Lieutenant Colonel Gregory E. Maggs ’88: Questions for a JAG

Lieutenant Colonel Gregory E. Maggs ’88

Lieutenant Colonel Gregory E. Maggs ’88

Lieutenant Colonel Gregory E. Maggs ’88 is a reserve officer in the Army JAG Corps. He is senior associate dean for academic affairs and a professor of law at George Washington University Law School, specializing in commercial law, constitutional law, contracts, and counter-terrorism law.

A graduate of Harvard College and Harvard Law School, Maggs served as a law clerk for Judge Joseph T. Sneed of the U.S. Court of Appeals for the Ninth Circuit, and Justices Clarence Thomas and Anthony Kennedy of the Supreme Court.

His experience includes service as a special master for the U.S. Supreme Court, as a consultant to Independent counsel Kenneth Starr in the Whitewater Investigation, and as an assistant to Robert H. Bork in private practice and research. He has also taught at the University of Texas School of Law.

Recently, he came back to the HLS campus as a member of the three-judge panel in a U.S. Army Court of Criminal Appeals hearing. While he was here, he answered some questions about his career and about military law.

How did you become a judge?

Since graduating from HLS in 1988, I have had two concurrent legal careers: one civilian and one military. My civilian career has included clerking at the Ninth Circuit and the U.S. Supreme Court and teaching at the University of Texas and George Washington, where I am now the Senior Associate Dean for Academic Affairs.

My military career began 19 years ago when I joined the Army JAG Corps as a reserve officer. In this capacity, I have served a few weeks a year and a few days a month as a military lawyer. I have worked in a variety of positions: as a law clerk for military judges, a prosecutor before courts-martial, an appellate attorney, and so forth. I became a military judge in 2007 when the Judge Advocate General of the Army appointed me to be a reserve member of the U.S. Army Court of Criminal Appeals.

How many cases do you usually hear each year as a judge on the Army Court of Criminal Appeals?

The U.S. Army Court of Criminal Appeals currently has 11 active duty judges and three reserve judges. Sitting in panels of three, we decide more than 1,200 cases a year. Like other appellate courts, we decide most of these cases on the pleadings without oral argument.

A greater percentage of cases might be appealed in the military than in the civilian sector because military defendants have a limited right to appeal even if they have pleaded guilty. As a reserve judge, I typically work on about one or two cases per month.  In 2008, however, I was mobilized, and I served full-time on active duty at the court for seven months.

What are some of the most common issues you see brought up on appeal?

We see a full range of issues related to criminal law, criminal procedure, and evidence.  In every case, of course, we review the sufficiency of the government’s proof to sustain the conviction.

Are there any key constitutional issues where military law differs significantly from civilian law?  For example, are search and seizure standards less stringent?

An oft-repeated myth is that citizens lose their constitutional rights when they put on our Nation’s uniform. In fact, members of the military retain most of their constitutional rights when tried by court-martial, including the right to counsel, the right to exclusion of evidence obtained in violation of the 4th and 5th amendment, the freedom from self-incrimination, double jeopardy, cruel and unusual punishments, and so forth.

There are, however, subtle differences given the necessity to perform immediate military duties. Soldiers are, for example, subject to inspection which typically has no civilian equivalent, and they are limited in certain political activities while in uniform. Other differences include conviction by 2/3 majority of a jury and juries not selected at random. Most observers consider courts-martial to be very fair proceedings.

How about sentencing—are penalties the same in the military and civilian systems?

Courts-martial do not follow the federal sentencing guidelines. Instead, like most state courts, they have discretion to impose sentences within a specified maximum range based on the offense. My impression is that sentences imposed are not on average significantly different from sentences imposed in civilian courts for comparable offenses.

Jurisdictional issues can sometimes be thorny between military courts and federal courts. How are those issues resolved?

A single criminal act by a member of the military—such as distributing illegal drugs—may violate military law, civilian federal law, and state law. As a result, prosecution by multiple jurisdictions is theoretically possible. But in practice, this possibility is rarely a problem because there is a great deal of cooperation between federal and state authorities and their military counterparts.

The appeal heard at HLS involved huge sums of money and large quantities of drugs. Is it unusual for a case of that kind to be prosecuted by the military instead of a U.S. attorney’s office?

I do not think that it was surprising that the case argued at HLS stayed in the military court system, even despite the large amount of drugs and money involved. The military courts are capable of handling complex litigation, and often do. Just by way of example, there are numerous capital cases at various states within the Army today. Moreover, the Department of Justice and the Department of Defense have a longstanding memorandum of understanding which announces a preference for trying service members in courts-martial. The military also has close relationships with state prosecutors in neighboring jurisdictions where interests and equities are matters of daily coordination.

What are some of the most memorable cases you’ve heard?

As a judge, I don’t wish to single out individual cases. Naturally, I try to give full and equal attention to all matters that come before me. That said, cases involving the worst crimes, such as murder, are the most memorable because fortunately, they are fairly rare in the military.