Should I hire civilian defense counsel?

My colleagues at CAAFlog recently posted a few links to interesting articles for military law practitioners. One of the articles is a law review article in the Military Law Review (Volume 220 Summer 2014) written by MAJ Jeffrey A. Gilberg title “The Secret to Military Justice Success: Maximizing Experience.” The law review article can be found here.$FILE/By%20Major%20Jeffrey%20A.%20Gilberg.pdf

In the article, MAJ Gilberg “identifies and substantiates the problem of inexperience in the Army’s military justice system.” (p.3) I will address this aspect of the article in this post. Additional posts on this article will address some of the author’s other conclusions regarding the special victim prosecutor program and his proposed solutions to “the problem of litigation inexperience in the JAG Corps.” (p.3)

Early on in the article, MAJ Gilberg describes the lack of litigation experience amongst Army JAGs as a decades-old problem and cites the recurring interest in this dilemma by senior leaders in the Army JAG Corps. (p. 4-5) The Army is not alone in the endeavor to raise the bar in the court-martial litigation arena. In my experience, the Air Force has demonstrated similar interest. Most notably in the relatively recent change in the manner in which junior counsel are certified to practice under Article 27(b)(2) of the UCMJ. For many years, junior Air Force JAGs were nearly automatically certified upon completion of the Judge Advocate Staff Officer Course. Today, junior JAGs are expected to pass muster in approximately three courts and receive a recommendation for certification by one or more military judges and the JAG’s Staff Judge Advocate. This new certification process is akin to what existed before my time as a JAG. The “new” certification initiative has generated some consternation by some junior counsel, but it has done little to change the experience of junior counsel aside from creating a pressure to keep up with their peers regarding the timing of the certification process. I say the process has done little to change the experience of junior counsel because junior counsel are nearly always accompanied by a more experienced co-counsel in Special Courts-Martial and General Courts-Martial. The new requirements prevent a junior JAG with little experience from going-it-alone when a Staff Judge Advocate is under pressure to docket a court quickly in the interest of speedy-justice despite the lack of available seasoned Trial Counsel. It is likely, many common mistakes have been avoided as a result of this new practice and the Trial Counsel bar has been raised to some degree.

MAJ Gilberg polled a number of participants in the court-martial process to support his conclusions and recognition of the “need to improve the experience of counsel for both sides.” (p.5) Participants include Trial Counsel, Defense Counsel, Military Judges, Chiefs of Justice and Court Reporters. Some of the reasons behind the lack of experience amongst junior counsel most certainly relate to the increase in operations overseas and the decrease in the overall number of courts-martial over time. (p. 6) The article is replete with examples supporting the conclusion that many trial and defense counsel lack litigation experience. Some of the numbers cited by MAJ Gilberg come from past similar studies by Army colleagues. (p.8) One aspect of the article that is quite alarming is MAJ Gilberg’s analysis of a previous survey suggesting the lack of experience on the defense bar may be comparable to that of the Trial Counsel (prosecution) bar. (p.8) MAJ Gilberg notes the small sample size associated with the previous survey and appears to have countered that deficiency with a more thorough poll to support his conclusions. One of which is that few junior JAGs have much litigation experience and the numbers for cases before panels are rather low overall. (p.10) MAJ Gilberg’s conclusions on the defense bar are more troubling:

“Despite the average DC possessing more than double the experience of the average TC, the numbers remain below the level of experience an accused should be provided.” (p.11)

As MAJ Gilberg states, “This is unfair to the Soldier accused of a crime as well as to the government, which deserves justice and accountability.” (p.12)


I welcome your comments. Thank you for your interest.

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