Navy's Legal Review Is Overdue, Experts Say. But Will It Be Tough Enough?

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A gavel cracks down in the 56th Fighter Wing Staff Judge Advocate courtroom, Oct. 11, 2018 at Luke Air Force Base, Ariz. (U.S. Air Force photo/Aspen Reid)
A gavel cracks down in the 56th Fighter Wing Staff Judge Advocate courtroom, Oct. 11, 2018 at Luke Air Force Base, Ariz. (U.S. Air Force photo/Aspen Reid)

The Navy's sweeping legal review got even bigger last week after the Marine Corps was also ordered to conduct a service-wide check on its legal system.

The review was set in motion by a series of blunders surrounding a Navy SEAL's case, which caught the attention of President Donald Trump. Now, Navy Secretary Richard V. Spencer has ordered the Marine Corps to conduct the same kind of comprehensive review of its Judge Advocate General Corps that the Navy's legal community was ordered to do earlier this month.

Legal experts say it's necessary, but several are unconvinced that directing the services to investigate themselves will result in a thorough enough look.

"I'm pretty skeptical that the Navy investigating itself is going to do much better than the Roman Catholic Church did when they investigated themselves and the Boy Scouts investigated themselves," retired Navy Capt. Donna Price, who served in the Judge Advocate General's Corps for 25 years, told Military.com. "Though I recognize we are talking different types of misconduct here."

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Though rare, it's not the first time the sea services have been forced to review their legal systems' policies. Price, who has taught military justice courses at the University of Richmond's School of Law, recalled similar reviews after a botched investigation following the Tailhook scandal in which dozens of naval aviators were accused of sexual misconduct at an annual convention in 1991.

The review was necessary for the disgraced JAG Corps, Price said, and it led to change. Rear Adm. John "Ted" Gordon, the Navy's judge advocate general at the time, was criticized but permitted to retire as scheduled. And Rear Adm. Duvall "Mac" Williams, head of what was then the Naval Investigative Service, was removed from his assignment and forced to retire as a result.

The Navy launched this new review of its legal community on Aug. 1 -- the day after Trump called on top leaders to rescind awards given to prosecutors even after they failed to secure a conviction in a high-profile murder case against SEAL Eddie Gallagher.

Less than three weeks later, Spencer sent a memo to Marine Commandant Gen. David Berger ordering that service to do the same. Spencer gave both the Navy and Marine Corps 15 days to present a plan for how they will conduct the reviews.

"There is value in applying this review and its subsequent recommendations across the Department of the Navy," said Cmdr. Jereal Dorsey, a Navy spokesman at the Pentagon. "The review's purpose is to confirm the uniformed legal community is structurally and organizationally sound and best supporting the good order and discipline of our integrated Naval force."

Questionable Tactics

The Gallagher case highlighted serious shortcomings in the Navy's legal community, said Brian Magee, an attorney with Hafemann, Magee and Thomas who served as senior prosecutor for the Marine Corps' Eastern Recruiting Region, which includes Parris Island in South Carolina.

Cmdr. Chris Czaplak, the lead prosecutor in the Gallagher trial, was kicked off the case after admitting to sending emails with a tracking mechanism to defense attorneys and a Navy Times editor, a move Solis called "so stupid, it's laughable." Czaplak was attempting to track down those communicating with the press about the case, Navy Times reported.

And even though the remaining members of the prosecution later lost the case, they were awarded Navy Achievement Medals for "exceptional witness preparation" and "superb results," Task and Purpose reported in July. Those are the medals Trump ordered to be rescinded.

Gary Solis, a retired Marine prosecutor who teaches law at Georgetown University, said all of that raises questions about the state of leadership within the Navy's legal community.

"What kind of leader would go and give out Navy [Commendation Medals] to ... lawyers who just lost a case and who'd been professionally chastised by the military judge?" Solis said. "It's such bad judgment, and what message does that send to troops?"

Service members must have confidence in their justice system, he added, and the Gallagher case could leave some doubting the officers charged with protecting them if needed would do the right thing.

While it's unfair to assume those same shortcomings exist in the Marine Corps, Magee said there are good reasons to expand the review to include the Marines.

"The Navy and Marine legal communities are trained at the same schoolhouse, by the same instructors, and do a lot of continuing education together throughout the year," he said. "It is reasonable to be concerned that if there is a cultural problem, it may stem from one root."

Some of the problems stem from military lawyers not getting enough time in the courtroom, Solis said. Commanders who are eager to get rid of those misbehaving in the ranks can choose to utilize the quick administrative separation process, he said, in place of the lengthy court-martial process.

Some commands, he said, have turned to pulling reservists back in because they have more courtroom experience from their civilian careers. Otherwise, when a military prosecutor with little courtroom experience ends up with a murder case, they could be facing off against a civilian defense attorney who's in the courtroom every day.

"And how do you cure that? Because the only way you can learn how to try cases is to try cases," Solis said. "Because now you might get a murder case and you go, 'Holy s---, nobody's tried a murder case. So what are we doing?"

Magee, who's still a reservist, said those in uniform might try fewer cases a month than civilian lawyers, but the cases tend to be much more intense and heavily litigated. There has been what he calls a tremendous shift in resources to try certain types of cases that have caught the attention of lawmakers, such as those tied to hazing or sexual assault allegations.

That's a good thing, he said, as there's now more confidence that the military criminal justice system will give those cases the attention they deserve. But the cases are often complex and take longer.

Since those cases require a lot of resources, simpler cases such as unauthorized absence or drug-related crimes -- the kinds of trials where officers used to build their courtroom experience -- are now handled through the administrative separation process.

And public interest -- such as that seen in the Gallagher case -- can put unintended pressure on military legal teams.

"All of the military services are in a position where it is very easy for prosecutorial misconduct, unlawful command influence, and other improper pressures to creep into a prosecution," Magee said. "I can understand how it is easy for a service to feel pressure to prosecute a case in order to save face in front of Congress, for example.

"And it is in weak cases, particularly with national or international media attention," he added, "where prosecutors' desires to win so easily overcome basic notions of justice."

Getting It Right

Like Price, Magee said there's likely to be more confidence in the Navy and Marine Corps' reviews if they include scrutiny from those outside the services. Ultimately, you want unbiased results, he said, and anytime there's an internal investigation, organizations risk concluding everything's great.

Capt. Joseph Butterfield, a Marine spokesman at the Pentagon, said the Corps has looked to outside entities to review its staff judge advocate community. One of those reviews, he said, is currently being conducted by CNA, a nonprofit research and analysis firm.

The review directed by Spencer is also expected to include input from those outside the Marine Corps, he added.

"Participants in the review will represent a cross-section of both civilian and military subject-matter experts, and will seek input and insight from other services, industry, and highly qualified personnel to ensure the widest possible perspective," Butterfield said.

Spencer ordered both services to establish working groups that will examine their legal communities' training, organization, oversight, staffing levels and career progression.

Another recent case has raised questions about career progression in the Navy JAG.

Navy Lt. Alaric Piette, who's defending a man accused of leading the 2000 suicide bombing of the guided-missile destroyer Cole off the coast of Yemen, was denied promotion for standing up to the military tribunal system, the New York Times reported last week.

Piette was left to defend a client facing the death penalty even though, according to the Times, he lacked the experience to do so. When he was told to move ahead with the case, he refused to do it. He wasn't selected for lieutenant commander, despite a superior telling the paper he's a "good officer and attorney," one of the best across the services.

Magee said a review conducted by the Justice Department after a political corruption case involving the late Sen. Ted Stevens uncovered allegations of prosecutorial misconduct can serve as a model for the sea services to follow.

"DOJ implemented these pretty strict guidelines in order to be more open and transparent, and they had all kinds of summits all over the country and remedial training," Magee said. "That was really where you saw significant change within DOJ on how they approached cases and how transparent they were ... so I think this type of thing can affect real change if it's done right."

While legal experts said Trump's insertion into the Gallager case was problematic at times, Price said the commander in chief's involvement prompted some much-needed attention.

"It distresses and disappoints me that my JAG Corps is going through this," she said. "But I have confidence that it will come out stronger."

Editor's Note: This story was updated to clarify who spoke to the New York Times in a recent report about the Navy's legal system.

-- Gina Harkins can be reached at gina.harkins@military.com. Follow her on Twitter @ginaaharkins.

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