Fair Conclusions from Resource Allocation: A Threat to the Balance in the Military Justice System

The amount of resources utilized to prosecute sexual assault and sex related offenses in the military, coupled with the resources created for alleged victims of sexual assault or a sex related offense, are unprecedented. Some of my colleagues will recall a time not too long ago where commands facing an uncooperative complaining witness would threaten these alleged victims with orders to testify against an accused service member or face consequences for failing to comply with the order. This was not commonplace, but it did occur. As a father of two girls that may very well raise their hand one day and elect to serve in the armed forces I must admit that some change may have been warranted, but the accused service member in today’s politically-charged military justice climate must ask whether the scales of justice remain in balance.

The tides have shifted dramatically. Most notably, with the launch of programs to guarantee alleged victims their own legal counsel to navigate the military legal process, which may or may not lead to trial by court-martial. This was a role previously provided by Trial Counsel, Paralegals, and support staff. At the same time, significant numbers of qualified defense counsel in at least one branch of service are undergoing separation from the military based on budgetary constraints. To be fair, these defense billets will most likely be filled by other Judge Advocates rather than eliminated. What interests me is the perception of fairness the military-justice process and balance in the military justice system. It seems an extraordinary amount of resources are being allocated with an emphasis on victims, victim rights and effective prosecution without similar resources being allocated to the defense bar. Is the military justice system broken? No, but increased allocation of government and victim resources without similar resource allocation to the defense bar places the balance to the scales of justice at risk.

The remainder of this post is a follow-on post to my post on 13 October 2014 regarding MAJ Jeffrey A. Gilberg’s law review article in the Summer 2014 Military Law Review titled, “The Secret to Military Justice Success: Maximizing Experience.” The law review article can be found here.


My previous post addressed MAJ Gilberg’s identification and substantiation of inexperience in the Army’s military justice system amongst junior practitioners. This post briefly addresses some of MAJ Gilberg’s conclusions concerning his recommended systemic changes in an effort to “provide better legal service to the Army and its soldiers” and some comment on resources (special prosecutors) designed to increase the probability of convictions (p.77)

MAJ Gilberg’s proposed recommendations for countering the problem of inexperienced counsel include a thoughtful call to (1) restructure the regional structure of criminal litigation practice to more consistently disburse experienced litigators across regions; (2) operate within clearly defined roles where Staff Judge Advocates continue to own the case, assign two counsel to every case, and not measure success on results; (3) rethink the means by which judge advocate’s skills are measured; and (4) implement a military justice career track. Additional recommendations include building on the Army’s special victim case capability and continued focus on training.

In the article, MAJ Gilberg concludes the best means to counter lack of military justice experience is to pair junior counsel with more experienced litigators. (p.13) This practice makes sense. Pairing junior counsel with senior counsel has been a common practice in the Air Force JAG Corps for many years. MAJ Gilberg also describes the detailing process used in the Marine Corps, which is similarly designed to have the right counsel on the right case. As MAJ Gilberg notes, the Air Force has operated with Senior Trial Counsel in complex cases since 1972. As a measure of the Senior Trial Counsel program’s success, the government cites a 20% increase in convictions in sexual assault cases when a Senior Trial Counsel represented the government at the court-martial. The increased chance of a conviction is one reason why Senior Trial Counsel are highly sought after and limited resource.

MAJ Gilberg highlights the Army’s efforts to increase conviction rates via the Special Victim Prosecutor program – established in 2009. The article includes a number of examples where the SVP makes the government’s case presentation stronger, thereby increasing the government’s odds in securing a conviction. MAJ Gilberg supports his conclusions using survey results obtained from Special Victim Prosecutors, Trial Counsel, Defense Counsel, Chiefs of Military Justice, Court Reporters and Military Judges. One conclusion MAJ Gilberg draws is that “the SVP program has enjoyed considerable success in improving the quality of the Army’s prosecution…” (p. 18) The article contains many examples to support the conclusion that the SVP program is a success story from the government’s perspective. MAJ Gilberg also includes a few criticisms of the program. For example, the heavy workload that can spread the SVP resources thin and the fact that some Judge Advocate’s serving as SVP may be better off in another billet.

Interestingly, MAJ Gilberg reports that 8.9% of the 113 surveyed criticize the SVP program for “providing an unfair advantage to the government.” (p. 28 and 74) The associated footnotes (at p. 28) contain quotes from MAJ Gilberg’s survey. In response to the survey, one Chief of Military Justice appears to ask about the lack of “special defense attorneys.” A Senior Defense Counsel argues “adding the SVP only stacks the deck further against the accused.” A Court Reporter concludes that Trial Defense Services “should have somewhat of a parallel organization.” MAJ Gilberg dismisses these criticisms by citing the experience level of the average defense counsel compared to that of the average trial counsel and suggests the SVP program merely “provides a balance that previously did not exist.” (p. 74) As a caveat MAJ Gilberg concludes “to the extent that the SVP program does provide the government with an unfair advantage over the defense, the proposed plan addresses this concern by redefining what it means to be an SDC (Senior Defense Counsel).” (p.74)

Ultimately, the reader of the article is left with the impression that MAJ Gilberg sees the military justice system in the Army as a system with some strengths and a lot of room for improvement.

Thank you for your interest.

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Comments from Attorney Jeff Coats

Mike is the right kind of lawyer. He is smart, he is thoughtful and deliberate, he is reasonable and fair. I first met Mike when I was legal advisor (judge) on a discharge board and he was the recorder (prosecutor). I was so impressed by his work that when he became available for hire I…

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