GAO Report: Imbalance of Experience between Military Prosecutors and Defense Lawyers
May 2024 – The United States Government Accountability Office (GAO) released a Report to the Committee on Armed Services, House of Representatives Actions titled “Military Justice: Actions Needed to Help Ensure Success of Judge Advocate Career Reforms.” This newly released report demonstrates why service members should hire an experienced military attorney.
Issues Hinder Military JAG Reforms
In the report, the GAO identified issues that may hinder the success of these judge advocate career reforms. The problems include: a lack of a communication strategy, that the services have not assessed the need for tailored experience standards for supervisory litigators and defense counsel, and the services lack an approach for evaluating the career path effectiveness of its litigation attorneys. This report shows that military attorneys may not have the experience to conduct criminal trials, especially on the defense side. These facts accentuate the need for an experienced military attorney for service members accused of UCMJ violations.
In the report, senior officials from each service voiced concerns about the newly established Office of Special Trial Counsel (OSTC). They fear it will exacerbate the existing issue of inexperience within certain litigation positions. The expectation is that judge advocates become eligible for assignment to the OSTC after 2 to 4 years of litigation experience. However, the limited number of available litigators who meet the OSTC experience standards will likely force the services to rely on inexperienced litigators for defense counsel or other positions that lack similar requirements. These officials warned that the focus on OSTC experience standards could lead to a potentially significant imbalance in the experience levels of defense and prosecution assigned to litigate the same case, further highlighting the urgency of the issue (CAAFLog Post “New GAO Report”, 5/2/24).
Imbalance in Experience Between Military Prosecutors and Military Defense Attorneys
For years, Mr. Kageleiry, our attorney, has recognized this imbalance since his time as a senior defense counsel. “When I was the senior defense counsel in Mannheim, with counsel in Mannheim, Kaiserslautern, and other locations, we were doing cases all over Germany in 2010. The Army JAG Corps was developing the special victim prosecutor program. I recognized they were doing this for the government side, but not the defense side.” These were supposed to be experienced litigators who would come in and receive specialized training and even spend time with civilian prosecutor’s offices. As a senior defense counsel, Mr. Kageleiry was experienced at the time. Still, he had counsel brand new to that kind of work. “All my attorneys were very bright and eager to do well, but it didn’t seem fair to me that the government would get these special victim prosecutors. We, the defense side, were not going to get the same training, and the same level of experience, attorneys to come in and try cases and represent soldiers,” said Mr. Kageleiry. “Now, years later, we’ve got this Office of Special Trial Counsel in each of the services.” This report shows it is now the same exact issue except magnified.
Mr. Kageleiry remembers talking to his boss at the time, a Colonel and chief of the trial defense service for the US Army. “His response to me on the incongruity of experience between government prosecutors and defense services was, ‘you know, we got to do the best we can with what we have’. Certainly, that’s what we did, and I’m proud of our work in that office. But, you know, now… Fast forward years later, well over a decade, but more than 15 years later, we’ve got the same exact issue. Congress has dictated to the services that they will do better on sexual assault, so they created the Office of Special Trial Counsel with specific requirements to be experienced counsel. And yet, they’re not doing the same thing on the defense side. Again, the young defense counsel wants to do well for the most part for their clients. They don’t have decades of experience as I do.”
Why Hire an Experienced Military Attorney
This report demonstrates why service members should consider retaining experienced counsel like Mr. Kageleiry rather than relying on the inexperienced defense counsel the military provides. While they are eager, honorable, and hard-working, these military defense attorneys face immense odds when they go into a courtroom with a prosecutor the military has ensured has more experience than them. It’s not fair for the defendant, and it doesn’t serve the cause of justice.
Mr. Kageleiry’s JAG career is exceptional among military defense lawyers as he steered his career through military criminal law assignments almost exclusively during active duty. This allowed him to gain litigation experience at nearly every step while on active duty. He culminated his military career in a four-year stint in the Army’s Defense Appellate Division where, as the Deputy Chief of the Defense Appellate Division, he worked on many appeals at the Army Court of Criminal Appeals (ACCA) and The Court of Criminal Appeals for the Armed Forces (CAAF). As the Deputy Chief he also supervised lawyers filing appeals for those already convicted. If you are facing UCMJ charges or need to appeal a conviction, call us at 757-504-2815 or contact us here.
