The seal of the U.S. Army Court of Criminal Appeals. (Photo courtesy of author)
Court Is Assembled
Assembling and Impaneling Tomorrow’s JAG Corps
By Colonel Timothy P. Hayes, Jr.
“The court is assembled.” A trial judge utters this legally significant phrase in every court-martial.1 At the most fundamental level, these words announce that all the necessary players are present and the proceeding can commence. These players include the attorneys and support personnel detailed to the court and the panel members who the convening authority selects. The Military Justice Act of 20162 introduced an additional term to the vernacular of the preliminary proceedings of a court-martial: impanelment.3 Impanelment signifies the selection of the members who will participate for the duration of the trial, after the vetting process known as voir dire.4
This exercise of detailing, selection, and assembly followed by voir dire and impanelment serves as a useful analogy for building the Judge Advocate General’s Corps of the future, which is the focus of this edition of The Army Lawyer. Assembling the necessary players through detailing and panel selection is analogous to recruiting new military legal professionals from the Army ranks and the civilian sector. Impaneling those who will remain for the duration of the proceedings is akin to our efforts to retain the most desirable members of the team, in any component, for as long as they are willing to serve.
So, what does that preliminary court-martial process look like? And how might it inform how we, as a regiment, go about the process of recruitment and retention? The vetting that occurs before assembly and impanelment is accomplished through panel member questionnaires and individual and group voir dire. These questions are carefully crafted, or should be, to ensure the best-qualified people serve on our court-martial panels. We ask about their experiences in the courtroom and in life. We want to know about their personal history, their standards, their biases, and their judgment. These can be difficult questions to ask and even more difficult to answer, but they serve a critical purpose.
The time and effort we expend detailing and selecting participants for a court-martial reflects the gravity of the task the participants are there to accomplish. We should put commensurate time and effort into recruiting and retaining the future members of our regiment. After all, the next recruit could end up serving upwards of thirty years in our ranks and serve in positions of immense responsibility, establishing policies that could change the course of our Corps. So, what are the questions we should be asking our future cohort to ensure the most consequential practice of law on Earth continues to be practiced by some of Earth’s most consequential people? I would like to offer what I believe are the most important questions we can ask about a potential recruit or a candidate for retention: what is their character, and are they committed to service?
In the past, we spoke so often of character, competence, and commitment that those words became a precursor to today’s four constants of our Corps: mastery of the law, principled counsel, stewardship of the profession, and servant leadership.5
As competence, to a large extent, can be taught—particularly to a person
of character and commitment—I recommend concentrating on character and
commitment. Conversely, character is formed over time through a variety
of sources and experiences and arguably cannot be taught, although it
can be modeled. Commitment is a resolve that is also forged over time
and is, I would argue, a byproduct of character traits such as
responsibility, dependability, and resiliency.
It would be hard to argue those traits—and other character traits such
as those embodied in the traditional Army values of loyalty, duty,
respect, selfless service, honor, integrity, and personal courage6—could be inculcated in a young judge advocate (JA) in the Officer
Basic Course. If they do not possess those traits, at least to some
degree, when they assess into the Corps, it is unlikely the traits will
suddenly spring forth over a few short weeks of training. Even if they
did, would those character traits be so ingrained in that young JA that,
when faced with adversity, they would have the fortitude to stand
against the tide?
Why are these character traits, and the commitment to honor them, so
vital to service in our Corps? I have always believed the answer lies in
the oath our recruits will swear to or affirm at the outset of their
career and at each of its significant milestones.7
While all Soldiers take an oath to defend the Constitution, no one
defends it more directly or impactfully than a JA. A JA defends the very
words and ideals of that most sacred document and ensures the rights of
the very people those words and ideals should most protect. To do this well requires character. To do this well over a prolonged period of time requires a commitment—a commitment to selfless service. Therefore, we must recruit people of character, and we must retain those who have shown that commitment to selfless service.
COL Hayes. (Photo courtesy of author)
While it may be easy for me to say as I am not the one trying to keep the trains running, I would rather have ten JAs of character and commitment than 100 who lack either or both. The great William Shakespeare strikes a similar chord in his play Henry the Fifth.8 With a little poetic license, I have adapted Shakespeare’s recounting of King Henry’s great St. Crispin’s Day speech on the eve of the Battle of Agincourt.9 My hope is it may inspire those who will continue to serve to recruit and retain people of character and commitment after I am gone. That is how our regiment will continue to be the one for which we have fought for so many years:
God’s will! The fewer men and women, the greater share of honor!
I pray thee, beloved Corps, wish not one man or woman more.
Be not covetous for a lieutenant’s silver bars.
Concern yourself not which other men or women might next my robes wear;
Such pedestrian concerns of faces and spaces are beneath us.
Faith, my regiment, wish not one more captain or colonel.
Rather proclaim it, throughout our Corps, that he who hath no stomach for this fight,
Let him depart; his DD214 shall be made, and separation pay if due put into his purse;
We would not serve in that man or woman’s company
Who prays for professional advantage, or a plum assignment, as condition to serve with us.
Let those be on their way, and remember them no more.
Rather, look left, right, and ahead,
At those committed to serve with you,
And those that will follow.
For those are the names that shall with me be remembered.
And a day shall ne’er go by,
From this day to the ending of my life,
But those names, living and dead, shall be remembered with me—
We few, we privileged few, we band of brothers.
Then-LTC Hayes instructing local junior high-school students, and perhaps future judge advocates, before presiding over their mock trial in Fort Bliss, TX, circa 2014. (Photo courtesy of author)
A few years ago, I came across a letter my wife’s grandfather received from the commanding general of Fort McCoy, Wisconsin. The letter was given to all Soldiers being processed out of the Service at Fort McCoy at the conclusion of World War II. I share with you just a few words from that letter that still resonate today:
Your generation will be called upon to guide our country’s destiny. The responsibility for leadership is yours . . . Make your voice heard, for honor and decency among men, for the rights of all people . . . The people of America are counting on you.10
As I look back on my career with pride and look forward to the next
generation’s achievements with expectation, I encourage each of you who
stand in the gap today to be committed to the character that led you to
become a member of the Judge Advocate General’s Corps. Furthermore, I
exhort each of you to embrace your role as an ambassador for our
regiment, to do everything within your power to ensure the person who
will one day take your place in the line when you fall, or when you fade
away as old Soldiers do, has every bit of the character and commitment
that you have brought to the fight every day of your career. As your
comrade-in-arms who has strived to do likewise, I salute each of you and
wish you Godspeed. TAL
COL Hayes is an Associate Judge on the Army Court of Criminal Appeals at Fort Belvoir, Virginia. He will retire from the Army in the spring of 2024.
Notes
1. For example, after assembly, substitution of the military judge or members may only occur for good cause and the accused may no longer request, or withdraw a request for, members. See UCMJ arts. 25, 29 (2022).
2. Military Justice Act of 2016, Pub. L. No. 114-328, § 5182, 130 Stat. 2000, 2899.
3. See UCMJ art. 29 (2022).
4. See Manual for Courts-Martial, United States, R.C.M. 912(d) discussion (2024).
5. The Judge Advoc. Gen.’s Corps, U.S. Army, Four Constants (n.d.), https://www.jagcnet.army.mil/Sites/JAGC.nsf/46DCA0CA1EE75266852586C5004A681F/$File/US%20Army%20JAG%20Corps%20Four%20Constants%20Smart%20Card.pdf.
6. The Army Values, U.S. Army, https://www.army.mil/values (last visited Jan. 9, 2024).
7. See 5 U.S.C. § 3331.
8. William Shakespeare, Henry V.
9. Id. act IV, sc. 3, l. 25.
10. Letter from Brigadier Gen. John K. Rice, Commanding Gen., Ft. McCoy, Wis., to Departing Service Members (1946) (on file with author).