(*Disclaimer: This
response presumes the news articles in question accurately reflect the
information provided by Colonel (Ret.) Christensen to the reporters/publications.)
See articles here:
In a publicized diatribe that began to sound like the Air
Force JAG Corps’ version of the Michael Douglas movie “Falling Down,” Colonel Don
Christensen has retired as the Chief Prosecutor of the Air Force, and has chosen
to leave the service with a bang – trashing the military justice system, those
he served with, and former clients. “You
stay classy, San Diego.”
Consistent with his inflammatory parting shots, he is apparently
joining the inflammatory and often misinformed advocacy group, Protect Our
Defenders (POD). A group that publicly pushes
stories that, in many instances, are dramatically one-sided and agenda-driven.
Colonel (Ret.) Christensen’s publicized comments, as a
whole, seem to demonstrate a special level of arrogance that Nancy Grace and
many in Congress also seem to possess – advocating that dropped cases and
acquittals are failures of a criminal justice system, every sexual assault
allegation is true, and they are among the omniscient ones who know exactly
what happened behind closed doors in these cases and mere mortals aren’t able
to know or understand what is so clear to them – believing also that if a case
doesn’t go the prosecution’s way, the system has failed and must be
changed. When will there be a reality
check?
Didn’t Colonel (Ret.) Christensen serve as an Air Force Circuit
Defense Counsel and a Military Judge?
Wasn’t it (then) Judge Don Christensen who vocally criticized Congress
for how UCMJ Article 120 (military rape statute) was re-written the first time
(the first attempt by Congress to pre-determine outcomes in favor of the
prosecution)? What happened to that Don
Christensen? Does he understand how his latest
public comments and perspectives are now undermining any confidence Air Force
members have in the roles of Air Force defense counsel and Military Judges? If Air Force defense counsel and Military
Judges secretly harbor feelings such as his, who can Air Force members facing
allegations trust? And, where were his formal
complaints about the horrible “injustices” and “failures” in the military
justice system in the decades he served in the Air Force JAG Corps before the Wilkerson
case?
While the symbol of justice is a scale, there is no balance
in the public “debate” and narrative about the military justice system. Even the primary competing positions and bills
in Congress (incorrectly) accept that the military justice system is “broken,”
they just have different ideas about how to “fix” it. What they don’t give voice to in this debate
are the Constitutional rights and protections afforded to an accused military
member – who is also a “defender in need of protection.” What they don’t give voice to is the
possibility that allegations can be false and the importance of the presumption
of innocence. What they don’t give voice
to is the reality that they are not trying to make the
military justice fair, they are trying to ensure the outcomes are
one-sided in favor of the prosecution: anything
but fair. And now, Colonel
(Ret.) Christensen is joining the fight to attempt to change the military
justice system to ensure prosecution victory in military alleged rape and
sexual assault cases.
I wonder if Colonel (Ret.) Christensen sees the disconnect
in now publicly describing his victories as an Air Force defense counsel as
distasteful exercises of his defense counsel obligations? I suspect there are many in the defense
community, and former clients of his, who might now question his perspectives
on the obligations of a defense counsel.
Many, myself included, would argue that defense counsel obligations do
not include making inflammatory public statements like his about one’s defense
experience. I’m sure his former clients are
not very pleased to read that he believed them to be guilty “sexual predators,”
he felt defending them was distasteful, he wanted to whisper to their accusers
that he believed them, and acquittals he won were due to Colonel Christensen
fooling “ignorant jurors” and running roughshod over what he apparently
believed to be inferior military prosecutors and military judges. Wow.
In my experience as a defense counsel, we don’t make
public statements about personal beliefs that clients were guilty. In my experience as a defense counsel, we don’t
describe to newspapers that clients were “sexual predators.” Many, myself included, would argue that your obligations
as a defense counsel to your clients don’t end when you PCS or retire, and that
Colonel Christensen’s stated beliefs about what he sees as his obligations to
the military justice system as a member of POD are as skewed as his
understanding of defense counsel obligations to our clients.
And, many, myself included, would argue that the Constitution
Colonel (Ret.) Christensen and I swore an oath to uphold and defend when we
entered military service is a sacred document – including the provisions that
protect a criminal accused against the overwhelming power of the State and the
provisions that attempt to ensure fair criminal justice systems. After all, those rights protect all of
us.
In the high percentage of pre-Wilkerson sexual
assault cases in which meaningful clemency wasn’t granted, did Colonel (Ret.)
Christensen believe the military justice system was “broken?” I suspect not. Only in an outlier case in which meaningful clemency
was granted does he not only claim the system is broken, but that the military
justice system was “lost.” If that is
truly what he believes, then Colonel (Ret.) Christensen has lost all
perspective, which is a perfect fit for his new employer (POD).
A prime example of this loss of perspective is his apparent
insinuation that court-martial convening authorities select potential court
members based on a desire for the accused to be acquitted. While I don’t disagree that random selection
of potential court members in the military may be desirable goal, I strongly
disagree with the absurd insinuation of Colonel (Ret.) Christensen.
Colonel (Ret.) Christensen is clearly disgruntled and he
seems to relish the idea of being a “troublemaker.” We have no way to know what he means by his performance
report being “downgraded,” nor will we likely ever hear from his Air Force raters
about that. Since there were direct
congratulatory e-mails between TJAG Harding and Colonel Christensen after the Wilkerson
trial, it seems doubtful that Colonel Christensen’s performance report was “downgraded”
because of his prosecution of Lt Col Wilkerson.
Colonel (Ret.) Christensen’s narrative about this performance report
will likely be accepted by many as “fact,” but I would bet there is another
side to that story. There are many skewed
public narratives about the military justice system that are likewise accepted
as “fact,” even though there is another side to the story.
In the NY Times article, Colonel (Ret.) Christensen elects
to insult scores of Air Force JAGs by complaining that the Air Force attempted
to “punish” a JAG of his self-proclaimed skill and pedigree by attempting to
assign him to the appellate bench. The
article states:
"Christensen nearly laughed when he learned of this "promotion." The appellate court was widely understood to be the Air Force's dumping ground for JAG misfits."
In lieu of listing all the Air Force JAGs who have served
on the Air Force appellate court, I would simply state that Lt Gen (Ret.) Jack
Rives, the former Air Force Judge Advocate General, served on the Air Force appellate
court. Was he one of those “misfits?” I’m sure he will be very interested to read
Colonel Christensen’s view of the Air Force appellate bench. It’s apparently good enough for a TJAG, but
not good enough for Colonel Christensen.
Given his slanted view of the military justice system and himself, the Air
Force JAG Corps is fortunate that Colonel Christensen did not accept a position
on the Air Force Court. If he had, the
system might well have been “lost” after all.
Based on these newspaper articles, it is doubtful that
Colonel (Ret.) Christensen will ever develop a reasonable perspective regarding
the military justice system. And, he
will be one of many pushing what I would argue is an inaccurate public
narrative about the military justice system.
For anyone leaving the military justice system with a perspective like
Colonel (Ret.) Christensen’s I say “it’s past time for you to go.” A system is not broken and in need of change
just because a prosecutor disagrees with some case outcomes.
If it would do any good, I suggest Colonel (Ret.)
Christensen read and consider these articles/posts to gain some perspective:
Cathy
Young’s, slate.com article here:
USAF
Maj Matthew Burris’ paper:
USMC
Capt Lindsay Rodman’s (military rape/sexual assault statistics) article:
Attorney
Edward Greer (the 2% false rape allegation myth):
Philip
Rumney, of Sheffield Hallam University.
His article appears in the Cambridge Law Journal here (the 2% false rape
allegation myth):
Professor
Anne Hendershott, who teaches sociology and is the Director of the Veritas
Center for Ethics in Public Life at the Franciscan University of Steubenville,
Ohio. Her article appears in the
Washington Times, here:
Blog
post: http://militaryadvocate.blogspot.com/2014/03/civilian-court-martial-defense-lawyers_21.html
Roxanne
Jones, who is a founding editor of “ESPN The Magazine” and a former Vice
President at ESPN. She is a national lecturer on sports, entertainment and
women's topics and a recipient of the 2010 Woman of the Year award from Women
in Sports and Events. Her insightful CNN
editorial about false rape allegations generally can be found here:
Blog
post: http://militaryadvocate.blogspot.com/2014/02/civilian-court-martial-defense-lawyers_3.html
For more information about the
military justice system, particularly cases alleging rape and/or sexual
assault in violation of UCMJ Article 120, type “rape” or “sexual assault”
into the search bar above the blog posts.
Also, see:
We offer free consultations for a
case you may be involved in. Just call
us.
Thank
you.
By:
Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, P.C.
http://www.militaryadvocate.com
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, P.C.
http://www.militaryadvocate.com
Blog
postscript: Attorney Frank J. Spinner and I (attorney Richard V. Stevens) are
former active duty military lawyers (JAG). Our perspectives and advice,
therefore, are based upon our experience as military defense lawyers and as
civilian criminal defense lawyers practicing exclusively in the area of
military law and military justice. This blog addresses issues in military law,
military justice, military discipline, military defense, court-martial
practice, the Uniform Code of Military Justice (UCMJ) and other military and/or
legal topics. Nothing posted in this blog should be substituted for legal
advice in any particular case. If you seek legal advice for a particular case,
please contact The Law Offices of Richard V. Stevens and The Law Office of
Frank J. Spinner for a free consultation. These military defense law offices
are located in Northern Florida (Pensacola, Ft Walton, Destin, Eglin AFB,
Hurlburt Field, Duke Field, Panama City, Tyndall AFB areas) and Colorado
Springs, Colorado (FT Carson, Peterson AFB, Air Force Academy, Schriever AFB,
Cheyenne Mountain Air Force Station, Buckley AFB areas), but our military
defense law practices are worldwide – we travel to wherever our clients are
stationed or serving and need us.