The courtroom in Fort Riley, Kansas, sits in the U.S. Army’s 3d Judicial Circuit. (Credit: Bethany Boutte, Fort Riley, Kansas)
No. 1
Conversations with the Last Five Chief Trial Judges of the Entire1 U.S. Army
Interviews by Colonel Fansu Ku
If you’re going to be a lawyer and just practice your profession,
well you have a skill, so you’re very much like a plumber; but if you
want to be a true professional, you will do something outside
yourself, something to repair tears in your community, something to
make life a little better for people less fortunate than you. That’s
what I think a meaningful life is—one lives not just for oneself, but
for one’s community.2
Each of the five Chief Trial Judges (CTJ) that I have had the privilege of working with in my two tours as a military judge is a true professional, just as Justice Ginsburg envisioned. Their reverence for the Trial Judiciary is uniform even if their individual judicial philosophies diverge. Most of all, they have exemplified The Judge Advocate General’s (JAG) Corps’s four constants in all that they do: Principled Counsel, Mastery of the Law, Stewardship, and Servant Leadership. Each have dedicated themselves to those they lead and believes that judges must maintain decisional independence, master their craft, and better our profession and Corps. I asked each of them the same questions—questions designed to capture what they chose to do with the opportunities they were given, and their advice for those who may seek to follow the same path. I thoroughly enjoyed my conversations with five giants of our Trial Judiciary and hope you take away insights for your own practice. Below is a brief summary of the career paths that led them to the Trial Judiciary, followed by their answers to my questions3:
Colonel (Retired) Stephen Henley (2006–2011)
Colonel Henley served as Trial Counsel, 2d Infantry Division, Camp Casey, Korea; Training Officer, Trial Counsel Assistance Program, Arlington, Virginia; Special Assistant U.S. Attorney, U.S. Attorney’s Office for the District of Columbia; Chief, Administrative Law, U.S. Military Academy, West Point, New York; Senior Defense Counsel, 2d Infantry Division, Camp Casey, Korea; Professor, Criminal Law Department, The Judge Advocate General’s Legal Center and School, Charlottesville, Virginia; Military Judge at Fort Hood, Texas, Mannheim, Germany, and Fort Bragg, North Carolina; and CTJ, Arlington, Virginia. He served as CTJ for over five years until he retired in 2011.
Colonel (Retired) Michael Hargis (2011–2014)
Colonel Hargis served as Trial Defense Counsel, 2d Armored Division, Fort Hood, Texas; Administrative Law Attorney, III Corps, Fort Hood, Texas; Chief, Military Justice, 6th Infantry Division (Light), Fort Wainwright, Alaska; Senior Defense Counsel, Fort Hood, Texas; Professor, Criminal Law Department, The Judge Advocate General’s Legal Center and School, Charlottesville, Virginia; Military Judge at Fort Drum, New York, Fort Carson, Colorado, and Fort Bliss, Texas; Staff Judge Advocate, the U.S. Army Special Forces Command (Airborne), Fort Bragg, North Carolina; Chief Circuit Judge at Fort Bliss and Kuwait/Afghanistan/Iraq; and CTJ, Fort Belvoir, Virginia. Judge Hargis served as CTJ for three years.
Colonel (Retired) Tara Osborn (2014–2017)
Colonel Osborn served as Chief, International Law, Deputy Officer-in-Charge, and Trial Counsel/Assistant S3 Operations Officer, 1st Armored Division, Germany, and Southwest Asia; Chief, Administrative Law, Military District of Washington; Litigation Attorney, Senior Litigation Attorney, and Chief of Military Personnel Branch at Litigation Division; Chief, Military Justice, III Corps, Fort Hood, Texas; Deputy Staff Judge Advocate and Staff Judge Advocate, 2d Infantry Division, Camp Red Cloud, Korea; Strategic Planner, Joint Staff, District of Columbia; Military Judge, Fort Stewart, Georgia; Chief Circuit Judge, Fort Bragg, North Carolina; and CTJ, Fort Belvoir, Virginia. Judge Osborn served as CTJ for three years.
Colonel Mark Bridges (2017–2019)
Colonel Bridges served as Trial Counsel and in other positions at Fort Stewart, Georgia; Appellate Attorney, Defense Appellate Division, Arlington, Virginia; Chief, Military Justice, Fort Bliss, Texas; Senior Defense Counsel, Hawaii; Defense Counsel, Office of Military Commissions, District of Columbia; Assistant Professor of Law, U.S. Military Academy, West Point, New York; Staff Judge Advocate, 25th Infantry Division, Schofield Barracks, Hawaii; Military Judge at Fort Carson, Colorado, Korea, and Hawaii; Chief Circuit Judge, Hawaii; and CTJ, Fort Belvoir, Virginia. Judge Bridges served as CTJ for two years.
Colonel Tim Hayes (2019–Present)
Colonel Hayes served as Administrative Law Attorney and Trial Counsel, Fort Sill, Oklahoma; Officer-in-Charge at Giessen Law Center, Germany; Chief of Operational Law, 1st Armored Division, Baghdad, Iraq; Senior Defense Counsel, Fort Hood, Texas; Deputy Staff Judge Advocate, Fort Sill, Oklahoma; Military Judge, Fort Hood, Texas, and Fort Bliss, Texas; Staff Judge Advocate, 2d Infantry Division, Camp Casey, Korea; Chief Circuit Judge, Joint Base Lewis-McChord; and CTJ, Fort Belvoir, Virginia. Judge Hayes has been serving as CTJ since 2019.
What was your vision for the Trial Judiciary when you became the CTJ?
Colonel (Retired) Stephen Henley
For Judge Henley, who is the only one in this group who had not served as a Chief Circuit Judge before becoming the CTJ, this job was not about one person, but what he could do for the entire Trial Judiciary. He was the CTJ for more than five years until he retired because he loved the job and what he could do for the institution. His vision was to leave the Trial Judiciary in a better place than when he came in. To that end, he wanted to maintain the Trial Judiciary’s reputation as fair and impartial, while ensuring decisional independence—the ability to rule as the judge sees fit without professional or personal consequences. Judges may err, but there is a judicial remedy that does not include commanders or staff judge advocates calling for the removal of a particular judge. As Chief Justice Roberts famously said, “[w]e do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”4
Similarly, in the military context, we do not have government judges or
defense judges; we have judges who are doing their level best to ensure
fairness of the proceedings. Judge Henley had to envision what the Trial
Judiciary was going to look like in five years and prepare people now to
take the bench.5 Part of that was to grow the bench with competent, qualified judges who could make the right decisions under pressure; recognized that they could not be the story; and knew that, if they became the story, they had lost control of the courtroom.
Colonel (Retired) Michael Hargis
When Judge Hargis took over from Judge Henley, he felt like the kid that had been given the key to the family car by his father; he had to make sure he did not wreck it. As he inherited a fabulous organization, he started by ensuring he did not break it. His vision later morphed to focus on the individual judges within the Trial Judiciary and the tools they needed to do their job effectively and well. He famously told Malcolm (Mac) Squires, Army Court of Criminal Appeals (ACCA) Clerk of Court, that his goal was to put ACCA out of business. While he recognized that eliminating mistakes was an impossible goal (he was dealing with people, and any organization dealing with people is going to make mistakes), he hoped to reduce them to the lowest number possible. To that end, he sought to have the judges embrace a trial philosophy of “fair, right, and once.” Institutionally, he thought it best to structure the Trial Judiciary into three equal tiers: 1) people who came into the Trial Judiciary for their three-year tour (allowing them to decide the Trial Judiciary was not for them, or for the Trial Judiciary to decide that the bench was not for them); 2) people who were good judges, but wanted to go do something else and then return at a later date; and 3) judges—some “returnees” from the second group—who are in the Trial Judiciary for the rest of their career. Judges in the last group are the backbone of the Trial Judiciary. In his view, it was absolutely vital that the Trial Judiciary have this one-third “greybeards” because these are the judges who could try anything and everything. Borrowing from a special operations “truth,” competent judges cannot be created after a capital or high profile case arises.
Colonel (Retired) Tara Osborn
When she became the CTJ in 2014, the Judiciary was (and still is) near and dear to Judge Osborn’s heart. By that time, she had served in the Judiciary for over seven years. In those seven years, she learned—as all the other judges did—that judging is first and foremost a human endeavor. Therefore, identifying and bringing in the right judges, training them, and putting them in the right places was critically important. She also believes in the Trial Judiciary as an institution and the importance of maintaining its proper role and independence; of preserving its integrity in its policies, day-to-day decisions, and commitments; and increasing the stature of the Trial Judiciary both within the Army JAG Corps and outside of the Army with sister Service judiciaries, civilian judge counterparts, and through community outreach with bar associations and academia.
Colonel Mark Bridges
“Fair and efficient” was Judge Bridges’s mantra. Fairness is non-negotiable. A judge must be fair, and appear fair, to litigants and the public. It is not about giving the parties what they want; instead, it’s about what the law requires based on the judge’s best understanding and the facts. Judges must render their decisions without fear of what may occur on appeal. Efficiency is equally critical to our court-martial practice. Part of a military judge’s responsibility is to get cases to trial as quickly as fairness demands. Military justice is designed to be swift and efficient to ensure good order and discipline. If court-martial practice is not efficient, commanders will find a different way to achieve good order and discipline.
Colonel Tim Hayes
“Independent but invested” is the vision that Judge Hayes has impressed upon the Trial Judiciary—you will see the motto printed on the Trial Judiciary’s newest coins. When he became the CTJ, the Trial Judiciary was just hitting its 50th anniversary mark. By this point, the Trial Judiciary had transformed itself from law officers appointed by the convening authority to an independent Trial Judiciary where judges answer only to other judges in their rating chain. There is freedom for judges to do what they think is appropriate within the law. Nonetheless, judges are still senior members of the firm—the JAG Corps. Judge Hayes wants to ensure that judges do not become so independent that they cease to appreciate their responsibility to steward our Corps. All members of the Corps have a responsibility to improve the profession and the Corps. Judges have a vested interest in ensuring that the counsel who appear before them improve. Better counsel become better supervisors and better staff judge advocates. He wants judges to be a presence in our greater communities and to look for opportunities to impartially mentor counsel, whether it is done in the form of bridging the gap, gateway sessions, or leader professional development programs. His core belief is that judges can maintain independence and still be invested in the people comprising the greater law firm that is the JAG Corps.
What was your proudest moment or accomplishment as the CTJ?
Colonel (Retired) Stephen Henley
After serving as the CTJ for more than five years, he left the Judiciary having selected more than three-quarters of those on the bench; none had been censured or removed.
Colonel (Retired) Michael Hargis
Similar to Judge Henley, Judge Hargis was most proud watching people he mentored take over and knowing that the organization he loves dearly is in good hands.
Colonel (Retired) Tara Osborn
From an institutional standpoint, Judge Osborn was most proud of securing authorizations for additional judges. With all the changes in military justice, cases were becoming increasingly more complex and requiring more time to litigate. Case numbers were not as high, but time spent in trials and motions practice had increased significantly. There was a resurgence in capital cases. Formalizing the authorizations on the Army’s books ensured the Trial Judiciary has a sufficient number of judges to “answer the docket,” is geographically available worldwide for timely justice, and is flexible enough to respond quickly to whatever contingencies arise. She was also proud of those moments when judges she trained tried their first case, tried it well, and came to her beaming with pride for what they had done. She was proud because she remembers that moment herself.
Colonel Mark Bridges
The transition into the Military Justice Act of 2016 defined Judge Bridges’s tenure as the CTJ. The transition was an intensive and time-consuming effort that took up most of his time and energy. Current and new judges had to be trained, especially the incoming judges who had to learn how to operate under two different systems. The Military Judges’ Benchbook6 also had to be completely revamped so that judges and counsel could navigate between the legacy system and the new system.
Colonel Tim Hayes
Judge Hayes knew he wanted to be a military judge since he was a freshman in college. He always remembers the moment when he was cold-called by Personnel, Plans, and Training Office (PPTO) and asked if he wanted to stay at Fort Hood for an additional year to be a judge. The answer was, of course, yes. As a CTJ, he was most proud of his ability to identify others whose dream and passion was also to be a judge and give them the same opportunity. Working hard to see deserving judges get promoted after joining the Trial Judiciary was the icing on the cake.
What was your favorite part about being the CTJ?
Colonel (Retired) Stephen Henley
Colonel (Retired) Henley’s favorite part was the opportunity to mentor and support the judges in the field so they could do their job. The responsibilities of a CTJ were challenging and could fill the entire day, but he believed that CTJs must also lead from the front and be willing and able to take the hard cases and not just be a manager. His goal was to travel to all the different installations to see how the Trial Judiciary is supporting the Army mission. He also treasured the relationship between judges and court reporters; they drive how judges view the job. Court reporters are a military judge’s best friend, or worst enemy, and are so important to the success of the military justice system in the Army. They become part of your family; he has missed that since retiring.
Colonel (Retired) Michael Hargis
He loved watching people succeed and recognizing them for their hard work. As a CTJ and judge, he strived every day to pay it forward by doing something for someone else, as others had done for him. He felt he could best make a difference by helping others improve and succeed.
Colonel (Retired) Tara Osborn
There is an art to judging and a way that judges think. She loved the judge’s mindset. She also loved seeing young judges develop that mindset, the direct impact that judges can have on people, and their opportunity to make weighty decisions and do what they think is right for the system and those in it.
Colonel Mark Bridges
His favorite part was planning and executing the Military Judge Course each year. It was always professionally and personally rewarding to bring a new crop of judges onto the bench. The professors in the Criminal Law Department at The Judge Advocate General’s Legal Center and School were fantastic. It was also rewarding because he got to work with and become friends with the CTJs from the other Services.
Colonel Tim Hayes
He enjoys being the person that gets to protect the autonomy of trial judges and resourcing them to succeed. When he is able to preside over cases, he especially enjoys seeing counsel improve. He described it as having a free ticket to the big game and the best seat in the house when presiding over a trial.
What was your toughest challenge as a CTJ?
Colonel (Retired) Stephen Henley
For him, the toughest challenge as CTJ was the responsibility of identifying the best people for the bench, which is also his advice to the next CTJ—find the best and get them on the bench. He had a really good working relationship with the Chief of PPTO and The Judge Advocate General (TJAG). He actively recruited people who the other senior leaders also wanted in their organization. His relationships with the Chief of PPTO and TJAG were crucial in making a case for why it was in the best interest of the Army for those individuals to come to the bench. If he waited for people to go to him, he would not be getting the best people—half of them might have really wanted to be a judge while others were simply choosing location. During his tenure as the CTJ, he felt that while he did not get everybody he wanted, he was never forced to take someone he did not want. He firmly believed that recruiting and retaining talent was how a CTJ could have a real impact on the Trial Judiciary and the JAG Corps.
Colonel (Retired) Michael Hargis
For Judge Hargis, the toughest challenge for a judge is sentencing. He frequently told his judges that if—at any point—they close the door for deliberations and think to themselves that this is easy, they should call him because that would mean it is time for them to find a new job. From a supervisory perspective, it was also tough to manage people—whether it was selecting people to be judges or managing people who were judges (with discipline being a subset of that management). Finally, as the CTJ, defending the Trial Judiciary from those who wanted to interfere with the institution was a challenge. It frustrated him that there were people who wanted to interfere with the institution he held dear, and he believed his job as the CTJ included strapping on the armor and stopping those interferences.
Colonel (Retired) Tara Osborn
Similar to Judge Hargis, Judge Osborn believes the toughest challenge for an individual judge is sentencing. The weight and responsibility of those decisions are enormous. She was reminded of one judge she knew who would visit a confinement facility every year as a concrete reminder of what a sentence to X amount of confinement truly means. The toughest challenges for her as the CTJ involved addressing allegations of judicial misconduct. No parent wants that complaint about one of their kids, and no CTJ wants that complaint about one of the Army’s judges. There is a lengthy process and framework in place to investigate and resolve these matters. The CTJ must follow the process, and deal with a host of issues—accountability, appropriate discipline, and guarding the institutional integrity of the court.
Colonel Mark Bridges
Once again, as with other CTJs, the toughest challenge for Judge Bridges was sentencing, as well as managing and identifying talent. The wide range of discretion in sentencing was a lot of weight on the judges’ shoulders in determining what an appropriate sentence should be. Like Judge Hargis, he would tell other judges that if sentencing ever becomes easy, look for a different job. Similarly, it was never easy managing judicial misconduct. It was bad for the institution and something no CTJ wants to encounter. Further echoing Judge Henley, maintaining an appropriate level of experience on the bench and recognizing that the JAG Corps might need the people he had requested to do other jobs was always a balancing act. The CTJ has to identify talent early and keep those people on the bench.
Colonel Tim Hayes
As with all CTJs, Judge Hayes hopes never to have to deal with judicial misconduct because it tarnishes the reputation of the institution. It is also extremely challenging when he has to have tough conversations with judges who do not have the judicial aptitude or temperament necessary for continued service on the bench. He further agreed with the other CTJs (and most judges) that sentencing is never easy, and it should never become comfortable. Judges should agonize over sentencing. And, of course, keeping courts open and safe during a pandemic has been a challenge. Training new judges remotely and not gathering for training has been less than ideal.
What was the strangest or funniest moment you have seen in the courtroom?
Colonel (Retired) Stephen Henley
When he was a judge, he enjoyed mentoring counsel and speaking openly with counsel during bridging the gap sessions about how they could improve their courtroom performance. After a series of guilty pleas, he remembers telling defense counsel during one such session that they should distinguish their clients during sentencing and try to show what makes their client unique to the Army at large. In the next series of trials, defense counsel accepted the advice and got creative. In one case where the accused was a cook, (from the bench) Judge Henley saw that there was something covered up at the counsel table, but he did not know what it was. During sentencing, defense counsel got up and said words to the effect of, “Your Honor, my client wants to show you something.” The accused had baked Judge Henley a cake and asked, “Can I cut you a slice, Your Honor?” Judge Henley then turned to the trial counsel and asked for his thoughts on how to memorialize the cake for the record and how to get the cake to Mr. Malcolm Squires at the Army Court of Criminal Appeals. Other unique presentations included a musician who played the trumpet; a computer specialist who wrote a computer program on how a company could track supplies; and, best of all, an original rap song from an aspiring rapper. These experiences were gratifying to him because it showed that counsel took what he said to heart.
Colonel (Retired) Michael Hargis
During a guilty plea to a kidnapping charge, the accused told Judge Hargis that “Brian” told him to do it. Naturally, Judge Hargis asked who Brian was. “Brian is my imaginary friend, Your Honor.” Judge Hargis prided himself on keeping a straight face during trial, but he is certain that his eyes got big at this. He turned to the accused’s civilian defense counsel and said, “I think we have a problem. Do you want a recess?” Civilian defense counsel got up and said, “Your Honor, this is the first time I’m hearing about Brian; so yes, we’d like a recess.”
Colonel (Retired) Tara Osborn
The strangest moment touches on one of her greatest concerns for the Trial Judiciary—courtroom security. During one of her first cases at Fort Stewart, Georgia, a fight broke out in the courtroom when the grandmother of the child victim started banging the accused over the head with her purse and yelled, “I told you never to touch her!” It taught her early on how quickly something can go wrong in the courtroom.
The funniest moment also occurred in one of her earliest cases when a Nigerian witness who, after he testified, stepped down from the witness stand and—as customary in his country when addressing the court—bowed and said to Judge Osborn, “Thank you, your Ladyship, your Excellency, my Lord.” During recess, the court reporter came back and said that the trial counsel, who was brand new, wanted to know if that is how he also should address Judge Osborn.
Colonel Mark Bridges
The strangest moment came during his very first court-martial as a trial counsel. During the sentencing proceeding of the guilty plea, the defense counsel put on evidence that the accused believed he was a vampire. The accused had made a coffin, which he kept in the basement and slept in. The accused also went to his dentist and requested that his teeth be sharpened. His dentist declined.
Colonel Tim Hayes
Two times, and in two different courtrooms, someone walked onto the bench from the judge’s entrance while the court was in session. One time it was a panel member and another time it was some random guy who wanted to pay his parking ticket or something. Needless to say, it is extremely disconcerting.
What was your most memorable case?
Colonel (Retired) Stephen Henley
Each of the 1,000-plus cases which he presided over were memorable because they were important for the practitioners, parties, witnesses, spectators, panel members, and victims. For most of the individuals involved, nothing was more unforgettable than that case on that day. He strived to treat all who appeared before him the same, regardless of rank, offense, or publicity.
Colonel (Retired) Michael Hargis
As a judge, each time he took the bench, he tried his utmost to do his job well; but several instances stood out. First, most judges like him do not know what happens once they have adjudged a sentence. In one case, the accused pled guilty to absence without leave while his unit was downrange. Based on the extenuation and mitigation evidence, he recommended suspension of the bad-conduct discharge and most of the confinement, on the condition that the accused return downrange and perform without incident. He found out later that the convening authority accepted his recommendation, the accused went downrange, performed without incident, and was subsequently promoted. In another instance, he had the father of an accused come up to him after the trial was over to thank him for taking the time to listen and give his son a fair trial. He took that to heart because, in his mind, there are few higher compliments to a judge than to be called “fair.”
Colonel (Retired) Tara Osborn
Each case is memorable in some way, and certainly for the accused and victims involved, it is very likely the most important or memorable occurrence in their lives. That is something a judge can never lose sight of. Personally, for Judge Osborn, it was the very first case she presided over. It was a misdemeanor case, and she can remember what it was about, who was in the courtroom, and everything about the proceedings. Also especially memorable were the capital cases she presided over. Anytime death is on the table, it is different. All the issues you might face in a case are magnified, more challenging, and take longer to resolve.
Colonel Mark Bridges
He typically forgets about a case two weeks after it is done. He, however, remembers a capital resentencing case he presided over for two reasons; first, there were so few capital cases in the military and second, its sheer complexity was unparalleled. The case took four weeks, and was the longest case he ever presided over. He also remembers the case because it was an Air Force case; and, even though the offense occurred more than a decade earlier, the emotions were still very raw.
Colonel Tim Hayes
As with Judge Hargis, Judge Hayes believes that every time you step on the bench, you can make a difference. It is why he wanted to be a judge—the ability to have a positive effect on someone’s life and the greater community. He remembers a case where the accused pled guilty to absence without leave. The accused presented compelling extenuation and mitigation evidence that led Judge Hayes to adjudge no punishment. He further recommended in writing to the convening authority that they not administratively separate the accused, but give him a medical discharge if necessary. The convening authority accepted his recommendation, and the unit treated the accused with an eye toward retention, even promoting him. While the accused was ultimately medically retired, this case demonstrated to Judge Hayes the human drama of every case, that everyone has a story, and there is no such thing as a simple case.
Is there a right path to the Trial Judiciary?
Colonel (Retired) Stephen Henley
No, and he would advise against anyone who plans out their entire career with that one goal in mind as they may be disappointed if they do not get it in the end. Those who are interested in the Trial Judiciary can certainly make their interests known, but should focus on doing what they like and like what they are doing. Go with your passion. If it is criminal law, so be it. For instance, he never planned his career with the Trial Judiciary or becoming the CTJ as the end goal. Half-jokingly, he was told that Judge Denise Vowell, his predecessor as the CTJ, had gathered all the Army trial judges at a joint training conference and told them that she was retiring in a couple of months and needed to submit a name to TJAG as her replacement. She said that anyone who does not want to be nominated should take a step back. Everybody stepped back but him, since he was presiding over a court-martial and not at the conference. Judge Vowell then called him later that day and said “Congratulations. The vote was unanimous!” The moral of the story is this: When the opportunity arises, be ready to accept it, but do not plan your entire career around it.
Colonel (Retired) Michael Hargis
Yes, there is a right path to the Trial Judiciary. When he was the CTJ, he looked for those with extensive military justice experience; and, while not a controlling factor, experience on both sides of the aisle. To him, experience on only one side may indicate a philosophical bent—in either direction—that he did not want judges to have. To him, it was also important that judges have experience on both sides so that they could understand, firsthand, how both sides operate. Most of all, he looked for those with a fire in their belly to be a judge—period, not judge only at a specific location. He wanted those who were 110 percent invested in being a judge because judges are not on the bench to win a popularity contest. They have to be able to make hard decisions based on the facts and law as best they can know it, even if those decisions are contrary to the prevailing wind.
Colonel (Retired) Tara Osborn
No, there is no right path to the Trial Judiciary. Cases are about real people, and not abstract legal theories. She therefore looked for those who had a broad array of experiences, personal and professional. From a professional standpoint, criminal law experience is key; but it is not the only professional experience that makes a good judge. Lawyers handling civil cases in our litigation divisions, for example, are consistently drafting and filing motions, operating under the rules of evidence and civil procedure, and appearing in federal court. They may very well be some of our best trial practitioners. For leadership jobs in the JAG Corps, it is important to understand Soldiers, commanders, and good order and discipline. From a personal standpoint, every experience broadens one’s perspective. We instruct panel members to evaluate the evidence using their knowledge of human nature and the ways of the world. That knowledge will be different if your life experiences are different. This diversity of experience and perspective enhances the legitimacy of the court. Good judges are those with uncompromising character and integrity, have an ability to make tough and often unpopular decisions, are fair-minded, can operate independently, and understand and reflect the military community the judiciary serves. Good judges want to be a judge for the right reasons—not for prestige or post-military employment prospects, nor as a consolation prize because they did not get their choice of assignment elsewhere. So yes, we are looking for judges with criminal law experience, but we are not looking for criminal law automatons—there is so much more to being a judge than that, and there is more than one pathway to get there.
Colonel Mark Bridges
Yes, there is a right path to the Trial Judiciary. Since military judges only deal with criminal law cases, judges need to be steeped in criminal law to be effective. More than any other job in the JAG Corps, the position of military judge requires technical expertise. When a judge is in the courtroom, they are a judge of one. Judging is not a team sport, and you really have to know what you are doing because you do not always have the time or ability to phone a friend. People who want to be judges should therefore look to get military justice jobs that get them into the courtroom. The trial advocacy piece is crucial. Judge Bridges preferred those with experience on both sides of the aisle, in addition to appellate experience. Basically, the more military justice experience you have, the more prepared you will be.
Colonel Tim Hayes
While there are differing schools of thought, the ideal path to the Trial Judiciary for him would be someone who has extensive criminal law experience on both sides of the aisle. He further prefers to bring a military justice practitioner to the bench early in their career as an O5 for one tour and send them back out for nonjudicial leadership assignments, with the possibility of returning to the bench for the remainder of their career. This way, people will get their first judicial experience early enough so that they can still be of use to our Corps and also the Trial Judiciary afterwards. We need O6s with experience to remain on the bench for sufficient periods of time to try the hard cases and train the newer judges, but that only happens when we start identifying them early.
Do you have any advice for those aspiring to be a judge?
Colonel (Retired) Stephen Henley
One, be prepared to live in isolation. Judging is a lonely existence which suited him since he is, by nature, more reserved. Judges must be cognizant of the concerns people would have if they became intimately involved with the local JAG Corps community. While judges can engage with people, they must always be conscious of the perception that they are favoring one side or the other. Two, while it is easy as a trial or defense counsel to be an advocate for one side or the other, as a military judge, you must be comfortable making quick decisions—then living with the consequences and taking the criticisms that come with making mistakes. All judges are eventually reversed. It is hard for some people to see their name in appellate decisions along with the words “plain error” and “abuse of discretion.” As a military judge, expect little thanks but much criticism.
Colonel (Retired) Michael Hargis
It is a hard job and a lonely one. While you can talk to other judges, no one is going to decide the case for you. This can be frightening for brand new judges, but judging should be hard. As mentioned before, he felt if a judge ever closed the door on sentencing deliberations and thought “this is an easy one,” that judge should ask for another job.
Colonel (Retired) Tara Osborn
Be prepared to work hard and shoulder the weight of making decisions that affect people’s lives every day. Being a judge was the hardest job she ever had. Because judging is ultimately a human endeavor, you should seek a broad and diverse array of experiences. Courtroom experience is important, but so is leadership experience. Similarly, criminal law experience is important, but so is experience in other disciplines that hone your trial and legal skills. As the CTJ, Colonel Osborn also thought it important that the Trial Judiciary reflects the diversity of the Army that it serves. If you want people to aspire to be on the bench, they must be able to look at the Trial Judiciary and see people who look like them, who share similar backgrounds, and to know that the pathway is open.
Colonel Mark Bridges
Get as many different assignments in the criminal law arena as you can, especially those that get you into the courtroom. Let the judges you appear before know that you are interested in the bench since the Trial Judiciary is always tracking people and their interest in joining the Trial Judiciary. It is also critical that you think about your approach to the jobs you have had and how they reflect on your temperament and ability to work with other people. The JAG Corps is a small place. You either know people or have heard of their reputation. If you have a scorched earth policy as an advocate, that will not do well for you. There is a way to advocate zealously for the side you are representing and yet be an easy person to work with. You should always think beyond the immediate case at bar. This is true of any job but especially important as a judge.
Colonel Tim Hayes
Besides getting experience on both sides of the aisle and letting your boss know of your desire to be a judge, seek out mentorship from a judge or judges. You should do this not just for a recommendation when the time comes, but for mentorship along the way as to which jobs to take, how to approach issues, et cetera. You cannot talk about current cases with the judge you appear before, but there is a lot of mentoring a judge can do that is not ex parte. This can be a continuing relationship as long as you are not regularly appearing before that judge.
Chief Trial Judge Colonel Timothy Hayes stands next to photos of the previous four Chief Trial Judges: Colonel Stephen Henley (upper left), Colonel Michael Hargis (upper right), Colonel Tara Osborn (lower left), and Colonel Mark Bridges (lower right). (Photo courtesy of author)
Do you have any advice for justice leaders?
Colonel (Retired) Stephen Henley
Remember that military justice is our Corps’s core mission. We cannot contract out military justice. When he started out in 1987, it was litigation and criminal law that were attracting the talent because you could make a career out of it. If we do not make military justice an attractive career field, we will end up with a group of transients who are simply checking the block before they go somewhere else.
Colonel (Retired) Michael Hargis
Train, train, and train some more. Be prepared, be prepared, and be prepared. Military justice is serious business and must be viewed that way. You must instill in people the sense to do what is right all the time. You are not there to win, but to do justice (for the government) and zealously represent your client within the boundaries of the law (for the defense). Do not play hide the ball; most judges do not tolerate gamesmanship. Understand that justice is a process, not a result. It is not about getting a conviction or an acquittal. As he was once told by his staff judge advocate: “Do a thorough investigation, complete preparation, and a professional presentation in court. If you have done those three things, I don’t care about the result because the result is just the system doing its job.” Because process is so important, do not force people into the courtroom. It is not good for the system, that person, or our Corps. Plug and play does not work for criminal law, and particularly for the Trial Judiciary, as expertise is crucial.
Colonel (Retired) Tara Osborn
Be aware that when you criticize a judge or the Judiciary, you create an environment and culture where that is acceptable. There are a number of negative consequences that can flow from that. It becomes a blame game and that is not healthy for the military justice system, or the integrity of the institution. Uphold the institution of the Trial Judiciary and our military justice system. Promote the institution by accepting, and respecting, your losses as well as your wins.
Colonel Mark Bridges
Train, train, and train some more. You have to train your counsel and do it on a weekly basis. Focus on evidentiary issues. Remember that you do not have to do it all yourself every week. You can designate your counsel for specific training each week. For instance, a counsel who just handled a DNA issue at trial can lead training on that topic. You must also go to court and see what your counsel are actually doing in the courtroom. If judges hold bridging the gap or other training sessions, you must attend. You must stay connected so you can experience what your counsel are going through. That is part of leading by example. Get in the courtroom and be an advocate yourself.
Colonel Tim Hayes
Develop a military justice philosophy and inculcate it in your team. Like the Trial Judiciary’s vision of independent but invested, you have to know where you want to go. Your counsel need to know what right looks like and what your expectations are. Justice is a process, not a result. If you focus on the process, the results will take care of themselves. Finally, train your counsel and observe them in court, and ask the judges to participate in your training program.
What is your advice to the next Chief Trial Judge?
Colonel (Retired) Stephen Henley
Get the right people to put on the robe and keep them there.
Colonel (Retired) Michael Hargis
It is a thankless job and you may not want to do it, but you must because the team is that important. The Trial Judiciary needs someone who is willing to be its cheerleader and defender. Recognize that you may not have time to do what you want to accomplish when you assume the position because you may be putting out brushfires constantly. Provide judges with the tools to do their job and stay ahead of changes to the legal landscape. Run interference with higher so that your judges can do their job. It may be unpleasant sometimes to have to do that, but you need to have the backbone to do it. You are not there to be liked. Being a CTJ is like being a parent; it is not for the faint of heart.
Colonel (Retired) Tara Osborn
She did not want to presume to give advice to the next CTJ—publicly, that is. But she makes the same offer that she suspects other CTJs have made: it is a relatively small group of judges who have held the CTJ job and understand its unique challenges and demands, so the next CTJ should always feel free to reach out and brainstorm with any of them. In fact, if she had to give advice, it would be just that—reach out for advice anytime needed. And remember that all of us who have held the job are hoping for your success, because your success is the Trial Judiciary’s success.
Colonel Mark Bridges
Do not get sucked into the D.C. vortex and lose focus and connection with the military judges in the field. The CTJ still needs to know what is going on in the courtroom. The position is not about you. You were advanced into the job to ensure the efficiency and independence of the Trial Judiciary. Try not to dictate too many policies on what the judges are supposed to do.
Colonel Tim Hayes
Run! If you cannot run away from the position, start scouting talent. Start talking to people who would make good judges and those who are good judges now. You need good people to come to the bench and stay. You should also find a confidant, somebody who understands what you are going through. This person can be a current judge or a former judge, in or outside of the Army. Be intentional about getting out to observe judges in trial, and talk to the leadership and train the counsel during those trips. It is more valuable and more enjoyable than anything you will do in your office, and we all know the Court Administrator runs the Trial Judiciary anyways—thanks, Carol!
Is there anything you would do differently?
Colonel (Retired) Stephen Henley
He had an opportunity when he was CTJ to reduce the size of the Trial Judiciary, but he did not. At the time, the thought process was to prepare for the next World War—If we went to war now, would we be able to run a justice shop? In hindsight, he should have reduced the size of the Trial Judiciary by half, both the active and reserve component. Judges need trials (not guilty pleas) to obtain and maintain proficiency, and we are trying fewer and fewer cases. Judges have to always think about handling objections and arguments, maintaining control of the courtroom, dealing with panel members, and handling the internal and external pressures that accompany any given case. With the opportunity of presiding over fewer and fewer cases, why would someone want to go into justice and stay there? We may also reach a point where we have regular cross-service justice because there are simply not enough cases across the Services. He never regretted his personnel decisions or trial decisions because you cannot live in the past. He, however, regretted not taking the opportunity to reduce the size of the Trial Judiciary in order to ensure judges’ long-term competency.
Colonel (Retired) Michael Hargis
When judges leave the Trial Judiciary, they are typically given a statue of lady justice. If he had to do it again—and this may sound insignificant, but to him it is important—he would hand them out when the judges graduate from the Military Judge Course, not at the end of their term as a judge. He would expect the judges to place the statue somewhere within eyesight of their desk, as a constant reminder that while a judge may be assigned to TJAG, a judge works for lady justice.
Colonel (Retired) Tara Osborn
She regrets not having done more to ensure courtroom and judicial security. There has been an alarming and disturbing increase in the number of threats and attacks on judges in the United States, and military judges are not immune simply because our courtrooms are on gated military installations. This applies to court reporters and court personnel too. We have not done enough and are woefully behind when compared with our civilian counterparts, and it is merely a matter of time before something truly tragic happens inside or outside the courtroom. The greatest security risks are often not in the high-profile cases, but in the more “routine” cases where emotions among the parties run high and day-to-day complacency among court personnel sets in. In addition to security technology and design, the Trial Judiciary needs greater awareness and a comprehensive security plan for all of its courtrooms.
Colonel Mark Bridges
He regretted not getting out to the field more to visit the judges or getting into the courtroom more. He had looked at his CTJ duties as 1) representing the Trial Judiciary on military justice policy issues, to include being advisor and liaison to the Office of The Judge Advocate General and TJAG; 2) the selection and training of new judges; and 3) revising the Military Judges’ Benchbook and the Rules of Practice Before Army Courts-Martial7—the policy documents judges live by. It is not enough for CTJs to rely on their chief circuit judges. Chief Trial Judges must get in the courtroom themselves. If a CTJ has been in the job for three years without being in the courtroom, they lose the ability to know what is going on in the courtroom. He said this having been warned by his predecessors about the dangers of getting caught up in his daily duties.
Colonel Tim Hayes
Get more sleep. He came to the job with a lot of ideas and recognized he only had a certain amount of time to implement them. If he has ten ideas, maybe only three are good, and only one gets implemented. But that beats doing nothing. Judge Hayes is pursuing initiatives that include providing clerk support to trial judges, the creation of magistrate judge positions to give junior judge advocates judicial opportunities, and increasing security measures in our courtrooms. He acknowledges he is still learning to flex the muscles of the job to see what he can do to improve the organization and looks forward to continuing to do that. He has been pleasantly surprised by the opportunities he has had thus far to make positive changes, and credits supportive JAG Corps leadership, great mentors, and a fantastic team of judges for making that possible. TAL
COL (Retired) Ku recently retired after 22 years in the U.S. Army as a judge advocate. She served as a military judge from 2011 to 2012 in the National Capital Region and then from 2017 to 2021 at Fort Bragg, North Carolina.
Notes
1. When Colonel (COL) (Retired) Stephen Henley was teaching evidence at The Judge Advocate General’s Legal Center and School, he used to joke with a fellow instructor—whose teaching portfolio included the 4th Amendment—that the 4th Amendment was effectively unnecessary in the military and that it would be best if that instructor’s platform time was reduced and his expanded; he still feels that way. That fellow instructor later rose through the ranks to become The 40th Judge Advocate General and took to calling COL Henley (and each of his successors) the Chief Trial Judge of the Entire U.S. Army (emphasis added).
2. Ruth Bader Ginsburg, Associate Justice, U.S. Sup. Ct., Stanford University Rathbun Lecture: On a Meaningful Life (Feb. 6, 2004).
3. While these answers are not verbatim, each judge had the opportunity to review and verify the contents of this article.
4. See Pete Williams & Associated Press, In Rare Rebuke, Chief Justice Roberts Slams Trump for Comment About
“Obama Judge,” NBC News, https://www.nbcnews.com/politics/supreme-court/rare-rebuke-chief-justice-roberts-slams-trump-comment-about-obama-n939016 (Nov. 21, 2018, 4:19 PM).
5. In 2008, Judge Henley created the Judicial Apprenticeship Program as part of his efforts to grow the bench. The author had the privilege of participating in this program from 2011 to 2012 before the program ended. This program was designed to increase the military justice experience level of judge advocates (JAs) so there would be a bigger pool of judicial candidates. It was a one-year program where select Army JAs first attended the Military Judge Course at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia. Upon graduating from the course, these JAs were certified as qualified to preside over courts-martial, including general courts-martial. These JAs then worked under the supervision of more senior military judges at various installations. At the end of the year, they were reassigned to a nonjudicial assignment and could apply at a later time for a regular tour in the Trial Judiciary, not as an apprentice. As they returned to field assignments after the apprenticeship, it was hoped and expected that they would share their experience on the bench with younger JAs and train them on how to become better trial advocates, thus increasing the pool of future judicial candidates.
6. U.S. Dep’t of Army, Pam. 27-9, Military Judges’ Benchbook (2020).
7. See Trial Judiciary, U.S. Dep’t of Army, Rules of Practice Before Army Courts-Martial (2020).