Guest Post: Chuck Pede asks “Firing the Army chief prosecutor–is this what independence looks like?”
Today’s guest post is by my friend retired Army lieutenant general (LTG) Charles (“Chuck”) Pede who now teaches at George Washington University Law School. LTG (R) Pede’s thoughtful essay raises serious issues about the firing of the Army’s chief prosecutor, BG Warren Wells, based on “Wells’ criticisms of a government prosecution.” This criticism was in a 10-year-old email written to other defense lawyers a time when Wells was serving as a supervising defense attorney.
LTG (R) Pede is exactly the right person to examine this matter. He had an amazing career as an Army lawyer, culminating in service as the Army’s 40th Judge Advocate General, a post in which he “supervised a worldwide law firm of over ten thousand lawyers, paralegals and support staff.” Here’s a bit more from his eye-watering biography:
During his 37 years of service he served as defense attorney, prosecutor, congressional liaison, professor and general counsel to large Army installations and organizations. Lieutenant General Pede overseas deployments included OPERATION PROVIDE COMFORT, Army Forces-Turkey; OPERATION RESTORE HOPE, Mogadishu, Somalia; OPERATION ENDURING FREEDOM, Afghanistan; OPERATION IRAQI FREEDOM, Baghdad, Iraq.
I urge you to take a hard look at the concerns this very distinguished retired officer raises as they have grave implications for the military justice system.
Firing the Army chief prosecutor- is this what independence looks like?
by LTG (R) Charles Pede
The Secretary of the Army abruptly fired her chief prosecutor within the Army’s new independent prosecution office, Brigadier General Warren Wells, last week. The Army explained the Secretary lost “trust and confidence” in Wells based on an email he sent in 2013 regarding sexual assault, which his new office will specialize in prosecuting.
This extraordinary move, just weeks before his office goes ‘live’ after a year of preparation, was based on BG Wells’ criticisms of a government prosecution made to other defense attorneys, known as internal defense communications, 10 years ago.
The background
In 2013, then Lieutenant Colonel Wells was a supervising defense attorney. A sexual assault allegation in Japan gained notoriety because the command improperly investigated the allegation.
Congressional scrutiny on how the services handled sexual assault allegations was already intense and the atmosphere in this case raised the temperature even higher.
In an extraordinary action at the Department of Army level, the Commanding General was relieved of his command and reduced in rank from Major General to Brigadier General.
It was in this charged atmosphere that Wells told his defense attorneys via email that “hopefully a Soldier will be able to get a fair trial. You and your teams are now the ONLY line of defense against false allegations and sobriety regret. You literally are the personal defenders of those no one will now defend, even when all signs indicate innocence.”
Wells cautioned counsel to be ready for a ‘worst-case’ scenario: “expect no commander to be able to make objective decisions involving [sexual assault] allegations as long [as] Congress and our political masters are dancing by the fire of misleading statistics and one-sided, repetitive misinformation by those with an agenda.” He also characterized the controversy as “the sexual assault ridiculousness.”
The Army Secretary’s rationale
In a statement explaining his firing, the Army Secretary said that Wells’ email “negatively characterized developments in sexual assault response at the time and was dismissive of the principle of civilian control of the military exercised by both the executive branch and Congress.”
The Secretary’s decision came as a genuine shock to the military legal institution. More problematically, the move calls into question the ‘pre-baked’ design of the new military justice system forced on the Services two years ago to better facilitate independent prosecutions of major crimes.
It also underscores the apparent lack of independence that was championed as the primary goal of the changes.
Point one: the dangerous message to every defenses counsel in the Army
First, should the Secretary consider internal defense attorney communications as a basis for relief from duty? As a former defense counsel and prosecutor, I can tell you. The answer, of course, is no.
Firing Wells for internal communications as a supervisory defense counsel critical of prosecutorial decisions sends a dangerous message to every defense counsel in the Army. Zealous representation is the most essential aspect of the process “due” to any criminal defendant.
Imagine the potential and apparent effect of the Secretary’s action on current Army supervisory defense counsel.
Will they feel free to speak and criticize Army or command decisions on behalf of their clients? Will they hold back from the zealous advocacy and effective representation which all Soldiers – even those accused of heinous offenses – are constitutionally guaranteed, fearing professional repercussions 5, 10, or 15 years later?
And while my personal faith in our Army defense counsel is ironclad, the adverse effect of her decision on the scales of military justice is incalculable.
But the trouble with her decision goes deeper and has even broader adverse implications.
The Secretary’s action sadly reinforces the early suspicions of some that the forced 2021 reforms were more about appeasing certain legislators who spent years decrying the military justice system and how it dealt with sexual assault than it was about enhancing justice.
These proponents consistently dismissed objective facts – and the advice of all the senior military lawyers in the Pentagon (who were alleged to be ‘part of the problem’), as well as the views of key military leaders.
The centerpiece of their change, consequently, was the creation of a supposedly “truly independent” chief military prosecutor for each service working directly for a Service Secretary – a political appointee – instead of the senior uniformed lawyer of each Service.
Point two: an “independent” and an improved system of justice?
But now it is time to ask what exactly was meant by “independent” and an improved system of justice.
Surely independence cannot be a code-word for an outcome-oriented process that treats every accusation as unquestionably valid and gives scant attention to the presumption of innocence.
After this firing, does independence allow the chief prosecutor to question or doubt the veracity of a witness or other evidence – especially in a sexual assault case?
The Secretary’s action makes it unclear whether she truly understands that prosecutors have a duty to make judgements independent of what may be her wishes. The American Bar Association’s Criminal Justice Standards for the Prosecution Function states:
The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants. (Emphasis added)
After this firing, can a soldier get a fair and independent assessment of their case’s evidence by the next Chief Prosecutor who, like Wells, will be working directly for the Secretary? Will that officer feel confident to turn down a proposed prosecution in a high-profile sexual assault case without fear of professional repercussion?
The answer to both questions is, of course, yes. But that is because I personally know the officers responsible for these decisions. I know their faith to due process and fairness is as unshakable as granite.
But does someone accused of a crime rest easy after the Secretary’s decision?
We must also remember that the ‘negative characterizations’ of government evidence, which formed part of the basis for the Secretary’s decision, is what defense counsel ‘do’ (as well as responsible prosecutors) – it is their bread and butter.
And yes, sometimes to our chagrin it may include language that speaks to political pressure on decision makers. We may not like the characterizations by defense attorneys – but their ability to make such argument is what keeps the scales of justice balanced.
However well-intentioned the Secretary’s rationale for firing BG Wells, she has made it inevitable that she will be called to testify when defense counsel begin filing motions to dismiss charges based, ironically, on a lack of an independent prosecutorial decision.
The adverse shock effect of her action is only compounded considering the Secretary’s duty: to ensure the integrity of the justice system, not only for alleged victims but also for those facing criminal conviction.
Proponents of the decision argue that the Secretary is protecting the integrity of the system by firing Wells, reinforcing “that there is neither anything ‘ridiculous’ nor ‘misleading’ about sexual assault allegations.”
Fair enough, indeed. But what is missing in this defense is profoundly troubling. What is missing is a recognition that defense counsel have an obligation to make these very arguments when the facts or the law demand it on behalf of their client.
We may not like it, it may make us uncomfortable, it may indeed, be hurtful. But if your son or daughter was facing such an allegation, you would expect their defense counsel to challenge an accusation in such a way. Would you not? This is how a balanced system of justice works.
In the end, the Secretary’s action will, ironically, have profound ripple effects that make her duty more difficult to fulfill. And her decision puts her squarely in the middle of criminal litigation – and yes, into the well of the courtroom.
As the Court of Appeals for the Armed Forces has held, even service secretaries can create the appearance of “command influence” which has long been described as the “mortal enemy” of the military justice system.
In this instance the Secretary may find her action being characterized as creating an appearance (if not fact) of unlawful command influence. Defendants will surely allege that her action indicates she wants the prosecutor–contrary to the ABA Standards–to ‘merely convict” as opposed to “seek[ing] justice.” It could raise allegations that she is not committed to ensuring the scales of justice are balanced.
Point three: BG Wells was “right after all”
Which brings us to the third and final point. The case BG Wells spoke to 10 years ago involved a Commanding General whose lawyer incorrectly told him to conduct a ‘command investigation.’ This was the wrong advice – and yes, the General, on his own, cured this error by subsequently ordering a law enforcement investigation.
But it didn’t matter at the time, because the strident critics of the military justice system would not let go. And Army leaders responded to show that we are an accountable institution, and we mean it. The General was relieved of his duties and reduced in rank from Major General to Brigadier General.
Responding to this situation, then LTC Wells sought to remind his subordinates inside the ‘charged climate’ that the Defense Bar was there to defend Soldiers – regardless of the risk of exposing inconvenient facts – in a system that was now evidently ‘politically charged.’ His language and advice to his attorneys were also charged, but entirely understandable.
Wells has since apologized for what he called “inappropriate” comments regarding policy makers’ concern about sexual assault, and explained that “my intent was to reinforce that defense counsel are a critical protection for Soldiers accused of wrongdoing, especially when there is outside pressure to convict.”
His comments as a defense counsel 10 years ago are certainly not grounds for relief from duty either then or now. Indeed, as a supervisory defense counsel failing to mentor his defense counsel on how to navigate those turbulent waters would have been derelict.
And the record shows the Army’s ultimate response to the incident that generated his email actually validated his concerns: in 2021 the Army acknowledged its error in reducing the General and restored him to Major General.
So, BG Wells was right after all. But he is now the victim of the same blinkered thinking and head chopping he chastised back then. This is no way to run a system of justice.
Concluding thoughts
To be clear, everyone—to include this writer—wants to purge sexual assault not just from the military, but from everywhere.
That said, in a rule-of-law democracy—especially one obliged to depend upon an all-volunteer force—ensuring the fact and appearance of fairness and balance in the military justice system is essential to maintaining the morale and discipline that underpins combat effectiveness.
Even more importantly, it is something we owe the troops who must go in harms’ way and, if necessary, pay the ultimate price to preserve for all of us the rights and freedoms this country was founded upon.
About the Author
Lieutenant General (Retired) Charles Pede served as the 40th Judge Advocate General of the Army from 2017-2021.
Disclaimers:
The views expressed are those of the author and do not necessarily reflect those of George Washington University, or the U.S. Army, or any other part of the U.S. Government.
The views expressed by guest authors do not necessarily reflect my views, those of the Center on Law, Ethics and National Security, or Duke University. See also here.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
