Best Defense

Thomas E. Ricks' daily take on national security.

The JAG racket: sympathy for Mori

Here is a comment in response to yesterday’s item about Marine Lt. Col. Michael Mori, a defense counsel who believes he was penalized for defending his clients too vigorously. The note below, from a former Army JAG, looks under this rock a bit more. By A Former JAG Best Defense guest columnist Payback against defense ...

Kristian Dowling/Getty Images
Kristian Dowling/Getty Images
Kristian Dowling/Getty Images

Here is a comment in response to yesterday's item about Marine Lt. Col. Michael Mori, a defense counsel who believes he was penalized for defending his clients too vigorously. The note below, from a former Army JAG, looks under this rock a bit more.

By A Former JAG
Best Defense guest columnist

Payback against defense counsel in the military is nothing new. I was a young Captain (almost two decades ago) doing defense work as a prior-service enlisted just like Mori. My own experience and familiarity with the ways of the Army, when added to the relative inexperience of the fresh-out-of-law school prosecutors bringing marginal cases, meant that many of my clients walked scot free. After one E-4 of mine who was charged with a sexual assault was acquitted after a trial, my Regional Defense Counsel (LTC) brought me in and chastised me, observed that my client really was guilty, and used a quote from his mentor, the soon-to-be Judge Advocate General of the Army, that "you are an Army officer first, and a defense counsel second." He instructed me that from that point forward, I was going to urge my clients to plead out rather than for me to do all I could do to get them acquitted. He helpfully interjected that he would make sure the prosecutors would offer my clients more attractive plea bargains in the future. I'm sure my clients would have appreciated a little back room dealing amongst field grades to fix the results of their courts-martial in advance!

Here is a comment in response to yesterday’s item about Marine Lt. Col. Michael Mori, a defense counsel who believes he was penalized for defending his clients too vigorously. The note below, from a former Army JAG, looks under this rock a bit more.

By A Former JAG
Best Defense guest columnist

Payback against defense counsel in the military is nothing new. I was a young Captain (almost two decades ago) doing defense work as a prior-service enlisted just like Mori. My own experience and familiarity with the ways of the Army, when added to the relative inexperience of the fresh-out-of-law school prosecutors bringing marginal cases, meant that many of my clients walked scot free. After one E-4 of mine who was charged with a sexual assault was acquitted after a trial, my Regional Defense Counsel (LTC) brought me in and chastised me, observed that my client really was guilty, and used a quote from his mentor, the soon-to-be Judge Advocate General of the Army, that "you are an Army officer first, and a defense counsel second." He instructed me that from that point forward, I was going to urge my clients to plead out rather than for me to do all I could do to get them acquitted. He helpfully interjected that he would make sure the prosecutors would offer my clients more attractive plea bargains in the future. I’m sure my clients would have appreciated a little back room dealing amongst field grades to fix the results of their courts-martial in advance!

Of course I said nothing and promptly ignored him. I continued to get about a third of my clients acquitted, compared to the 95 percent conviction rate Army-wide. It got to the point that local Marines started putting in requests for me to represent them in USMC courts-martial, which was a surreal experience for a dogface.

As I should have expected, I eventually got a crap evaluation from the lieutenant colonel, which was accompanied with some oral comments about "not being a team player." I happily transitioned to civilian practice and have never looked back.

I don’t know anything about Mori’s case, but I do know that if you want a long and successful career as an Army lawyer, you’d better remember "you are an Army officer first, and a defense counsel second." In other words, don’t rock the boat. In fact, I would never advise a JAG to accept a defense counsel post if they hoped for a long career. Too much institutional bias against the necessary work that they are forced to do on behalf of their accused.

Thomas E. Ricks covered the U.S. military from 1991 to 2008 for the Wall Street Journal and then the Washington Post. He can be reached at ricksblogcomment@gmail.com. Twitter: @tomricks1

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