A Bad Start: Will Military Defense Counsel Feel Safe to Represent Their Clients?

gavel with books and handcuffs

In a startling turn of events, the Secretary of the Army recently fired the Army’s very first leader of the Army’s new “independent” prosecution office.

The decision, attributed to a decade-old email criticizing the handling of a sexual assault case, raises significant concerns about the purported independence of military attorneys. 

The Background
The saga began in 2013 when then Lieutenant Colonel W. Wells, serving as a supervising military defense attorney, expressed concerns about the fairness of the investigation of a sexual assault allegation in Japan. The Commander responsible for deciding what should happen in that case had his decisions overturned by HQ Army. The result was that a Soldier case, who many thought had insufficient evidence to proceed to trial, was nevertheless referred to trial and the General who had declined to do so was reduced in rank from two stars to one. 

In response, BG Wells, who was then the supervisory military defense counsel, sent an email to his troops to rally them to the seeming unfairness, emphasizing the vital role they played in ensuring fair trials and criticizing the handling of sexual assault allegations. In that email he wrote: “expect no commander to be able to make objective decisions involving [sexual assault] allegations as long [as] Congress and our political masters are dancing by the fire of misleading statistics and one-sided, repetitive misinformation by those with an agenda.” 

The Secretary’s Rationale
Ten years after he sent that email, BG Wells is appointed to be the Army’s top prosecutor, responsible for deciding which military criminal cases have enough evidence to warrant a trial.  However, a former Soldier who had filed complaints against BG Wells in the past forwarded the email he wrote in 2013 to the Secretary of the Army, who promptly fired BG Wells, claiming the email was dismissive of civilian control of the military and “negatively characterized sexual assault response” at the time.

Ominous Response
In response to the Secretary’s decision, LTG Pede, the Army’s former Judge Advocate General, made several good points about how the Secretary’s decision painted an ominous picture for the future of military justice.  See full story here: Guest Post: Chuck Pede asks “Firing the Army chief prosecutor–is this what independence looks like?” – Lawfire (duke.edu)

Dangerous Precedent for Military Defense Counsel
First, he explains that the Secretary’s decision sends a terrible message to uniformed military defense counsel. Using internal defense communications as grounds for relieving one of one’s duty raises legitimate concerns about the fear of reprisal, jeopardizing the zealous, independent representation that every service member deserves.

Doubting The Fairness of Charging Decisions
The whole point of appointing BW Wells and the “Office of Special Trial Counsel” was to take charging decisions out of the hands of commanders, whom Congress believed might make decisions for the wrong reasons.  By relieving BG Wells, the Secretary has created the same concern, but for different reasons. 

Unlawful Command Influence
Finally, the firing of BG Wells creates the appearance that the Secretary is placing her hands on the scales of military justice—that if you “negatively characterize sexual assault,” than you are not fit to serve in prosecutorial roles. 

The Future
The case that prompted Wells’ email a decade ago ultimately validated his concerns, as the Army acknowledged its errors and corrected the reduction in rank for the Commanding General. But the same types of mistakes continue. Soldiers deserve military defense counsel who are not only insulated from risks to their careers if they act zealously in their clients’ behalf but are also SEEN to be insulated.  The Army Secretary’s firing of BG Wells sets that effort back years. 

If you or a loved one are accused or convicted of sexual assault, or any military crime, please reach out to an experienced, independent military defense attorney for a free consultation. 

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