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The Army Lawyer (ISSN 0364-1287) Editor I Captain Matthew E THE ARMY Headquarters, Department of the Army Department of the Army Pamphlet 27-50-194 February 1989 Table of Contents TJAG Memorandum: Providing Prosecution Services ..................................................................... Note From the Executive, OTJAG: Professional Responsibility ............................................................. Articles Recent Developments in Contract Law-1988 in Review ................................................................. Major Raymond C. McCann, Lieutenant Colonel Levator Norsworthy, Jr., Major Robert L. Ackley. Major Jose Aguirre, Major Charles B. Mellies, and Major Earle D. Munns, Jr. Soldiers' and Sailors' Civil Relief Act Update.. ......................................................................... Major L. Sue Hayn USALSA Report.. .................................................................................................... United States Army Legal Services Agency The Advocate for Military Defense Counsel ADAPCP Confidentiality Protections on Sentencing. .................................................................. Captain Gregory B. Upton DAD Notes ....................................................................................................... Clemency and Parole Rules Change; Objections to Uncharged Misconduct in Pretrial Confinement File; Follow the Instructions Trial Defense Service Note ...y.. ................,...................................................................... The Pre-Sentence Report: Preparing for the Second Half of the Case I , . Captain Charles R. Marvin, Jr. and Captain Russell S. Jokinen Trial Counsel Forum.. ............................................................................................... Absentee Alphabet Soup: AWOL, DFR, and PCF - Major Paul Cupojari Contract Appeals Division-Trial Note ................................................................................. Hindsight-Litigation that Might Be Avoided I Major R. Alan Miller Clerk of Court Notes.. ...................................................... .:. ...................................... Know the Regulation Department; Trial Counsels, Unite! TJAGSA Practice Notes.. ............................................ t.. .............................................. Inslructors. The Judge Advocate General’s School Criminal Law Notes.. ..................................... &........................................................ 7 Drugs, Sex, and Commissioned Officers: Recent Developments Pertaining to Article I 133. UCMJ; Recent Applications of the Mistake of Fact Defense; PX Detectives Must Give Article 31 %Warnings Legal Assistance Items............................................................................................... Consumer Law Note (How Can They Violate The Law? Let Me Count The Ways); Professional ResponsibilityNote (Three States Adopt New Legal Ethic Claims Report.. ......................................... :............ ............................ ........... United States Army Claims Service The Rules of Professional Conduct For Lawyers: An Army Claims Perspective James W. Akridge. Major Bradley Bodager, Major Roderick H. Morgun, James A. Mounts, Jr. Claims Notes.. ...............................................................................:...................... Affirmative Claims Notes (Settlement Agreements Involving CHAMPUS-Provided Medi­ cal Care; Release of Medical Records); Personnel Claims Notes (Shipment Claims by Soldiers Receiving Bad Discharges in CONUS; Personnel Claims Limit Raised to $4O,OC$)); Tort Claims Note (Recent FTCA Denials) CLE News.. ......................................................................................................... Current Material of Interest. ..........................................................................................>,.. IC The Army Lawyer (ISSN 0364-1287) Editor I Captain Matthew E. Winter 1 1 l The Army Lawyer is published monthly by The Judge Advocate ed. 1986) and Military Citation (TJAGSA. July 1988). Manuscripts General’s School for the officiat use of Army lawyers in the , wlll be returned only upon specific request. No compensation can performance of their legal responsibilities. The opinions expressed be paid for articles. by the authors in the articles, however, do not necessarily reflect ’ The Army Luwyer articles are indexed in the Index to Legal the view of The Judge Advocate General or the Department of the Periodicals. the Current Law Index, the Legal Resources Index. and Army. Masculine br feminine pronouns appearing in this pamphlet the Index to U.S. Government Periodicals. refer to both genders unless the context indicates another use. Individual paid subscriptions are available through the Superin- The Army Lawyer welcomes articles on topics of interest to tendent of Documents, U.S. Government Printing Office, Washing­ - military lawyers. Articles should be typed double-spaced and ton, D.C. 20402. submitted td: Editor. The Army Luwyer. The Judge Advocate Issues may be cited as ‘The Army Lawyer, [date], at [page General’s School, U.S. Army, Charlottesville, Virginia 22903-1781. number]. Footnotes, if included, should be typed double-spaced on a separate Second-class postage paid at Charlottesville, VA and additional sheet. Articles should also be submitted on floppy disks, and should mailing offices. POSTMASTER Send address changes to The be in either Enable. Wordperfect, MultiMate, DCA RFT, or ASCII Judge Advocate General’s School, U.S. Army, Attn: JAGS-DDL, format. Articles should follow A Ungorm System OJ Cilation (14th Charlottesville. VA 22903-1781. coyJ"ly I* ,$" DEPARTMENT OF THE ARMY OFFICE OF THE JUDGE ADVOCATE GENERAL r". WASHINGTON. OC 20310~1200 ? 9 *4 %#".e4 e" ATTENTION or . DAJA-ZD 8 0 NOV 1988 MEMORANDUM FOR i COMMAND AND STAFF ' JUDGE ADVOCATES SUBJECT: Providing Prosecution Services 1. The expanding. scope of our responsibilities into new and nontraditional areas of our practice of law does not detract from our basic responsibility to ensure that our court-martial cases 'are properly tried. Skillful advocacy should be the hallmark of our most successful judge advocates. The skills learned in the preparation of cases, introduction of evidence In court, and persuasive arguments provide the foundatiorfor many other areas of the law. It is important that officers selected for this duty be properly trained and supervised if they and the Army are to receive the maximum benefit from their activity. 2. As is true in almost all cases, the responslbility for this effort falls upon Staff Judge Advocates and their senior officers. It begins with the selection and assignment to trial counsel duties of those officers with the interest and aptitude for trial work. Consideration should be given to longer assignments as trial counsel in order to gain experience and then to utilize that experience ,either as primary counsel, "second chair" counsel, or evaluators of less experi­ enced counsel. , , 3. Your concern should extend to how well the case is tried,not merely processing times or Lconxiction rates. Either you or your deputy should become "ten minute managers" on contested trials. A suggested inquiry is attached. In addition, training sessions, evaluation of actual case performance, and availability of experienced courtroom "sounding boards" contribute to the enhancement of technical trial skills. While it is your primary responsibility to see that this is done, you will be supported by TJAGSA, TCAP, and the Trial Judiciary. inally, you need to look at what your Chief of Military Justice Is doing now that we do not have the burdens of the traditional'pretrial advice and post-trial review. Ensure that the prosecutor is properly 'ut'ilizing the NCOIC and legal postTtria1 specialists, setting standards for them, and not becoming involved with their tasks unless the standards are not net. An excellent article on the'duties of.the Chief of Military Justice is contained In Coupe & Trant, The Role of Chiefs of Military Justice as Coaches of Trial Counsel, The Army Lawyer, August 1987 at 3. Ensure your CMJ has read the article, and it makes good reading for you as well. 5. The Article 6 Inspection Check List will be revised to reflect my Interest in how we are training and supervising our trial counsel. I know you will join me in this important work. HUGH R. OVERHOLT Enc 1 w- Major General, USA The Judge Advocate General FEBRUARY 1989 THE ARMY LAWYER DA PAM 27r50-194 3 The following questions should be asked by the “Tea Minute Manager.’’ ~ e. What instructions do you intend to ask for? 1. The following questions should be asked to determine I . n how cases are being prosecuted in general: . f. What are the main points of your closing state- ’ a. When is the next trial? ment? b. Is the trial a guilty plea or a contested case; judge 3. If it is a guilty plea case with a pretrial agreement, the alone or members? following questions should be asked: ” 2. If it is a contested‘dse with members, the following a. What is in the stipulation? questions should be asked: ._ b. What are the matters in aggravation you plan to a. What are you doing on voir dire? ” introduce? b. What is your opening statement? c. What are you introducing (from the personnel records? c. What is the most critical part of your case and how are you going to handle it; what do’you think will be the ‘ d. Who will testify as to rehabilitative potential? defense’s strategy and how will you handle it? I_ e. What are the main points in your sentence argu­ d. What
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