Although the following concerns the military court system, it
touches on a broader issue common to all U.S. courts (except most
small claims courts and a few other narrow exceptions) - legal
practice by non-attorneys.
On March 24, 1995, the Court (3-2) granted an unopposed motion to
permit cadets at the U.S. Military Academy to file amicus briefs and
present oral argument in United States v. Ayala, No. 94-0369/AR,
which the Court later heard at the Academy. The cadets worked under
the supervision of Academy legal staff. Judge Crawford, joined by
Judge Gierke, dissented from the order and filed the following
"I agree that the students may file briefs before this Court because
attorneys supervised the briefs. However, I respectfully dissent from
allowing cadets to argue orally before the Court. I recognize that
the cadets have received training from the Law Department at the
United States Military Academy and will serve a unique role in the
military justice system when they are commissioned as officers. I am
also certain that the cadets will be well prepared, well supervised,
and conduct themselves with proper decorum before the Court. However,
that is not the issue.
"The Court did waive its rule to allow a third-year law student
certified under a state rule for practical training of law students
to argue as an amicus. United States v. Jefferson, 22 MJ 87 and 112
(CMA 1986). I believe, however, that it is unwise, inappropriate, and
unprecedented in this Court, as well as in any other federal court of
which I am aware, to permit undergraduate students to argue orally
before the Court. While the Court has encouraged involvement by law
school advocacy programs, see, e.g., United States v. Graf, 35 MJ 450
(CMA 1992), cert. denied, 114 S. Ct. 917 (1994); United States v.
Jacobs, 31 MJ 138, 145 n.1 (CMA 1990), cert. denied, 498 U.S.1088
(1991); United States v. Avila, 26 MJ 72 (CMA 1988), it has not
permitted undergraduates to argue.
"It is a laudable goal of Project Outreach to provide an educational
experience for the cadets and midshipmen of the service academies.
However, that goal must take a back seat to judicial standards and
the dignity and stature of the Court which are maintained for the
benefit of the appellant. We must be ever sensitive to the fact that
there is a fine line between the maintenance of these standards and
disintegration into a traveling road show' atmosphere when the Court
sits outside of our courthouse. I fear that by stretching our rules
to fit a specific audience in order to provide a teaching laboratory
at the United States Military Academy, the majority has set an ill-
advised precedent for the future. What criteria will the Court use in
considering similar motions from undergraduate students, murder
victims' representatives, or public interest groups that are involved
with the military justice system? Is the Court extending Project
Outreach too far?
"Finally, I place little stock in the lack of defense objection. In
my view the defense acquiescence carries little weight and signifies
only that they do not desire to antagonize the Court."
NIMJ query: If the dissenters have a point, why draw the line at oral
argument? Should the Court accept undergraduates' briefs? What if
those briefs turn out to be excellent?
From the 5/95 issue of the MILITARY JUSTICE GAZETTE Published by the
NATL INSTITUTE OF MILITARY JUSTICE
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