More Than Just an Advocate

My latest project has me reading decisions by the Court of Appeals for the Armed Forces from a select number of terms. A few decisions from the court’s first term, 1951-1952, have caught my attention so far. One in particular helps practitioners and observers understand just why the military justice system takes being a prosecutor (trial counsel) so seriously. Would it surprise you to know that, prior to the Uniform Code of Military Justice (UCMJ) in 1950, it was military custom that the trial judge advocate (prosecutor) also defended the Accused?

On 6 August 1951, the United States Army convicted Private (PVT) Ernest Valencia of embezzlement. For this offense, the general court-martial[1] sentenced PVT Valencia to a bad-conduct discharge[2], partial forfeiture of pay, and confinement for two years. The Army Board of Review affirmed his conviction and sentence, but the then-Court of Military Appeals reversed.[3] In doing so, it established that a trial counsel means much more than advocate—especially in military legal history.

In this case, the trial counsel repeatedly attempted to improperly elicit testimony concerning prior offenses from the company commander, no matter how many times the law officer sustained the defense’s objections. No proof of prior convictions was ever admitted into evidence.

The court understood that, as Government counsel, the trial counsel must zealously represent his client. However, it took note of the trial counsel’s historical role in courts-martial by citing Colonel William Winthrop’s (the Blackstone of Military Law) classic military legal treatise, Military Law and Precedents. In doing so, it connected military legal history and common law of the past to the new UCMJ. Specifically, the court found that the trial counsel was:

representative, not of a party to ordinary civil litigation, but of the sovereign state. It is his primary duty to see that justice is done . . . We have no desire to quell the natural desire of counsel to win a case with which he is associated. However, in the case of the trial counsel, this quite commendable zeal must be tempered with a realization of his responsibility for insuring a fair and impartial trial, conducted in accordance with proper legal procedures. This duty has a peculiar significance in the conduct of court-martial trials, in view of the historical status of the “trial judge advocate” as the legal representative of both the accused and the Government. (emphasis added).

That trial counsel is charged with ensuring justice is similar to the rule in probably every jurisdiction requiring prosecutors to ensure that justice is done. But the fact that this prosecutor was historically charged with also representing the accused, even if just in theory, seems to make his role something more.

That history seems, to me, still evident in courts-martial today. Military judges take this seriously. More is expected of the trial counsel; something more than being an advocate for the Government and ensuring basic fairness. Seems like a nice little bit of military legal history worth telling and learning more about.

Though the court ultimately found that the trial counsel did not go too far, it was the court’s first articulation of the standard expected of military prosecutors under the emerging UCMJ, and connected the future of military law to the past.


[1] For non-military lawyers, or non-lawyers in general, the military has three types of courts-martial: summary, special, and general. Each is characterized, basically, by the sentence it can impose. A summary court-martial can impose thirty days confinement and cannot impose a punitive discharge (officers cannot be sent to a summary court). A special court-martial can sentence a service member to up to a year in confinement and can impose a bad-conduct discharge (officers can only be dismissed from the service, but not in a special court). A general court-martial can impose any sentence, including death, and a dishonorable discharge.

[2] The type of punitive discharge, bad conduct or dishonorable, can potentially affect a service member’s post-service benefits.

[3] United States v. Valencia, 1 U.S.C.M.A. 415 (1952).

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