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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 opinion:
"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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