The Secret to Military Justice Success: Maximizing Experience

Author:Major Jeffrey A. Gilberg
Pages:1-89
 
FREE EXCERPT
MILITARY LAW REVIEW
Volume 220 Summer 2014
THE SECRET TO MILITARY JUSTICE SUCCESS:
MAXIMIZING EXPERIENCE
MAJOR JEFFREY A. GILBERG*
“Insanity is repeating the same mistakes and expecting different
results.”1
I. Introduction
Despite the best efforts at all echelons of the Judge Advocate
General’s (JAG) Corps, the Army’s military justice system continues to
suffer from a lack of litigation experience.2 Army prosecutors and
defense counsel are routinely sent into court with little meaningful
* Judge Advocate, U.S. Army. Presently assigned as Brigade Judge Advocate, 1st
Sustainment Brigade, 1st Infantry Division, Fort Riley, Kansas. LL.M., 2014, The Judge
Advocate General’s School, U.S. Army, Charlottesville, Virginia; J.D., 2004, University
of Maryland School of Law; Bachelor of Arts, 2000, Bowdoin College. Previous
assignments include Military District of Washington, 2005–008 (Administrative Law
Attorney, 2005–2006; Trial Counsel, 2006–2008); Aberdeen Proving Ground, 2008–
2010 (Defense Counsel); and, Fort Drum, 2010–2013 (Special Victim Prosecutor).
Member of the bars of Massachusetts, Maryland, the District of Columbia, The Court of
Appeals for the Armed Forces, and the United States Supreme Court. This article was
submitted in partial completion of the Master of Laws requirements of the 62nd Judge
Advocate Officer Graduate Course.
1 Narcotics Anonymous World Service Conference Literature Sub-Committee 11 (Nov.
1981). Interestingly, this quotation has often been misattributed to Albert Einstein. See
Michael Becker, Einstein on Misattribution: ‘I probably didn’t say that, BECKERS
ONLINE J. (Nov. 13, 2012) [hereinafter Narcotics Anonymous], available at
http://www.news.hypercrit.net/2012/11/13/einstein-on-misattribution-i-probably-didnt-
say-that/ (analyzing and presenting the possible actual sources for this quotation, to
include Narcotics Anonymous literature).
2 See Major Derrick W. Grace, Sharpening the Quill and Sword: Maximizing
Experience in Military Justice, ARMY LAW., Dec. 2010, at 24 (“The Army’s military
justice system suffers from a lack of experienced practitioners.”).
2 MILITARY LAW REVIEW [Vol. 220
experience and without the benefit of a seasoned practitioner to guide
them through the process.3 This lack of experience often results in
substandard litigation and poor professional development of junior judge
advocates. The Army JAG Corps’ failure to adequately address this
problem has exacerbated the issue by creating a perpetual cycle of
inexperienced supervisors advising inexperienced litigators on how to try
very serious cases.
None of these assertions are novel.4 In fact, the list of individuals
who previously have written or spoken on this topic is both long and
distinguished.5 However, while many identify the lack of litigation
experience in the Army JAG Corps as the problem, very few have
offered a way to address it. Further, even the ones who have—their
proposed solutions are general, lacking any meaningful specificity. This
article builds on the ideas of others and picks up where they left off—by
combining their ideas with several best practices into one specific and
detailed plan to implement immediately.
3 See id. at 31 (pointing out that “[o]ften, young, untested counsel in the Army are
assigned cases with little or no supervision or their supervisors lack the time and
experience to provide mentorship”).
4 See, e.g. id. See also Major Nathan J. Bankson, A Justice Manager’s Guide to
Navigating High Profile Cases, ARMY LAW., July 2012, at 4; Brigadier General John S.
Cooke, The Twenty-Sixth Annual Kenneth J. Hodson Lecture: Manual for Courts-
Martial 20X, 156 MIL. L. REV. 1 (1998); Major David L. Hayden, Major Willis C. Hunter
& Major Donna L. Wilkins, Training Trial and Defense Counsel: An Approach for
Supervisors, ARMY LAW., Mar. 1994, at 21; Kenneth J. Hodson, Military Justice:
Abolish or Change?, 1975 MIL. L. REV. 579 (1975); Lieutenant Colonel Gary J. Holland,
Tips and Observations from the Trial Bench, ARMY LAW., Jan. 1993, at 9; Major Fansu
Ku, From Law Member to Military Judge: The Continuing Evolution of an Independent
Trial Judiciary in the Twenty-First Century, 199 MIL. L. REV. 49 (2009); Major Stephen
J. McManus, TRIALS: Advocacy Training for Courts-Martial, 35 REP. 16, no. 3 (2008);
Lieutenant Colonel Edye U. Moran, A View from the Bench: The Guilty Plea—Traps for
New Counsel, ARMY LAW., Nov. 2008, at 61; Major Lawrence J. Morris, Keystones of the
Military Justice System: A Primer for Chiefs of Justice, ARMY LAW., Oct. 1994, at 15;
Colonel Joe P. Peck, Critique of Counsel Subsequent to Trial, 15 A.F. L. REV. 163
(1973); Colonel Charles N. Pede, Military Justice, The Judge Advocate and the 21st
Century, ARMY LAW., Apr. 2011, at 32; Charles D. Stimson, Sexual Assault in the
Military: Understanding the Problem and How to Fix It, Heritage Foundation, Special
Report from the Douglas & Sarah Allison Ctr. for Foreign Pol’y Stud., no. 149, Nov. 6,
2013, available at http://report.heritage.org/sr149.
5 See e.g., Grace, supra note 2; Bankson, supra note 4; Cooke, supra note 4; Hayden,
Hunter & Wilkins, supra note 4; Hodson, supra note 4; Holland, supra note 4; Ku, supra
note 4; McManus, supra note 4; Moran, supra note 4; Morris, supra note 4; Peck, supra
note 4; Pede supra note 4; Stimson, supra note 4.
2014] MAXIMIZING EXPERIENCE 3
As a part of this article, this author conducted a two-part anonymous
survey.6 Part One captured a snapshot of the Army JAG Corps’ military
justice proficiency by surveying all personnel then-occupying military
justice litigation positions.7 Part Two of the survey obtained
impressions—both positive and negative—of the Army’s special victim
prosecutor (SVP) program by surveying (1) SVPs (past and present); (2)
those judge advocates who have ever tried a contested case with a SVP;
(3) experienced court reporters (CRs); (4) current military judges (MJs);
(5) regional defense counsel (RDCs); (6) chiefs of justice (COJs); and (7)
senior defense counsel (SDCs).8 While Part One substantiates the
problem of litigation inexperience in the Army’s current military justice
practice, Part Two emphasizes the benefit of pairing experienced
litigators with junior counsel in real cases.
This article first identifies and substantiates the problem of
inexperience in the Army’s military justice system. Second, it discusses
the SVP program as a successful Army initiative already in place that
effectively utilizes litigation experience. Third, by building upon the
success of the SVP model, as well as the ideas and observations of
others, this article proposes a detailed plan that directly addresses and
solves the problem of litigation inexperience in the JAG Corps.
6 Major Jeffrey A. Gilberg, Criminal Law Survey (2014) [hereinafter Gilberg Survey]
(on file with author). The survey was anonymous, meaning that all survey responses
have been coded numerically so that nobody other than this author can attribute any
comment to any particular person. To the extent that a specific comment is referenced in
this article, such reference is merely be to that code, rather than to a name. Additionally,
responses are also designated by position. Specifically, chiefs of justice are designated as
COJ; regional defense counsel are designated as RDC; senior defense counsel are
designated as SDC; special victim prosecutors are designated as SVP; trial counsel are
designated as TC; and, court reporters are designated as CR. Therefore, as an example, a
comment made by the 117th trial counsel would be cited as TC117. Additionally, when
referencing any of the anonymous survey responses in this article, the male pronouns
(e.g., he, him) are used over the corresponding female pronouns (e.g., she, her).
However, use of the male pronoun thus does not mean that the referenced survey
response was provided by a male. Similarly, whenever a survey response references
another individual (e.g., an SVP with whom the survey respondent has worked), that
other individual is also referenced as a male (e.g., he, him). Again, this does not mean
that the referenced individual is actually a male. This choice was made to make the
article easier to read by avoiding the use of the terms “he/she” and “him/her.”
7 Id. For purposes of this article, military justice litigation positions are those positions
that are actively involved with prosecuting or defending courts-martial, to include COJs,
SDCs, TCs, DCs, and SVPs.
8 Id.

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