Monday, October 08, 2007

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."


Mike "No Man" Navarre said...
This comment has been removed by the author.
Mike "No Man" Navarre said...

After reading this post, my only question is a multiple choice question, Was this article:
a) really that bad?
b) bad enough on a subject where eough disinformation already exists that it tweaked CAAFlog?
c) not so bad, but CAAFlog found out yesterday that "Oohrah" did not make it into the latest revision of Webster's Unabridged?

In the style of a certain appellate brief writer that only CAAFlog will remember, I will answer my own question, a. I read another excerpt from the article that just violates Aristotle's laws. Read this and tell me if the conclusion follows from the premises:

The procedures the sea services follow have another twist not found in those of the Army or Air Force: the sea services permit a shore based person to be subject to
Article 15 discipline without ever being offered a chance to see a military lawyer for consultation.12 The Army and Air Force always afford this right.13 This approach by the sea services does satisfy Booker, which only addressed using the Article 15 results at a later court-martial,14 but it is contrary to the holding in Fairchild v. Lehman.15 Fairchild expanded Booker to cover all shore-based non-judicial punishment proceedings, regardless of how they are used later.

If Fairchild expanded Booker to cover all shore BASED NJPs, how does that affect an NJP conducted at sea for a shore BASED SAILOR attached to or embarked on a vessel? And what does shore based mean anyway? The whole frolic and detour into the "attached to or embarked in a vessel" issue was just . . . something other than helpful. In the end, I have to at least admit this post was a bit Dennis Miller-ish. Sorry, CDR Johnson, CAAFlog does that every once and a while. But, that's the risk you take when you venture into MilJus academic writing.

Phil Cave said...

It's bad. Maybe he was trying to adapt stream-of-consciousness or a William Faulkner style of writing to legal writing. It's unfortunate because it's a potentially good topic badly presented. There is a clear difference in how Army and AF defense counsel approach Article 15 counseling.
So, here's some more stream-of-consciousness ---
The article reads more like an oral history. I certainly remember the discussions he refers to, and he is generally accurate - although I have to admit as an embarked and attached to SJA I didn't pay too much attention to Booker.
Bottom line, does the Navy, or any service have to provide counsel at all. Could the services decide to take Article 15, "counsel" away completely?
I think the answer is yes, just as it was back in the 1980's. The only consequence seems to be a limitation on use at court-martial, and it would seem to limit later use for bad advice lawsuits.
Here are my questions:
1. In each Service, how many of the NJP counselings are actually performed by a live person, as opposed to sitting and reviewing a video (often followed by a Q&A with the paralegal who played the video)?
2. In each Service, how many times, after getting past the video, does the person see a lawyer, as opposed to a paralegal?
3. If after 1 and 2 above, the person gives up and doesn't insist on seeing a lawyer, has Booker been satisfied?
As a final point, if you're in civilian practice, the Navy's policy is awfully good for business - aah that sound, "they won't help me," clink-clink, clink-clink.

Anonymous said...

How is the Navy's "preponderance of the evidence" standard for NJP supportable in light of the Army's "beyond a reasonable doubt"?

I would think that would be the more productive ground for challenge, vice any perceptions that Navy counsel are giving inadequate advice.


John O'Connor said...

SD, why would what the Army decides to do (but is not required to do) re the standard of proof for NJPs binding on the Navy and Marine Corps? Is it a race to the top (or bottom) such that if one service does it, all must follow? And let me be the first to express skepticism that a defined standard of proof has any practical value in an NJP, where the decision is made by one non-lawyer without the benefit of legal counsel or instructions.

John O'Connor said...

Oh, and without having researched the issue, I think Phil Cave is right that the services could just drop all counseling in advance of NJPs if they decided that NJPs would not be used as aggravation in courts-martial. I'm not sure that would be a wise decision, but I think they could do it.

Phil Cave said...

Jock, in the Army and AF, the NJP package is prepared by the SJA Office, and in the AF they basically have to run their case through the SJA Office before they start.

In AF and Army NJP cases, I've seen situations where the commander listened to the evidence/client.

I think the Army takes the view that if they can't prove it at court, why risk coming across a refusnik.

I don't think there's any equal protection argument to be made about differing standards of proof at NJP.

John O'Connor said...


I have no doubt that many (if not most) commanders listen to the evidence at NJP. My only point is that I suspect legal niceties such as "preponderance of the evidence" and "beyond a reasonable doubt" probably don't make much of a practical difference at NJP.

Phil Cave said...

Agreed, the (missed) subtlety of my prior comment was that I referred only to the Army and AF, not the Naval Services. In the Naval Services I agree that the standard is "you are here you must be guilty."

Anonymous said...

I am curious who wrote the initial blog "And the Tony doesn't go to ... the Journal of Military and Veterans Law". The one thing that lept out at me was the fact the writer starts of complaining an earlier article that he or she had written was no longer on the JMVL's original web site.

It sure sounded a lot like sour grapes against the JMVL to me. To rant that I used an explanation mark was a little over the top.

On the plus side there was one compliment regarding my article "...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."

It is my hope that some wild and crazy lawyer who has a Navy client whose OTH discharge was based on an NJP that could have been declined and court-martial requested will find my article of value. At the very least it would be nice to see what CAAF thinks of my wild extension of Fairchild decision's logic. I cannot believe any sane judge would find seeing a military defense attorney without forming a full attorney client relationship-as currently mandated by the Navy-satisfies the spirit of the Booker and Fairchild cases.

The real acid test will be to see if a federal judge or CAAF thinks I am as nuts are the first blogger thinks I am.

I also hope anyone reading any of these blogs take the time to read my JMVL article and make up their own mind.

Mike "No Man" Navarre said...

CDR Johnson:

I am glad to see you have joined us here at CAAFlog. We welcome everyone to our band of merry-men and women. I wouldn't fixate too much on CAAFlog's rant, I checked, and "Oohrah" is not in the 2008 unabridghed dictionary.

I agree that it would be interesting to see someone challenge that . . . not so good (if you can't say anything nice about it?) Navy policy against establishing an A-C relationship in Mast counseling. I don't see the issue getting to CAAF easily, so you are probably right that someone will have to duke it out in federal court appealing a misconduct OTH separation. Imagine the argument at CAAF? The member would essentially have to prove that the advice, or lack thereof, in some way prejudiced the decision to accept Mast. I guess it would be akin to an argument that you did not knowingly and intentionally plead guilty, which is hard enough to win by itself.

Dwight Sullivan said...

I wrote the original post. (I didn't exactly do so anonymously -- if you click on the "CAAFlog" link in the contributors box, you will see not only my name, but also my picture.)

I assure you that learning that my JMVL piece is no longer available on the web wasn't the emotionally searing traumatic event of my adult life. No; that was seeing the Terps blow a 10-point lead with just a minute left while playing Duke at home. My criticisms of the Booker warning article didn't arise from sour grapes; I really thought the article was that bad.

Nor do I think it's over the top to criticize use of a punctuation mark. Commentary on legal writing subjects has hardly been unusual on CAAFlog. We do -- and we should -- make judgments about articles based on their writing style. Lynne Truss wrote a wonderful book pointing out that punctuation says a lot about an author. See Eats, Shoots & Leaves (2004). For example, she writes:

Using the apostrophe correctly is a mere negative proof: it tells the world you are not a thicko. The comma, while less subject to universal rules, is still a utilitarian mark, racing about with its ears back, trying to serve both the sense and the sound of the sentence -- and of course wearing itself to a frazzle for a modest bowl of Chum. Using the comma well announces that you have an ear for sense and rhythm, confidence in your style and a proper respect for your reader, but it does not mark you out as a master of your craft.

But colons and semicolons -- well, they are in a different league, my dear.

Id. at 105-06.

So what does an exclamation point in a law review article tell us? That the piece probably isn't a serious scholarly work. If so, the article's exclamation point speaks the truth.

I stand by my advice to naval trial defense counsel to read the article -- or at least its first two-and-a-quarter pages. That portion of the article introduces a potentially important argument for challenging the admissibility of some records of naval NJPs at later court-martial sentencing proceedings. But the article cites nothing that even suggests that an OTH would be set aside because of a limitation on the kind of pre-NJP advice that naval lawyers are permitted to provide. And any argument that an OTH must be set aside on those grounds would be a gross over-extension of Booker, which dealt only with the admissibility of a record of NJP at a subsequent court-martial, not with the validity of the NJP itself -- a subject over which CMA/CAAF has no jurisdiction to address, in any event.

Fairchild's application of Booker has thus far been, and likely will always remain, limited to the context in which a servicemember is affirmatively misadvised and arguably detrimentally relies on that misadvice. Whether granting relief in such a case is legally right or wrong, it is equitably appealing, since it is the government that provided the attorney who gave the misadvice. I don't see any similar equitable imperative that would drive a court to over-extend Booker in the limited advice context rather than the misadvice context.

And, No Man, I'm in a VERY good mood at the moment. I just watched one of the best football games I have ever seen -- and Navy won. So I'm not being grumpy; I'm just being honest.

Mike "No Man" Navarre said...

Ok, I just wrote a comment about the Navy game, which I actually got to see for once, but the Blackberry dumped. Suffice it to say, Go Navy!

I have thoroughly enjoyed the CAAFlog exchange with CDR J. This is what makes CAAFlog the best military justice blog on the planet! While that is relatively little competition, I think we rank up there with other niche legal blogs and attract some of the best minds in the community. Enough back patting, back to work!

Anonymous said...

I believe the new JAGMAN (Section 0131) cures the concerns raised in the article. The section redefines and broadens the scope of permissible attorney-client relationships. It provides a much more workable and realistic standard. Under the new guidance as I interpret it, defense counsels can freely consult and advise clients pre-NJP without IMC or detailing implications.

Anonymous said...

Regarding What Interested Said on Oct 22.

Unless there has been a revision to the 15 March 2004 JAG Manual that I am not aware of, I have to disagree with your comment on JAGMAN Section 0131. Please advise if there is a new JAGMAN edition. (It is actually my hope that my law review essay will get the Navy to change the JAGMAN.)

The 2004 edition, JAGMAN 0131a(3)(b), says Article 15 counseling itself does NOT create an attorney-client relationship as the basis for requesting IMC.

Here is the section I am referring to:

JAGMAN 0131a(3)

(3) "Attorney-client relationship." For purposes of
this section, an attorney-client relationship exists
between the accused and requested counsel when
counsel and the accused have had a privileged
conversation relating to a charge pending before the
proceeding, and counsel has engaged in active pretrial
preparation and strategy with regard to that charge. A
counsel will be deemed to have engaged in active
pretrial preparation and strategy if that counsel has
taken action on the case which materially limits the
range of options available to the accused at the


(b) Actions that, in and of themselves, will not
be deemed to constitute "active pretrial preparation and
strategy" include, but are not limited to: ... providing
counseling to the accused concerning article 15,
UCMJ. These actions should be appraised under a
totality of the circumstances test to determine if they
constitute "active pretrial preparation and strategy."

CDR Wayne L. Johnson, JAGC (Retired)

Anonymous said...

I forgot to mention that although JAGMAN 0131 clearly notes that Article 15 counseling does not create an IMC relationship, the problem my article addressed is the severe limitations placed on defense counsels in the pre Article 15 advice they can provide.

Here is the relevant JAGMAN Section:


... Such advice to an
accused from a military lawyer shall be limited to an
explanation of the legal ramifications involved in the
right to refuse captain's mast/office hours. These legal
ramifications are limited to areas such as: the
accused's substantive and procedural rights at a courtmartial
as opposed to captain's mast/office hours; the
respective punishment limitations; and the potential
uses of courts-martial convictions and captain's
mast/office hours records at any subsequent trial by
court-martial. Providing these technical explanations
regarding basic principles of military law do not, per
se, establish an attorney-client relationship, nor do they
constitute an assignment of such a military lawyer as
the individual's defense counsel or personal
representative for purposes of nonjudicial punishment.
Military lawyers making such explanations should
guard against the establishment of any attorney-client
relationship unless detailed by proper authority to
serve as defense counsel or personal representative of
the accused.

Thus 0131 is consistent with, and confirms, what is in 0109a. Both confirm that Article 15 counseling does not equal or establish an attorney-client relationship.