Stacked Deck: How the U.S. Military Justice System Favors Prosecutors

An American Service Member when accused of a crime is surrounded by the system.

Important Disclaimer: Please be aware that the information presented in this blog post is intended for general informational purposes only and should not be construed as legal advice. While we aim to provide valuable resources for military justice attorneys and the public, no blog post can replace personalized legal counsel from a qualified attorney. If you are experiencing legal issues or need specific guidance, we strongly encourage you to consult a legal professional who can address your circumstances.

In the pursuit of justice, fairness and balance are paramount. Yet, as recent cases and official reports highlight, the U.S. military justice system appears fundamentally tilted in favor of prosecutors, leaving accused service members at the mercy of a system that often denies them adequate defense. The case of Specialist Roy A. Wordlaw is a troubling example of this imbalance, where systemic flaws and defense inexperience severely affected the outcome. Combined with findings from a comprehensive 2024 GAO report on military justice, it becomes clear that reform is urgently needed to restore fairness to the system.

A System Designed for Prosecutorial Advantage

The military justice system relies on judge advocates—military attorneys—to handle cases as both prosecutors and defense counsel. However, the structure and culture of the military justice system have long prioritized the training, resources, and career development of prosecutors, leaving defense counsel undertrained, unsupported, and, in many cases, inexperienced. This disparity is not just an oversight but a systemic issue that undermines the very foundation of justice in military courts.

The 2024 GAO report on military justice reforms found that the Department of Defense (DOD) has made slow progress in addressing these issues. Despite implementing new career paths for litigators and establishing the Office of Special Trial Counsel (OSTC) to handle serious cases like sexual assault, the reforms have failed to achieve their intended goal: increasing the competence and experience of both prosecutors and defense counsel. According to the GAO, the lack of tailored experience standards, insufficient oversight, and inadequate training structures have perpetuated the inexperience of defense counsel, particularly compared to their prosecutorial counterparts.

The Wordlaw Case: A Stark Example of Defense Failures

The consequences of this systemic imbalance are tragically illustrated in the case of Specialist Roy A. Wordlaw. Convicted of sexual assault and battery, Wordlaw’s trial revealed glaring deficiencies in his defense counsel’s preparation and strategy, ultimately resulting in a 10-year sentence and a dishonorable discharge. According to the memorandum opinion from the U.S. Army Court of Criminal Appeals, Wordlaw’s defense team failed to take several critical steps that could have significantly impacted the trial’s outcome:

1. Failure to File Key Motions: Despite having access to evidence of prior consensual sexual activity between Wordlaw and the alleged victim, the defense failed to file a motion under Military Rule of Evidence (MRE) 412 to introduce this evidence. Such a motion could have supported a defense of consent or mistake of fact as to consent, yet the defense team erroneously believed it was unnecessary.

2. Lack of Expert Testimony: The defense did not seek assistance from toxicologists or psychologists who could have testified about the effects of alcohol on memory and behavior. This could have introduced reasonable doubt about the alleged victim’s recollection of events, yet the defense team opted not to pursue this avenue.

3. Poor Cross-Examination Strategy: During cross-examination, the defense counsel failed to challenge the alleged victim’s testimony effectively. Instead, their questioning often bolstered the prosecution’s case, as they were unprepared to counter the government’s expert witnesses or introduce alternative narratives.

4. Missed Opportunities: The defense also failed to present key text messages and other evidence that could have contextualized the events of the night in question. This rendered their argument of consent or mistaken belief in consent weak and unconvincing.

The appellate court ultimately found that these failures constituted ineffective assistance of counsel, significantly undermining Wordlaw’s ability to present a complete defense. While the appellate court granted partial relief by ordering a rehearing on the sentence, the damage caused by the defense’s inexperience was undeniable.

The Broader Implications: A Justice System in Crisis

Wordlaw’s case is not an isolated incident. The GAO report sheds light on the systemic issues that contribute to such outcomes, including:

1. Lack of Experience Standards for Defense Counsel: Unlike prosecutors, who are often required to meet specific experience thresholds, defense counsel are frequently assigned to cases without sufficient litigation experience. This disparity is particularly concerning in cases involving serious offenses like sexual assault, where the stakes are highest.

2. Insufficient Training and Resources: Defense counsel often lack access to the same training programs, expert witnesses, and investigative resources as prosecutors. The GAO found that while prosecutors benefit from specialized training and dedicated career paths, defense counsel are left to learn on the job, often at the expense of their clients.

3. Cultural Barriers to Reform: The military services have historically emphasized the development of “generalist” judge advocates who can handle a range of legal issues, rather than specialized litigators. This culture has hindered efforts to professionalize military justice roles and ensure equal competence on both sides of the courtroom.

4. Ineffective Use of Personnel: The GAO also found that military litigators are often burdened with collateral duties, such as administrative tasks and non-legal responsibilities, that detract from their ability to focus on case preparation and trial advocacy.

The Cost of Inaction

The consequences of these systemic failures are profound. For accused service members like Specialist Wordlaw, the imbalance in the military justice system can mean the difference between freedom and incarceration, between honor and dishonor. The GAO report warns that without significant reforms, the military justice system will continue to fall short of its mission to provide fair and impartial trials.

The Path Forward: Recommendations for Reform

To address these issues, the GAO has made several recommendations, including:

1. Establishing Tailored Experience Standards: The military services must assess the need for specific experience requirements for defense counsel and other key litigation positions to ensure that competent attorneys represent accused service members.

2. Improving Training and Resources: Defense counsel should have access to the same level of specialized training, expert witnesses, and investigative resources as prosecutors.

3. Reducing Administrative Burdens: Litigators should be relieved of non-legal duties to focus entirely on their responsibilities in the courtroom.

4. Tracking and Evaluating Career Path Effectiveness: The services must collect data on litigator retention rates, experience levels, and career progression to evaluate the success of their military justice reforms.

5. Ensuring Equal Representation on Promotion Boards: Promotion boards should include individuals with significant litigation experience to ensure that military justice career paths are valued and supported.

Conclusion: A Call to Restore Balance

The case of Specialist Roy A. Wordlaw and the findings of the 2024 GAO report expose a military justice system that is fundamentally unbalanced and, in some instances, unjust. While the prosecution enjoys significant advantages in terms of experience, training, and resources, defense counsel often finds themselves fighting an uphill battle. This disparity not only undermines the rights of accused service members but also erodes trust in the military justice system.

Restoring balance will require a concerted effort from military leadership, Congress, and advocates for justice to implement the GAO’s recommendations and ensure that every service member—whether accused or accuser—receives a fair trial. Until then, the scales of military justice will remain tilted, and cases like Wordlaw’s will continue to highlight the devastating consequences of inaction.