The Thirty-Fifth Kenneth J. Hodson Lecture on Criminal Law

• Author: H.F. 'sparky' Gierke
• Pages: 08

178 MILITARY LAW REVIEW [Vol. 193

THE THIRTY-FIFTH KENNETH J. HODSON LECTURE ON CRIMINAL LAW*

H.F. "SPARKY" GIERKE1

"Reflections of the Past: Continuing to Grow, Willing to Change, Always Striving to Serve"

1. Introduction

First of all, I want to thank you for the kind and warm introduction. Secondly, I want thank those who honored me by inviting me to deliver the 35th Annual Kenneth J. Hodson Lecture. I'm particularly pleased to have this honor because I served as an Army JAG officer from 10 May 1967 until 15 April 1971; almost all that time, General Hodson was the TJAG. He, indeed, was an extraordinary Judge Advocate who made outstanding contributions to the military justice system. It was, indeed, a high honor to serve under him.

I would also like to bring greetings from all of my colleagues at the court. As a senior judge, I still feel and always will feel that I am part of the court.

I am very pleased to have the opportunity to speak to this audience because you and I have some common experiences and goals.

First, we both have had the privilege to serve as a Judge Advocate. Second, we enjoy this privilege in a special military justice system. We serve a military that has the goal to provide for our national defense and security. To help accomplish that purpose, the military justice system provides each service member with a fair trial and quality legal services.

As I reflect back on my experiences in the military justice system, I will, for the most part, do so from the perspective of a judge. Many of you in this audience have had or will have the experience of being a judge. Some of you have or will have some of your richest professional experiences on the bench. Your experiences will mold you, shape you, and make you who you are. I believe we are better lawyers and people because we have developed, changed, and grown while embracing this unique and special privilege of serving as a judge. I have entitled my remarks Continuing to Grow, Willing to Change, Always Striving to Serve.

A. Continuing to Grow

If you want to be a good judge, you have to be passionate about both the law and life. You must stay eager to learn and to grow. Justice John Paul Stevens, in a 2005 speech at Fordham Law School, stated it best: "[L]earning on the job is essential to judging."2 I can reaffirm the truth of this statement. In my nearly twenty-five years as a military judge, North Dakota Supreme Court justice, and judge on the Court of Appeals for the Armed Forces, I can say that the capacity to grow is one of the top qualities of being a competent, successful, and happy judge.

President Bush recently appointed two new judges to our court, Judge Scott Stuckey and Judge Margaret Ryan, both sworn in on the fifth of this month. If someone were to ask me what qualities we should look for in future judges, I would say immediately the capacity to grow in the job. Holmes said, "Experience is the life of the law."3 In the context of my present remarks, I would say, "The ability to learn from our experiences is the lifeblood of good judges."

Some of you may be new judges and you may be questioning your own experience to assume this important duty. Good for you. I hope so. It is a mark of your humility and character that you have these self doubts. I had those doubts when I reported to Vietnam as a full-time military judge.

I was very fortunate to have as my supervising judge Major Dennis Hunt, the senior full-time special court judge. He was very bright, more experienced, very patient, and helpful. I recall his insisting that new judges in country tour the Long Binh jail-he felt we should have that experience before we started locking people up in that facility. If you balance your doubts and reservations with a healthy shot of commitment to learn, you will be well on your way to being a fine judge. Now, I could devote my entire presentation to this subject of professional growth, but time does not permit me to do so. I want to make two points on the subject.

Point number one: I believe that the key to professional growth is to be the best judicial colleague you can be. I know that some of you are trial judges. You may view your work as a lonely challenge. I have walked in your shoes. You are right, it is solitary work. But you do not have to be alone or do it alone. Your presence today puts you in the network-friends and colleagues here at the JAG School. My advice is to form strong relationships with colleagues. Find other judges you trust, respect, and connect with. In these relationships, dare to confide and discuss your cases and your challenges.

Most importantly-improve your capacity to listen. Let me say that again. Improve your capacity to listen. If I were to begin my legal career anew, I would hope to be a better listener. If you want to grow professionally, become a master of the art of listening.

Point number two: If you want to become a better lawyer or judge, become a better person. The profession of judging is a humbling experience. When you sit in judgment of a fellow citizen and service member, you are forced to ask yourself a lot of questions. This experience of being a judge has made me look in the mirror hard and deep. Why? When we understand ourselves, we have a better capacity to understand others. I believe that self-awareness is the beginning of wisdom that is the essence of judging. I am not about to tell you how to do this. You've probably already been doing this very well.

So keep on doing what you are doing to grow and develop as a person. Rejuvenation is how we keep going. Take care of yourself and your families, friends, and colleagues.

B. Willing to Change

Whenever I have an opportunity to speak to an audience like this, it stimulates me to reflect (look back) and project (look forward). Today, I look back remembering when I was a young Army captain from the University of North Dakota just beginning this lifetime adventure. For me it has been a wonderful experience in the journey from the family ranch in western North Dakota to the privilege of being the Chief Judge of the Court of Appeals for the Armed Forces. But I don't think we can just look back. We have to also look ahead.

I have a strong conviction that our best days are ahead because I have seen a military justice system that is dynamic and embraces change. Today it is appropriate to talk about being open to change-willing to change. From my perspective, a strength of our military justice system has been its capacity to change with the times. For a few minutes, let's look back and then look ahead and see where I hope we can move forward together.

1. Looking Back

   From May 1967 to April 1971, I was privileged to serve as a captain in the Judge Advocate General's Corps, United States Army. During the first part of my service in the Army JAG Corps, I performed duties as a legal assistance officer and later as a trial counsel and defense counsel. Until 1 August 1969, the effective date of the Military Justice Act of 1968,4 I was part of a system where, in special courts-martial, we had people incarcerated for six months, forfeiting two-thirds of their pay and being reduced to the lowest enlisted grade without the presence of a law-trained person in the courtroom. It's difficult for me to now fathom that was going on as late as 1969.

   As a result of the Military Justice Act of 1968, there was a need for more military judges. In 1969, just before going to Vietnam, I attended the military judge course here at the JAG School. Between the end of the military justice school and my report date to Vietnam, I went back to the family ranch in North Dakota to spend Christmas. During that time, I received a call from a Colonel Tom Jones from the Office of Career Management-he asked me if I would like to serve as a full-time military judge. I asked if I could have a couple of days to decide and he granted that. When he called back, I decided to give it my best shot. By the way, the trip to Vietnam was quite memorable. I flew out of Minot, North Dakota-temperature twenty-five degrees below zero. When I arrived in Vietnam, it was 110 degrees above zero.

   From December 1969 to December 1970, I served as a full-time military judge at the special court level in the Republic of Vietnam, presiding over more than 500 courts-martial. In recent years, I have questioned that number but my staff researched it and found that the Army tried over 41,000 courts martial in 1970.

   This was a challenging time to be sitting on the bench. We were serving in a combat zone. We tried cases in some very nice courtrooms but we also tried some cases in bunkers out in the field. Of course, we had many courtrooms that fit in between the two extremes referenced above. There were six full-time special court military judges in country. Major Hunt assigned us to the various commands as the demand dictated. The first six months I flew in helicopters or small fixed wing aircraft from USARV5 headquarters in Long Binh. The next three months I flew out of Camp Horne, XXIV Corps headquarters in Da Nang, and during my last three months in country, I flew out of Chu Lai, Americal Division headquarters. During my tour of duty in southeast Asia, I had the privilege of meeting and working with, among others, Dennis Hunt, John Naughton, Tom Crean, Bill Suter, Ron Holdaway, and Lee Foreman-all who went on to have outstanding careers in the Army JAG Corps.

   We were attempting to implement the many changes just made to the UCMJ and the Manual for Courts-Martial. Article 16 was amended to create the position of military judge as the presiding officer and to require a military judge in every general court-martial.6 Article 16

   authorized, but did not require, that a military judge be detailed to special courts-martial.7 However, Article 19 provided that a special court-martial could not adjudge a bad-conduct discharge unless a qualified lawyer was detailed as defense counsel, a verbatim record of trial...