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Saturday, November 29, 2014

CIVILIAN COURT-MARTIAL DEFENSE LAWYERS: Response to Parting Comments of Retired Air Force Chief Prosecutor, Colonel (Ret.) Don Christensen

(*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, 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:

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:

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.

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.

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