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Winning the Battle and the War: Why the Military Services Should Appoint Capital Defense Attorneys from a Hybrid Panel

Major Ryan T. Yoder*

Capital defense counsel in the military are at a disadvantage. They are expected to perform effectively in surely the most challenging and long-lasting litigation they will face in their legal careers, without the benefit of the exposure, training, guidelines, or experience in capital litigation that is available to federal civilian lawyers. We do military lawyers, and accused servicemembers, a disservice by putting them in this position.1

I. Introduction

“You’re playing a very dangerous game.”2 That was the warning to the government in a recent oral argument from a judge on the highest military court, the Court of Appeals for the Armed Forces (CAAF).3 The dangerous game was not providing “learned counsel” or other requested resources on a capital appeal, potentially rendering the defense team ineffective.4 In other words, if the government denies resources up front, but the case is overturned for ineffective assistance of counsel, then the government may “win the battle but lose the war.”5

While the CAAF ultimately found it lacked the power under the previous law to provide “learned counsel,” most of the CAAF judges expressed sympathy for the appellant’s plight.6 Put bluntly by another CAAF judge to defense counsel, “[i]t looks awful that it looks like you don’t have somebody who knows what the heck they are doing.”7 Thus, the majority of CAAF judges shared one bellwether sentiment: “Can’t the [Judge Advocate General of the Army] just fix this?”8

Under the new Military Justice Act of 2016 (MJA), fixing “this” by providing learned counsel appears to be what all the Judge Advocates General (TJAGs) may be required to do.9 Namely, the MJA now requires capital defense counsel at trial and on appeal to be “learned in the law applicable to such cases” as determined by each Service’s TJAG.10 Accordingly, each Service’s TJAG is required to determine not only what learned counsel is, but also how to appoint them.11

However, under the regulations implementing the MJA, there appears to be a loophole that allows each Service’s TJAG12 to continue with business as usual.13 Especially in the Army, business as usual has been to select military counsel with varying qualifications on an ad hoc basis.14 However, according to CAAF, continuing business as usual is a “dangerous game.”15

Thus, each Service’s TJAG should adopt a system for appointment of “learned counsel” similar to the system most analogous to courts-martial: the Military Commissions.16 This system would prevent costly litigation, bring military practice in line with federal practice and substantially comply with ABA principles. Moreover, the benefits to this system outweigh alternatives such as “growing” learned counsel internally and the potential costs. In other words, the system would allow the government to win both the battle and the war.

Accordingly, this article examines how capital defense counsel are currently appointed in the military justice system and the military specific challenges to implementing a new system. Next, it compares how learned capital defense counsel are appointed in the federal, state, and Military Commissions systems. The article also analyzes how the Military Commissions system should be altered to fit military justice practice and apply the system to a potential hypothetical situation. Finally, this article analyzes how the proposed system is better than “growing” learned counsel and how the system could be implemented for as little as a million dollars a year.

II. Current Practice in the Military Justice System

A. How Capital Defense Counsel Are Appointed in the Military

Similar to non-capital cases, the military services provide capital trial defense counsel services on a regional basis.17 Typically, a supervisory defense counsel appoints a defense counsel to a case when it arises in their region.18 If necessary, the chief of the defense service appoints counsel outside the region or from the reserves after solicitation.19 Critically, the pool of available counsel consists only of those currently assigned to the defense services and any additional resources are provided at the discretion of the government.20 An accused is also able to hire a civilian attorney or request individual counsel if reasonably available.21 However, capital defense counsel have been appointed on an ad hoc basis without the benefit of a comprehensive list of capital counsel or an ability to appoint or fund civilian counsel.22

On appeal, counsel are generally assigned to an appellate defense organization through the normal assignments process without any requirement for criminal, let alone capital experience.23 Once assigned to the division, appointment to a capital case is solely at the discretion of the director of that appellate division and, in the case of the Army, has been on an ad hoc basis.24

B. Changes under the Military Justice Act of 2016

Upon this background, Congress recently enacted the MJA requiring “to the greatest extent practicable” at least one capital trial and appellate defense counsel be “learned in the law” applicable to capital cases as “determined by the [TJAG].”25 The Department of Defense’s (DoD) legislative proposal reveals the purpose for these amendments was to bring military capital defense counsel qualifications more in alignment with federal counterparts to the greatest extent practicable.26 To that end, the amended statutes specifically provide authority to hire or contract for a civilian who is “learned in the law.”27

In order to comply with this mandate, the President has signed changes to Rules for Courts Martial [hereinafter RCM] 502 and 1202, effective 1 January 2019, which now include language mirroring the new statutes, allowing TJAGs to determine who is learned counsel.28 In addition, the new RCM 502(d)(2)(C)(ii) defines learned counsel broadly,29 with the exact language from Rules for Trial by Military Commissions.30 However, the updated RCM 502 omits language from the Commissions regulation stating that compliance with federal standards is sufficient to be learned counsel, again leaving it to TJAG’s discretion.31 In other words, under the new rules, each Service’s TJAG will be free to both qualify and appoint learned counsel at their discretion.

Consequently, the MJA changes appear to allow each Service’s TJAG to maintain business as usual or create an exception that swallows the rule, but doing so will not address the issues outlined by CAAF. For example, under the statute and the RCMs, TJAG could determine that any judge advocate meeting the minimum practice requirements and has taken one hour of online capital training is considered “learned in the law.”32 However, such a practice still comes with the risks warned of by the CAAF. Thus, to win both the battle and the war, any new system must address the current challenges of the military system.

C. Military Specific Challenges to a Learned Counsel Appointment System

1. Lack of Experienced, Qualified Counsel33

Since the modern military capital system was implemented, both trial and appellate defense counsel have lacked experience and qualifications similar to civilian counterparts.34 This inexperience is due to the relative small number of capital cases in the military.35 Until now, there have been no specialized qualifications or experience necessary to serve as capital defense counsel at any stage of litigation.36 Instead, the only qualification to practice is being licensed to practice within a state and being certified by TJAG.37

This absence of qualifications and experience has been criticized by military practitioners and judges alike.38 In nearly every capital case reaching appeal since 1984, counsel have raised errors with the qualifications, experience, or ineffectiveness of trial or appellate counsel.39 While CAAF has remained reluctant to interfere in what it has deemed “internal personnel management of the military,”40 CAAF judges have negatively commented on the lack of both minimum qualifications and experience for counsel.41

Underqualified and inexperienced capital counsel are not just a feature of trial, but persist on appeal as well. In the Army, the current lead capital appellate counsels are generally company grade officers with varying degrees of criminal law experience, if any.42 Critically, the Air Force,43 Navy, and Marines,44 mitigate this gulf of experience by employing civilian counsel with significant appellate experience, usually assigned to all capital or complex cases.45 However, having only one experienced appellate counsel may create conflict of interest problems on appeal.

2. Revolving Door of Counsel and the Potential for Conflicts of Interest

In the past, the services have assigned numerous capital defense counsel or a “revolving door” of capital counsel during and between the stages of capital litigation.46 This has been due to the length of capital litigation, transition between trial and appeals, and the normal military personnel rotation.47 Especially on appeal, the problem arises because by the time each new counsel can get up to speed on a case or learn about capital defense (if that is possible), a new counsel is rotated in.48 This practice has drawn significant criticism from practitioners and judges.49 However, in spite of this criticism, the problem persists, primarily on appeal.50

Further, due to the lack of availability of learned counsel, some military services have assigned one capital defense attorney to multiple cases on appeal,51 but this may also create the possibility of conflicts of interests between clients. Most obvious is a conflict that arises between co-accused, which usually requires different capital counsel.52 However, there are additional appellate issues that may also necessitate different learned counsel for each capital appellant. Namely, because military appellate courts must conduct a “proportionality” review, a death row appellant may argue his or her crimes were “not as bad” as another death row inmate.53 Thus, different learned counsel for each capital appellant may be necessary to avoid conflicts of interest.54

Issues of conflicts of interest, rotating counsel, and inexperienced capital defense counsel, are not unique to the military, but other systems have largely resolved these issues. Indeed, one goal of the DoD legislative proposal mandating learned counsel was to make military practice more like the federal system.55 Thus, a review of the federal method of appointing learned counsel appears to be a good starting point for a solution to the above issues.

III. How Other U.S. Justice Systems Provide Capital Defense Counsel

A. The Federal System

1. Learned Counsel in the Federal System

Similar to the language in the new Articles 27 and 70, UCMJ, federal capital defense counsel must be “learned in the law applicable to [capital] cases.”56 Critically, “learned in the law applicable to capital cases” is undefined in 18 U.S.C. § 3005, but federal courts have found learned counsel must, at a minimum, have prior distinguished experience in capital litigation.57 In practice, federal learned counsel generally have decades of defense experience in complex cases and lead trial counsel must have prior experience as part of a capital defense team before leading one.58

2. How Learned Counsel Are Appointed in the Federal System

Learned counsel are appointed by the federal judge presiding over the capital trial or appeal.59 There are two main ways to be appointed learned counsel.60 First, a federal public defender may be detailed by the district’s chief federal defender and is then appointed by the judge.61

Second, learned counsel may be appointed by the judge from a pool of Criminal Justice Act (CJA) “panel attorneys.”62 Namely, a list of qualifying attorneys are maintained by the appointing court, clerk, or designee.63 These attorneys are private attorneys meeting the local and federal requirements for learned counsel, and there is a requirement of previous capital experience for appointment as a lead counsel.64 After appointment, the judge then approves all funding requests for private counsel ex parte at the current rate of $185 per hour for lead learned counsel.65

3. Comparison with the Military

Comparatively, the federal system lacks the issues of inexperienced, unqualified and revolving counsel and meets most of the American Bar Association (ABA) principles for providing defense services.66 Partly due to mandatory guidelines,67 learned counsel in the federal system have prior capital experience and years of defense experience, thus the “[d]efense counsel’s ability, training, and experience match the complexity of the case.”68 These qualifications also help to ensure a fair process and focuses litigation, which may result in shorter trials and direct appeals.69 Further, the federal system employs a panel of civilian learned counsel that alleviates caseload concerns for federal defenders and prevents issues with conflicts of interest, especially with co-accused.70 Finally, there are less issues with “revolving” counsel because learned counsel are not subject to military personnel rotation and trial attorneys often remain on a capital case through the initial appeal.71

However, the appointment of capital counsel by a judge creates additional issues. First, waiting for appointment by a trial judge prevents immediate representation by learned counsel upon detention or arrest, creating a significant risk that clients do not receive representation by capitally qualified counsel as soon as possible.72 Second, judicial appointment and funding creates an appearance of lack of independence from the government.73 In other words, there is a lack of defense independence when the “selection, funding, and payment” of learned counsel is solely at the discretion of a federal judge, not the defense.74

4. The Federal System is Not a Perfect Fit for the Military

The federal method of appointment is not well suited to the military because military judges have limited jurisdiction and are poorly equipped to delve into personnel issues of the services. Without particularized knowledge of the second and third order effects of appointment, military judges are not positioned to make decisions that may affect the “internal personnel management” of the services.75 More importantly, unlike Article III judges, military judges lack plenary power over collateral, purely administrative issues unrelated to a specific court-martial.76 Thus, military judges appear to lack the broad authority necessary to maintain a standing list of learned counsel or order payment.77

Also, the federal system’s high level of mandatory capital qualifications would likely create problems in the military. Specifically, requiring distinguished service that amounts to decades of defense experience and numerous capital trials is problematic in the military because there are so few capital cases from which to gain experience.78 In other words, imposing higher federal standards with no way of reaching them does not solve the lack of experience problem in the military. On the other hand, setting minimum requirements without capital experience that are low enough to ensure a broad pool of attorneys appears to fail the most minimum definition of “learned counsel”: prior capital defense experience.79

However, this Hobson’s choice has been avoided by some states using different appointment methods. Thus, a review of state systems that mitigate or avoid those concerns altogether is necessary.

B. State Systems

1. How Learned Counsel Are Appointed in Death Penalty States

There is no unanimity among the states for qualifications or procedures for the appointment of capital defense counsel. The majority of states employ a method of appointment similar to that of the federal system: judicial appointment.80 Also, similar to the federal system, twenty-five of the judicial appointment states utilize some form of a pool of private attorneys qualified for capital cases.81 While some states utilize different systems by county, others have a statewide system.82 In many states, these pools of private attorneys are managed by a state office separate from the judiciary and are often employed when conflicts arise.83 Accordingly, many of the same issues of the federal system discussed above exist in judicial appointment state systems; however, other states have successfully avoided those issues.

Fifteen death penalty states utilize a modified public defender system that avoids the federal problems by internally setting qualifications and selecting capital defense counsel.84 Additionally, many of these states authorize agencies to maintain a list or pool of qualified attorneys to utilize as they see fit.85 For example, in North Carolina, the Office of Indigent Defense Services (IDS) assigns counsel to indigent capital defendants at every stage of litigation.86 Upon notification by the court of an indigent capital client, the head of the IDS office then selects the attorney from an internal list of capitally qualified counsel or contracts out for a private attorney if necessary.87 Funding for contract attorneys and case specific expenditures is provided directly by the state through the Commission on IDS that cannot be comprised of any prosecutor, law enforcement official, or active judge.88 In short, the government plays no role in determining who will be appointed—preserving independence.

Comparatively, the modified public defender system bears many similarities with the military system, but ensures more independence, best-qualified counsel, and flexibility. Similar to the state public defender appointment system, each Service’s TJAG delegates the authority to appoint capital defense counsel to the head of the respective defense service.89 However, unlike the military system, the modified state public defender systems have the ability to set mandatory qualifications, assemble and maintain a pool of civilian attorneys, and authorize funding for contract attorneys.90 Thus, these modified public defender systems alleviate all of the aforementioned ills suffered by the federal and military systems, but may create budgetary and funding authority issues unique to the military.

2. The Modified State Public Defender System May Not Be Suited to the Military

A modified public defender system may not suit the military because defense services are usually not budgeted to fund capital counsel and because removing the funding authority from the convening authorities removes a disincentive for capital cases. First, in the military, the convening authority normally funds the costs for a capital defense team,91 but under a modified state public defender system, the individual defense services would have to either provide qualified military counsel or fund civilian counsel internally.92 This may be problematic because military defense services generally do not have internal budgets large enough or internal authorities to contract counsel.93 More importantly, removing the requirement to fund resources by the convening authorities may remove a financial disincentive against capital referrals. In other words, a convening authority may be more likely to refer a death penalty case knowing that his command will not pay the litigation costs.

Accordingly, the modified state defender system does not appear well suited to the military due, in part, to the military’s structure. Thus, a review of the capital appointment system most similar to the military, the Military Commissions, is necessary.

C. The Military Commissions

1. How Learned Counsel Are Appointed in the Military Commissions

The Military Commissions adopts many of the appointment procedures from both federal and modified public defender systems. The Regulation for Trial by Military Commission sets the minimum binding qualifications with expansive language, but explicitly references the federal statute requiring prior capital defense experience.94 However, unlike the federal system, the Office of the Chief Defender (OCD) determines whether an attorney qualifies as a learned counsel.95 Thus, this method effectively side steps the Hobson’s choice of qualifications being too high or too low by letting the Chief Defender choose the best attorney for each case.

Further, the Chief Defender can pick from an expansive pool. Specifically, in addition to the military and civilian attorneys assigned to the OCD, the OCD maintains a list of civilian learned counsel from which to select learned counsel.96 If counsel can be selected from within the Chief Defender’s office, then that attorney is appointed.97 However, if the Chief Defender determines outside counsel is required, a funding request is forwarded to the convening authority.98 If the request is “reasonable,” the convening authority “shall” approve the appropriate funding and execute the contract action.99 Accordingly, this system solves many of the problems discussed above and complies with nearly every American Bar Association principle by establishing qualifications, achieving equality between case complexity and counsel experience, maintaining independence, providing flexibility to address conflicts and excessive workload, and establishing a funding source with government accountability.

2. Advantages of the Military Commissions System

Perhaps the biggest advantage of the Military Commissions system is the delegation of authority to appoint to the Chief Defender because it increases independence, potentially reduces litigation, and best matches attorney to client. Even though the convening authority funds the defense counsel, the appointment of learned counsel by the Chief Defender preserves the independence of the defense system.100

Critically, appointment by the Chief Defender may reduce litigation or mitigate risk of overturned convictions. Issues with qualifications or effectiveness of counsel have been raised in numerous capital cases since 1984, creating substantial litigation.101 Like in Hennis, these arguments may include that the defense counsel is unqualified or that the government is systemically withholding adequate counsel.102 However, such arguments are undermined and litigation is potentially avoided if an independent Chief Defender appoints learned counsel.

Further, a Chief Defender is better able to match the skills of an attorney to the specific facts of the case, making it less likely that learned counsel will be ineffective. Certain skills known only through client confidential information may be unique and necessary for capital defense such as experience with childhood abuse, traumatic brain injury, certain cultural heritages, or psychosocial behaviors.103 Proper investigation and use of this mitigating evidence could literally mean the difference between life and death. Multiple military capital cases have been overturned for failure to discover such evidence.104 Thus, by matching the correct skillset to the client based on this confidential information, the risk of potential error on appeal is likely reduced.

Ultimately, the Military Commissions system for qualification and appointment of learned counsel appears to be the best fit for the military system. Accordingly, the remainder of this article outlines how the Commissions system could be tailored to the military justice system, examines how such a system would work, and addresses remaining criticisms of the proposed system.

IV. Applying the Military Commissions Appointment System to the Military Justice System

While some adaptations are intuitive due to the different structure of the two systems, there are two substantive alterations made to the Military Commissions system that should be made upon implementation in the military justice system: (1) require prior capital experience absent military exigency and (2) widen the pool of attorneys from which to appoint learned counsel.

A. Suggested Alterations to the Commissions System upon Implementation

1. Prior Capital Defense Experience Absent Military Exigencies

One necessary departure from the Military Commissions regulations should be a clarification that prior capital defense experience should be required “absent military exigencies.” The Manual for Military Commissions requires “learned counsel” in all capital cases, not just to the greatest extent practicable.105 However, unlike the Commissions, the military must maintain flexibility for wartime operations, such as during a declared war or national emergency. Thus, any regulation implementing the proposed system should allow for the flexibility to deprive a capital accused of learned counsel only in the most dire of military exigencies.

Additionally, the deviation from the Commissions regulations should include a requirement for prior capital experience in order to align the military with federal practice. Currently, the Commissions regulations do not explicitly require learned counsel to have prior capital experience.106 However, DoD’s explicit purpose for proposing the new learned counsel requirement to Congress was to align military practice with the federal learned counsel, which courts have interpreted learned counsel to require distinguished prior capital experience.107 Thus, adding regulatory language that prior capital experience should be afforded “absent military exigencies” would effectuate legislative intent of a similar federal standard while maintaining wartime flexibility.

2. Expanded Hybrid Panel of Attorneys

Military defense service chiefs should be able to select learned counsel from an expanded hybrid panel consisting of contract civilians, department civilians, and eligible108 active and reserve military attorneys. Currently the Chief Defender may appoint counsel assigned to the OCD or from a contract list, but cannot unilaterally review and select counsel from other eligible personnel in the services.109 However, the military services have a robust source of active, reserve, and civilian personnel outside the defense services who could be appointed.110 Thus, in order to tap into such a resource, the chief of the defense service should be provided a list of eligible personnel to consider for appointment.

To implement this change, the relevant personnel organization,111 would track active and reserve military and department civilian attorneys with capital or complex defense experience who could serve as learned counsel at trial or on appeal.112 The defense service chief would then select learned counsel from the combined list of: (1) the eligible active, civilian, and reserve attorneys from the entire service, (2) those personnel already assigned to the defense service organization, and (3) potential contract civilian attorneys.

This widening of the pool has multiple benefits. First, it maximizes the size of the pool to ensure a properly qualified attorney is appointed by capitalizing on all the talent of an entire service. Second, it maximizes the possibility that learned counsel will be selected from the DoD, potentially lessening the need for contract attorneys. This will minimize excess costs and increase flexibility because military attorneys could be appointed learned counsel. This is especially true at a time of war or if qualified, experienced judge advocates became more available.

B. Practical Analysis of the Proposed System

While the analysis above has been abstract, the following section explores a more practical view of how the system would work in the Army.113 This nuts and bolts illustration lays bare both the benefits of the system as well as the possible criticisms such as the increased monetary cost or that “growing” learned counsel is a better, simpler option. However, further analysis reveals that any costs of the system are relatively minimal and “growing” counsel does not address the immediate problems in the military system.

1. Hypothetical: Co-Accused Capital Defendants

Sergeant (SGT) X enters the trial defense service (TDS) office at Fort Bragg, stating that his wife has threatened to report him for murder. SGT X’s wife suspects that he helped a co-worker, Staff Sergeant (SSG) Y, stab a fellow soldier to death after he threatened to report them for dealing drugs in the unit.114 Sergeant X is a Haitian citizen applying for naturalization as a U.S. citizen and his entire family is in Haiti.115 A TDS attorney, Captain (CPT) A, a first tour officer having represented clients in five contested courts-martial sees SGT X for suspect rights.116 CPT A informs his senior defense counsel (SDC) of his client’s situation.117 The SDC, understanding this may qualify as a capital offense, informs his regional defense counsel and immediately calls the operations officer at TDS.118

The Chief, TDS, is briefed on the situation and authorizes the operations officer to submit a formal request to the Office of Personnel, Planning, and Training Office (PP&TO) for a list of eligible capital attorneys.119 In the interim, the Chief, TDS, discusses the case directly with CPT A, obtaining client confidential information relevant to appointment.120 Upon receipt of the eligible attorney list, the Chief reviews the outside civilian counsel list, eligible attorney list, and internal TDS manning.121 The Chief then appoints: (1) a TDS employee with prior capital experience (Mr. C) as learned counsel and (2) reserve Major (MAJ) B as an assistant capital attorney, from the eligible attorney list. Major B is currently working as a private defense counsel who has significant trial defense experience and is fluent in French.122 Further, the Chief formally appoints CPT A as additional capital attorney due to his already strong relationship with SGT X. The Office of The Judge Advocate General (OTJAG) then begins the process to mobilize MAJ B as soon as possible.123

In the meantime, SGT X and SSG Y are arrested by Criminal Investigations Command (CID).124 Having anticipating the upcoming need, the Chief, TDS, had previously selected a new appointing authority for SSG Y, the Deputy Chief, TDS. The appointing authority appoints MAJ D, who has attended capital training, but has no capital experience, as assistant capital defense counsel from another field office.125 MAJ D immediately flies out to meet with SSG Y along with CPT E, a second year TDS attorney from the Fort Bragg Field Office appointed as additional capital counsel.126 After meeting with SSG Y, MAJ D calls the appointing authority and tells him that SSG Y had recently gone to mental health for hearing voices starting after coming back from classified operations in Afghanistan.127 The appointing authority reviews the lists and finds the appointment of learned counsel from within TDS and the eligible attorney list is impracticable.128 Accordingly, the appointing authority calls three top candidates from the outside counsel list and appoints Mr. AA due to workload, performance history, security clearance, and expertise in defending a capital accused with mental health issues.129

Within forty-five days of SSG Y’s arrest, the appointing authority completes and submits to the commanding general (CG) of the Judge Advocate General’s Legal Center and School (TJAGLCS) the required paperwork to include nondisclosure agreements, proof of security clearance, statement of good standing, and oath to following the applicable military laws, rules, and regulations.130 The request indicates that the outside attorney will be paid commensurate with the federal rate of $185 per hour.131

Upon receipt of the timely request and if the terms are reasonable, the CG, TJAGLCS, approves the request for funding.132 After approval, TDS forwards the request to the CG, XVIII Airborne Corps, who shall approve reimbursement and the contracting process is initiated by TDS.133 Had forty-five days elapsed without a request or extension, the CG, XVIII Airborne Corps, could have appointed an attorney from the eligible attorneys list.134 After referral, the military judge reviews any subsequent request for funding of learned counsel for reasonableness and validates the documentation.135 Afterward, it is forwarded to the contracting authority for TDS.136

Both capital litigation teams remain appointed for the duration of the case.137 However, SGT X becomes no longer entitled to learned counsel on appeal after he pleads guilty in exchange for a non-capital referral.138 Staff Sergeant Y is sentenced to death and after the case is docketed at Army Court of Criminal Appeals (ACCA), the Chief, Defense Appellate Division (DAD), uses the same process as the Chief, TDS, and appoints a civilian employee at DAD as learned counsel.139 The appointing authority, knowing this case is coming, has coordinated with PP&TO during the previous assignments cycle to ensure a major with prior appellate experience was assigned to DAD and is appointed as assistant capital appellate defense counsel until his normal permanent change of station.140

Under this hypothetical, nearly all the benefits of the systems analyzed above are on display while conforming to the unique military system. First, the ABA requirements of experience, independence of the system, continuity of counsel, and flexibility to address conflicts are met.141 Further, the use of military or civilian personnel already employed by the organization is maximized. And, finally, the costs of outside counsel are set at fixed, reasonable rates with oversight by the general court-martial convening authority (GCMCA), another independent general, and the military judge.

Accordingly, while this method appears to solve many of the aforementioned issues, it raises others. Namely, the system would necessarily increase costs and the additional requirements begs the question of whether it is simpler to “grow” learned counsel internally.

2. Increasing Military Capability in Lieu of the Proposed System

Even though new initiatives could theoretically create qualified and experienced military learned counsel, such efforts still suffer from military personnel turnover, a lack of flexibility, and delayed implementation. For example, in recent years the services have been attempting to increase litigation skills through a variety of methods, such as career tracks addressing non-capital litigation.142 In addition, assuming institutional and attorney-client hurdles could be overcome, military defense counsel could intern with federal or state defenders to gain capital experience.143 Accordingly, with increasing litigation experience and capital opportunities, one could argue that the proposed system is unnecessary.

However, even if the number of potential military learned counsel increases, it does not remedy the relative frequent turnover of military personnel, provide the requisite flexibility, or address those issues right now. Assuming that a few attorneys could become qualified as learned counsel, such attorneys may have personal issues preventing assignment, leave the service, or retire, creating a continually moving target. Critically, growing internally also does not have the flexibility to address abnormal spikes in capital cases, conflicts of interest between co-accused, and conflicts arising due to the small military justice community.144

Finally, waiting for the military system to grow experienced capital attorneys takes time. Growing learned counsel in the future does not fix the aforementioned problems today. Instead, the proposed system would bridge that gap by allowing appointment of civilian attorneys now, but prioritize military personnel when experienced counsel are available.

3. Costs Are Easily Mitigated and Are Relatively Insignificant

Another concern with implementing the proposed system to appoint learned counsel in the military is the potential price tag. Namely, at first, it seems likely civilian contract attorneys may be common due to the limited number of judge advocates with capital defense experience.145 Additionally, capital trials are expensive.146 For example, the median cost for attorney’s fees in fully tried federal capital cases in 2010 was $465,602.147 Rates are continuing to increase.148 Thus, contracting for learned counsel may cost millions of dollars per year.

However, as in the practical example, these costs may be mitigated through hiring full time federal civilian attorneys in each defense service organization. For example, the maximum salary of a Department of the Army General Schedule 15 (GS-15) attorney at the Trial Defense Service at Fort Belvoir would be $164,200 per year.149 As long as there are neither conflicts nor workload concerns, one learned counsel could serve as learned counsel on multiple trials.150 Thus, hiring a GS employee as learned counsel could reduce the cost well below the median federal attorney’s fees of $465,602 per trial.151 Most importantly, at both trial and appeal, the annual salaries for each GS-15 attorney would be less than half the cost of employing a contract civilian at the federal rate for an entire year.152

At as little as a million dollars per year,153 the system cost pales in comparison to recent Special Victim’s Initiatives, the Military Commissions budget, or the overall DoD Budget. For example, representation in the six capital courts-martial and appeals pending at the beginning of 2018,154 could cost as much as $2.3 million a year at the contract federal rate or as little as approximately $1 million for six GS-15 attorneys.155 However, the annual budget for the Special Victim’s Counsel Program is over ten times larger with a budget of $25 million.156 Even more, the 2013 operating budget for the Office of the Military Commissions was approximately forty times the most expensive way of implementing the proposed appointment system.157 Most strikingly, the cost of implementation of the proposed system is approximately .0003% of the 2017 DoD Budget.158 Thus, the cost of providing outside counsel to a service member before the gallows would be a fraction of the cost it takes to provide qualified counsel to sexual assault victims and alleged terrorists.

V. Conclusion

For the reasons above, each Service’s TJAG should adopt the proposed system for appointment of learned counsel because it would bring military practice in line with federal practice, the vast majority of states, and ABA standards. Practitioners, scholars, and judges alike have consistently raised concerns with the qualifications and effectiveness of military capital defense attorneys.159 While the services may be able to conduct business as usual, the time may be at hand where military courts will begin to scrutinize why the military does not “just fix this.”160 Thus, the proposed system may allow the services to win both the battle and the war.

Appendix A. Table of State Capital Qualifications and Appointment Methods

  Trial - Lead Direct Appeal Post-Conviction Source

Appointment from a pool of capitally qualified counsel?

AL Section 13A-5-54 (2008) of the Code of Alabama.  Office of Indigent Defense Service Admin Rule ALABAMA DEPARTMENT OF FINANCE
ADMINISTRATIVE CODE
CHAPTER 355-9-1
Section 13A-5-54 (2008) of the Code of Alabama.  Office of Indigent Defense Service Admin Rule ALABAMA DEPARTMENT OF FINANCE
ADMINISTRATIVE CODE
CHAPTER 355-9-1
None. Alabama Code for minimum requirements.  Then Department of Finance for Admin regulations. Yes.  County by County.  Code of Ala. § 15-12-4.  Jefferson County - Public Defender and list of attorneys.
AZ Sections 13-4041(B) and (C) of the Arizona Revised Statutes (2008); Arizona Supreme Court amended Rule of Criminal Procedure 6.8 -  Sections 13-4041(B) and (C) of the Arizona Revised Statutes (2008); Arizona Supreme Court amended Rule of Criminal Procedure 6.8 - Sections 13-4041(B) and (C) of the Arizona Revised Statutes (2008); Arizona Supreme Court amended Rule of Criminal Procedure 6.8 - Sections 13-4041(B) and (C) of the Arizona Revised Statutes (2008) authorizing Sup Court; Arizona Supreme Court amended Rule of Criminal Procedure 6.8 Yes for Maricopa County.  Maricopa County Admin Order 2012-008.  Rule 6.2 allows each county to determine. 
AR Rule 37.5(c)(1) Ark Rules Crim Pro:  Rule 37.5(c)(1) Ark Rules Crim Pro:  Rule 37.5(c)(1) Ark Rules Crim Pro: Pub Defender Commission sets minimum standards for trial; Judiciary for Rules of Criminal Procedure Yes.  Arkansas Public Defense Commission maintains list http://www.apdc.myarkansas.net/news/posts/initial-rule/
CA California Rules of Court Rule 4.117. Rules 8.605(d)-(e) of the California Rules of Court (2008) (2) Rules 8.605(d)-(e) of the California Rules of Court (2008)  Sup Ct. Standards, appointed by court or public defender Some Counties Yes; pub defender, private, or ct. appointed.  Biggest counties have pool.
CO No Listed Qualifications -  Completely up to Public Defender to Decide. No Listed Qualifications -  Completely up to Public Defender to Decide. Colorado Revised Statutes 16-12-205 (IV)(2) (2008) Colo Statute.  Colorado Rule 44 of Crim Pro No.  Public Defenders only.  May contract out only for conflicts.  Colo Rev. Stat. sec. 21-1-101 to 21-2-107. 
FL Rules of Crim Pro Rules 3.112 (f), Rules of Crim Pro Rules 3.112  (h) (1) Rules of Crim Pro Rules 3.112  (h) Rules of Crim Pro promulgated by Supreme Court of Florida. Yes.  section 27.40(3)(a), Florida Statutes
GA Unified Appeal Rule II (2014): Unified Appeal Rule II (2014): None. GA Statute; Supreme Court Rules Public defenders, but pool for contract attorneys if conflicts.  O.C.G.A. sec. 17-12-1 to 17-12-14
ID Idaho Administrative Regulation (IDAPA) 61.01.08 Idaho Administrative Regulation (IDAPA) 61.01.08 Idaho Administrative Regulation (IDAPA) 61.01.08 Idaho Code § 19-851, 19-851; Idaho Rule of Criminal Procedure 44.3; Also 19-850(1)(a)(vii) gives Public Defender authority to make standards.  (IDAPA) 61.01.08 County by County.  Public defenders and pool. Idaho Code § 19-850; IDAPA 61 mandating "roster."
IN Indiana Criminal Procedure Rule 24 (2001): Indiana Criminal Procedure Rule 24 (2001): Indiana Rules of Court
Rules of Post-Conviction Remedies Section 9a. 
Indiana Criminal Procedure Rule 24 (2001) Yes.  Roster maintained by county for appointment by judge at trial or appeal.  For Post-conviction proceedings, Public Defender appointed and solely decides representation.
KS The Kansas State Board of Indigents’ Defense Services is responsible for providing “standards of competency and qualification for the appointment of counsel in capital cases.” Kansas Statutes Chapter 22-4505(d)(1)(B) (2008).
Kan. Admin. Regulation §105-3-2(a)(4)-(6) (2012)
Kan. Admin. Regulation §105-3-2(a)(4)-(6) (2012) Kan. Admin. Regulation §105-3-2(a)(4)-(6) (2012) Kan. Stat. 22-4505(d)(1)(B)(2008) and Kan. Admin. Regulation sec. 105-3-2(a); 2003 ABA Guidelines Yes.  Created by regulation and maintained by state district judge.  K.A.R. § 105-3-1
KY Department of Public Advocacy has adopted 2003 ABA Standards.  See https://dpa.ky.gov/who_we_are/Education/Pages/Capital-Defense-Institute.aspx; Department of Public Advocacy has adopted 2003 ABA Standards.  See https://dpa.ky.gov/who_we_are/Education/Pages/Capital-Defense-Institute.aspx; Department of Public Advocacy has adopted 2003 ABA Standards.  See https://dpa.ky.gov/who_we_are/Education/Pages/Capital-Defense-Institute.aspx; Ken. Rev. Stat. Sec. 31.030(4) the Department of Public Advocacy has the responsibility for "[d]eveloping and promulgating standards and regulations, rules, and procedures for administration of the defense of indigent defendants in criminal cases." No.  Public Defenders only unless conflict attorney required.  See ABA Report EVALUATING FAIRNESS AND ACCURACY IN
STATE DEATH PENALTY SYSTEMS:
The Kentucky Death Penalty Assessment Report Ch. 6 (2010)
LA Louisiana Supreme Court Rule XXXI (A)(1) (2008) sets standards for indigent defense. 
Further, La. Admin. Code tit. 22, pt. XV (2011) adopts 2003 ABA Standards as well as 2010 Supplemental Guidelines.
Louisiana Supreme Court Rule XXXI (A)(1) (2008) sets standards for indigent defense. 
Further, La. Admin. Code tit. 22, pt. XV (2011) adopts 2003 ABA Standards as well as 2010 Supplemental Guidelines.
Louisiana Supreme Court Rule XXXI (A)(1) (2008) sets standards for indigent defense. 
Further, La. Admin. Code tit. 22, pt. XV (2011) adopts 2003 ABA Standards as well as 2010 Supplemental Guidelines.
Louisiana Supreme Court Rule XXXI (A)(1) (2008) and La. Admin. Code tit. 22, pt. XV (2011) No.  Public Defenders appointed by court.  However, contract attorneys pool exists for conflicts.  See Louisiana Public Defender Board Website, http://lpdb.la.gov/Serving%20The%20Public/Programs/Regional%20Capital%20Conflict%20Panels.php
MS None. None. Mississippi Rules of Appellate Procedure 22(d) and (e): Mississippi Rules of Appellate Procedure and Case law No.  Public Defenders appointed by Court with Capital Division.  Contract pool exists for conflicts.  See Mississippi Office of State Defender Capital Division Website No.  Public Defenders appointed by Court with Capital Division.  Contract pool exists for conflicts.  See Mississippi Office of State Defender Capital Division Website http://www.ospd.ms.gov/REPORTS/OSPD%20Report%20of%20Activities%20and%20Expenditures%20July%201,%202016%20-%20June%2030,%202017.pdf
MO None.  Public Defender Practice is to assign two counsel, but no minimum requirements.  See ABA Report EVALUATING FAIRNESS AND ACCURACY IN
STATE DEATH PENALTY SYSTEMS:
The Missouri Death Penalty Assessment Report at CH 6.
None.  Public Defender Practice is to assign two counsel, but no minimum requirements.  See ABA Report EVALUATING FAIRNESS AND ACCURACY IN
STATE DEATH PENALTY SYSTEMS:
The Missouri Death Penalty Assessment Report at CH 6.
Supreme Court Rules 24.036(a) and 29.16(a) (2001), respectively, provide that the court shall appoint two attorneys.  Rule 24.036(b): Missouri Supreme Court Rule 24.036 No.  Primarily public defenders.  Conflict attorneys hired through contract.  See ABA Report EVALUATING FAIRNESS AND ACCURACY IN
STATE DEATH PENALTY SYSTEMS:
The Missouri Death Penalty Assessment Report at CH 6.
MT Montana Supreme Court Order No. 97-326 , dated  29 Jun 1999. Montana Supreme Court Order No. 97-326 , dated  29 Jun 1999. Montana Supreme Court Order No. 97-326 , dated  29 Jun 1999. M.C.A. §2-15-1028; M.C.A. 47-1-101 to 47-1-126; Public Defender Internal Standards; Montana Supreme Court Rules No. Primary public defenders.  Conflict attorneys hired through contract meeting PD qualifications for capital attorneys.  See M.C.A. sec. 47-1-121
NE None. None. None. In Nebraska, standards/qualifications for death penalty counsel are established by the Nebraska Commission on Public Advocacy, working in conjunction with the Indigent Defense Standards Advisory Council.  R.R.S. Neb. § 29-3927.  County by County.  Public defenders and pool.  See A Report of the
 Nebraska Minority and Justice Task Force/ Implementation Committee  (2004) (available at https://c.ymcdn.com/sites/www.nebar.com/resource/resmgr/MJC/MJIC-2004IndigDefenSys.pdf).
NV Nev. SCR 250:  Nevada Supreme Court issued administrative order ADKT 411 requiring counsel to meet minimum standards substantially similar to the 2003 ABA Guidelines. Nev. SCR 250:  Nevada Supreme Court issued administrative order ADKT 411 requiring counsel to meet minimum standards substantially similar to the 2003 ABA Guidelines. Nev. SCR 250:  Nevada Supreme Court issued administrative order ADKT 411 requiring counsel to meet minimum standards substantially similar to the 2003 ABA Guidelines. Supreme Court Order pursuant to SCR 39 to regulate practice of law.  Nev. SCR 250(h): Public Defender or Pool at each trial district court.
NH Judicial Conference requires capitally qualified attorneys to have the following, modeled after the 2003 ABA Guidelines: Judicial Conference requires capitally qualified attorneys to have the following, modeled after the 2003 ABA Guidelines: New Hampshire Judicial Council enacted standards for post-conviction proceedings.  See New Hampshire Judicial Council Website, https://www.nh.gov/judicialcouncil/documents/capital-post-conviction-counsel.pdf) NH Judicial Council; Internal requirements of Public Defender's Office. Yes, appointed by the judge.  And public defenders.  Judicial Counsel maintains capital list IAW RSA 604-A:2,  See also Judicial Counsel Website, https://www.nh.gov/judicialcouncil/documents/private-bar-2014.pdf.
NC Statutes delegate authority to Office of Indigent Services under Courts to promulgate rules on qualifications of counsel.  See  Indigent Defense Services Act of 2000 (IDS Act), S.L. 2000-144, Senate Bill 1323 Statutes delegate authority to Office of Indigent Services under Courts to promulgate rules on qualifications of counsel.  See  Indigent Defense Services Act of 2000 (IDS Act), S.L. 2000-144, Senate Bill 1323 Statutes delegate authority to Office of Indigent Services under Courts to promulgate rules on qualifications of counsel.  See  Indigent Defense Services Act of 2000 (IDS Act), S.L. 2000-144, Senate Bill 1323  Indigent Defense Services Act of 2000 (IDS Act), S.L. 2000-144, Senate Bill 1323 Yes.  Managed by Office of Indigent Services.  See IDS Rules for Appointing Counsel in Capital Cases.  http://www.ncids.org/Rules%20&%20Procedures/IDS%20Rules/IDS%20Rules%20Part%202.pdf
OH Supreme Court Rules for Appointment of Counsel in Capital Cases (App. Coun.R)  available at https://www.supremecourt.ohio.gov/Boards/capitalCases/ Supreme Court Rules for Appointment of Counsel in Capital Cases (App. Coun.R)  available at https://www.supremecourt.ohio.gov/Boards/capitalCases/ None. Supreme Court Rules Yes.  Managed by Commission on Appointment of Counsel in Capital Cases under Ohio Supreme Court.  https://www.supremecourt.ohio.gov/Boards/capitalCases/
OK Oklahoma Indigent Services Organization may set qualifications.  See Okla. Stat. §§ 22-1355.1 through 22-1355.7
OISO has adopted 2003 and 2010 ABA Guidelines.  See Application for Appointment in Capital Cases, https://www.ok.gov/OIDS/documents/ques_trl.pdf
Oklahoma Indigent Services Organization may set qualifications.  See Okla. Stat. §§ 22-1355.1 through 22-1355.7.  OISO has adopted 2003 and 2010 ABA Guidelines.  See Application for Appointment in Appellate Cases, https://www.ok.gov/OIDS/documents/ques_app.pdf Oklahoma Indigent Services Organization may set qualifications.  See Okla. Stat. §§ 22-1355.1 through 22-1355.7.  OISO has adopted 2003 and 2010 ABA Guidelines.  See Application for Appointment in Appellate Cases, https://www.ok.gov/OIDS/documents/ques_app.pdf Oklahoma Indigent Services Organization may set qualifications.  See Okla. Stat. §§ 22-1355.1 through 22-1355.7 Yes.  But Public defenders in all but 2 counties.  Appointed by district judge in other 2.  Contract attorneys possible for conflicts.  See Okalahoma Indigent Services 2017 Annual Report.  https://www.ok.gov/OIDS/documents/Annual%20Report%202017.pdf.  In other 2 counties,  
OR 2015 ORS 151.213 established Oregon Office of Public Defense Services and gives authority to set attorney qualifications.  http://www.oregon.gov/OPDS/docs/CBS/Attorney%20Qualification%20Standards%202016.pdf 2015 ORS 151.213 established Oregon Office of Public Defense Services and gives authority to set attorney qualifications.  http://www.oregon.gov/OPDS/docs/CBS/Attorney%20Qualification%20Standards%202016.pdf 2015 ORS 151.213 established Oregon Office of Public Defense Services and gives authority to set attorney qualifications.  http://www.oregon.gov/OPDS/docs/CBS/Attorney%20Qualification%20Standards%202016.pdf 2015 ORS 151.213 established Oregon Office of Public Defense Services.  http://www.oregon.gov/OPDS/docs/CBS/Attorney%20Qualification%20Standards%202016.pdf Yes, appointed by judge.  And public defenders.  See Qualification Standards for Court Appointed Counsel http://www.oregon.gov/OPDS/docs/CBS/Attorney%20Qualification%20Standards%202016.pdf. County by county.  2015 ORS 151.010.
PA Penn. Rules of Crim Pro Rule 801 sets qualifications of capital trial counsel:
 
Penn. Rules Crim Pro 811 allows initial post-trial appeal at trial.  Thus, same qualifications for lead counsel apply. Penn. Rules Crim Pro 904 commentary states :    An attorney may not represent a defendant in a capital case unless the attorney meets the educational and experiential requirements set forth in Rule 801 (Qualifications for Defense Counsel in Capital Cases). State Supreme Court Yes.  State Supreme Court division maintains list.  Penn. Rule Crim Pro. 801.  Selection County by County.  No statewide public defenders or centralized list.  Attorneys appointed by court.  See Penn. Rule Crim. Pro 122.
SC South Carolina (Title 16-3-26(B)(1)) South Carolina Appellate Court Rule 608:  provisions of Rule 421 applicable to trial, appeal, and post-conviction. South Carolina Appellate Court Rule 608(f)(1): State Supreme Court Yes.  South Carolina Bar creates and maintains lists by county at direction of State Supreme Court.  SCACR 608
SD None None None Statute Yes.  County by county.  Private attorneys appointed as well as public defenders.
TN Rule 13, Section 3 of the Rules of the Tennessee Supreme Court
(b)(1)
Rule 13, Section 3 of the Rules of the Tennessee Supreme Court Rule 13, Section 3 of the Rules of the Tennessee Supreme Court
(h)
Supreme Court Rule 13 Yes.  Local court will maintain list of attorneys.\ meeting minimum requirements.  TSCR Rule 13, Section 1.  Public defenders may be appointed.  Id.
TX Texas Code of Criminal Procedure, Article 26.052: Texas Code of Criminal Procedure, Article 26.052: Article 11.071 of the Texas Code of Criminal Procedure, which governs post-conviction proceedings, requires appointment of counsel from the Office of Capital and Forensic Writs. If that office is not appointed, the convicting court appoints counsel from a list pursuant to Texas Government Code § 78.056, Sup Ct. sets standard in Code of Criminal Procedure Yes.  Or public defender meeting same qualifications.  Tex Code of Crim Pro 26.052.  Court appoints from list maintained by local selection committee.  Id.
UT Rule 8 of the Utah Rules of Criminal Procedure
 
Rule 8 of the Utah Rules of Criminal Procedure:
 
Rule 8 of the Utah Rules of Criminal Procedure.
Code Ann. § 78-35a-202(2)(a)
Utah Judicial Council created by statute to create rules. County by County.  Most contract private attorneys. 2016 Commission on Indigent Defense may change that.  Rule 8 of the Utah Rules of Criminal Procedure.  Court appoints.
VA Virginia Statute Pursuant to § 19.2-163.8 E and Virginia Administrative Code Title 6, Chapter 10 (6 VA ADC 30-10-10) Virginia Statute Pursuant to § 19.2-163.8 E and Virginia Administrative Code Title 6, Chapter 10 (6 VA ADC 30-10-10) Virginia Statute Pursuant to § 19.2-163.8 E and Virginia Administrative Code Title 6, Chapter 10 (6 VA ADC 30-10-10) Virginia Statute Pursuant to § 19.2-163.8 E and Virginia Administrative Code Title 6, Chapter 10 (6 VA ADC 30-10-10) Yes.  Supreme Court and Indigent Commission maintain list, court appoints from the list.  See Virginia Statute Pursuant to § 19.2-163.8 E
WA Washington Superior Court Special Proceedings Rules -- Criminal;  SPRC 2;  In addition, the Washington Supreme Court (NO. 25700-A-1004) Washington Superior Court Special Proceedings Rules -- Criminal;  SPRC 2;  In addition, the Washington Supreme Court (NO. 25700-A-1004)

Washington Rules of Appellate Practice 16.25 state:

Washington Supreme Court Rules of Practice Yes.  Supreme Court directs panel to maintain list.  WSCSPR 2 allows trial judge to appoint and Supreme Court appoints appellate attorney.  See http://www.courts.wa.gov/appellate_trial_courts/supreme/clerks/?fa=atc_supreme_clerks.display&fileID=attorney
WY Wyoming statutes creates public defender's office.  Office of public defender strategic plan states:  "The Public Defender must provide high quality representation in capital cases pursuant to the federal and state constitutional law and the ABA Guidelines for Appointment and Performance of Defense Counsel in Death Penalty Cases, Revised Edition, February, 2003, as well as the ABA Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases. Wyoming statutes creates public defender's office.  Office of public defender strategic plan states:  "The Public Defender must provide high quality representation in capital cases pursuant to the federal and state constitutional law and the ABA Guidelines for Appointment and Performance of Defense Counsel in Death Penalty Cases, Revised Edition, February, 2003, as well as the ABA Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases. § 7-14-104. No right to appointed counsel Wyoming Statutes W.S.1977 § 7-6-104 No.  Public defender and court appointed by district.  See W.S.1977 § 7-6-104.