Graduation address - Ninth Court Reporters' Course

I was very pleased when Colonel Rosen and Master Sergeant Wagner invited me to be the graduation speaker for this Ninth Court Reporters' Course. It's particularly gratifying for me to be here because judges and court reporters are a team. I can't tell you how many times an astute court reporter has kept me from error in the courtroom.

This is an exciting and challenging time to be court reporters. You are acquiring an additional skill identifier with your graduation today, one which is vital to the preservation of good order and discipline in our armed forces, for without reporters, most courts-martial would be exercises in futility. You should be very proud of your achievement, and you should never doubt the value you add to the commands to which you are assigned, the Judge Advocate General's Corps, and the Army.

Why is this an exciting time to be a court reporter? Well, you will rarely be underemployed. After several years of declining caseloads, courts-martial numbers across the Army have increased steadily over the last two years, and in spite of--or perhaps because of--the deployment of many military units, the trend seems to be continuing in the first quarter of 2003. We had our busiest January and February in five years.

There are a number of reasons for the increase in trials: club drug usage, the change in the Army's AWOL/DFR policy, increased Internet misuse, BAH fraud, and many more soldiers called to active duty. These have all led to more trials Armywide. I think there's another reason for that increase: a realization that Chapter 10s and admin[istrative] discharges are not really a deterrent to misconduct, but confinement is.

It's also an exciting time to be involved in military justice because after some years of being relegated to lesser importance, military justice is clearly high on The Judge Advocate General's radar screen. In some measure, we have judges to thank for this.

Two years or so ago, the Army Court of Criminal Appeals [ACCA] took a long, hard look at the number of cases that had been tried more than six months earlier, but for which no record of trial had yet been received by the Clerk of Court's office. As a judge on that court then, I can tell you we were concerned. We were also concerned about the number of cases we were seeing where it took a very long time--years in some cases--between the end of trial and receipt of the record at our court.

Most of us old colonels on that court had tried cases back in the days when the Dunlap (1) decision was in effect. In Dunlap, the Court of Military Appeals set a standard for post-trial processing: if the convening authority did not take action within ninety days of the court adjourning, prejudice was presumed, and the accused walked; the findings and sentence were set aside. Talk about pressure on court reporters!

I practiced under the Dunlap rule. In fact, I recall serving a post-trial recommendation on a defense counsel in the produce section of the Piggly Wiggly grocery store in Killeen, Texas, on day eighty-five, when I was working in the 1st Cavalry Division's legal office during my funded legal education summers. Day eighty-five was important because the accused had only five days back then to submit his post-trial matters--unlike the month or more he may get today. If he wasn't served by day eighty-five, the convening authority couldn't take action by day ninety. The defense counsel was probably none too happy with his wife at the time because when I couldn't locate him at his office, I'd called her, and she told me he was stopping on the way home for lettuce.

None of us on ACCA wanted to go back to the Dunlap rule, but what we were seeing told us that military justice was not most staff judge advocates' highest priority. Although they were dealing with soldiers' lives and liberty, there was no pressure on them to do so expeditiously. As one of my military judges put it, "Somewhere the JAG Corps mission in military justice got lost. Counsel were more impressed by the number of their deployments than by cases well-tried. They did not understand that by standing in front of members and looking foolish, they were harming the reputation of their SJA and the JAG Corps in general."

And so, the Collazo (2) and Bauerbach (3) opinions were issued. Both stand for the proposition that unexplained post-trial delay may prejudice an accused, and the court may grant sentence relief to mitigate the prejudice. ACCA has granted sentence relief for unexplained post-trial delay in a number of cases since the Collazo opinion was issued.

While the time off their sentences was no doubt important to the individual ,soldiers concerned, the real importance of these two opinions was to refocus attention in the JAG Corps on our statutory mission, our core competency, and the real value we add to the Army--military justice. I don't disparage the work that Judge Advocates do in TOCs [tactical operations centers] across the Army, certainly not in view of world events and the role legal personnel are playing now. And, I've been there in a TOe giving advice on targeting, rules of engagement, and law of war, but throughout our history as a corps, our role in military justice is what justifies our existence.