a possible career path for those who want to become Army military judges. Id. at 85-86.

9 comments:

Anonymous said...

I think the military justice litigation career track is a mistake, along with the RLSO concept. We are insulating ourselves from our client and will pay a cost for that in the long run.

Toussaint-Guillaume Picquet de la Motte said...

How is having a specialist in a particular field that has been neglected for ears insulating ourselves from the client? Does the accused not want someone who knows the ins and outs of military justice? How many posts on this blog have lamented the mistakes of defense counsel?

Does not the CA also deserve a well trained prosecutor? How many times have we heard about overzealous prosecutors who, with more experience, mentorship and training may have approached a case or issue from a different perspective?

Having career litigators does not insulate us. Just the opposite.

John O'Connor said...

I agree with my French brother.

Litigators need not (and should not) be insulated from their clients. When I prosecuted cases for infantry regiments at Camp Pendleton, I would go around each battalion's CP maybe once a month to talk to the CO, XO, and/or legal officer about every one of their cases. I would be back from the regiment (hitting 4-5 battalions) in 90 minutes, but it let them put a name with a face, helped diffuse some of the instinctive suspicion of lawyers, and allowed me to have a better idea of what my clients would or would not do in terms of a deal.

There are way too many traps for the unwary in trial practice to throw someone into the job who has neither the experience nor the inclination to do the work. It can be okay to throw junior lawyers out there, but the real problem is when teh trial shops are populated by leadership that has had little MilJus experience. Then, there's no one to give guidance to the newbies.

dreadnaught said...

Just before undergoing surgery it would be very reassuring to know that your doc had done her previous tour as a medical advisor for a Joint command and her antepenultimate tour as a recruiter. Good luck, your surgeon has not seen the inside of an OR in the past 6 years, but she does have street cred within her service.

Anonymous said...

Contrary to what some of the above comments seem to imply, we weren't bad at military justice before the MJLCT. If the reason we got the MJLCT was that some trial shops had inexperienced leadership and good litigators were getting passed over at promotion boards, why didn't we just fix those two problems? The MJLCT will not stop detailers from making crappy placement decisions, nor will it change the fact that the road to Judge Advocate General of the Navy doesn't run through the trial or appellate bench.

Toussaint-Guillaume Picquet de la Motte said...

Anon 1402, if you were very familiar with the career path you'd know that MJLQ's are not on the path to JAG. In fact, true litigators don't want to be JAG. To be JAG you need a more generalized career that does not lend itself to specializing in the courtroom. And, as a result of career milestones for MJLQ people, there is a new tombstone billet.

And, in fact, brand new, 1st and 2nd tour LTs, though zealous were not as good as they could be. The career track takes care of the point you make. Mid level leadership needs to be more experienced than the LTs they lead. They leadership needs to mentor and train the new attorneys. Frankly, a 1st tour litigator is not going to know how to deal with a classified information case without a seasoned litigator giving guidance.

And the career path will stop detailers from making the assignments to which you complain. The instruction itself designates billets that only career litigators can fill.

Anonymous said...

What was stopping the detailers from sending experienced litigators to department head billets before the career track?

Anonymous said...

What is stopping the career track board from designating poor litigators to receive the qualification? Come on folks, the system is better than it was, but will never be perfect. I know we could all pick apart each detail to no end. The board process, like all boards can be flawed for all the obvious reasons. In the end, I think we can all agree that it is an improvement that moves the Navy military justice system in the right direction. More needs to be done. We need middle and senior leadership who are willing to stick their necks out and to take the next steps. The problem we will always face is that many of the improvements needed are not Government-centric and too many of the upper and middle mgmt realize that pushing for additional improvement can come at a personal cost. Come up with a way to remove the cost and the additional improvement will follow.

Anonymous said...

My view is that MJLQ will be successful with proper leadership, and while the experts must obviously have courtroom cred to train the specialists, they also need to have Navy cred as well. The reality is that campaign awards and sea service ribbons make good advocates even better. Effective Navy litigators need to know the law AND the Navy. MJLQ is necessary to ensure talented litigators stay Navy -- but we've got to ensure they are viable naval officers as well and it's this balance we've got to get right. Without it, we might as well get rid of MJLQ and civilianize litigation altogether.