In this post, I discuss finally being able to get in the courtroom in the fourth week of JASOC.
Please note that I am posting this article after completing my service. Therefore, I blend the notes I took contemporaneously to my time at JASOC with my reflections from four years on active duty.
This week was incredibly busy. Like every week but the first, I find myself exhausted and drained at the end of the week.
There really is no time to rest. Since the faculty condensed a nine-week course into seven weeks, the work just keeps piling up. Completing one task only means that another task is waiting.
The workflow really does not ebb and flow as it customarily does in environments like this. It is a rather constant push, a consistent barrage of endless assignments.
This week, we were finally able to get in the courtroom to do our mock court-martial. With this event, the military justice block drew to a close. I hope, therefore, that this means a less intense workload. But we’ll see.
Get in the Courtroom
The ability to get in the courtroom early is a major recruiting talking point for the JAG Corps. This week, we were finally able to get a taste of it.
The mock-court martial, the culmination of the military justice section and indeed the entirety of JASOC, finally arrived.
In the afternoon, the day before the main event, we conducted a voir dire exercise.
The faculty separated voir dire from the actual mock court-martial to keep the process flowing and to account for the number of faculty that would be needed to participate. So, in a sense, we were able to get in the courtroom in two different phases.
There were three runs. One group went at noon on Monday, one group went at 1400, and then the last group went on Tuesday morning before the court-martial.
Fortunately, I went during the first run, which meant that I got it out of the way and was able to focus on preparing for the actual court-martial the next day. It also gave me a couple of hours Tuesday morning to further prepare.
Tuesday was a very long day for everyone, but it was particularly long for those who had to do voir dire and the mock court-martial one after the other.
The Mock Court-Martial
On Tuesday, I started my court-martial at 0930, and it went the entire rest of the day.
It was a fully litigated court-martial (as opposed to the earlier guilty plea). A faculty member played the judge, and another two faculty members played witnesses.
We had to direct and cross all witnesses. We also had to argue motions for evidence we wanted to be included or excluded.
We didn’t have to draft written motions, but we did them orally.
This made sense because of the time constraints, although written motions are an essential part of the court-martial process. They were also my favorite part of being a JAG officer. It was the one thing I did during my four years in the Air Force that made me feel like a real lawyer.
Even when I was able to get in the courtroom, things felt much more scripted and predetermined than they ever did when I was a civilian prosecutor. Motions, however, were pure attorney work, and I loved it.
Nonetheless, the oral motions still required a lot of preparation beforehand—we knew what the topic of the motions would be—and a lot of thinking on our feet.
Of course, we also had to make an opening statement and give a closing argument. Then, no matter how the court-martial actually went, the accused was found guilty.
We knew the fix was in beforehand because we had to do a sentencing argument.
A Long Day
It was a very long, very painful day. The instructors, however, really seemed to eat it up.
I don’t care for trial work—which contrasts with a lot of people here, where most people want to get in the courtroom—so there was undoubtedly a mismatch of energy between the military justice instructors and me because of that alone.
When it was over, I was so relieved and happy to be done with it. It was like having a heavy load lifted off my shoulders.
As soon as I got back to my room, I wadded up my service dress and threw it in the corner to take to the dry cleaners.
I was done.
Trial Advocacy Competition
That evening, however, the instructors all got together and picked the top three students from the court-martial to participate in the trial advocacy competition.
The Reward for Hard Work: More Work
So, the reward for hard work was apparently more hard work, which I suppose is the nature of life in general. (It is definitely the nature of the military.)
Indeed, as I progressed in my career, the Book of Ecclesiastes often came to mind. (“Vanity, vanity, all is vanity.”) If the reward for hard work is more hard work, what is the point? At what point are we satisfied? At what point can we decide that enough is enough and just rest?
But enough waxing philosophical. The fact is that more work often means more opportunities, although you’ll have to find a way to pace yourself in the military to avoid burning out.
Get In the Courtroom, Again
Anyway, for reasons that I cannot possibly imagine, I was selected as one of the three. The instructor who called me was very kind as he congratulated me. I know it sounds a bit ungrateful and unappreciative, but my stomach sank.
I thanked him, of course, but then got back to work.
Typically, those selected for the trial competition would have a few days to prepare. Because of our condensed schedule, however, the competition was scheduled for the next day.
So, I found out at around 1900 that I would then have to have a new cross-examination and closing argument prepared by the next morning.
Also, since I was defense during the mock court-martial, I would have to be the prosecution during the trial competition. Consequently, I could not reuse anything that I had already done.
So, more work.
The next day, the three of us each had to get in the courtroom again and perform. We didn’t watch each other but were sequestered as the others did their routine in front of the entire class and faculty, including the commandant.
This week, we also had the opportunity to learn more about the paralegals with whom we would be working at our first legal office.
The Chief Master Sergeant at the JAG School came and gave us a briefing about the paralegal course, which takes place in the same building.
She also explained how things work in the paralegal world, the idea being that we should understand what paralegals do so that we can better utilize them and support them in their careers.
Officers as Leaders
I enjoy these types of things. Most attorneys are so excited to get in the courtroom that they don’t take the time to understand enlisted personnel, which is tragic.
I think this is an issue in the Air Force in general. Unlike the other branches, the Air Force is led by people who don’t have enlisted counterparts. In the Army, for example, there is enlisted infantry personnel. In the Air Force, however, there are no enlisted pilots.
Officers are supposed to be leaders, and if we do not know how to interact with or lead the enlisted paralegals, we fail. Period.
Leading Enlisted Members
The only thing I really loved about my time in the Air Force was the opportunity to lead, support, and fight for the enlisted personnel under me. I encountered so few officers during my time that actually cared for the people under them, I wanted to be better than that.
Officers exist for the enlisted, not enlisted for the officers.
Later that same afternoon, we had a joint seminar with some paralegals at the school working on their level 5 certification. (There are three certification levels: 3, 5, and 7. I believe there’s a 9 level as well, but that comes more or less automatically with time in the career field and rank.)
So, these were mostly senior airmen and junior NCOs. It provided us with an opportunity to work through some problems and discuss various issues, hearing from the perspective of the enlisted.
They help us get in the courtroom and succeed, so we should help them succeed in their work as well.
It was not nearly as involved an event as what I experienced at the Army JAG School, but it was useful nonetheless.
(The Army School had an extended seminar with problems and task injections designed to simulate real-world events. They also brought in both NCOs and very junior enlisted.)
The Military Judiciary
With the court-martial behind us, there were just a few more items to wrap up before concluding the military justice section.
First, the chief trial judge of the Air Force came and spoke with us for two hours about various topics. He specifically focused on successful (and not so successful ) trial techniques of new lawyers from his perspective on the bench.
It was a beneficial block of instruction, and I did find it quite fascinating. Young captains are anxious to get in the courtroom, but most really don’t know what they’re doing.
No Article III Judges
This is an area in which you should pay attention, even if you have prior civilian legal experience.
Military judges are not real judges, at least as far as we generally understand that term. They are more analogous to administrative law judges than to federal judges.
They are not Article III judges. They do not have lifetime tenure and can be fired at will by those above them, including non-judges—and even nonlawyers.
Their chain of command runs through the Judge Advocate General to the Chief of Staff up through the civilian leadership to the President. In addition, their ability to advance in rank requires the consent of the Senate.
Their independence is ostensively protected, but they are, in reality, serving a tour of duty before they either retire or move onto the next assignment. (I’ve known judges who would later become SJAs, for example.)
Their quality varies dramatically. I mean no disrespect, but I don’t think anyone would deny that the military judiciary does not attract the same level of legal talent and genius that the federal judiciary does.
Very few—if any—military judges ever end up on the federal bench.
So, winning an argument before a military judge—who has his or her own personal pressures and influences different from that of a lifetime-tenured federal judge—may sometimes require approaching things from a different angle.
So, you get in the courtroom early in your career, but you will not get before a federal judge.
(The exception is if you do magistrate court, which prosecutes civilians committing low-level crimes on base. Strangely, the civilian coming onto base to commit a crime gets more constitutional protections than the member serving his country accused of the very same crime on the very same base.)
Frankly, I think it’s a constitutional travesty that military members are sentenced to long stretches in prison by military—not independent Article III—judges. In that, they are denied one of the fundamental constitutional rights that even our most evil citizens enjoy.
But that’s a discussion for another day.
It’s nothing against the actual people who make up the military judiciary, many of whom are extraordinary. It’s the structure that’s flawed, particularly as it relates to the prosecution of non-military specific offenses that occur on United States soil.
Unlawful Command Influence
We also discussed unlawful command influence, or UCI, which occurs when a member of the military uses his or her rank to influence the outcome of an investigation or court-martial.
For example, ordering a lower-ranking commander to prefer charges or ordering members of the panel—military for jury—to find the accused guilty would constitute unlawful command influence.
(It’s worth pointing out here that members of the panel are almost always officers or enlisted members under the command of the commander who referred the case to trial by court-martial in the first place. In the civilian world, it would be the rough equivalent of a jury consisting entirely of employees in the US Attorney’s office.)
No Real Checks
Unlawful command influence is of particular concern since, as I discussed above, military members do not enjoy an independent judiciary. They don’t even have access to an independent prosecutor or a jury of their peers.
Everyone involved in a service member’s court-martial has commanders over them, and they are all ultimately answerable to the same people, be that the same commander, the Chief of Staff, or the President.
Only military members must face a criminal court consisting entirely of members of the executive branch.
Insufficient Appellate Rights
The first opportunity that a service member has to make his or her case to the judicial branch is during the appellate process and then only when appealing to the United States Supreme Court.
Before that, he or she must have already appealed to that specific branch’s criminal court of appeals—which is composed entirely of military judges—and then to the Court of Appeals for the Armed Forces (CAAF), which is composed entirely of civilian, Article I, judges.
CAAF judges serve limited terms, and they do not even have to accept an appeal. Like the Supreme Court, CAAF can refuse a writ of certiorari, leaving the service member with little recourse.
Furthermore, the service member can only appeal to the Supreme Court if CAAF takes the case. If CAAF does not take the case, there is no option to appeal to the United States Supreme Court.
Prohibition of UCI as a Minor Check
Unlawful command influence over the process is, therefore, a serious issue that must be prevented.
While we did not spend a lot of time on it at JASOC, it really can undermine every aspect of the military justice system and is something of which we must all be very sensitive.
Nonetheless, whatever protections may be in place, the fact remains that military officers are pressured by a lot more than the interests of justice in how they handle criminal cases. The number of high-ranking officers who lost their positions because some Senator did not like how they handled a sexual assault case is a clear indication of this.
The prohibition of UCI is really just a band-aid on a mortal wound—and one that is easily circumvented regardless.
Finally, we had an exam over military justice to close out the section. It occurred on Thursday morning, and we had two hours to complete fifty multiple-choice questions.
We could use the Manual for Courts-Martial and the Air Force Instructions (AFIs), but we couldn’t use our notes or any other outside materials.
It wasn’t bad. Everyone passed.
We were finally able to get in the courtroom, and now we are done.
The Beginning of Civil Law
After the military justice exam, we moved right into civil law, our next block of instruction. Most people join the JAG Corps to get in the courtroom, but a lot of what we do is administrative, dealing with various miscellaneous legal (and often not legal) issues.
So, we talked about HIPPA and had a block on ethics. We then had lectures on the Freedom of Information and Privacy Acts.
We finished up with lectures over the Air Force’s legal assistance program, the bane of every JAG officer’s existence. Unlike other branches, there are no separate legal assistance attorneys in the Air Force.
Every first-term captain, no matter what their role in the office, does legal assistance. This is a huge time suck, and you will find that the vast majority of the people you help are not active duty members but retirees and their spouses.
You haven’t seen an entitled attitude until you encounter a sixty-year-old spouse of a retired Tech Sergeant coming in for his or her third will while you’re slammed trying to prepare to get in the courtroom the next week.
Overall, it was an ok week. It was packed full, and I am glad that it is over. We were, however, finally able to get in the courtroom for a full court-martial run for the first time.
So, not a bad week overall.
The views and opinions expressed in this post are the author’s own and do not reflect the official policy or position of the Air Force JAG Corps, the United States Air Force, the Department of Defense, or the United States Government.