An Ex-JAG’s Guide to Trouble and Lawyers in Korea

I started commenting on this thread on The Marmot’s Hole, responding to someone who may or  may not have been beaten by Korean police after a drunken “protest.”  This drew a few responses, including this one from fellow lawyer Brendan Carr:

To my way of thinking, private lawyer is a waste (and I’m one of the private lawyers) — TDS counsel take great pride in fighting for their clients’ rights and contrary to your expectations, TDS counsel have no fear of reprisals from “the system”. Servicemembers often don’t believe it, but it’s 100% — maybe 110% — true; this is because we lawyers have employment possibilities Military judge advocates, when assigned as defense counsel, are rewarded for sticking it to the command. “A Few Good Men” is a joke in many respects, but it accurately portrays the commitment military defense lawyers have to their clients. So don’t waste your money. Joshua, that’s right, isn’t it?

After writing a long comment about a subject I care  about very deeply, it occurred to me that I have a blog of my own, so I opted to post that comment here.  I was a JAG lawyer for seven and a half years.  I was in Korea for four of those years, which includes two years as a Defense Counsel and one as a Senior Defense Counsel.  What follows is mainly aimed at commanders and NCO’s who want to make sure their soldiers get good help when they need it.  I have to add the disclaimer that it’s not legal advice; it’s  really advice about picking the people who will give the advice, to which I’ve added some common sense.

So, in response to Brendan’s question:

Mostly, yes.  I won’t say that there is  never command pressure on defense lawyers, but I will say that it’s rare, and that few if any of the TDS (Trial  Defense Service)  lawyers I’ve known would care anyway, because threatening or even subtly pressuring a defense lawyer is a potential career-ender.  I did once have a JAG Colonel make subtle threats against me, but I didn’t give a shit — in fact, I found found a polite way to tell him just that.  Like most TDS attorneys, I took great pride in defending my clients, and to this day, I’m proud of the cases I won … and haunted by those I did not.  I still know a few of the JAG community at USFK and among them are some truly first-class people who care deeply about their fellow soldiers.  I cannot say that I know any of the TDS lawyers, however.

There are also a few medal-hunting TDS lawyers out there who worry a lot more about MCM’s, OER’s, ORB’s, and shiny boots than their clients.  It almost takes another lawyer to spot them, but these tend to have lots of high-speed tabs and wings and a burning desire to get the soldier to plead guilty before they really know if there’s enough to convict him on.  No question, fessing up is often the right thing to do and the smart way to go, but if your lawyer doesn’t even want to hear the soldier’s story and question the evidence before telling you to “sign here,” you probably got the wrong lawyer. 

It used to be that TDS lawyers had all been prosecutors.  Recently, that rule has slipped.  I think prosecutorial experience is irreplaceable, and if it was me on the line, or one of my soldiers, I’d definitely want a lawyer who had it.  Yes, it’s OK to ask. If the lawyer is a 1LT, he probably does not have prosecutorial experience.  Also, if they give your soldier a total dishrag for a lawyer,  the soldier  can respectfully ask CPT Dishrag or his Senior Defense Counsel for another lawyer. But then, keep reading, because having the right lawyer matters much more in some cases than in others.

In those cases where there’s clearly enough evidence to prove guilt, the lawyer ought to ask the soldier nosy questions about drinking and family issues and Juicy that may bear on  his potential for rehabilitation (if you’re the NCO, you should already know all of those answers, although I found that some did not).  The best lawyers actually talk to the NCO’s about those things, although there’s not always time if it’s just a company grade.

If the soldier is facing a court-martial or a board and there’s a particular lawyer he’d rather have, ask about “individual military counsel.”  As for civilian defense counsel, most of the ones I knew did not add value to the client’s defense.  I have known some to do truly bone-headed things that turned their clients into one-meter targets for JAG prosecutors.  I did work with one who was top-notch, but you’d need to be in a lot of trouble before it would be worth paying him.

Of course, the more the soldier runs his mouth, the less a lawyer can do for him at any price.   And there are times when even the best lawyer just can’t win with the evidence he has.

The question that follows this is just how much the right lawyer matters.  That depends on the evidence and stakes.  In my experience, most commanders go into an Article 15 having pretty much made up their minds.  The  best lawyers are always probing for that rare case when they can get a commander to consider suspending a bust, or not reducing the soldier in rank, or even considering a bar to reenlistment instead.  Generally, however, there’s limited room for maneuver in an  Article 15.  In a court-martial, having the right lawyer makes all the difference.  It  will very often make the difference between jail and freedom, or determine whether the soldier faces a lifetime of telling prospective employers about a  prior criminal conviction.  Given identical cases, different lawyers often achieve remarkably different results.  Some lawyers always go for a guilty plea; some will fix bayonets and win cases that others won’t fight.  After a while, that becomes apparent in a lawyer’s success record, and those records vary dramatically.

I do have great confidence in the Army’s Trial Defense Service generally, but unfortunately, I cannot express the same confidence in the Korean civilian attorneys who defend soldiers in Korean courts.  Maybe things have improved recently, but not one of my clients ever breathed a single good word about his Korean lawyer, which is disgraceful.  Most of them seemed to be in it to collect their flat fees for the minimum amount of work.  We are supposed to have Trial Observers, but I don’t personally feel that the Trial Observers always feel free to speak their minds.  This is where caring officers and NCO’s make all the difference.  If your soldier doesn’t get good representation, I recommend you keep careful notes of your experience and ask for another lawyer.  Here is a major weakeness the system needs to improve.

More advice for commanders and NCO’s:  make sure your designated SOFA observer actually knows the SOFA and the rights it affords.  While Korean language skills are obviously  very useful when dealing with Korean police, it’s better to have an assertive SOFA observer  who will intervene to protect the soldier’s SOFA rights than one who understands the questions being asked.

All in all, however, a soldier accused in a Korean court is still better off following his Korean lawyer’s advice very strictly, because that’s the only alternative you have, and their system is just very different from ours.  I have found that in Korean society, an apology is often the right thing and the smart thing to do.  I wish more JAG attorneys and commanders would learn this.  I would never do it, or force a soldier to do it, unless the soldier has seen a lawyer first.

Another good tip for a Korean trial would be to bring some No-Doz for the judge.  I had two cases where very reliable witnesses swore under oath that their judges were asleep during the trials.

If you remember nothing else, remember this:  five percent of the soldiers cause 80% of the trouble.  A 19 year-old ASAP failure with two prior Article 15’s and a string of negative counselings probably should not have off-post pass privileges.   They call it a “privilege” because you can’t sue someone for taking it away from you.  Some people can behave off post; for everyone else, there’s Playstation III  and the video rental at the Shopette.  Of course, this is very general, common-sense stuff.  For more specific disciplinary issues, the command’s advisor is the Trial Counsel.

If you’re interested, you can read more information on SOFA issues and the law in Korea in my testimony.

I hope this is of some use to NCO’s who truly take to heart the creed about taking care of soldiers, because in my experience, a good squad leader or platoon sergeant is worth more to a soldier in trouble than a whole team of lawyers.  When I think back on the people I truly respected in the Army, it was really the E-6’s and E-7’s who actually tried to help good soldiers straighten themselves out.