Court-Martial Trial Practice Blog
The recent firing of Brigadier General Warren Wells, the Army’s first-ever lead special trial counsel, casts a shadow of doubt over the future of the special trial counsel and the defense counsel in the military justice system. While Secretary of the Army Christine Wormuth cited a “loss of trust and confidence” stemming from an old email expressing skepticism about false allegations, the implications for fair trials and due process run deeper. Here’s why the decision raises concerns for the independence of special trial counsel and the integrity of the military justice system:
Chilling Effect on Independent Military Defense:
Wells’ email, albeit controversial, highlighted legitimate concerns about potential false claims and the need for rigorous evaluation beyond accusations alone. He was at the time serving as an Army Regional Defense Counsel (RDC) supervising a group of military defense counsel. If you are facing an Army court-martial, you will meet or have met an Army Trial Defense Service attorney whom an RDC is supervising. The reason for firing Wells sends a chilling message to defense lawyers whose duty it is to challenge the prosecution narrative, scrutinize evidence, and advocate zealously for clients. Secretary Wormuth’s action may create fear and self-censorship, inhibiting defense counsel from fulfilling their ethical duty to their clients and undermining the adversarial process that safeguards justice. Out of self-interest, they might not take legitimate action in their representation for fear that years later, what they said or did may affect their career.
The same concerns are present for special trial counsel; an office Congress created to be independent of commanders and unlawful or improper influences. The concept of the independent OSTIC was to ensure that an accused is prosecuted for charges where there is probable cause (a legal standard), and the prosecutor reasonably believes there is sufficient evidence to obtain and sustain a conviction.
The mothers of America who send their sons to war, the servicemember’s wives who serve with them, or their children who may be bullied at school because “Your Dad’s a pervert,” must have faith that their son will have a fair trial if prosecuted.
Erosion of Due Process:
A fair trial hinges on a robust balance between prosecution and defense. The prosecutor should be free to exercise reasonable professional judgments on who to charge and with what crime to charge them. They should not have to look over their shoulder to see if their leaders agree with the decisions, and if the leader doesn’t, will they take adverse action against the prosecutor? By raising doubts about Wells’ impartiality based on past opinions, Wormuth weakens the institution tasked with ensuring due process for accused service members. Defense counsel are not cheerleaders for the accused, but their unwavering pursuit of the truth and justice, regardless of potential public discomfort, is essential for preventing wrongful convictions or ensuring appropriate sentences where there is a conviction. Weakening the military defense lawyer role through intimidation or suspicion erodes the foundation of a fair system.
Political Pressures and Appearance over Justice:
The timing of Wells’ dismissal raises concerns about political interference and prioritizing optics over justice. The email at the heart of the issue predates his appointment by a decade, yet its surfacing coincides with increased pressure on the military to address sexual assault complaints. The reason for the firing suggests a response less focused on due process and individual rights than on appeasing external demands, setting a dangerous precedent for lessened judicial independence.
Loss of Public Trust in the System:
When the impartiality of defense counsel is attacked or intimidated, the justice system loses credibility. Accusations of bias towards one side, regardless of their basis, sow distrust among the public, service members, and defense attorneys. This undermines the legitimacy of verdicts and erodes public confidence in the military’s ability to administer fair and impartial justice.
The stakes are high. Undermining the role of defense counsel in the military justice system is not merely an internal issue; it has far-reaching consequences for the integrity of the entire system and the rights of those serving in the armed forces. Based on questionable grounds, the dismissal of Wells sets a dangerous precedent that chills dissent, weakens due process, and ultimately threatens the foundations of a just military justice system.
Wormuth’s decision to fire Wells raises serious concerns about the future of defense counsel and the integrity of the military justice system. This is not just about one email or one person; it represents a concern that shifts towards a system where challenging the status quo or questioning narratives can come at the cost of one’s career.
There will undoubtedly be litigation related to the firing. It is uncertain whether litigation will cause cases to be dismissed. Over the next few months, we will start to see defense counsel filing motions and requests for action to discover essential information about the firing, examine the possibility of unlawful influences, and seek dismissal of charges. Should that happen, no one really wins, long or short term, and there will be a shadow of doubt cast upon the integrity and independence of the military justice system.
Unlike military defense counsel, civilian defense counsel does not owe allegiance to a Service Secretary, military leader, or even Congress. Their loyalty is to you alone. So long as they carry out your representation within the bounds of the law, rules of ethics, and reason, they have accomplished your mission.