Off The Record: Episode 5
The Government Is Looking To Convict You
Noel: Make no mistake about it. The government of the United States of America is building a case against you from the get-go. From the time that there’s an allegation made against you, the government of the United States is looking to get a conviction.
They don’t suspect you of being innocent, they suspect you of being guilty. So, they’re gonna put an NCIS investigator, a CID investigator, an OSI investigator on the case looking for evidence that leads to the conviction. The most military lawyers who are very well-intentioned.
They’ve got their heart and their mind in the right place but they just lack the experience. It’s just the way that the military is set up. Just like your platoon commander, he’s there right out the base’s school, he’s there right out of IOC, but he is not gone through the test of time. And, by the time that they just got to know their platoon and just got to know how to do their job, they’re promoted. They’re moved to do something else.
Tim: So, what you’re saying, it’s like having a platoon commander and the brigade commander or the commanding general, just acknowledging the wisdom that you get over time of just trying cases and being in your craft and doing what you do to become the best at it.
Noel: Absolutely. And, unfortunately, in the military, they do hand out rank very quickly. People will get promoted to captain very quickly. It’s not like the normal progression. You get promoted to 03 almost off the bat and so, make no mistake about it, they may have the rank, but they just don’t have the experience. They don’t have the trial experience.
What JAG Lawyers Are Lacking
Tim: Let’s talk about the lifecycle of the JAG Corps. You went through the marine court JAG Corps, I went through the Army JAG Corps. It’s a little bit different but they’re fundamentally the same.
You are a brand new, freshly made to lieutenant, or if you’re in the army, you make captain very, very quickly in a matter of a couple weeks.
You start off in what’s called legal assistants where you’re gonna do wills, or trusts, or help people out for six months to a year and then from there you’re gonna move over and likely be a prosecutor for about a year, a year and a half.
Noel: Hopefully, you’ll be a prosecutor. You’ll have some trial experience.
Tim: And, it really depends on the jurisdiction you’re at. If you’re at Fort Hood or Fort Benning, you may have a lot of trial experience. And by a lot more, you may have tried three or four cases than someone who’s at Fort Meade or Iwakuni. And then from there, they will move you over to do a defense bill order, a defense position.
And, often times, at least in the army, that’s not by asking for you’re often told. “Hey, you’re moving over to do defense work.” And, the lifecycle of doing defense work in the JAG Corps is typically 18 months, maybe 24 months.
A case takes a year, often times, 18 months to get the ball rolling. So, often times, defense counsel who are in their first position will have tried, if they take any case into a verdict, one, or two, or three cases and they become the experienced attorneys in the office, the one that have two or three trials under their belt, when the reality is, you have to have 50, 60, 100 trials under your belt to really be experienced at this.
I think it was the book “Outliers” Malcolm Gladwell talked about 10,000 hours. You need 10,000 hours at whatever you do to be proficient at or to be good at it. Whether that’s playing baseball, driving a racing car, just practicing law, being a plumber, whatever it happens to be, to be an expert in your field, you need about 10,000 hours. At least that’s the reality is in the military, you just never get there because you need to be a jack of all trades and an ace of nothing.
But, the problem we have is that you have these attorneys who have very minimal experience in the scope of things trying incredibly serious cases. In Hawaii, at the public defender’s office, how long do you have to be practicing, Noel, until you’re doing felony level cases?
Noel: Oh, those guys before they’re moved into the felony level court are practicing 7 to 10 years?
Tim: And why is that? Why is it that in the state of Hawaii, no different than in California or in Florida where the government will not allow attorneys to defend felony level cases for six or seven years? Why is that?
Go With Experienced Attorneys
Noel: Experience. It’ just time in front of judges, juries, understanding the law, understanding the dynamics of a trial. A trial is not an easy thing. A trial is dynamic. Often times, things do not go as planned, but in the public defender system and in just about every other system, the public defenders or those attorneys who are appointed to you have to be practicing law for 7 to 10 years. In the military, it’s just not the case.
Tim: If you’re facing a court-martial, do you really want to go to battle with someone who’s been in battle two or three times? Combined, Noel and I have over 250 jury trials to verdict, in the trenches fighting for our clients. The choice is yours. Don’t make a decision you’re gonna regret for the rest of your life.