The Armylawyer

THE ARMY LAWYER Headquarters, Department of the Army May 2011 ARTICLES An Overview of the Capital Jury Project for Military Justi ce Practi ti oners: Jury Dynamics, Juror Confusion, and Juror Responsibility Lieutenant Colonel Eric R. Carpenter Annual Review of Developments in Instructi ons Lieutenant Colonel Christopher T. Fredrikson, Lieutenant Colonel Wendy P. Daknis, and Lieutenant Colonel James L. Varley Lecture to the U.S. Army 58th Judge Advocate Oﬃ cer Graduate Course The Role of the Judge Advocate in Contemporary Operati ons: Ensuring Moral and Ethical Conduct During War Brigadier General H.R. McMaster BOOK REVIEWS The Last Stand Reviewed by Major Bradford D. Bigler CLE NEWS CURRENT MATERIALS OF INTEREST Department of the Army Pamphlet 27-50-456 Editor, Captain Madeline Gorini Assistant Editor, Captain Ronald T. P. Alcala Assistant Editor, Major Ted Martin Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly The Judge Advocate General’s School, U.S. Army. The Army Lawyer by The Judge Advocate General’s Legal Center and School, Charlottesville, welcomes articles from all military and civilian authors on topics of interest to Virginia, for the official use of Army lawyers in the performance of their military lawyers. Articles should be submitted via electronic mail to legal responsibilities. Individual paid subscriptions to The Army Lawyer are [email protected]. Articles should follow The available for $45.00 each ($63.00 foreign) per year, periodical postage paid at Bluebook, A Uniform System of Citation (19th ed. 2010) and the Military Charlottesville, Virginia, and additional mailing offices (see subscription form Citation Guide (TJAGLCS, 15th ed. 2010). No compensation can be paid for on the inside back cover). POSTMASTER: Send any address changes to The articles. 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The Editorial Board evaluates all material submitted for publication, the decisions of which are subject to final approval by the Dean, Lore of the Corps Colonel Walter T. Tsukamoto: No Judge Advocate Loved America or the Army More Fred L. Borch III ................................................................................................................................................................... 1 Articles An Overview of the Capital Jury Project for Military Justice Practitioners: Jury Dynamics, Juror Confusion, and Juror Responsibility Lieutenant Colonel Eric R. Carpenter .................................................................................................................. 6 Annual Review of Developments in Instructions Lieutenant Colonel Christopher T. Fredrikson, Lieutenant Colonel Wendy P. Daknis, and Lieutenant Colonel James L. Varley .................................................................................................................... 25 Lecture to the U.S. Army 58th Judge Advocate Officer Graduate Course The Role of the Judge Advocate in Contemporary Operations: Ensuring Moral and Ethical Conduct During War Brigadier General H.R. McMaster ...................................................................................................................... 35 Book Reviews The Last Stand Reviewed by Major Bradford D. Bigler ............................................................................................................................... 42 CLE News ................................................................................................................................................................ 46 Current Materials of Interest ............................................................................................................................. 54 Individual Paid Subscriptions to The Army Lawyer ................................................................ Inside Back Cover MAY 2011 • THE ARMY LAWYER • DA PAM 27-50-456 Lore of the Corps Colonel Walter T. Tsukamoto: No Judge Advocate Loved America or the Army More Fred L. Borch III Regimental Historian & Archivist [Editor’s Note: As May is “Asian-Pacific American Heritage Month,” this Lore of the Corps about the first Asian-American judge advocate is both timely and appropriate.] Shortly after the December 1941 attack on Pearl Harbor, Tsukamoto could own real estate in California while his Walter T. Tsukamoto, a civilian lawyer and judge advocate parents, who were born in Japan, could not. Men and (JA) captain (CPT) in the Army Reserve, requested that the women in the same predicament as Tsukamoto’s parents War Department order him to active duty. His request was visited Tsukamoto for advice on how to lawfully acquire real denied. Tsukamoto made another request for active duty. It estate, especially farmland, which many Japanese also was denied. He then applied a third and fourth time for immigrants in California were interested in purchasing. active duty: denied again each time. Finally, when Tsukamoto applied a fifth time in early 1943, the Army Walt Tsukamoto also was politically active in his local relented and, on 10 March 1943, CPT Tsukamoto—a native- community and routinely lobbied the largely antagonistic born U.S. citizen of Japanese ancestry—became the first California legislature on behalf of Japanese-Americans. Asian-American to serve on active duty in the Judge Particularly noteworthy was his success, achieved almost Advocate General’s Department (JAGD). What follows is a singlehandedly in the mid-1930s, in defeating legislation remarkable story of an Army lawyer whose love for America that would have prohibited Americans of Japanese ancestry and the Army never wavered despite the fact that this from engaging in the fishing industry.3 Tsukamoto also was affection was not always reciprocated. a force in national politics. He had joined the Japanese American Citizens League (JACL) as a young Sacramento Born in Molokai, Hawaii, on 15 September 1904, attorney and was elected to serve a two-year term as national Walter “Walt” Takeo Tsukamoto moved with his parents president in 1938.4 from Hawaii to Nevada when he was only a few months old. When Walt was seven years old, his parents moved from In addition to his law practice, Walter Tsukamoto also Nevada to California and settled in Sacramento. Young pursued a career as a Soldier. Having participated in the Tsukamoto soon proved to be an excellent student and, after Reserve Officer Training Corps program at Berkeley, where graduating from high school in 1923, entered the University he had attained the rank of cadet major, Tsukamoto was of California at Berkeley. commissioned as an Army Reserve infantry officer on 10 May 1927. Assigned to the 361st Infantry, 91st Division, Tsukamoto graduated with a law degree (LL.B.) in then-Second Lieutenant Tsukamoto took Army 1929, passed the California bar examination, and began correspondence courses in map and aerial photography practicing law in Sacramento. He had a general practice that reading, customs and courtesies, and scouting and patrolling. included probate, civil, and criminal law. Tsukamoto’s After transferring to the Reserve JAGD on 29 July 1937, specialty, however, was alien property law. This area of law now-CPT Tsukamoto also took correspondence courses in was of great importance to Japanese immigrants living in administrative law, military justice, and the rules of land California in the 1930s because the state had enacted warfare. He was the first Nisei to wear the crossed-sword- legislation in 1913 prohibiting non-citizens from owning and-pen insignia on his collar and was almost certainly the land in California.1 Since U.S. law during this time did not first Asian-American JA. permit Asian immigrants to become naturalized citizens,2 a native-born American (known as a “Nisei” in Japanese) like When the Japanese

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