Advocacy on Behalf of a Najar Field Command: When It Begins, What It Should Accomplish, and Suggestions How It Should be Done

• Author: by Brigadier General Wayne E. Alley
• Pages: 01

esI,zng ci'ilia71 con-ry needs .fm disci- This arttcle aas originaliy prepared and delmerrd by the author

08 a speech at the 198f Homer Feigusa,i Conference on Appellate

Advocacy

The past decade has brought far-reaching developments in the military justice system. The overall trend has been to expand individual nghta of soldiers in an attempt more "earl?- to assimilate concepts found in emlian life. This civilization of the criminal legal sys* This was a speech glren b) the author at the Smth Annual Homer Ferguion Conference on Appellate Adi'ooac) (1951). The Conference U ~ E sponsored by theUnited Sratei Court of Ililitaiy Appeals. Judpe Homer Fereusan served on the Court of Milltar? Appeal. from February 17, 1956. Io Mag 1, 1971. and has held the llrle of senior judge from the latter date to the preient Judge Ferpuion held office as a C S Senaror from Michigan, 3913.54. and as U.E ambaasador to the Phillippmes. 1965-56

The opiniani and emelumnns preasmed ~n this apeeeh are rhoie ofthe author and do not neeeessardy represent the view9 of The Judge Advocate General'a School, the Deparlmsnf affhe Arm?, or an? other governmental agency

** United Stater Arm?. reured. Dean. College of Lau. Cmvermty of Oklahoma. Sorman, Okla?,oma. 1981 to present Judge 4drorate. United Statex.4rrr) Europe and Seienth Army, Heidelberg. Gernaci 1975-1981. Chief, Cnmi-nsl Law Dlrla~on. Offlee of The Judee ldraeafe General. Deaartmenf of the.%rri, Washlngfon. D C , 1976-197E Former judge on the C.S Army Court ai

tern has produced both good and bad results. The bad is a potential for diminished responsiveness of our legal system to the legitimate needs and problems of commanders.

The Inherent differences between the military and civilian spheres preclude superimposing, point for point. the cirilian justice system upon the military. The military legal system w-as created for the unique purpose of responding to the special needs of the military and to command. A heightened awareness of these needs by appellate counsel and appellatejudges is necessary, as well as a determination activelr to discharge the responsibilities of our legal iystem to command.

4diacac) for an appellate audience begins in the earliest stages of the CPLB. Whether they articulate it or not, police. commanders and trial judges are all reeking affirmation of their own conduct. Successful resolution at the appellate level depends upon the pretrial and trial phases Police indecismns b! the commander. the course of the trial-all fundamentally affect the ultimate outcome of the case and, conversely. are fundamentally affected by appellate decisionmaking

The foundation for successful prosecution is laid during the initial police contact and criminal in\eetigarion. It is often here that the final judicial battle will be won or lost and it 1s here that appellate de. cisions iirst afiect the outcome of the case. Police awareness of ap-pellate disposition of cases haa a heavy impact upon police action Their frustrations and disappointments in the courtroom have taught to police the ralue of learning about appellate pronounce-

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19811 MWOR COMMAYD MVOCACY

ments. What does it profit to obtain evidence by the most expeditious means if the case is thereby lost and the offender set free?

The legal education of the police corps must provide the agents with usable guidance to employ proper police techniques. The very nature of police nark demands crucial, on-the-spot decisions. Ques-tions must be seen in colors of black and white, vith little time to observe the finer shades of grey. Police decisions must often be made concerning complex issues, whose nuances could give legal scholars hours of fruitful contemplation. It 1s imperative for this reason that clear, concise guidance from above be available to illu-minate the proper road. The responsibility to provide this guidance begins at the appellate level. Conversely, there is a responsibility for appellate judges at least to listen to what the palice communicate through records of trial about their reasons for their actions and the environment in which they work.

Divergent appellate views on important issues, search and sei-zure for example, create confusion among police Being unsure of the...