An Ex-JAG’s Guide to Trouble and Lawyers in Korea
I started commenting on this thread on The Marmot’s Hole, responding to someone who may or may not have been beaten by Korean police after a drunken “protest.” This drew a few responses, including this one from fellow lawyer Brendan Carr:
To my way of thinking, private lawyer is a waste (and I’m one of the private lawyers) — TDS counsel take great pride in fighting for their clients’ rights and contrary to your expectations, TDS counsel have no fear of reprisals from “the system”. Servicemembers often don’t believe it, but it’s 100% — maybe 110% — true; this is because we lawyers have employment possibilities Military judge advocates, when assigned as defense counsel, are rewarded for sticking it to the command. “A Few Good Men” is a joke in many respects, but it accurately portrays the commitment military defense lawyers have to their clients. So don’t waste your money. Joshua, that’s right, isn’t it?
After writing a long comment about a subject I care about very deeply, it occurred to me that I have a blog of my own, so I opted to post that comment here. I was a JAG lawyer for seven and a half years. I was in Korea for four of those years, which includes two years as a Defense Counsel and one as a Senior Defense Counsel. What follows is mainly aimed at commanders and NCO’s who want to make sure their soldiers get good help when they need it. I have to add the disclaimer that it’s not legal advice; it’s really advice about picking the people who will give the advice, to which I’ve added some common sense.
So, in response to Brendan’s question:
Mostly, yes. I won’t say that there is never command pressure on defense lawyers, but I will say that it’s rare, and that few if any of the TDS (Trial Defense Service) lawyers I’ve known would care anyway, because threatening or even subtly pressuring a defense lawyer is a potential career-ender. I did once have a JAG Colonel make subtle threats against me, but I didn’t give a shit — in fact, I found found a polite way to tell him just that. Like most TDS attorneys, I took great pride in defending my clients, and to this day, I’m proud of the cases I won … and haunted by those I did not. I still know a few of the JAG community at USFK and among them are some truly first-class people who care deeply about their fellow soldiers. I cannot say that I know any of the TDS lawyers, however.
There are also a few medal-hunting TDS lawyers out there who worry a lot more about MCM’s, OER’s, ORB’s, and shiny boots than their clients. It almost takes another lawyer to spot them, but these tend to have lots of high-speed tabs and wings and a burning desire to get the soldier to plead guilty before they really know if there’s enough to convict him on. No question, fessing up is often the right thing to do and the smart way to go, but if your lawyer doesn’t even want to hear the soldier’s story and question the evidence before telling you to “sign here,” you probably got the wrong lawyer.
It used to be that TDS lawyers had all been prosecutors. Recently, that rule has slipped. I think prosecutorial experience is irreplaceable, and if it was me on the line, or one of my soldiers, I’d definitely want a lawyer who had it. Yes, it’s OK to ask. If the lawyer is a 1LT, he probably does not have prosecutorial experience. Also, if they give your soldier a total dishrag for a lawyer, the soldier can respectfully ask CPT Dishrag or his Senior Defense Counsel for another lawyer. But then, keep reading, because having the right lawyer matters much more in some cases than in others.
In those cases where there’s clearly enough evidence to prove guilt, the lawyer ought to ask the soldier nosy questions about drinking and family issues and Juicy that may bear on his potential for rehabilitation (if you’re the NCO, you should already know all of those answers, although I found that some did not). The best lawyers actually talk to the NCO’s about those things, although there’s not always time if it’s just a company grade.
If the soldier is facing a court-martial or a board and there’s a particular lawyer he’d rather have, ask about “individual military counsel.” As for civilian defense counsel, most of the ones I knew did not add value to the client’s defense. I have known some to do truly bone-headed things that turned their clients into one-meter targets for JAG prosecutors. I did work with one who was top-notch, but you’d need to be in a lot of trouble before it would be worth paying him.
Of course, the more the soldier runs his mouth, the less a lawyer can do for him at any price. And there are times when even the best lawyer just can’t win with the evidence he has.
The question that follows this is just how much the right lawyer matters. That depends on the evidence and stakes. In my experience, most commanders go into an Article 15 having pretty much made up their minds. The best lawyers are always probing for that rare case when they can get a commander to consider suspending a bust, or not reducing the soldier in rank, or even considering a bar to reenlistment instead. Generally, however, there’s limited room for maneuver in an Article 15. In a court-martial, having the right lawyer makes all the difference. It will very often make the difference between jail and freedom, or determine whether the soldier faces a lifetime of telling prospective employers about a prior criminal conviction. Given identical cases, different lawyers often achieve remarkably different results. Some lawyers always go for a guilty plea; some will fix bayonets and win cases that others won’t fight. After a while, that becomes apparent in a lawyer’s success record, and those records vary dramatically.
I do have great confidence in the Army’s Trial Defense Service generally, but unfortunately, I cannot express the same confidence in the Korean civilian attorneys who defend soldiers in Korean courts. Maybe things have improved recently, but not one of my clients ever breathed a single good word about his Korean lawyer, which is disgraceful. Most of them seemed to be in it to collect their flat fees for the minimum amount of work. We are supposed to have Trial Observers, but I don’t personally feel that the Trial Observers always feel free to speak their minds. This is where caring officers and NCO’s make all the difference. If your soldier doesn’t get good representation, I recommend you keep careful notes of your experience and ask for another lawyer. Here is a major weakeness the system needs to improve.
More advice for commanders and NCO’s: make sure your designated SOFA observer actually knows the SOFA and the rights it affords. While Korean language skills are obviously very useful when dealing with Korean police, it’s better to have an assertive SOFA observer who will intervene to protect the soldier’s SOFA rights than one who understands the questions being asked.
All in all, however, a soldier accused in a Korean court is still better off following his Korean lawyer’s advice very strictly, because that’s the only alternative you have, and their system is just very different from ours. I have found that in Korean society, an apology is often the right thing and the smart thing to do. I wish more JAG attorneys and commanders would learn this. I would never do it, or force a soldier to do it, unless the soldier has seen a lawyer first.
Another good tip for a Korean trial would be to bring some No-Doz for the judge. I had two cases where very reliable witnesses swore under oath that their judges were asleep during the trials.
If you remember nothing else, remember this: five percent of the soldiers cause 80% of the trouble. A 19 year-old ASAP failure with two prior Article 15’s and a string of negative counselings probably should not have off-post pass privileges. They call it a “privilege” because you can’t sue someone for taking it away from you. Some people can behave off post; for everyone else, there’s Playstation III and the video rental at the Shopette. Of course, this is very general, common-sense stuff. For more specific disciplinary issues, the command’s advisor is the Trial Counsel.
If you’re interested, you can read more information on SOFA issues and the law in Korea in my testimony.
I hope this is of some use to NCO’s who truly take to heart the creed about taking care of soldiers, because in my experience, a good squad leader or platoon sergeant is worth more to a soldier in trouble than a whole team of lawyers. When I think back on the people I truly respected in the Army, it was really the E-6’s and E-7’s who actually tried to help good soldiers straighten themselves out.
Great advice and concur with everything you say. You mention removing pass privledges for trouble makers. I have seen that often done but the trouble makers since they are trouble makers go out anyway.
You can’t have people watch some one who had has pass privledges removed because the defense lawyer can say that the command is involuntarily imprisoning the soldier. Thus if you can’t have someone watch the soldier it makes it easy for them to sneek off post and get in trouble again. I had soldiers that I wish I could put tracking collars on.
I’m glad you liked it, because you are the very person I had in mind as I wrote this. When I think back on the people I most respected in the Army, it was the NCO’s who were truly looking out for deserving soldiers who had screwed up. I just want to help NCO’s like that get an honest understanding of what kind of legal help they can expect for their soldiers, and how to get them the best help possible.
BTW — reference the soldier who won’t follow orders to stay on post: if I were the NCO, I would first ask the CO to give him the order in writing and make him sign it. Your Trial Counsel probably has good language you can use. If he violates the order, give him a company grade and suspend the bust on a first offense. Second offense, ask the SGM to read him a field grade in that unique style that only a SGM truly possesses. By that point, you should bust him, but suspend the loss of pay, because he still wants his money even if he’s given up on keeping his rank.
Plus, if he does have an Article 15, then you can impose restriction and extra duty, which keeps most soldiers too busy and tired to leave post.
Suspended busts are great disciplinary tools. If the soldier messes up, you can impose instant punishment. Also, you’re really hoping that the soldier straightens himself out, and if he does, than you can remove the bust entirely later. And yes, you can make him sign in regularly at the CQ desk at say, 2000 and 2200 hrs each Fri and Sat night would probably not be considered restriction, because that’s pretty minimal and reasonable.
Pulling pass privileges — ie., denying permission leave post except when escorted — is not restriction. You don’t need an Article 15 to do that, except maybe if you’re on an extremely small post with no church or shopette. If the soldier pretty much has the run of post, it’s not restriction. Restiction is when you tell the soldier, “you may only go to ____.” Making the soldier sign in more than, say, once every hour will probably be restriction. And anything that deliberately humiliates the soldier will definitely bring IG and TDS down your throat.
If the guy just violates the rules constantly, there’s always the 15-12b for “pattern of misconduct,” but the NCO has to have his act together on the counseling statements or it won’t stick. Disobeying the CO’s order pulling pass privilges will definitely justify a 14-12c, which does not require prior counselings. I think Art. 90 is a 5-year pop, or used to be. That’s enough.
Finally, here’s a mistake I saw a lot of units make: they would start chapter paperwork and then tell the soldier about it right away. Meanwhile, the 27D and the SJA shop have the chapter paperwork for a month or so (it should not take that long, but it can). During that month, the soldier often “gives up” on behaving and just stops following orders. Instead of doing that, just start the paperwork. Don’t tell the soldier until it’s time to see TDS. Have the paperwork ready, have the TDS appointment booked, and then read it to the soldier, so that there’s a miniumum notice period for him to consider his rights.
Note that reading him for an OTH only makes the process take a lot longer. I really don’t recommend checking the OTH block unless the soldier did something that would warrant a court martial. You often use that when the evidence is inadmissible b/c of a technicality, or won’t meet “beyond a reasonable doubt,” but you still know he’s guilty. In my experience, an OTH board is as much of a hassle as a court martial and often turns into one when the soldier continues to mess up. It can actually be more effective to do a summary court martial, which is procedurally pretty simple and carries the potential of 2 months confinement, but no BCD. While the soldier is serving his 30 or 60 days, you can work up a 14-12c for any offense he’s found guilty of.
The worst thing is to have a soldier with a “nothing left to lose” attitude hanging around forever. They get so frustrated that they will start violating orders just to get send home faster. Stupid, but unbelieveably common.
The “nothing left to lose” guys with their pass privledges removed are the ones I’m referring to that I wish we could put tracking collars on that would sound an instant alarm once the guy left the unit area. I’ve seen guys jump out windows and dig under fences to secretly violate the removal of pass privledges.
During either the chapter process or waiting to be court martialed time these soldiers have to be closely monitored but the legal system makes it difficult to closely monitor them because then the JAGs can say you are falsely imprisoning the guy. Thus his NCOs can’t keep checking up on him, which pisses off all the good NCOs out there. There are clever ways around it though, but I won’t mention them here because I don’t want JAG guys catching on to my secrets. 🙂
I think it would be an interesting statistic to see what the percentage of blotter reports across the Army are from the nothing left to lose crowd.
I was in korea and was sent to a general court marshall over a simple barracks scuffle. I was acquitted on 3 charges and found guilty of a lesser crime, which would have put me at the most 90 days in jail, but, because i had 5 months of illegal restriction, which was noted, I should have not received any time. But, because the judge committed plain error and convicted me on a charge that i was acquitted of, I ended up doing 1 year and 3 months hard labor unconfined. I now , only 2 years after the incident, have my appeals going back to the general in korea so he can try to fix this. That is not including all the pain and suffering that my family went threw, because, of other mindless error’s. now if anybody has some type of feed back on what I should do, please let me know.
If there is any TDS Lawyers in korea that care about the wrong doings of soldier’s and would like to help correct these mistakes that other previous TDS lawyer’s commited, then please contact me William D. Gutierrez 904-476-9315. My appeal has been sent to a general in korea on july 24,2009 and is waiting for a TDS lawyer to represent me in the clemmency matter’s. Thank you.
William, You’re asking if I can help you get back 1 year and 3 months that are gone forever. I can’t, and neither can the Convening Authority. I don’t know the facts of your particular case, and you really shouldn’t discuss them with anyone except your detailed counsel.
My best advice at this point is to work with your appellate counsel. If you don’t have confidence in the counsel — most appellate counsel are actually pretty good — you can politely ask for another, or hire private counsel. Also, ask your lawyer if the ABCMR can do anything for you — try to redress the injustice by voiding your conviction, maybe?
Good luck to you.
Great advice and concur with everything you say. You mention removing pass privledges for trouble makers. I have seen that often done but the trouble makers since they are trouble makers go out anyway.