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Blame all the lawyers [Commentary]

Two high profile military sexual assault cases ended with big losses for the prosecution last month. At Fort Bragg in North Carolina, Army Brig. Gen. Jeffrey Sinclair pleaded guilty to reduced charges and received a light sentence of a written reprimand and a fine. At the Naval Academy in Maryland, Midshipman Joshua Tate was found not guilty of sexually assaulting an intoxicated female classmate.

General Sinclair engaged in a lengthy affair with a subordinate who accused him of threatening her and forcing her to engage in sex acts, but who herself faced the possibility of disciplinary action for their inappropriate relationship. Midshipman Tate was charged after an alcohol-fueled sexual encounter with a classmate who said she had no memory of what happened, but was told she had sexual encounters with multiple individuals at an off-campus party.

Based on these facts, sexual assault charges were brought and aggressively prosecuted in both cases at a time when the military's handling of sexual assault is in the spotlight and Congress is debating proposals to take away a military commander's authority to decide which cases go to trial. Some in Congress want to give that authority to military lawyers instead.

But these cases are a reason to reconsider the wisdom of putting military lawyers in charge.

Lawyers already wield significant power in the military justice system. While a commander decides which charges are sent to trial, military lawyers draft the charges, present the evidence to support the charges, and provide legal advice that guides the commander's decision. The Uniform Code of Military Justice (UCMJ) even gives military lawyers a veto against going to trial in the most serious cases. Under Article 34 of the UCMJ, a commander may not send any charge to trial by general court-martial unless a military lawyer first advises the commander in writing that the charge is warranted by the evidence.

The situations at Fort Bragg and the Naval Academy are the products of a breakdown in this lawyer-centric system. Military lawyers were responsible for the advice that allowed the commander to send the sexual assault allegations to trial. Military lawyers were also responsible for the presentations of evidence that resulted in an acquittal in one case and a surprisingly light sentence in the other. An enormous amount of time and money was invested in each of these cases — the result of over-zealous prosecutions, incompetent presentations or both. In any case, it's the lawyers who are to blame for the failure to either stop a weak case or win a strong one.

Moreover, such breakdowns are hardly isolated to the Army and the Navy. Rather, they afflict every branch of service.

For example, last year the Air Force was forced to re-examine dozens of cases after a retired military lawyer was improperly appointed to an appellate tribunal. Last December a federal Judge in New York excoriated the Marine Corps legal community, writing that its lawyers took "months to make the most modest progress on tasks that any halfway competent second year law student could complete in a matter of hours." And just last month the Coast Guard lost an appeal in a case where the prosecutor mischarged a rape allegation, alleging a lesser offense instead.

These are just a few examples of failure in a scandal-plagued legal system. It is unreasonable to expect absolute perfection from military lawyers, but it is equally unreasonable to accept performance this poor.

Still, some say that commanders prevent military prosecutors from bringing strong cases to trial. Others claim that commanders force the prosecution of weak cases. But commanders do not make these decisions in a vacuum. Rather, they are advised by military lawyers who have a duty to convince them of the strength or weakness of a particular case. A commander might wrongly disregard the lawyer's advice. But for that to occur often enough to constitute a crisis, then it is the lawyers who are failing, not the commanders.

The inability of military lawyers to get the job done is a reason to take a hard look at the leadership within the military's legal communities. It is not a reason to reward failure by giving that leadership even greater responsibility.

Zachary D Spilman is a Marine Corps judge advocate and a contributor to the military justice blog CAAFlog. His opinions are his own and do not reflect the position of the U.S. Government, the Department of Defense or the Marine Corps. His email is zachary.spilman@gmail.com.

To respond to this commentary, send an email to talkback@baltimoresun.com. Please include your name and contact information.

Copyright © 2015, The Baltimore Sun
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