A Brief History of the Military Defense Counsel

My recent transition from prosecution to defense has prompted some reflection on the role of the military defense counsel within the military justice system. Students of state and federal criminal procedure and constitutional law know that it was not until 1963 that the Supreme Court of the United States declared the Sixth Amendment guaranteed an indigent individual the right to representation by a court appointed attorney and the Fourteenth Amendment extended that right to state judicial systems. The evolution of the right to an appointed attorney in the military justice system, without regard to indigence, however, has received far less scholarly and journalistic—let alone judicial—attention. And it’s a story worth telling.

Before turning to history of the military defense counsel, it may be helpful to summarize some of the evolution in courts-martial themselves in order to place the history of the right to representation in proper context. For most of American history, courts-martial were disciplinary proceedings disconnected from any civilian collateral consequences In fact, unlike courts-martial of modern times, punishment often did not include a punitive discharge (separation from the service with a bad-conduct or dishonorable discharge for enlisted persons, dismissal for officers). A soldier, sailor, or marine served his punishment—and returned to duty. If serious enough, the punishment was death and thus no return to duty was necessary—regardless, discharges were uncommon.

That is not to say courts-martial punishments were not severe. General George Washington was particularly fond of the lash as punishment, often directing up to 100 lashes for lapses in military discipline. In addition, punishment also included death, often without what we today would perceive as even minimal due process. General Washington was also fond of granting clemency at the gallows, finding it an effective deterrent to have his troops gather to see an execution but grant a reprieve at the final moment. The Accused was thus returned to duty and good order and discipline was maintained. But if you could stand the lash and confinement, and avoid death, that was often the extent of punishment following a conviction at court-martial.

The same is not true today. Courts-martial are in all respects federal trials. Convictions for felonies that have civilian equivalents are often entered into the National Crime Information Center (NCIC) database. Convictions for sexual offenses will result in lifelong sex offender registration. Non-citizens may be deported. Under certain circumstances, military prisoners can be housed in Federal Bureau of Prisons penitentiaries and are often housed in civilian jails when in pretrial confinement. In all respects, conviction in a court-martial equals conviction in a federal district court.

Add to this equation the incredible level of admiration for the military as an institution in American society. Commentators have long hypothesized the reasons behind such high respect for an institution fewer and fewer civilians understand, and vice versa. I do have my theories, but that is for another day. Regardless, reporting a prior conviction on a job application is bad enough; adding a less than honorable discharge from the U.S. military is almost always lethal to all employment prospects besides perhaps the most menial of jobs.

With this background, we can add the story of the military defense counsel. From 1775 to 1920, a member of the United States military was not entitled to a defense counsel. The trial counsel (prosecutor) bore the responsibility to present the case to the panel members, while also charged with “protecting the rights of the Accused.” Yes, the trial counsel’s job included both prosecuting the Accused while also protecting him—unusual for our day, but not for its time. Also consider that trial counsel was not required to be a licensed attorney. To illustrate this experience, two particular stories come to mind. The first concerns the events onboard the U.S. Navy Brig Somers. While out to sea on maneuvers, CAPT Alexander Mackenzie developed a fear that three of his sailors, including young Phillip Spencer, might be planning a mutiny. It is important to note that no evidence existed of such a conspiracy. Consequently, CAPT Mackenzie convened a court-martial outside the presence of the Accused. They were denied the opportunity to testify, to confront the witnesses against them, and to present any evidence on their behalf. They were even denied the opportunity to know a trial was in progress. The trial counsel presented the case while “protecting the Accused.” As one would expect, each sailor was convicted—and sentenced to death. The execution occurred fifteen days before returning to port. Unfortunately for CAPT Mackenzie, Spencer’s father was the Secretary of War at the time. Both the ensuing Court of Inquiry and court-martial found no fault on the part of the Captain.

A second story that highlights the role of defense counsel during this time involves the court-martial of LTC George Armstrong Custer, who previously held the temporary rank of Major General during the closing months of the Civil War. The background of his court-martial is full of intrigue and controversy. Suffice it to say for our purposes, LTC Custer faced a court-martial for his actions surrounding the “apprehension” of a group of deserters and his decision to leave his post with seventy-five men in order to obtain supplies from another post, without authority. Ultimately, LTC Custer was convicted of five of the eleven specifications and sentenced to suspension from command for a year. As luck, or infamy, would have it, his sentence was cut short when the Army recalled LTC Custer for a campaign that ended with the Battle of Little Big Horn.

In any event, the story relevant here involves the procedure used during LTC Custer’s court-martial. If my memory serves me correctly, LTC Custer retained his own defense counsel instead of resting his fate with the trial counsel charged with both prosecuting and protecting him. Though LTC Custer could retain his own counsel, this counsel was not allowed to directly cross-examine witnesses. He had to submit written questions to the trial counsel, who read them aloud to the witness. After all questions were answered, defense counsel was permitted to submit more questions if he so chose. This was the role of defense counsel during this period.

Even after the Army and Navy granted this “privilege” to receive the assistance of a defense counsel, this person was not required to be a licensed attorney. Such a requirement only existed if the trial counsel was a licensed attorney. As a result, courts-martial were often convened with senior officers serving as “jury” members, and a relatively senior officer serving as prosecutor; the job of defense counsel was relegated to a junior officer often unskilled in the law other than perhaps what he learned at the service academy, if at all.

By the time of the enactment of the Uniform Code of Military Justice (“UCMJ”) in 1950, military law entitled a service member to be represented by a defense counsel trained in the law and licensed to practice it. But this defense counsel was not yet independent of the chain of command. The judge advocate charged with advising the commander and convening authority of courts-martial also signed the performance report of the defense counsel charged with defending the service member in the pending court-martial. Furthermore, the convening authority often served as the additional rater (supervisor’s supervisor) to the defense counsel.

It was not until the 1970s that the services separated defense counsel from the command chain. Those defending service members in courts-martial and adverse actions were finally able to do so without fear of retribution for zealously and professionally representing service members.

Today, military defense counsel are independent military officers dedicated to zealously, ethically, and professionally representing members of the Armed Forces. And I think the armed services’ dedication to this independence is an example of military justice at its finest.

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