In this post, I discuss my second week at JASOC. Please be aware that I am publishing this based on notes I took during my time at JASOC five years ago. Consequently, I drop thoughts I formed during my entire Air Force experience into the narrative I recorded while at JASOC.
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Monday was Columbus Day, so the second week of JASOC was only a four day week. We are still focusing on military justice, and we will be for another two weeks.
JASOC Week 2 Exercises
During the second week of JASOC, we participated in a “brief the commander” exercise. (There was a similar exercise at OBC.) One of the faculty members played the role of a commander. I then had to brief him about a potential Article 15 he wanted to offer an airman.
There was an hour block dedicated to this exercise. Each faculty member took two students with each getting thirty minutes. This gave everyone at least thirty minutes of free time during the middle of the day to work on another assignment.
In a related exercise, we each received another email from one of the faculty members also posing as a commander. The email asked various questions about separate NJP scenarios. We had to write back a concise email providing answers to the questions posed. This took me about an hour to research and draft.
Flight Party
This week, we also had our JASOC flight party. In my previous post, I discussed how social events are part of the JASOC curriculum. This week, one of the faculty member flight leaders hosted the flight at her house. Several of the JASOC faculty members assigned to our flight showed up. So, it was an excellent opportunity to get some advice from more experienced JAG officers.
Mentoring
These types of mentoring get togethers are a bit strange in the JAG Corps. As compared to other military specialties, the JAG Corps often get people with significant experience in their field. So, a new First Lieutenant could have more legal experience than the Major providing the advice. I myself had five years civilian experience before I joined the Air Force, but there were people with significantly more experience than me in my class.
Of couse, in such scenarios the Major has more experience as a JAG than the new lieutenant. So, the interactions are still valuable. The advice, however, is generally geared toward being a JAG, rather than being an attorney. (And the two can be very different things.) It’s just creates a potential for a strange dynamic.
Rank as Statement of Quality
In the medical field, doctors start as Captains. Doctors can, however, start at higher ranks if their experience merits it. It is not unusual for a doctor to enter the Air Force as a Major and occassionally a Lieutenant Colonel. This possibility, as far as I know, does not exist for active duty JAGs. (I understand it may be possible for Reservist to start as a Captain or Major with significant civilian experience.)
In the medical field, this makes sense. It would seem backward for an attending physician with fifteen years experience to be junior to a physician still in residency.
In the JAG Corps, however, you could be a graduate of Yale Law School, have clerked for John Roberts, and have several years of high-level appellate work experience at a white shoe firm, but you’ll still be taking orders and find your legal analysis critiqued by someone who joined right out of law school.
(I worked with an experienced attorney who spent several months working in my legal office between COT and JASOC. He was not allowed even to provide basic legal advice to airmen prior to his attending JASOC, despite his having previously owned his own law firm and done appellate work before the Ninth Circuit Court of Appeals.)
Your Prior Experience Means Little
If the ghost of Oliver Wendell Holmes joined the JAG Corps as a First Lieutenant, he would find his legal advice ignored in favor of the Lieutenant Colonel who achieved the rank by virtue only of not getting out of the military. Commanders often trust the rank on the collar to determine the quality of the legal advice. Most lawyers understand this to be absurd, but such are the way of things.
Don’t misunderstand me. I have met plenty of senior JAG officers with exceptional legal reasoning and analytical skills. I have also met some that made me wonder how they passed the bar.
Progression in rank is rarely tied to legal abilities. The JAG Corps is in a strange place of being tied closely to the line, so many of the promotion considerations that apply to line officers apply to JAG officers as well. This takes some getting used to, so be aware of it.
Workload at JASOC
The workload at JASOC thus far has been a lot heavier than I anticipated. We had our mock court-martial this week for our guilty plea. We had to have everything ready, including our closing argument, by Thursday.
Our JASOC schedule is tightly packed. There is a lot more work to do with much less time to do it than what I experienced at the Army JAG School. I never had to stress about getting work done in Charlottesville, and I certainly never had to work through lunch to meet a deadline. It’s a much different environment here.
While I had to work in Charlottesville, I never had to burn the midnight oil. I definitely never felt like I had to go to class unprepared because I simply could not get it all done.
Differences between JASOC and OBC
Charlottesville felt more like law school. The faculty there taught with the assumption that we were all already lawyers. We did not need to rehash non-military issues.
JASOC feels more like technical, ground-up training, almost as if it’s the next step in the paralegal school. We spent a significant amount of time rehashing things we already learned in law school.
The morale in my class, at least at this point in training, was pretty low. In Charlottesville, however, everyone seemed to love the experience and enjoy the learning.
Perhaps this was because they shortened my JASOC class to seven weeks without cutting out any of the material. My colleagues with whom I spoke seemed to enjoy it a lot more than I currently am. So, hopefully, future classes move at a much more manageable pace.
JASOC Week 2 Topics
Wednesday we covered character and impeachment evidence, direct and cross-examinations, and sentencing arguments. Much of what we learned was not military-specific but instead reiterated the basics from most law school evidence courses. We also received a briefing on the expectations for our performance at the first moot court.
Thursday we continued going through a variety of different topics. We learned the process of admitting evidence during a court-martial. We then ran through our sentencing arguments in front of a small group of students and an instructor. This provided us with the opportunity to make some revisions before our moot court on Friday.
Sentencing Case Exercise at JASOC
On Friday, we had some seminars in the morning over hearsay and objections. In the afternoon, we had our moot court.
The moot court was a guilty plea. As I previously discussed, unlike in the civilian world where a guilty plea can take just a few minutes, in the military, a guilty plea can be a long, time-consuming process. The military wants to ensure that the accused has not been bullied into pleading guilty. The military judge will, therefore, inquire into the accused’s confession.
Civilian v. Military Structure
There are no plea agreements in the military.[1] An accused cannot plead guilty in exchange for a particular sentence. There are, however, pretrial agreements through which the accused pleads guilty in exchange for a cap on the punishment. In such cases, the Government must put on a sentencing case.
The Care Inquiry
A sentencing case can only begin after the military judge conducts the Care inquiry—that is, the judge’s inquiry into the defendant’s actual guilt. If in the course of questioning the accused, the military judge is not convinced of the accused’s guilt, he or she can reject the guilty plea.
Thus, the Care inquiry can be a multi-day process. This can make planning difficult. You could think you have a guilty plea in the bag, only for the military judge to reject it and force you to litigate the case. This means that you must always be ready to litigate, as a guilty plea could turn into a not guilty plea at the drop of a hat.[2]
Military Sentencing Case
If, however, you can get through the Care inquiry, you must put on a sentencing case. A sentencing case in a guilty pleas looks just like a sentencing case after a guilty verdict. There is no way to get around the sentencing phase.
This means the defense will have the opportunity to argue why the panel or military judge should go easy on the accused. Conversely, the prosecution will argue for the sentence it thinks is appropriate.[3] The panel or the military judge—it’s up to the accused—will then decide the sentence without knowing the maximum punishment set out in the pretrial agreement.
So, the accused may receive a harsher punishment than that which the pretrial agreement provides. In that case, the sentence is capped at whatever the pretrial agreement set. If, however, the accused receives a lesser punishment, the accused gets the lesser punishment. The pretrial agreement serves only as a cap, never as a floor. (But see my footnote below.)
Plea Deals v. Pre-Trial Agreements
So, pleading guilty is not as much as a gamble as it is in the civilian world. When you take a plea deal in the civilian world, you never know if you would have gotten something less if you had gone to court. You take the plea to avoid that risk.
In the military, however, you get to see the punishment that you would have gotten had you not accepted the pretrial agreement. Then, you get the lesser. While you don’t know whether you would have been convicted, generally that is not as great a risk. Panels find defendants guilty in the vast majority of cases.[4] If someone is accepting a pretrial agreement, the evidence against them is probably strong.
Care Inquiry Exercise
So, on Friday, we did a full mock court for a guilty plea. It took about four and a half hours in a drug case. I was the trial counsel (the Government), which meant that I had to prepare the script for the plea.
These events are highly scripted, as each step must be meticulously checked off. (The need to script everything is a significant difference between what I experienced in the military and what I experienced as a civilian prosecutor.)
There must be an arraignment—which often occurs at the same time as the trial in the military. Then the judge conducts the Care inquiry for each charge and each element of the offense. Finally, the judge must determine if he or she accepts the plea.
During the exercise, we were supposed to listen to the military judge’s Care Inquiry and suggest additional questions for her to ask, if necessary. An improperly done Care Inquiry can result in the conviction’s being reversed on appeal, so we were supposed to learn to listen for mistakes. She, of course, made mistakes on purpose to test us.
JASOC Sentencing Exercise
In the mock trial, our judge accepted the plea and found the accused guilty at the end. Then we moved into the sentencing phase.
During the sentencing phase, each side called witnesses to support their recommended sentences. After all this, we made our sentencing arguments, and that was it.
Overall, it was a good exercise. My military judge and a Lieutenant Colonel who served as one of the witnesses provided critiques along the way. Ours were pretty brutal in their assessments, while others were less so. Regardless, these evaluations served to make us better, so I have always found them helpful. Depending on who judges you, however, you may need to develop a thick skin.
Final Thoughts on the JASOC Sentencing Case
It will be impossible to be entirely prepared for this moot court. There is way too much material to cover in the amount of time they provide you to do everything that you need to do. I don’t know if the faculty designed it this way, but you will have to prioritize your preparation.
It is frustrating if you are the type of person who needs to be fully prepared. (If you are an Air Force JAG, you are probably the type of person that is usually over-prepared.) There were simply not enough hours in the day.
I had already been through JAG School once, and I still had to stay up late into the night to get ready. Despite this, I did not feel adequately prepared when the moot court started.
I don’t have much advice concerning this. Do the best you can. Nobody fails, and particularly not anyone who makes any kind of an effort.
Final Thoughts on JASOC Week 2
I don’t know how to describe my experience at JASOC to this point. It feels like the faculty got together, figured out everything that new JAG officers do in their first two years, and said, “We should do that.”
So, we have a lot of mock exercises but very little academic learning. I felt like JASOC creates JAG officers who have a cursory familiarity with the process but little understanding of the substance. There isn’t much focus on why we do things the way that we do, and I think understanding the why is critical to doing it well.
I understand why they’re doing it the way they’re doing it, though. When you have a lot coming at you in your first year on the job, it’s good to have that practice of how to do things. But, if you don’t know the why, if anything goes off script, you’re SOL.
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.
Footnotes:
[1] Changes to the law that went into effect in 2019 now appear to allow what resembles plea agreements. See, however, my previous post on this matter.
[2] Practically speaking, if the case “busts Care,” the Government will rarely proceed immediately to trial. Military judges generally allow for a delay. Most military judges do not expect the Government to travel witnesses and pay experts for them just to show up and sit around on the off chance the case busts Care. While I have heard rumors of military judges insisting the case go immediately to trial, I have never seen it myself. I cannot imagine such a brazen disregard for taxpayer money. Besides, the authority of a military judge is limited by the convening authority, who can dismiss charges without prejudice and must approve expenditures associated with the court-martial.
[3] Panels are not bound by the recommendations of either the prosecution or defense. They can also sometimes do strange things. I saw a case where the defense argued for a sentence of one year after a guilty verdict in a sexual assault case. The panel returned a sentence of forty days.
[4] The exception to this general rule may be sexual assault cases. These tended to have a high acquittal rate when I was in the Air Force. This was probably related to the push to bring all allegations to court-martial, regardless of the evidence. See United States v. Wright, 75 M.J. 501 (A.F. Ct. Crim. App. 2015)
See Also:
Week 1 of the Judge Advocate Staff Officer Course
Week 3 of the Judge Advocate Staff Officer Course
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