Court-Martial Trial Practice Blog
On December 6, 2023, the Secretary of the Army, Ms. Christine Wormuth, fired Brigadier General (BG) Warren Wells, the Army’s chief prosecutor and head of the Office of the Special Trial Counsel (OSTC), for an email he had sent ten years prior while in a defense counsel role. This firing demonstrates that no military defense counsel can be certain that doing their job and defending you will not come back to haunt them down the road. It will always be in the back of their minds.
In 2013, Warren Wells was a Lieutenant Colonel and a Regional Defense Counsel supervising the Senior Defender Counsel at several Army bases and their subordinate military defense counsel. He sent an email to his Senior Defense Counsel on various defense matters that included a paragraph commenting on the pressure put on the Army by Congress and the media to send sexual assault cases to trial and then stated that they, as defense counsel were the last line of defense for the innocent. Ten years later, when Ms. Wormuth read the email, she found this sentiment so outrageous that she fired BG Wells within hours!
Today, every military defense counsel knows (especially in the Army) that something they do or say in your defense can be held against them in the years to come when they are up for promotion or in a different position as a JAG. The military branches try to have independent defense counsel while they are in defense counsel positions, but as the BG Wells story illustrates: nothing protects them when they are no longer in a defense counsel position. Your military defense counsel will hopefully do their best to represent you anyway, but he or she is not conflict-free, no matter how hard they try.
Since the public firing, the Secretary of Army has not issued a statement, directed toward defense counsel, that she respects their role in the military justice process and that they should uphold the professional oaths to zealously represent the client within the bounds of the law, the rules of ethics, and reason. Some of us remember when then-President Obama publicly suggested anyone accused of a sex offense should be discharged. This was erroneous. However, in that case, the Secretary of Defense quickly published a “cleansing” statement explaining the correct legal obligations.
Politico reported that
Obama said at a press conference in early May that came just as the Pentagon released a report detailing rising incidences of sexual assaults in 2012. “So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.”
This statement led to two accused’s having a military judge in their case hold that, if found guilty, the jury could not adjudge a punitive discharge.
Earlier this year, Marine Corps defense counsel were placed in an ethical quandary because of statements made to a defense counsel then representing a client in a difficult case. Those statements became a matter of significant litigation. United States v. Gilmet will tell you all you need to know about how the statements may have put Marine Corps defense counsel in a compromised position and having a potential conflict of interest between their own career and the interests of their client. Incidentally, the case against Gilmet was dismissed because of the statements made by the senior Marine judge advocate to defense counsel.
As civilian defense counsel, we at Cave & Freeburg, LLP, are not concerned about our zealous, aggressive defense of you coming back to hurt our careers. We report to no one other than the law.