Guest Post: “Two retirees question the competence of today’s JAGs. Here’s why that’s off the mark”

Today’s guest post is from my former student, Greg Speirs, someone Lawfire readers have gotten to know (see here, here, and here).  In this essay Greg rather thoroughly deconstructs an ill-considered post appearing on the Task & Purpose website by laying out relevant facts curiously missing from the post. 

Judge for yourself, but the Task and Purpose author, who touts his beat as “the Air Force and anything Star Wars-related,” makes some grand claims even though support for his narrative is mainly limited to just the opinions of two retired JAGs who he casts as “experts.”

I invite you to read Greg’s analysis and then I’ll have a few comments of my own.

Two retirees question the competence of today’s JAGs. Here’s why that’s off the mark

Gregory Ronald Speirs* 

An article appeared in Task & Purpose by Mr. David Roza quoting former Judge Advocate General Corps colleagues.  At the outset, the primary focus of Mr. Roza’s article seeks to tackle senior officer discipline in the Air Force justice system – admirable.  However, I take great issue with the remainder of his article:

“Beyond the chummy old boys’ network, the prospect of a Cooley court-martial reveals a deeper flaw in the Air Force JAG Corps: a lack of experienced prosecutors to take the case. The Air Force employs about 1,300 judge advocates, but few of them have significant experience in a military justice courtroom” (emphasis added). 

While I can imagine the personal motivations of a couple of those quoted in the article, allow me to offer a fuller picture of reality:

1. 1. There are actually very experienced litigators inside the Air Force JAG Corps
      

“The problem is that the JAG is full of jacks of all trades, but masters of none.” Mr. Roza

Most of our litigators probably do not have time to read Mr Roza’s article, or respond, as they are preparing for courts and traveling this Thanksgiving regardless of the pandemic.  There is further discussion below on the full team involved in preparing for a court-martial, but the main point of emphasis first falls to the many Circuit Trial Counsel (CTC) stationed worldwide who advise at every step of case development from its investigative onset.  These JAGs have multiple tours under their belt, likely both prosecution and defense, and travel some 200-250+ days a year to bases around the globe to serve as lead counsel.

Task & Purpose does not mention – but the CTC JAG is lead on the entire case and sits physically at the table with the younger attorney.  While many Lawfire readers know courts-martial proceedings are open to public viewing, I encourage students to go view a court-martial from the audience.  There you will likely see the CTC picking the jury (“panel members” in the military), directing the alleged victim on the stand during a sexual assault trial, directing complex matters with expert witnesses, conducting closing argument and handling tricky motions throughout. 

Each of these JAGs must be recommended by fellow counsel and judges, and are later approved by headquarters leadership.  As Val Kilmer once commented in the movie “Top Gun””in case some of you wonder who the best is” well, the CTCs are a key part of the team.  CTCs land in town shortly before trial and hit the ground running. Of interest to some of the retired JAGs quoted in Mr. Roza’s article, CTCs now have access and input updates from the onset of investigation in a service-wide military case tracking system under a new directive from headquarters.  I encourage students to seek out and talk to some of these Judge Advocates at a future Duke LENS Conference, you will be impressed – if you can catch them sitting still for five minutes!

1. 2. There is an entire network legal team that works on a case – not just one young counsel alone
      

Reading Mr. Roza’s article sure makes me think young attorneys are all alone in the courtroom.  Luckily, I’ve been that young attorney in the courtroom a few times, and while by no means as impressive as my colleagues – we got the job done thanks to the team involved in any courts-martial prosecution.   To start, let’s rifle off at least eight individuals helping that young JAG prosecutor in any felony level (“General Court Martial”) case:

First, a Chief of Military Justice (CMJ) is a JAG with 1-6 years of experience in charge of managing all court cases on an installation.  Second, Paralegals are comprised of enlisted personnel with anywhere from 1-20+ years of experience who are the backbone of accomplishing the trial.  Third, a Deputy Staff Judge Advocate (DJSA) is typically a Major with 5-10 years as a JAG, depending on installation.  This JAG serves as “second in command” in at the installation legal office.  Fourth, a Staff Judge Advocate (SJA) with approximately 10-25 years as a JAG, again depending on the size of the base.  Military bases are much like college campuses and vary in size of personnel.  Think about the amount of attorneys needed if you have a legal office serving a smaller campus in North Carolina Central University (8,011 students) versus the large North Carolina State University campus (36,304 students).  The SJA is the top lawyer on an Air Force installation with a rigorous recommendation and selection process.

Fifth, a Numbered Air Force Chief of Military Justice (NAF CMJ) has anywhere from 6-15+ years in as a JAG, again depending on the Numbered Air Force size.  This JAG oversees the ongoing investigations and advises multiple base offices daily solely on military justice matters.  Sixth, a Numbered Air Force Staff Judge Advocate (NAF/SJA) has around 20 years in as a JAG, and has already served as an installation SJA (perhaps more than once!).  The NAF/SJA advises a General Officer who convenes a felony level court.  That JAG has oversight over base SJAs and the NAF/CMJ. 

During the weeks leading up to and during a court-martial, the NAF is constantly involved multiple times a day via telephone.  Seventh, a Circuit Trial Counsel (CTC) as discussed above, is the star prosecutor.  Eighth, a Special Victims Counsel (SVC) is a JAG with at least one prior prosecutorial assignment, and while they are removed from the base chain of command and serve the best interests of their client (an alleged victim of sexual assault), the best results come when they are working together with the prosecution to secure a conviction.

As a young Judge Advocate, I was never alone through the process.

1. 3. Generalization arguments fall short

“The concern is that you have the blind leading the blind… You have folks who are not very steeped in criminal justice advising commanders who know very little about criminal justice because they are pilots or they are logisticians. They are not lawyers.” Rachel VanLandingham, Lt. Col. (Ret.)

This again neglects the entire network and process of people above.  Any felony level court has really been through the wickets – having been scrutinized by not only the attorneys, but military commanders in charge with administering justice.  More on commanders in a moment.  There is another argument in the article focusing on the local base legal office Staff Judge Advocate not having military justice experience.  I credit Mr. Roza for including the Air Force official release noting the varied mission JAGs must digest and respond to daily: “[u]ltimately, the goal is to grow leaders who can advise command across a wide spectrum of legal issues across all domains,” said Air Force spokesperson Ann Stefanek.  Further, Ms. Stefanek notes 109 of 127 SJAs from 2014-2019 had a background in a wide range of justice positions.

Are naysayers really going to ignore that 89% of SJAs worldwide had a justice background, who usually is placed alongside an in arguendo less justice-experienced SJA? An experienced Deputy in justice.  In fact, I had a bit of an extended path into the JAG Corps, having volunteered in base legal offices prior to accession as an active duty Airman.  Simply put, I got to work for and view seven SJAs and seven DSJAs who handled immensely stressful work – all of whom were incredibly intelligent and fantastic officers.

The job is not for everyone, and the Air Force needs to prepare those in ranks – across all jobs – to ascend and be fully capable of many missions.  In the interview process to become a JAG, applicants are asked if you are volunteering to go anywhere, and be assigned to any mission.  After all, we do not get to pick where, when and how the next conflict will take place.

1. 4. Let’s talk about the swipe at the Military Defense Community
      

“Civilian defense attorneys can run rampant with military prosecutors,” Rachel VanLandingham, Lt. Col. (Ret.)

A large number of civilian defense attorneys are prior service, and are fantastic attorneys.  In fact, many remain in the JAG Corps Reserves, and ironically end up doing tours in the base installation offices advising the young prosecutor on case preparation – add a ninth support attorney!  I can think of quite a few civilian defense attorneys who spent immeasurable time with me critiquing motions and arguments during their reserve tour.  On the other side of the coin, catch a CTC (or Circuit Defense Counsel) JAG at a bar and you may hear a story or two about a civilian attorney not being comfortable at all in the military courtroom!

Speaking of Circuit Defense, so much attention at civilian defense attorneys neglects the large contingent of Circuit Defense Counsel who like their prosecution counterparts, also travel the globe defending clients.  They too have a rigorous selection process and do not report to anyone in the local base chain of command.  They supervise, offer guidance and critique local base defense attorneys at multiple bases at a time in their case development.

One of my favorite examples of a military defense attorney is a Lieutenant Colonel (from NCCU Law!) who served as Guantanamo Bay Defense in Military Commissions cases.  While some civilian attorneys would, for want of a better word, grandstand; this Airman always kept his measured military bearing in court and was concise, thus serving as an outstanding example to emulate.

The article continues with comment from another former JAG: “You can have these really heinous murder cases and the senior proseuctor (sic) would be a four-year captain….A lot of times they’re going against a civilian defense counsel who’s been doing it 20, 30 years. So the Air Force loses a lot of cases” Don Christensen, Col., (Ret.).

Col. (Ret.) Christensen’s present day remarks are surprisingly different from only a few years ago:

“Our team of prosecutors is better than any you will see in the civilian community or on TV. I have 17 highly skilled senior trial prosecutors, who are selected from among hundreds of judge advocates for their top notch trial skills.  They have the very best trial skills in the Air Force JAG Corps. They prosecute the Air Force’s most serious courts-martial. Seven of my senior trial prosecutors have been identified as “Special Victim Unit (SVU)” prosecutors, due to their training and experience in combating sexual assault. They are dedicated to bringing justice to victims of sexual assault and ensuring commanders are able to appropriately hold offenders accountable” (Quoting Col. Christensen, 2012, emphasis added).

It makes the reader wonder – what has changed in only a few years?  Do JAGs “lose a lot of cases” now because it is not his team anymore? Luckily, as stated above, I can speak to the caliber of Judge Advocate currently serving in Air Force litigation billets and reaffirm they are top-shelf.

Let’s also unpack the challenges younger counsel face and add back in the overall focus: a court-martial of a General Officer.  A high-ranking member set to be court-martialed presents possible Unlawful Command Influence issues, character issues, voir dire issues (find officers who outrank the accused General!), and a preliminary hearing officer who outranks the accused.  That is really it.

When it comes to experience, how is it any different than an Assistant U.S. Attorney going up against a Williams & Connolly defense team?  From seeing the relentless pace in the federal District of New Jersey – I can tell you AUSAs do not have the above-mentioned eight-person support network aiding their every move.  The military is a microcosm of our larger civilian society, and folks leave out many of the ways the military justice system is actually more forward leaning than our civilian system.  For instance: Article 31 U.C.M.J. granted servicemembers the right against self-incrimination on August 10, 1956 – a decade before Miranda v. Arizona (1966).

1. 5. This is yet another attack on the Military Commander retaining control of the Military Justice system
      

Over the last decade, there has been a movement growing in popularity to remove the military commander from making decisions over their troops.  If the ability to discipline subordinates under command is removed from the commander’s toolkit, it will gravely hurt United States military lethality in the future.

To recap, the first effort was through sexual assault cases – of which Congress, not the military, first needed respond with a rewrite of U.C.M.J. Article 120 from an overtly archaic version prior to 2007.  This did away with prosecutors having to show an alleged victim resisted the assault – much needed.  When the lens remained focused on the military having a “sexual assault problem,” the Air Force responded (ahead of the other branches) with the creation of the Special Victims Counsel JAG position.

How many courtrooms in civilian practice provide an attorney free of charge to an alleged victim and grant that witness standing in a courtroom?  One of the authors quoted in Mr. Roza’s article played an integral role in standing for SVCs.

The narrative next moved toward domestic violence, again looking at the commander’s role in the military justice system.  There is now U.C.M.J. Article 128b, codifying a specific offense for a charge of domestic violence.  I note the Air Force did not turn away domestic violence cases because of lack of the creation of Article 128b until this year – they were tried under Article 128 “Assault,” which likely proved difficult looking back through historic case data to decipher a bar fight between strangers from an intimate/familiar violent assault.

Moreover, the Special Victims Counsel program now accepts victims of domestic violence.  But now the argument moves to questioning litigators’ experience as the reason for low conviction rates.  Litigators do not decide the cases.  At the end of the day, the litigators have the evidence they have, and the decision goes to a military judge or panel members.

While it was likely that Americans sitting along the Potomac in 1811 could not predict what would happen one year later, one thing I certainly agree with from the article: “We’re at war for God’s sake.”  Thankfully, there are extremely sharp individuals across our joint force hard at work this Thanksgiving ready for whatever the future brings our country.

* The views of the guest author are his alone and do not necessarily represent those of the U.S. Air Force, the Department of Defense, or any entity of the government.  Additionally, the views expressed by guest authors do not necessarily reflect those of the Center on Law, Ethics and National Security, or Duke University.

My additional observations:

I think Greg did a wonderful job at highlighting some of the article’s major flaws.  But If you want a deeper dive into the serious risks that divesting disciplinary authority from commanders poses, I invite you to take look at “A Solution in Search of a Problem: The Dangerous Invalidity of Divesting Military Commanders of Disposition Authority for Military Criminal Offenses” by Geoff Corn, Chris Jenks and Timothy C. MacDonnell – it appeared on Just Security last June.

The proposal by the Task & Purpose author’s “experts” to balkanize judge advocates into an exclusively military justice role represents a rather profound misunderstanding of the military justice system.   With respect to a similar proposal, I said in 2015:

[The] proposal does not seem to appreciate fully the rationale for the military’s separate system, and why the Supreme Court has repeatedly recognized that the military is “governed by a separate discipline from that of the civilian.” Unlike what civilian society does, the Supreme Court acknowledges that “it is the primary business of [the armed forces] to fight or be ready to fight wars should the occasion arise.” This very different function is why the Manual for Courts-Martial distinguishes military from civilian law because the former explicitly intends “to promote efficiency and effectiveness” in the armed forces in order “to strengthen the national security of the United States.”  Civilian criminal jurisprudence has no such responsibility.

Siloing military attorneys into criminal law fiefdoms is the surest way to not only lose the confidence of commanders and the service’s rank and file, but also to erode the expertise in the military mission, weaponry, technology, mindset, and more so necessary to understanding disciplinary needs in the complex battlespaces of the 21^st century.

In the Task & Purpose article, the retired lieutenant colonel complains about being transferred from U.S. Central Command after four years in the Tampa, Florida location.  To her, this was a profoundly unwise move since, in her view, she was the law of war specialist in an organization at war.  Apparently, this was meant to be some sort of justification to allow single-specialty lawyers to age in place.

As someone who also served in that command (during a different period), and who has extensive experience managing military lawyers, her lament actually makes the case for rotating officers through various disciplines.  In truth, effectively advising commanders on law of war, military justice, and other warfighting issues requires competence in more than any single legal area.

Experience shows that many good reasons exist to rotate officers, not the least of which is to get a fresh set of eyes on the issues (and, especially, law of war and disciplinary matters), not to mention developing officers who can put such issues in the broader context…as their client-commanders must do.  Blinkered thinking is not a formula for success in a military setting, especially during wartime.

I’d also challenge the notion that civilian prosecutors are somehow better than military lawyers.  What neither the Task & Purpose author nor any of his purported ‘experts’ told you is that the vast majority of civilian prosecutors don’t actually try all that many cases.  As the Pew Research Center reported last year, “trials are rare in the federal criminal justice system.”  How rare?  Only 2% of cases go to trial.

Perhaps even more troubling is that in the civilian system, Pew says that less than 1% of those accused are acquitted. In that respect, consider what Innocence Project board member John Grisham wrote this in the Chicago Tribune in 2018:

The rate of wrongful convictions in the United States is estimated to be somewhere between 2 percent and 10 percent. That may sound low, but when applied to an estimated prison population of 2.3 million, the numbers become staggering. Can there really be 46,000 to 230,000 innocent people locked away? Those of us who are involved in exoneration work firmly believe so.

Grisham cites “prosecutorial misconduct” as one of the reasons for the unjust convictions, and “bad lawyering” as another.  He says:

Those accused of serious crimes rarely have money. Many are represented by good public defenders, but too many get stuck with court-appointed lawyers with little or no experience. Capital cases are complex, and the stakes are enormous. All too often, the defense lawyers are in over their heads.

That’s the reality of the civilian system the Task & Purpose “experts” are plugging for the military.  In the years since Grisham wrote his article – and especially the past several months – criticism of the civilian criminal justice system has been such that this is hardly the time for the military to try to mimic it.

Problems with that system are hardly new.  As I said in 2015 in a slightly different context:

[F]ederal civilian prosecutions often are, despite frequent claims to the contrary, not conducted under close scrutiny and oversight by Article III judges. Writing in the New York Review of Books last November [of 2014], Judge Jed Rakoff (senior status with the Southern District of New York) pointed out that just 3% of Federal criminal cases actually make it to trial, the rest being disposed of via plea bargains.

The problem? According to Judge Rakoff, “the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little say and the judge even less.” (Emphasis added.) He contends that the “unfettered” discretion to select charges (along with statutory sentencing imperatives) make it such that the “prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.” Most disturbingly, Judge Rakoff asserts that the Federal process provides prosecutors “with weapons to bludgeon defendants into effectively coerced plea bargains.”

It’s important to have strong civilian and military criminal justice systems, but they each have their own approaches. Neither are perfect and both should be continuously re-evaluated to ensure they meet the Nation’s needs, but the Task & Purpose article contributes very little to that effort.

No doubt about it though – knowing and understanding the client and the military mission, and the dedication to put service before self, are valuable qualities JAGs deliver daily.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!