Monday, July 1, 2019

Prosecutorial misconduct: what is to be done?

U.S. Court of Appeals
for the Armed Forces
The decision of the U.S. Court of Appeals for the Armed Forces in United States v. Voorhees includes a section headed "A Note on Prosecutorial Misconduct." Consider the following comment posted on the CAAFlog website. The commenter neglected to state his or her real name.

bromider says:  
Slip op. at 12-13:
Trial counsel, however, was not the sole attorney at fault during Appellant’s court-martial.
Surely, by that blip, CAAF didn’t mean to imply that the TJAG who certified, assigned, and controlled the very livelihoods of the TC, the military DC, the trial judge, the appellate judges, and the SJA who reviewed this case, is to blame?

Right?  That would be crazy talk.  Wouldn’t it?

I mean… if someone were to suggest that TJAG should be held responsible for permitting such a unflinching pattern of willful dereliction of duty by every subordinate that touched this case, then that might be a good reason for that TJAG to be fired. 

After all, an infantry general who permitted such incompetence and institutional cowardice to fester and grow so thoroughly in the ranks probably wouldn’t be retained in command?  Would they?  I’m guessing not.

But, that’s how we treat real military officers.  We can’t have that sort of accountability in the JAG Corps.  No, we can’t act like these are real military officers.  They’ve got to be treated like they’re babies – middle-aged babies entrusted to carry the full weight of the government’s power.  But, to be coddled and protected nonetheless.  Like some super special snowflake.

But, just maybe, if we’re not going to treat JAGs like real officers, perhaps we ought to at least treat them like lawyers.  You know, treat them like they are actually professionals who have a license they ought to be worried about.

That might be nice, for a change.
Or, maybe, instead, CAAF can just continue to whine about prosecutorial misconduct while doing absolutely nothing about it.

That’s a good look, ain’t it?

I don’t know which institution comes out looking more impotent by this opinion: CAAF, or the Air Force JAG Corps.  This doesn’t project strength.  It projects amateur hour in a system of kangaroo courts.  From the trial level all the way up to the highest court in the system.

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