Thanks to CAAFLog here is a magistrate judge opinion regarding some DUI cases at Quantico. Basically, the current practice at Quantico is that a military person who gets caught for DUI on base is offered NJP. After that, the SAUSA (a Marine JA assigned at Quantico) then prosecutes the case in federal court. Seems pretty icky. Magistrate Jones of the Eastern District dismissed charges against five Marines because they were not properly informed of the consequences of accepting (or declining) NJP – that being the practice at Quantico of prosecuting the case in federal court, even if NJP has been imposed. Judge Jones notes a structural deficiency in the pre NJP advice process.
however, the right to confer with independent counsel prior to acceptance of non-judicial punishment recognized in Booker is meaningless if that counsel is deficient. Assuming that the conversations between accused servicemembers and the JAG officers provided to them qualify as “counsel,” the evidence before the court establishes that the counsel provided to these defendants was not independent. The JAG lawyers were instructed to avoid discussion of the servicemembers’ individual circumstances and thereby avoided giving advice tailored to a servicemember’s situation. A further consequence of those procedures is that, by design, the counseling provided is deficient because it does not afford accused servicemembers the information, detailed above, that is necessary to validate a waiver that results in prosecution in this court.
United States v. Espinosa et al., No. 1:10mj453 et al., slip op. (E.D.Va. Apr. 25, 2011).
The practice in the DON arose because of PCS issues. If counsel form an A/C during the NJP advice process and the case is referred to trial or the person refuses NJP, that counsel might have to remain on the case. There was a concern about “severing” the A/C. I’m not certain that continued representation by the same counsel is actually required. For example look at what happens with pretrial confinement hearings. The appointment of counsel is for the limited purpose of the hearing and a new counsel can appointed when charges are preferred.
Whether or not it would work, this case has some seeds on how DON respondent’s may be able to challenge an administrative discharge based on having received NJP.
When a servicemember is faced with the decision whether to waive his right to trial by court-martial and instead accept non-judicial punishment, his waiver must be voluntary, knowing, and intelligent. Fairchild v. Lehman, 814 F.2d 1555, 1558-59 (Fed. Cir. 1987) (internal citations omitted), aff’g 609 F. Supp. 287 (E.D. Va. 1985) (Williams, J.). To comply with that standard, the servicemember must have “sufficient awareness of the relevant circumstances and likely consequences” of his decision. Id. (quoting Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970)) (internal quotation marks omitted). In these cases, it is clear that defendants did not possess “the requisite quantum of information
necessary for an informed decision[.]” Id. (quoting United States v. Booker, 5 M.J. 238, 243 (C.M.A. 1977)).