Wednesday, December 24, 2008

Top 10 military justice stories of 2008 -- #10: The Army's adoption of military justice additional skills identifiers

This is the first in an end-of-year series of posts looking back at 2008 and setting out what I think are the ten most significant military justice stories of the year.

On 21 July 2008, the Judge Advocate General of the Army issued a memorandum establishing military justice additional skills identifiers (ASI). A copy is available here. The memo offered words dear to any military justice wonk: "Military justice is our Corps' statutory mission." The military justice ASIs are designed to encourage Army judge advocates "to set goals to achieve greater skill in litigation and expertise in military justice." It establishes four mil jus ASIs: Basic Military Justice Practitioner, Senior Military Justice Practitioner, Expert Military Justice Practitioner, and Master Military Justice Practitioner. This produces a career progression that "encourage[s] counsel to seek out litigation-related assignments to deepen their level of military justice training and experience."

ASIs won't be rigid assignment requirements, but they will be considered by PPTO (the Army's equivalent of monitors or detailers) when filling billets.

As the Super Muppet of Appellate Advocacy discussed here, the program is similar but not identical to the Navy JAG Corps' Military Justice Litigation Career Track program, which then-RADM MacDonald established in 2007 in this instruction.

In my experience, military attorneys generally do an excellent job in run-of-the-mill cases. As I've observed before, for 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.

But while the military justice system does an excellent job with run-of-the-mill cases, I've noticed over my roughly 21 years in the military justice system that it tends to do a poor job in the big cases. Consider, for example, that in 2 of the 10 military death penalty cases that have completed direct appeal under the current system, the death sentence was set aside because apparently no one in the courtroom knew -- or could figure out -- the proper instruction for voting on the sentence in a capital cases. Or that another 4 of those 10 death sentences were reversed at least in part on IAC grounds. In all, 8 of the 10 have been reversed; the military justice system is batting the Mendoza line in capital cases on appeal.

The Army's military justice ASI program and its Navy predecessor appear to recognize the system's difficulty with the big cases and take reasonable steps designed to shore up that weak spot. These programs also appear to recognize the danger of a military justice brain drain as operational law is increasingly perceived as the career enhancing, sexy specialty for military lawyers. Hence then-Major General Black's reminder that "[m]ilitary justice is our Corps' statutory mission" -- not, mind you, one of its statutory missions.

It will take years to determine whether these programs are actually successful. But merely recognizing the problem and seeking to fix it makes this one of the ten most significant military justice developments of 2008.


Anonymous said...

Look at the high viz cases the Navy and Marine Corps have tried to prosecute, with generally abysmal results.

Anonymous said...

It's a great concept. The AF tried to implement it in the mid 70's, whereby you had to litigate [not pleas] X number of Specials [on either side of the aisle] before being certified to do GCM's, and then you had to second-chair 5 litigated GCM's to be eligible for first chair status, which then made you eligible for "Circuit" TC or DC [like Army's SDC's] - throw in a tour at one of the Appellate Counsel's shops THEN you'd be "eligible" for MJ duties.

As anyone can see, for such a program to work properly takes about 10 years of lead time. Then next TJAG decided all AF JAGs were to be non-specialists, and abandoned the policy.

Let's wish the Army and Navy luck in implementing something long overdue in the JAG career field.

Anon 0710 - not just the Navy & Marines, the Army had the CPT (Chaplain) Yee case [or, the case that never was] and Martinez; and the AF had the "Kelly Flynn" fiasco and Schmidt [Canadian "friendly fire" incident].

Anonymous said...

I think you will all find out in the end that the service's new emphasis on military justice litigation expertise has little to do with their professed desire of improving the overall military justice process.

As with many policies the announced purpose is a ruse for ulterior motives. In the present case it is a manning tool. If you believe otherwise you are a naïve fool.

Anonymous said...

Most likely. And why would that be a bad thing?

Dwight Sullivan said...

Why of course 1512 Anon. Human motivation is easily understood. Your interpretation is the only possible correct one and the only two possibilities to explain disagreement with your viewpoint are naiveté or foolishness. Whoops -- naiveté AND foolishness.

Unknown said...

Other than the Chessani case, what cases has the Corps handled abysmally? The Hamdania cases ended with all 8 accused getting convicted and the squad leader the one held most accountable. The other Haditha cases ultimately ended with only the squad leader - Wutterich - still on the hook if the ever resolve the CBS fiasco.

Anonymous said...


Did you really ask that?

What about Thomas and Curtis for starters?

Dwight Sullivan said...

Or more recently, what about Quintanilla? The death sentence in that case was reversed because the out-of-control trial counsel chose to push the envelope in every possible manner, including challenging two members on religious bases. And even though the military judge often made the correct ruling initially, the TCs constantly asked him to change his rulings, which he often did. At the TCs' urging, he misapplied the Supreme Court's precedent dealing with jurors who have moral scruples against capital punishment, leading to the reversal. And, oh yeah, one of the two lead TCs stole evidence to use as souvenirs and the two lead trial counsel then lied about it.

[DISCLAIMER: I was one of the appellate defense counsel in the Quintanilla case.]

Dwight Sullivan said...

One more thought in response to 1512 Anon. I was lucky enough to be in the same NJS class as Vice Admiral MacDonald. He distinguished himself in many ways -- one of which was as a phenomenal litigator. If memory serves correctly, shortly before attending NJS, he was a member of the national champion mock trial team. The notion that Admiral MacDonald doesn't actually care about litigation skills and improving Navy JAG Corps attorneys' litigation abilities strikes me as highly implausible.

While my exposure to Lieutenant General Black has been far more limited, I would be quite surprised if he didn't also genuinely care about Army JAG Corps attorneys' litigation abilities.

Anonymous said...

There's definitely some sort of structural defect that's highlighted in our handling of hi-viz cases, but I'm not sure that training/experience completely addresses it.

The counsel/SJAs/MJs in these cases almost always have had the backgrounds (at least on paper) to have handled the toughest of legal issues and, by reputation, are otherwise as smart, sane, and scrupulous as any military officer.

Still, when a hi-viz case comes onboard there's something akin to hysteria that takes over, and all their better judgment seems to go out the window. Part of it may be a "too many cooks in the kitchen" syndrome, where the best efforts of those closest to the case and with the most recent military justice experience are second-guessed by those higher in the legal or line chain of command.

When these circumstances arise, the system seems only to reinforce its weaknesses/mistakes and to be unable to self-correct them. Throw in some other government agencies, victims, the media, etc., and it can be enough for the whole enterprise to collapse of its own weight.

When it's worked well, it seems the main reason is that each of the players has somehow has found a way to give everyone else the time and space to do their own jobs.

Anonymous said...

Dwight Sullivan said...
Or more recently, what about Quintanilla?

Quintanilla is the poster-child of how NOT to try a case, capital or not. And the stealing of "evidence" was bad enough, but the subsequent lies merited ethical sanctions. And, it wasn't restricted to just that case.

And not to pick on my Semper Fi friends, but the handling of the White Horse cases was not initially their finest hour. But, a dang good civilian federal prosecutor, a Marine O-6, as I.O. finally sorted it all out in a very professional way.

Things again got derailed at the trial with mixed-bag verdicts.

Anonymous said...

The Naval Academy Quarterback fiasco was a rather high viz aquittal. Mr. Charles Gittins did a superb job.

Dwight Sullivan said...

0849 Anon, Charlie Gittins (who was also in Vice Admiral MacDonald's and my NJS class) does do a superb job. But I don't think he had anything to do with Lamar Owens' defense. Midshipman Owens' civilian defense counsel was Reid Weingarten of Steptoe & Johnson.

I also don't necessarily consider an acquittal to be a failure of the military justice system. Perhaps Midshipman Owens was actually innocent and the military justice system did its job. We could argue over whether he should have been charged, but charging him and acquitting him isn't what I mean by the system failing. On the other hand, a servicemember having a conviction or sentence overturned because of IAC or because neither the military judge nor the trial counsel understands the required instructions or because of prosecutorial misconduct -- THAT'S a failure of the system.

Anonymous said...

I'm not saying he doesn't care about the quality of litigation performed by his attorneys. But I do believe his concerns for the quality of litigators has little to do with the purpose of the military justice system and the interests of justice and more to do with being able to handle the trial court case load with less attorneys so he can support the GWOT billets in Iraq and Afghanistan. Hell, he even said as much in a JAG newsgram when the program was introduced.

BTW, I know you may have been able to hold onto the ideals you held as a young officer at NJS, but if you think the man you went to NJS is the same man that wears three stars I do believe you may be fooling yourself.

Dwight Sullivan said...

1906 Anon -- you're talking about a man who in his first week on the job as the Judge Advocate General of the Navy went into a congressional hearing and stood up for the rule of law and did so by offering a detailed analysis of Military Rule of Evidence 505 that few active court-martial counsel could have equaled. This was in July 2006 -- a time when it couldn't have been easy to offer viewpoints to Congress that differed from those of the DOD civilian leadership and the Offices of the President and Vice President. And yet then-RADM MacDonald did. The man clearly cares deeply about justice. He behaved heroically -- as did the other Judge Advocates General and Staff Judge Advocates to the Commandant. Which is considerably more than I can say for the practice of anonymously sniping at him.

John O'Connor said...


If the "anonymous sniping" is beyond the pale, why do you alow anonymous posting? (I've noticed that a number of your recent posts take issue with the author making his or her points anonymously).

Personally, I'm no fan of anonymous posting. Everything I post on the Internet is in my own name or under a user name that closely tracks my name. I recognize the need for some ability for a poster to keep his or her identity hidden on this blog, which is why I prefer pseudonymous posting, which at least allows for a poster to develop a reputation, good or bad, on the blog and makes longer comment threads easier to follow.

Like you, I've been frustrated at times by anonymous posters taking shots I view as unfair. But, at bottom, your non-anonymous sniping at anonymous sniping is a complaint about a convention you've elected to allow.

Dwight Sullivan said...


First the short answer. I would permit a great deal of speech with which I disagree. You know, the whole Voltaire, "I-do-not-agree-with-a-word-you-say,-but-I-will-fight-to-the-death-for-your-right- to-say-it" thing. I loathe the display of the Confederate battle flag. Yet when I was with the ACLU, I filed an amicus brief arguing that the State of Maryland was required to give an organizational license plate to the Sons of Confederate Veterans featuring that flag. See Sons of Confederate Veterans v. Glendening, 954 F. Supp. 1099 (D. Md. 1997). And that wasn't even my most distasteful free speech case. While I wish people wouldn't anonymously snipe, that doesn't necessarily mean I should prevent them from doing so. And the fact that I don't prevent them from doing so shouldn't deter me from criticizing them for doing so, just as I criticize those who choose to display Confederate battle flags on their cars and/or license plates while recognizing their right to do so. (And, yes, I recognize the difference between a government-created forum in the SCV case and the non-governmental, and hence non-First-Amendment-regulated, forum that we have here. But the Voltaire approach, as well as the Millsian marketplace of ideas metaphor, does work in both contexts.)

Now for the more technical responses. (1) Obviously there's no way to permit non-snarky anonymous posts while preventing anonymous sniping. I'm not a fan of anonymous posting, but a great many of the anonymous posts on CAAFlog are informative. I've learned many useful pieces of information from anonymous comments. It seems a good bet that some number of those useful comments wouldn't have been posted if anonymous posting were prohibited. To me, the cost of losing those useful posts easily exceeds the cost of allowing anonymous sniping.

(2) Even a policy of preventing all anonymous posting wouldn't work in reality. Anyone who wanted to post anonymously could post as "John Smith," or some other pen name. If there were a post from John Smith, I wouldn't know whether it was from the retired Army JAG Corps officer whose name actually is that common alias, whether it was a post from some other actual John Smith, or whether it was a post from a non-John Smith who is hiding his or her true identity. If pseudonymous posts are impossible to weed out, then there's no real advantage in disallowing anonymous posts. (Because a pseudonymous poster could use a different pseudonym each time, there wouldn't even necessarily be an advantage in being able to keep track of who's who in a discussion thread.)

(3) Some other blogs require commentators to register, but I have no clue how to do that on CAAFlog. Also, the registration process would no doubt cause us to lose at least as many valuable comments as a would a prohibition on anonymous comments.

(4) It would be technologically possible to have a completely moderated discussion where a commentator had to provide the moderator with an e-mail address to allow for confirmation of identity -- an extremely laborious process that none of us would have the time for.

I think the only viable options are the status quo of allowing anyone to post anything while trying to shame anonymous snipers to cease and desist and with the No Man and me engaging in ad hoc removal of truly vile or off-topic posts or going to a SCOTUSblog-like policy of no commenting. I would certainly prefer the former to the latter.

The only other possible solution I see is exploring the software necessary to require commentators to register. I think that would deter a number of the useful anonymous comments we currently receive. But in the unlikely event that anyone is reading this far into this way-too-long comment, I invite your thoughts --anonymous or otherwise -- about the registration option.

Anonymous said...

Both of these programs were established in an effort to try to provide some incentive for JAGs to continue to deal with criminals and criminal cases instead of going to work with the operational forces as an operational attorney and doing work that is both challenging and rewarding. Obviously some JAGs have a thorough interest in trying cases, but most career JAGs quickly tire of dealing with second-rate criminals in boring or distasteful cases that the local DAs don't want to handle. Working with the operational forces gets you away from the JAG organizations which are extremely painful to deal with and where the most valuable and career-enhancing job is that of bag handler for the Admiral.

Anonymous said...

Anon 1307, I couldn't agree with you more. The most rewarding and satisfying billets in the JAGC are when you do not work in a Legal command. That may sound strange coming from a lawyer, but it also reflects the quality of leader I have experienced in legal and non-legal commands.

Anonymous said...

I think it’s great to have anon postings. Thanks for providing a forum where UCMJ practitioners can speak candidly. I know that your blog is read with great interest in the active and reserve jag corps. Excellent work.

Jason Grover said...

I agree with JO'C, I enjoy the pseudonymous posting the most. Where is Jessup? But I do think it is important to allow anonymous postings. These postings allow those involved closely in cases to contribute when they otherwise may not. And all the contributors should help No Man and Col S police the inappropriate comments (although that would be easier if my Navy computer allowed me to login at work).