June 2008
Could I Handle the Truth? My First Job as a Lawyer in the Marine Corps
by Michael J. Bond
In a gentler era, we were known as “attorneys and counselors.” But when I graduated from law school at Gonzaga University in 1978, I don’t recall having spent any class time learning about the counseling part of the profession. I quickly learned all about it, though, in my first job as a lawyer: as a judge advocate with the United States Marine Corps. My first clients were young, scared recruits with second thoughts about their enlistment. In working with them, I discovered that while winning a big case is great fun, helping people navigate life’s troubles can be even more rewarding. I later moved to the prosecution side and learned another important lesson. I once found myself embroiled in an ethically challenging case, eerily similar to the one portrayed in the Jack Nicholson/Tom Cruise movie A Few Good Men. From that experience I learned that the appearance of justice is as important as justice itself. Let me explain.
In the summer of 1975, I completed Marine Corps Officer Candidate School (OCS). I started law school at Gonzaga that fall. The Marines are unique among the services in that all officers, regardless of their jobs, are required to complete the 10-week OCS and then six months of The Basic School before completing the schooling for their particular assignments. All Marine officers go through the same basic training, whether they will go into the combat arms, fly jets or helicopters, or practice law. During the summer breaks from law school at Gonzaga, I went on active duty and worked in the legal office at the 3rd Marine Air Wing Air Base at El Toro, California. I recall that my tenure there began with a humbling experience.
When I reported for duty at El Toro the first time, I had no uniforms because I had not yet gone through The Basic School. Accordingly, I wore a regular civilian business suit. The Orders to report for duty always say simply, “Report to the Commanding General.” Unaware of the proper protocol, I drove through the gate at El Toro, found my way to a building with a sign out front that said “Commanding General,” and parked my car. I walked down the hallways with a certain determination until I saw a door marked “Commanding General” and walked right in. In the office, working at his desk, I found a ramrod-straight guy with a grey flat-top haircut and a bronze, weathered face featuring sparkling blue eyes and a chiseled chin. He wore a stack of ribbons on his chest that reached to his shoulder, and two gleaming stars perched on his shirt lapels. He seemed a bit startled when I burst in the door. But, fearing nothing, I walked up to the front of his desk and in my best parade-ground voice said, “Lieutenant Bond, reporting for duty, Sir!”
The General seemed a little amused by this apparition that had suddenly appeared in his office through a door that was never used. After inquiring into exactly who I was and what I was doing there, he hollered for the first sergeant to come take care of me. Outside, the first sergeant took me aside and gently told me that the next time it would be better if I would just come through the front door to the front desk and check in with the corporal. Meanwhile, it would be a good idea if I were to visit the supply building, as soon as possible, and purchase some uniforms, too, Sir!
No worse for wear, I continued my Marine Corps and legal studies. After graduating from law school and passing the bar exam, my wife, Marianne, and I left Spokane and moved East, where I completed about eight months of training at The Basic School at Quantico, Virginia, and the Naval Justice School at Newport, Rhode Island. We then reported for duty at the Marine Corps Recruit Depot in San Diego, California. This is one of two Marine Corps boot camps where young men are trained to become enlisted Marines; the other boot camp is at Parris Island, South Carolina, where women are also trained to become Marines.
At that point in my budding career as a Marine Corps lawyer I was, as we learned to say at OCS, a highly motivated, high-stepping, highly educated, hard-charging soldier of the sea. And if that weren’t enough, I was also a full-fledged lawyer eager to get my first client out of a jam.
I was armed with the Uniform Code of Military Justice (UCMJ), which sets forth the substantive and procedural law that applies to all service members. Notably, the United States Supreme Court cited the UCMJ in the Miranda1 decision when the Court adopted the rights of those accused of crimes to be informed about the right to remain silent. Many argue today that the panoply of rights and procedures under the UCMJ are more than adequate to address the handling of the detainees now held at Guantanamo, Cuba.
In my day, when a Marine was charged with a minor offense that his company commander would deal with, the Marine had a right to consult counsel before the commander could hold what was called a “non-judicial punishment” hearing. And it seemed that the only Marines who ever exercised that right at Marine Corps Recruit Depot (MCRD) were recruits. These were young men who decided — shortly after getting off the bus after flying all night from a small town, getting a very short haircut, and receiving the first seriously loud yelling-at — that they had made a really big mistake and would just as soon go back home. But they signed a contract, the government spent a little money on them so far, and it wasn’t as easy as raising your hand and saying, “Excuse me, Sir. Can I go home now?”
I was always intrigued by the difference in training philosophy between the officers and enlisted. From the minute we got off the bus at OCS, our drill instructors were in our faces challenging us to go home just as soon as we asked — they called it “drop on request,” or DOR. It seemed like an effective way to challenge a young man to reach a little higher in life and not take the easy way out. After all, who wants to be a quitter? But, for reasons I hope are well thought out, the enlisted recruits were never given an easy way out.
So these kids who had second thoughts about joining the Marines would create some disturbance or be disrespectful or try to get in trouble, and they would be charged with a minor crime under the UCMJ. My father, who was a Marine Corps officer, too, and once the executive officer of the Marine Barracks at the U.S. Naval Brig at Yokosuka, Japan, told me that, in his day, they referred to the UCMJ as the Uniform Coddling of Military Juveniles. But, thanks to some enlightened thinking, in my era they got a free lawyer before they were convicted and punished.
In the first few weeks of my first real job as a lawyer at San Diego, I would come to work in the morning and find six to 10 freshly shorn young men lined up outside the door to my office waiting to see “their lawyer.” They had been charged with crimes and wanted to consult with counsel about their legal rights before submitting to non-judicial punishment. I would bring them in one at time, sit them down, and try to listen — through torrents of tears — to their tales of woe. It seems like every one of these big and strong guys (and a few little and weak ones, but every one a tough guy) would just cry their eyes out, begging me to do something to help them get home. Instead of doing any real legal work, I was a camp counselor and psychologist who provided a place of refuge where, in as calm and unthreatening a voice as I could muster, I would try to reassure them that it wasn’t so bad, there was a reason why they wanted to join, and in a few months they would be glad they stuck it out. All the legal rights in the world were of no use, the rules of evidence and procedure did not apply, and I knew that more yelling wasn’t going to be productive. These kids did not need an attorney, they needed a coach; they needed encouragement, not more criticism, and more often than not, it worked.
After I broke in as camp counselor, the boss began to give me some trial work, almost all of which involved allegations that a drill instructor had abused a recruit. For a defense attorney, a drill instructor is one of the best possible clients, because he is carefully selected for the job with a stellar career up to that point and commendations from high-ranking officers and meritorious promotions along the way. The UCMJ provides for a right to a jury trial with peremptory challenges and challenges for cause, and an enlisted man has a right to have one-third of the jury consist of enlisted men and women. The enlisted jury pool were mostly current and former drill instructors who were not inclined to lightly vote guilty. It took the vote of two-thirds of the members to convict and, if you worked your challenges just right, you’d get a jury in which the vote of at least one of the former drill instructors was necessary. I won my first few cases as a defense lawyer and mistakenly believed it had something to do with my Clarence Darrow-like oratory.
The boss then moved me over to the prosecution and, if you’ve seen the movie, A Few Good Men, I had the job of prosecutor as played by Kevin Bacon in my last year of service. In fact, I had a case very similar to the one portrayed in the movie, and that is how I learned about the importance of the appearance of justice.
In United States v. Sergeant Thomas Peters,2 a platoon drill instructor was charged with battery at a General Court Martial. He had ordered two of his recruits to “straighten out” another recruit who was caught with chocolate cake from the mess hall in his foot locker. One of these accomplices was a Golden Gloves boxer, and he punched the chocolate-cake culprit once in the belly, rupturing the kid’s spleen.
The injured young man survived, but this was a serious problem and it had the attention of the commanding officers all the way to the top. Although a senior officer did not commit suicide as in the movie, the Marine commandant paid us a visit the day before the trial began and spoke to all the officers and non-commissioned officers about recruit abuse. General Barrow was not a Colonel Jessup/Jack Nicholson character. But he was the most senior Marine, a four-star general, and he was speaking to the jury pool, which made for a very interesting jury selection on the first day of trial the next day.
It is a crime under the UCMJ for a commanding officer to seek to influence the decisions of a jury, and the defense attorneys immediately filed piles of motions seeking a dismissal of the charges or change of venue, arguing, not unreasonably, that General Barrow had tainted the entire jury pool. The trial judge denied all the motions, but he allowed individual voir dire, and we brought each of the prospective jurors in for questioning about what appeared to be unlawful command influence. Every one of them said: “Yes, Sir, I was there and I recall General Barrow told us about drill instructors who were disloyal stupid cowards, and I especially recall that he said a drill instructor who used a recruit to abuse another recruit was a super-coward and how he wanted none of those in his Marine Corps; and no, Sir, it will have no impact on my decision here.”
Sergeant Peters, in fact, committed a serious crime. Like the desperado who in our criminal law casebook recklessly shot at a passing train and killed a passenger, he set in motion a force likely to commit grievous bodily injury. But he was no desperado; the opposite was true, and he took the stand and testified all about what was a serious error of judgment. He was convicted of battery, reduced in rank to private, dishonorably discharged, and sentenced to a year in prison at the federal penitentiary at Fort Leavenworth; and it’s not a win that I brag about.
As lawyers, we know all about rules of law and procedure, case scheduling orders, and the other mechanics of justice, but sometimes the appearance of justice is just as important.
Michael J. Bond graduated from Gonzaga University School of Law in 1978, completed an LL.M. in Sustainable International Development at the University of Washington School of Law in 2004, and has practiced in Seattle since 1982. Since 1997, he has been one of the partners in Gardner Bond Trabolsi PLLC.
NOTES
1. Miranda v. Arizona, 384 U.S. 436, 489 (1966).
2. I’ve changed his name because it happened a long time ago.
