How independent are Military lawyers who serve as defense counsel in a court martial?

Factual Questions
1

In the civilian world, it’s the job of an attorney in a criminal trial to do all he can to put the prosecution and law enforcement in a bad light. He will accuse the state of grave mistakes and of withholding exculpatory evidence. He is going to show that the police detectives are a bunch of drunken, incompetent, racist, negligent high school dropouts who were only hired because the police chief is their father-in-law.

In other word, it’s the defense counsel’s job to give the prosecution hell. He is paid by his client to do precisely this. If the district attorney hates his guts, he doesn’t care.

A JAG officer on the other hand who is assigned to defend a service member in a court martial is still wearing a uniform and a member of a strictly hierarchical organization. He probably also has a career ahead of him, in that very same organization.

So how aggressive can a Military lawyer be in the interest of his client (I don’t know if client even is the right word)?

Isn’t there a possibility that he will be viewed as a trouble maker by his peers and by the JAG leadership?

What if this young Military lawyer one evening, during a particularly controversial, high profile trial, receives a phone call from a Brigadier General X from JAG headquarters:

“Captain, you are doing a very impressive job, a real fire eater in the courtroom. I was the same when I was your age. But listen, maybe it wouldn’t be a bad idea to tone it down just a little bit. Don’t get me wrong, I would never try to influence you, that wouldn’t be right, wouldn’t it?” (laughs heartily) “And oh, I almost forgot, something completely unrelated: I hear that your promotion to Major is basically a done deal. And by the way, I also hear that the Deputy Judge Advocate General is still looking for a new personal assistant. Such a good assignment, but of course, you know, only the most reliable young lawyers do qualify”.

How independent are JAG officers?

2

I am a lawyer and the same pressures and inducement are on offer in the civil world also.

3

While I would not disagree with this statement as it stands (at least, if you mean by “same pressures” you mean “same type of pressures”), it does kind of weasel out of what the OP is trying to ask: namely, is the defense lawyer in a court martial practically unable to effectively represent his client?

4

Just a side note: I believe, in the US military, the accused can elect to have a civilian lawyer represent him.

5

In the US at least, their orders are to represent the defendant’s rights to the best of their abilities and uphold the Code of Military Justice. Failing to do so would be a dereliction of duty. If the military Defense Counsel can bring up evidence that the accused is being railroaded under orders from a corrupt commanding officer, or the victim of a pattern of misconduct among the MPs/CID units that handled the investigation, that in itself is within the scope of his proper duties.

IMO it’s more likely that the officers prosecuting a well-reputed up-and-coming officer with connections will be the ones who have a hard time getting the book thrown at him.
As AK84 points out, even in the civilian court system there are career consequences for a lawyer who rocks the boat too much in a case that involves members of the judiciary system itself.

6

Also, there is a separate chain of command for Area Defense Counsels from the normal operational chain of command–at least in the AF. So if a Wing commander brings a charge against someone and the ADC makes an ass out of the Wing Commander, the ADC won’t have to worry about his next fitness report being signed by that wing commander

7

If I recall correctly from A Few Good Men, the defense counsel was warned by other lawyers and the judge that if he questioned the veracity of the officer he was cross-examining and didn’t have absolute proof that the officer had lied, he himself might be subject to a court martial.

Was that accurate? And if so, wouldn’t that discourage a vigorous defense?

8

Only a defense lawyer isnt allowed to throw around unsubstantiated nonsense. Any lawyer who does the above will likely be sanctioned. A trial is a finding of facts.

9

I was trying to provide a somewhat colorful description :wink:

I remember a murder trial in (I believe) Florida in which a defense lawyer cross examined a young lady on the witness stand who was a crime scene technician. She also happened to have had an extramarital relationship with one of the police detectives in the case, but hadn’t been entirely forthcoming about this fact. There was absolutely no indication that this relationship was remotely relevant to the case, but the defense attorney kept pounding the poor woman and embarrassing her in public.

10

I remember that case.She was married and iirc lost her job and her husband.

11

No, it is nothing remotely like that at all. The criminal defense attorney’s job is to see that his client’s rights are protected.

12

But, on The Practice, they do that all the time!

13

I obviously don’t really know a lot about the American legal system, but I watched some criminal trials which were being streamed online in the last couple of years. I was often stunned about the aggressiveness and vitriol shown by both sides towards each other and towards witnesses which was in my humble layman’s opinion absolutely uncalled for.

14

To paraphrase Churchill…its the worst system there is…except for all the others. Its openness opens it to lots of criticism because we actually get to see it working, warts and all. But it also better insures fairer outcomes. But there is always lots of room for improvement.

15

I have two friends who are Natl. Guard JAGs of long standing. I’ve asked them both the same questions, and they say that although “command influence” (higher-ups trying to nudge those involved in a court-martial to get things to turn out in some predetermined way) has been known to happen, it’s quite rare nowadays.

See Breaker Morant for a great court-martial movie set during the Boer War, BTW.

16

“There was a young man from Australia,
Who painted his arse like a dahlia.
The drawing was fine,
The colours divine!
But the smell - now that was a failure!”

(Reportedly recited by Breaker Morant’s co-defendant the night before execution, while drunk.)

17

I cannot see a JAG lawyer assigned to defend someone being on the receiving end of a conversation like this.

Most court martials are tried before a panel of officers. They serve as both judge and jury. Or there’s a 3rd officer sent by the JAG to serve as judge or at least advice the panel of what the law is. Members of the panel, particularly the president, would be more likely to receive a phone call from the General about their future career opportunities.

18

Sorry I’m five years late to the party but I believe I can provide some useful insight as a former JAG Officer in both the Army and the Air Force (most times as intermittently very active in the “part-time” National Guards of two states). The short answer is that scenarios similar to the one proposed in the opening thread would not be unheard of 30 years or more ago but would be much rarer now. The longer answer is: A few decades ago there were major problems with defense lawyer independence. Indeed, if you wanted to rise in the ranks, you better not have embarrassed the trial counsel or commander with your shifty defense lawyer abilities. However, that situation was likely mostly cured sometime during the '80’s with the formation of independent units for defense lawyers in the full-time Army and Air Force (but not necessarily with the Navy which also provides legal services for both the Marines and the Coast Guard—providing such independent units would probably be exceedingly more difficult for the Navy given the distances between postings and the relatively low number of attorneys assigned even to major commands, also military justice might often need to be dealt out quicker in the Navy where a Commander needs to ensure obedience on his very isolated ship.)

However, the foregoing does not cover National Guard units until much more recently. When the full-time Army and Air Force got independent defense units, the NGB, Army, and Air Force considered something similar for the state national guards. And they considered it, and considered it, and so forth for some 30 years being content to let their trial counsel supposedly be gentlemen when dealing with defense attorneys. And in most cases, some imperfect semblance of independence was achieved in spite of a lack of independent units. Indeed, over time, some states formed pacts to send independent defense counsel from one state to another to provide defense service; however, most states did not do so And it was not unusual for a defense attorney who defended a servicemember to the embarrassment of upper management to find himself permanently assigned as defense counsel with no chance to rise through the ranks to be state SJA. And it was not unusual for defense (and other military) attorneys to half jokingly say that Commanders wanted to ensure that their personnel received a defense—just as long as it was a minimally sufficient defense that did not unduly interfere with Command getting rid of someone viewed as a bad apple. Then in early '00’s, yours truly took an action that essentially ended his career as a JAG Officer—I refused to break client confidentiality to explain why two administrative defense client desired alternate defense counsel (or to explain what advice I had provide them). I made this refusal to my supervisor who also happened to be the trial counsel in the administrative matters. As a result of my continued refusal to provide the information I received a career ending evaluation. My supervisor was supported in this decision by both our mutual Wing Commander and the senior members of the U.S. Air Force JAG (who advised the supervisor and Wing Commander to drum up any other charges they could against me—an improper practice called “piling on” to justify my exodus). While throwing me to the wolves, the Air National Guard decided on an institutional level they would prohibit supervisors and evaluators from assigning subordinates as opposing counsel—with defense attorneys coming from other states. They passed the information on to the Army National Guard and the full-time Navy who reacted similarly (although the Navy eventually gave up on the idea supposedly due to the great distances between units). Indeed, the Army National Guard formed two independent regional defense units to cover the entire country. So today, JAG defense counsels have a much better chance of independence although it is still possible for improper pressure to be applied to defense counsel in more subtle ways.

Indeed, even in the full-time military it is possible to apply improper pressure. Take for example, the defense of Guantanamo detainees. In the past 5-10 years, there was (1) an excellent defense attorney that embarrassed the upper echelon with winning and suddenly found he wasn’t promoted like his peers—in the end the defense attorney won a petition before the Board to Correct Military Records for his service branch and rose to become a military judge; (2) an excellent defense attorney that played “hard-ball” while defending his Australian client and was overtly threatened with court-martial for his aggressive tactics and expenditure of funds to defend his client—in the end the defense attorney succeeded in having his client returned to Australia, the defense attorney also retired and moved to Australia for civilian attorney job; and (3) at least one defense attorney and defense paralegal resign in protest over the joke of a process set up to try Guantanamo detainees. In addition, a famous T.V. personality and attorney representing a possible rape victim was threatened with arrest by a military judge if she did not turn over confidential psychological records from the alleged victim—in the end the T.V. personality continued to refuse to produce the records and the U.S. Marshal Service, on advice of counsel, refused to execute an arrest warrant against the attorney.

So the overall answer is, yes in years past it would be difficult to be sure about the independence of your JAG defense attorney; however, in the vast majority of cases, this made little true difference. More modern rules make command influence more difficult; however even in more modern times subtle and not so subtle pressure can be brought to bare if a Commander is truly committed to doing sol

19

A good example of this on the active duty side can be found in United States v. Hale, __ M.J. __, No. 201600015 (N.M. Ct. Crim. App. May 31, 2017), a Navy-Marine Corps Court of Criminal Appeals case. There, one of the two Marine defense counsel was married to another Marine lawyer who worked on the trial counsel (military prosecutor) side, though the husband was screened off the case and did not participate. The actual trial counsel for the court-martial supervised the husband as his senior rater and, among other things, suggested that the defense counsel remember that she would have a job back on the trial counsel side of things one day as his response to her mentioning that she was going to raise a particular objection to certain evidence.

The conviction in that case was reversed due to ineffective assistance of counsel from the conflict of interest that the trial counsel helped create. This kind of situation is more likely to happen in services with a smaller JAG community, like the Marine Corps or National Guard units (though less of an issue in National Guard units given the relative rarity of courts-martial). Oh, but the case has a happy ending since the toxic trial counsel at the center of the above case has since retired and become an Assistant U.S. Attorney (federal prosecutor). Just the kind of person we need out there.

20

Not so:

https://www.uscg.mil/legal/Practice.asp

Nitpick - it’s the “U.S. Marshals Service”: https://www.usmarshals.gov/