Every year around this time, Congress debates and votes on the National Defense Authorization Act (NDAA). This piece of legislation is one of the largest that Congress deals with, and it is responsible for critical changes in the Department of Defense. For instance, when your basic pay increases every year, that’s because the NDAA said so.
This year, the NDAA will also include a huge provision affecting military justice. In the biggest change, the Military Justice Improvement and Increasing Prevention Act will take the decision about whether to prosecute cases out of the hands of commanders. Long championed by Senator Kirsten Gillibrand, Senator from New York and champion of “victims rights,” this provision will change the way military justice is accomplished. At Golden Law, we are watching this legislation closely and expect some key changes in the future.
Commanders Lose Control
Again, the biggest change that is coming is for commanders to lose power. Right now, your commanders are the ones to decide whether your case goes to court-martial. Commanders receive the evidence from investigating agencies, review the evidence with their JAG, then decide what to do. Under the new system, a separate prosecutors’ office, likely located in DC and not connected to your command, will decide whether your case goes to trial.
This change has been a long time coming. The decision of whether to prosecute a criminal case is a difficult one. It requires an analysis of the strength of the evidence, an understanding of the law, and an educated determination of whether a criminal trial is the right way to move forward. In every civilian system in our country, the decision whether to prosecute is made by trained prosecutors. In the military, that decision is currently with commanders, who rarely have legal training and sometimes are just a few years out of college.
Frankly, this change could mean positive things for Golden Law clients. These days, it seems like every case that lands on a commander’s desk ends up going to trial. Even the worst “he said-she said” cases are going to court-martial. There’s reasons for that, including that the commander doesn’t want to be the one to tell a “victim” that he or she doesn’t get a trial. That’s political suicide. And for years, we have said that it seems most commanders would rather do what’s politically correct than what is the right thing to do.
If this new prosecutors office does things right, less cases should go to trial. Although the legal standard is low – you only need “probable cause” to bring charges – the truth is that many cases should never see the inside of a courtroom. There are plenty of cases which are unsupported by evidence, or sometimes even contradicted by the science of sexual assault exams or DNA analysis. In many of these cases, experienced defense counsel can get good results. But the stress of going through a trial is hard on all parties involved. It takes months to years, uses countless resources, and stresses our system.
With any luck, when commanders lose control, prosecutors will do the right thing and send less cases to trial.
Same Pressure on Untrained Prosecutors
But the reality is that prosecutors will be under similar political pressure. Like commanders, military prosecutors wear a uniform, and they want to be successful just like commanders do. When that tough case comes across a military prosecutors’ desk, can you trust that they won’t just do what’s best for their own career?
Don’t get me wrong. There are outstanding prosecutors in each branch of the military, who guide their decisions by what’s right and not what’s politically correct. But under this new law, the Department of Defense will have to stand up a huge organization to review and analyze thousands of cases. That organization will be staffed by prosecutors. And if history is any guide, those prosecutors will be largely inexperienced.
If the statistics are true, the vast majority of military prosecutors have less tried less than fifty cases at court-martial. Most have less than thirty. As a matter of comparison, the team at Golden Law has tried more than 300! You need experienced prosecutors to make good decisions, and “experience” is few and far between.
Relationships Will Matter
That’s why we believe that relationships will matter. With the decision whether to prosecute now being in the hands of largely inexperienced lawyers, the team at Golden Law is hoping to leverage relationships to achieve great results.
The relationship between commander and defense attorney is often strained. Commanders look at defense attorneys with skepticism, and they rarely take a defense attorney’s advice on how to process a case. Prosecutors, on the other hand, can and should consider the perspective of their opposing counsel.
In pop culture, it’s common for TV shows and movies to depict the prosecutor and defense attorney talking about the case “behind the scenes.” That’s what we hope to accomplish in this new era of military justice. With the relationships we have developed, and continue to maintain, with military prosecutors worldwide, we hope we can help things change. We hope we can persuade prosecutors to do what is right rather than what is politically correct.
Change is coming to military justice. These next few years promise uncertainty. And in times of uncertainty, experience matters. Bring on an experienced defense counsel that will help you through these difficult times.
