Legal Docket: Changing military justice, Part 2

MARY REICHARD, HOST: It’s Monday morning September 4th. Happy Labor Day and good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket. Today, part two in our report on big changes in the military.

Senator Kirsten Gillibrand posted this voice mail clip from President Biden. She put it up on Facebook back in July:

BIDEN: Kirsten, it’s Joe Biden in the Oval Office. I wish you were here, because I’m about to sign the bill you’re totally responsible for which the New York Times says is the biggest change in the modern military system since 1950. Um. And you deserve all the credit. All the credit. I just called to say congratulations. Look forward to seeing you soon.

EICHER: That was the night before he signed an Executive Order that changed how the military handles sexual assault cases. It implemented the National Defense Authorization Act for Fiscal Year 2022. The biggest change is that starting December 28th, Commanders will no longer decide when sexual assault cases go to trial. Those decisions are now in the hands military lawyers.

REICHARD: Last week we heard from the Army’s top prosecutor, called the Lead Special Trial Counsel. Today, we hear from the Army’s top Defense Counsel, Colonel Sean McGarry, as to what the changes mean for Army lawyers who defend soldiers in sexual assault cases.

EICHER: World Associate Correspondent Jeff Palomino talked with Colonel McGarry and is here to tell us.

JEFF PALOMINO, REPORTER: Good morning, Nick and Mary!

EICHER: We know from last week that a military court-martial looks a lot like a regular criminal trial, with some differences. Describe that for us?

PALOMINO: Well, on one side, there’s the prosecution whose job is to prove the case beyond a reasonable doubt and get a conviction. On the other side, there’s the defendant, called the accused in the military. Next to every accused military member is a military defense counsel.

Colonel McGarry is the head of Army Trial Defense Services. It’s a unit within the Army JAG Corps. It has about 140 defense attorneys, plus paralegals and legal administrators. Colonel McGarry describes what they do:

COL. MCGARRY: If you find yourself as an accused, you have the whole weight of the entire United States Government bearing down on you and that can be significant. So we think it's important to balance that a little bit with somebody who has your interests at heart and only your interests at heart. We have military defense attorneys that have an attorney client relationship with an individual, and they're not beholden to the larger government overall.

Army defense attorneys come into the service like other JAGs. They come in as military officers, licensed to practice law and they’re members of the bar in good standing. But that’s not all:

MCGARRY: Typically, we like to have somebody be a prosecutor first. So you go forward of the bar for a criminal proceeding, we try to have the most experienced attorney outside of the judge, be the defense counsel.

When an Army attorney switches from prosecuting soldiers to defending them, their ethical obligations change.

MCGARRY: Army defense counsel, just like like civilian defense counsel, they have a professional obligation to that individual client to the person who is accused. And sometimes it's, that's not immediately obvious to people who are not familiar with the system, they'll see their defense counsel wears a uniform, very similar to a prosecutor, they both get paid by the government. But defense counsel has an obligation to look out for zealous advocacy and for the rights of that individual accused.

To make that zealous advocacy happen, the Army and the other military branches give defense attorneys their own chain of command—it’s separate and independent from the prosecutor’s.

MCGARRY: That's very important to us, that there be that independence so [19:54] Again, go back to any system of justice that’s going to be legitimate has to have that appearance of fairness. And if you had defense counsel working for the same person who is making an allegation and proceeding on an allegation and sentencing after a guilty finding, I think whether it is or is not unfair, it would appear unfair.

In a court-martial, the accused is entitled to a military defense counsel. This is provided at no cost to the servicemember. Colonel McGarry is the one who assigns this attorney for the Army. He may assign one, two or even three lawyers, depending on the seriousness of the case. An accused can also hire a civilian lawyer, but that comes at no expense to the government, and even so, military defense counsel usually stay on the case. But, military defense lawyers do more than just represent soldiers in courts-martial.

MCGARRY: We're not limited to just a criminal proceeding that is guilty or, or not guilty. We also have in the military system, we have mechanisms, a forum, to address misconduct, short of a criminal proceeding. So we have administrative actions, we have things to do with your evaluation, we can separate people, we can fire them with particular characterization of service, can present impact for an individual well beyond their time in the military.

In other words, Army lawyers defend soldiers in the full range of adverse actions the Army can take against them. They also represent all ranks— from young privates all the way to generals.

And there’s also something else that makes military defense counsel unique from, say, a public defender.

MCGARRY: Unlike the civilian system, where an attorney might be provided for them based on their financial need, in the military, that's not a requirement. You're a service member. So you're entitled. And we will assign you based on just your service status.

Colonel McGarry and his team are following the changes in who decides what offenses are prosecuted. Soon, those decisions won’t be made by commanders. They’ll be made by the Army’s Lead Special Trial Counsel. Remember, that’s the lead prosecutor.

But will this big change mean much for Army defense attorneys? Those defending against sexual assault and other victim-oriented charges? The short answer is not really

MCGARRY: The change has the biggest impact on the government side, because we have two paths, by which cases might get into a criminal forum. There's general crimes, those uncovered crimes, and then those the more serious ones that go through the Lead special trial counsel process. But in terms of responding to that, the interests of an individual client, I don't think there is significant change for the defense bar. It's the same rules of evidence, and it's the same standard of proof. So I think we are going to handle our responsibilities in a way that's shockingly similar to the way that we did it before this was this bifurcated system.

Still, Colonel McGarry expects his unit will get increased resources and more defense attorneys. The law that created the Lead Special Trial Counsel forces the Army into a large prosecution enterprise. So if the prosecution side increases, ought not the defense side as well?

MCGARRY: We put a lot of thought into that very question, making sure that we are resourcing and staffing with the relative parity. How would you feel if your son or daughter were sitting at a table with one lonely defense counsel, and the government had multiple field grade officers lined up with all the resources of the United States bearing down on them? Even if it was fair, it just doesn't look fair. So both are important to our system.

But Colonel McGarry says something else is also important. Most of the soldiers charged with sexual assault are among the most junior ranks.

Think college-aged soldiers. Young people who may be away from home for the first time without much life experience. Now, they face significant jeopardy.

MCGARRY: Some of the consequences for that type of allegation are significant beyond what you might see for theft, or a drug use, because of sex offender registration requirements that can impact the most basic things, where you live, even for the rest of your life, potentially.

These cases can also involve mistakes of fact, misunderstandings where each person thought something different about what happened.

MCGARRY: And especially if it was a miscommunication that is an accused might be feeling that they didn't do anything wrong, but yet the line has been drawn behind them. And this, this incredible amount of stress can weigh heavy on somebody, whether they they end up being guilty or not just going through the process. But it is hugely satisfying to know that you've defended somebody's rights, and you've made sure that the process is fair.

EICHER: Jeff, you’re a retired Air Force lawyer with many years of experience. So based on all that: what’s your sense of how these changes will work. Will they turn out as expected or as hoped?

PALOMINO: I’ll answer that by responding to what Senator Ted Cruz said about the changes in the law. He said he supported it because “We all want to stop sexual assault in the military.” I’ll say that won’t happen. Just taking authority over sexual assault cases away from commanders won’t end sexual assault, because it doesn’t change the facts of these cases.

These tend to have common fact patterns: heavy alcohol consumption in the context of hook-up culture combined with lack of memory and recall to truly say whether consent was given or received. Most military sexual assaults just aren’t cases you’d see prosecuted in civilian court, and that’s not going to change regardless of who decided to send the case to court. So, no, this won’t stop sexual assault in the military. Only thoughtful prevention will.

REICHARD: And you think that even as the White House said the changes, and I’ll quote the statement directly, namely that they will: “significantly strengthen how the military handles sexual assault cases?”

PALOMINO: I think the answer is yes for some because they’ll know their chain of command had no influence on the case. The reality, though, is probably not, because the outcomes of these cases will remain the same. First, the defense will still get high numbers of acquittals. Second, the new system still includes prosecutorial discretion. Experienced and even compassionate decisions on which sexual assault cases get prosecuted simply may not be enough. I don’t believe it will be. Angry voices that want to tear the system down will continue. We’re just one headline-grabbing acquittal or one unprosecuted case away from someone saying, “See? This isn’t working.” So, I think in the next five to ten years Congress will say this new system has also failed, that the military itself can’t be trusted to do these cases. Then there will be calls to reform it again, and I predict it’ll mean putting decision making into the hands of civilians in the Defense Department.

And that’s this week’s Legal Docket.

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