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.

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.


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.

JBLM Bar Association

I had the pleasure of attending the inaugural event for the JBLM Bar Association today at JBLM.  There was a strong turnout of Army JAGs, Paralegals and civilian Army attorneys.  The Air Force and Washington National Guard were well-represented too.  The event was led by COL Bagwell from the Lewis Main side of the installation.  The event focused on ethics with a lot of citations to the Army Rules of Professional Conduct and mention of the Joint Ethics Regulation.  The staff that put the event together did a nice job and promoted the event well given the strong turnout.  A number of thought-provoking hypothetical scenarios were presented and good discussion was generated.  Kudos to those that coordinated the event!


mike_berens_coffeeColleagues, followers and friends…I established the Berens Law Firm in 2014 after over eight rewarding years as an Active Duty JAG in the United States Air Force. It has been a dream of mine for many years to run my own law practice and I am very excited to have the opportunity to operate a Tacoma, Washington-based practice with a worldwide mission to raise the civilian Military Defense Attorney bar for Air Force, Army, Coast Guard, Navy and Marine service members facing adverse action in the military justice system. This forum will primarily contain content related to my primary area of practice, including interesting court opinions and articles. Thank you for your continued interest and support.

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