This week, the armed services committees in the senate and house consider an amendment requiring the Army and Air Force JAG Corps to establish career litigation tracks for uniformed attorneys. The Army and Air Force oppose such legislation and are furiously lobbying congress against the creation of career military prosecutors and defense attorneys, despite the fact that every single district attorney and public defender office in the country develops career litigators.
In this post, we take on the first of three main objections to a career track posited by the Army and Air Force—the vacuous notion that career litigators are unnecessary to deliver first- class justice in military courts-martial.
Army Skill Identifier Program Fig Leaf
The Army maintains that program to identify qualified Army JAGs—called the Skill Identifier (SI) program—develops tracks and manages skilled criminal litigators, and is sufficient to obviate the need for a career track. That claim, on its face, is an acknowledgement that they don’t have career tracks for litigators, nor do they have career litigators.
A closer inspection of the Army’s Skill Identifier program highlights its weakness. Under the Army JAG Skill Identifier scheme, there are four levels of “qualification” in their “military justice skill identifier program.” The four are: basic; senior; expert; and master.
There are, in reality, very few Army JAGs who are deemed “master” qualified. And “masters” need only to have tried 18—yes, only 18—contested cases. “Experts” need 12 contested cases under their belt; “seniors” only 7; and “basic” litigators need a mere three contested cases.
Moreover, when you strip back the flowery Army language about the Skill Identifier program and get down to brass tacks, an Army JAG can meet the Skill Identifier threshold by marking time in a billet rather than trying contested cases. Moreover, no Skill Identifier is required to fill any particular billet.
An attorney in a large city district attorney or public defender office with the equivalent of an Army “master” level of experience would be a misdemeanor attorney, as we prove here. Lynn, a veteran career prosecutor in the San Diego District Attorney’s Office, tried over 100 contested misdemeanor jury trials in her first three years as a baby prosecutor. She was not, at that point in her career, a “master” prosecutor. Yet she had more jury trials under her belt than virtually every Army and Air Force JAG in the JAG Corps. No person with a mere 18 contested cases under her belt in a professional district attorney or public defender office is considered a “master” litigator—yet in the Army, they are.
At the 23 year mark in her career, Lynn has tried over 150 contested jury trials, including murders, child abuse, gang cases, child molestation and the like. No JAG has tried this many contested cases in his career, or for that matter 10 careers.
A military law review article, written by an Army JAG, exposes the dearth of actual contested trial experience of today’s Army prosecutors—-89 percent of whom had tried 10 of fewer contested cases.
In reality, an attorney entering the Army JAG Corps today will cycle through a variety of assignments during his first tour, typically starting in either legal assistance or administrative law for at least 6-8 months.
In legal assistance, a junior JAG counsels soldiers, military dependents, and retirees on personal legal problems like family law, consumer protection, and landlord-tenant disputes. In administrative law, he could advise on issues as varied as labor or environmental law, but will more likely spend his time reviewing personnel actions and minor investigations. Only after serving in one or both of these capacities does a JAG typically become a prosecutor, a position he can rarely expect to hold for over two years. More likely, he will serve closer to 18 months or less—often including a deployment.
After completing his “military justice time,” an Army JAG could find herself working in claims or operational law, or she might pursue a specialty job like contract law for a couple years. While some Army captains wishing to remain in criminal practice return to litigation as a defense counsel, others become Special Victims Counsel (advising sexual assault victims) or senior trial counsels—rarely appearing in court again.
After promoting to Major, an Army JAG usually becomes either a general counsel to a brigade commander or a “Chief of Military Justice” supervising junior trial counsel. Afterwards he is likely to become a section chief (e.g., Legal Assistance, Administrative Law), instructor, or other advisor. Only a few will become Special Victims Prosecutors or Senior Defense Counsel before promoting to O-5 and assuming supervisory or command-advisor roles—more or less exclusively.
Army and Air Force Rely On Civilian Experts to Prosecute and Defend Cases
One of the arguments made by Army and Air Force JAG leaders who oppose a career litigation track for uniformed JAGs is that it would lead to “civilianizing the JAG Corps.”
It wouldn’t at all and in fact would do the opposite: It would eliminate the crutch the JAG Corps is using today by hiring career civilian prosecutors and public defenders to guide, teach and mentor uniform JAGs.
The irony of their complaint about “civilianizing the JAG Corps” is that it is partially civilianized now with subject matter experts (SMEs) advising Army, Air Force and Navy JAG prosecutors and defense counsel. The mere existence of subject matter experts advising the JAG Corps is an admission of institutional incompetence and lack of experience.
What district attorney or public defender office in the country hires JAGs to advise them on how to litigate a case? None. Yet the Army and Air Force have a large cadre of experienced, career civilian former prosecutors and public defenders—who are paid at the top of the GS pay scale—to advise on cases. Mind you, they don’t try or defend the cases themselves, because the JAG Corps only wants uniformed JAGs in military courtrooms. And the JAGs are not required to follow the expert advice of these more qualified subject matter experts, and often time don’t follow their advice.
One would think the Army and Air Force would want to organically grow litigation experts within their corps so they would not have to rely on civilian subject matter experts.
United States v. Stellato—Proof Of Institutional Inexperience
Rarely does one appeals court opinion expose institutional inexperience and incompetence.
Then there is Stellato—a 2015 Army case of such glaring prosecutorial misconduct that the court threw out charges against an alleged child rapist. Stellato is a must-read, as it exposes the utter lack of experience of an Army JAG prosecutor, his boss (no doubt a “master” or “expert” according to the Army Skill Identifier scheme), the Chief of Justice, the Senior Trial Counsel, the Brigade Judge Advocate, the Appellate government JAG, and, sadly, the judges on the Army Court of Appeals who closed ranks with the prosecutor and found no misconduct.
Only the Court of Appeals for the Armed Forces—the top (composed of civilians) court in the military justice pyramid—ruled correctly, and issued a blistering opinion condemning the prosecutor (and by extension everyone on the government team) for his gross misconduct.
The defendant, an Army Major, was accused of molesting his two year old daughter from 2007 through 2009. His wife reported the crimes to the local police in Indiana. The defendant, in a series of emails with his wife, denied molesting and raping their daughter. The wife kept the emails. The police interviewed the daughter, and, based on that interview, collected a plastic banana from the home. The daughter also began seeing medical providers, counselors, and mental health professionals. Dr. Krieg interviewed the daughter and mother, and wrote in a report that it was inconclusive “whether [the daughter] was sexually abused or not” by a person. He also wrote that there was no evidence at this point that [the defendant] sexually abused his child.”
Three years later—while the defendant was deployed to Afghanistan—the wife reported the crimes to Army investigators. During the Army investigation, the daughter claimed that a girlfriend (same age as her) had also been molested by her father. The Army sent the defendant back to the United States pending the conclusion of the legal proceedings.
Seven months later, Army investigators reported their findings to the prosecutor, an Army JAG Captain named Captain Jones. Two months later, Jones travelled to West Virginia to meet the mother and daughter. During that meeting, the mother told Jones that she kept a box of evidence related to the case, and pointed out the box to Jones. The box contained notes of conversations she had with the daughter’s friend about the molestation, journals she kept about the allegations, emails between her and the defendant, and a note between her and the daughter’s friend wherein she recanted the allegations against the defendant. Jones didn’t examine the box.
In March 2013, the defendant was charged with child rape, aggravated sexual contact with a child, indecent liberties with a child, and sodomy of a child. The case was referred to a felony court-martial in June, with a September trial date.
Prosecutor Jones initially provided the defense with some discovery, including the police department report and the defendant’s interrogations. But he didn’t disclose the box to the defense.
The defense filed its first discovery request in March 2013, seeking exculpatory evidence, impeachment evidence, evidence in the possession of the government, results of physical and mental exams of the mother and daughter, and prior statements of the accused, they also requested that the government preserve all evidence.
Prosecutor Jones, after consulting his boss, decided not to respond to the defendant’s discovery request until later. Jones, as was his duty, never told the mother or law enforcement agencies to preserve evidence. He didn’t tell the mother about the discovery request, even though by then he knew she possessed emails between herself and the defendant. Jones didn’t notify the defense of the emails’ existence.
Jones did tell the mother that any relevant evidence she provided would have to be turn over to the accused, but never defined “relevance” for her. Jones never asked the mother about her journals, the existence of inconsistent statement, or any mental health treatment records.
Just prior to the first trial date, Jones disclosed some of the evidence from the box, but only select items the mother “scanned,” which she sent to Jones on a thumb drive. The thumb drive did not contain all of the evidence from the box, though that fact was not disclosed to the defense until March 2014.
Upon receiving the thumb drive, prosecutor Jones printed documents that were on it but then destroyed the thumb drive because it had been connected to a government server.
Four months after receiving the first defense discovery request, prosecutor Jones provided some discovery. Not surprisingly, one month before trial the defense sought a continuance for several reasons, including the resolution of a pending discovery motion. The government, through prosecutor Jones, opposed the continuance motion.
The military trial judge granted the continuance, and in doing so warned the government that its decision to “take a hard stand on discovery…invited disaster at trial.” Neither prosecutor Jones, nor his bosses, heeded the warning.
The defense asked for help from the trial judge in compelling discovery, asking for the plastic banana, which allegedly had been used in the sexual assaults. The government asserted that it had produced all evidence from the sheriff’s evidence locker and that the accused was not entitled to lost evidence. The judge ordered prosecutor Jones to conduct a search for the banana, which was recovered from the evidence locker. When DNA tested, it revealed the daughter’s DNA and an unidentified DNA, but not the defendant’s DNA.
The defense also wanted to depose the daughter’s friend, which the government opposed also. The judge intervened, and when interviewed, the little girl contradicted the daughter’s allegations, saying that she was not molested by the defendant and did not witness him molest his daughter.
Based on this new evidence, and insufficient discovery from the government, the defense again asked for a continuance and for the production of witnesses—which the government had opposed. Throughout these pre-trial proceedings, the military trial judge ordered the government issued at least six orders to the government compelling discovery of witnesses or documents.
The judge continued the trial again because the government failed to produce relevant witnesses.
Captain Jones, the prosecutor, deployed to Afghanistan in early 2014, and a new prosecutor disclosed to the defense that the mother had informed the government that the daughter had recanted an unspecified allegation immediately after making it. He also gave the defense a contemporaneously recorded recantation on a handwritten note, which had been in the box of evidence retained by the mother. The government had not examined or disclosed the box prior to the third trial date.
On the afternoon before trial, the defense asked for yet another continuance because (1) the defendant had just learned that the mother had kept journals about the case but the government didn’t have them (2) the government had just produced copies of emails between the accused and mother, despite the fact that they had been requested a year ago, and (3) the government just disclosed the existence of the box of evidence. The judge granted the continuance.
The government knew that Krieg, who had interviewed the daughter and mother, was sick and scheduled for surgery in Feb. 2014. Krieg died before he could be deposed, so his notes and testimony was not available for trial.
The defense moved to dismiss the case on prosecutorial misconduct grounds. The military trial judge found “continual and egregious discovery” violations by prosecutor Jones, and dismissed the case with prejudice based on “the nature, magnitude, and consistency of the discovery violations.”
The Army appellate government division, institutionally incapable of recognizing gross misconduct and incompetence by the prosecutor and his bosses, appealed the dismissal to the Army Court of Criminal Appeals. To make matters worse, the Army Court of Criminal Appeals, in an opinion written by the senior judge, granted the government’s appeal (i.e. reversed the trial judge’s ruling) and sent the case back to the trial court.
The Court of Appeals for the Armed Forces (CAAF) issued a blistering decision, finding fault with the Army Court of Appeals decision and the actions of the government at trial, and reinstated the military judge’s decision. For an excellent analysis of the CAAF opinion, read this piece by Zachary D. Spilman on CAAFlog.
This Is No Substitute for Experience, and You Can’t Fake It
The Army and Air Force employ intelligent, talented, patriotic young men and women as members of the JAG Corps. The leadership has withstood enormous pressures and challenges since Sept. 11th, sending JAGs into harms’ way, supporting operational commanders, and always answering the call. It is a credit to them, and the overall strength of each JAG Corps.
The military justice system is unique, and must be. The military needs uniformed, deployable, multi-talented JAGs for a variety of legal needs, from cyber, law of war, torts, claims, legal assistance, health care, contract law, intelligence law and beyond. But the core mission of the JAG Corps—the statutory mission—is to provide military justice to victims and defendant’s alike. Maintaining good order and discipline is key to ensuring readiness.
Litigation has increased in its complexity over the years. The civilian world has adapted to this ever changing dynamic decades ago, with increased specialization. The Navy finally got on board in 2007, creating a small but effective career litigation track for select JAGs.
It’s time for the Army and Air Force to get on board. A litigation career track is necessary, no matter what they say.
