Category Archives: The Judge Says

The Judge Says – Anyone for Brandy?

As you may have observed, one of the categories I have is entitled, “The Judge Says.”  This is the 14th such article I am publishing.  They are not new.  In fact, I wrote them for newspapers in the Fort Riley area back in the 1980s.  Unlike wine, they haven’t improved with age.  But, there was nothing like this form of communication back then and I think they are worth preserving.  So, here is the latest one I have dug out.

The Judge Says, January 23, 1981

Drugs are illegal in the military.  Recently the US Court of Military Appeals ruled that you better not get caught dealing in drugs on post or off post.  In both cases, the military courts have jurisdiction.   With the above in mind, it seems a little outrageous that a soldier would think that he had some right to hide his drug stash, and be able to use some legal mumbo jumbo to insure that he is not tried by court-martial.  Until recently, we were advising commanders that they could conduct their health and welfare inspections and seize all contraband; but we weren’t real sure whether we could get a conviction.  The commanders were frustrated and so were we.

On January 5, some very positive vibes came out of Washington.  In a case called US v. Middleton, the Court of Military Appeals supported the traditional military inspection, the right during that inspection to seize drugs and other contraband, and to use them in court against the suspect.  In the Middleton case, the company commander decided to conduct a health and welfare inspection of his unit. This decision was made about three weeks before the inspection.  He decided to use a little Brandy during the inspection.  This Brandy had four feet and a sensitive nose for sniffing out drugs (not to be confused with a brandy snifter).  The commander checked out the dog and the handler prior to the inspection and satisfied himself that they knew their stuff.

While this particular inspection did not include wall lockers (it could have), it did include the rest of the room.  While Brandy  was in Middleton’s room, she alerted on his wall locker.  The company commander was called and again, Brandy went through her search pattern and alerted on the wall locker.  Based on what the company commander observed and already knew about Brandy, he ordered a search and guess what?  Drugs were found.

The court held that the commander had probable cause to order the search of the locker.  Keep in mind that the reason there had to be probable cause was that the wall locker was not within the scope of the inspection.  Had Brandy alerted on an area within the scope of the inspection, the contraband could have just been seized without the need for a probable cause search.

It would be difficult to advise a commander to do everything just like Middleton’s commander did.  But the language of the court strongly supports health and welfare inspections which are set up at an earlier date (this doesn’t mean that the troops know about it).  Don’t wait until someone loses his stereo to decide to hold a health and welfare inspection.  The  judge will look through the decision and treat the “inspection” as an illegal search.

Written by PJ Rice at

Copyright 2014

The Judge Says – Help! I’ve Been Burgled!

I continue to go back and pick up articles I wrote when I was the Staff Judge Advocate at Fort Riley.  Even though they are over thirty years old, they still have some relevance (sometimes very little).

Help! I’ve Been Burgled
March 5, 1982

I’m going to give you a very quick course in Criminal Law 101. People are always saying they were robbed, when, in fact, they had something stolen from them when they weren’t even present.  Or, even worse, they will tell someone they have been robbed, when, in fact, they have been burgled (Help, Help, I’ve been burgled!).  On second thought, tell them you have been robbed.

The difference will become clear shortly.  The barracks thief who takes someone’s stereo and sells it is guilty of larceny (he wrongfully took someone’s property with an intent never to return it).  Now the thief who hocks the stereo and holds on to the pawn ticket will tell the court that he was going to get the stereo back on pay day and return it (Hee hee).  Thus, no intent to permanently deprive.  If he can convince the court, then he is only guilty of wrongful appropriation.

The rat who picks up a GI walking down JC Blvd. and takes his wallet at knife point is a robber.  A robber is someone who commits larceny by the threat of or use of force or violence.  The victim who is walking down JC Blvd. late at night is called a dummy, pigeon or mark (or all of the above).  “A fool and his money” – I forgot how it goes, but you get the picture.

The crook who breaks into someone’s home at night to commit certain crimes (such as larceny) is a burglar.  He burgles. (“Help, Help …”)  If it is not at night, or, no one lives in the building, then it is not burglary.  We call it housebreaking.

The only test to be given on the above material involves JC Blvd.  If anyone is walking alone at night on that road, they fail the course.

Written be PJ Rice at

The Judge Says – In Time of Crises

I wrote the below article shortly after President Reagan was shot back in 1981.  It brought back horrible memories to many of us and I felt the need to say something.

April 3, 1981

I’m going to try to say something serious (emphasis on the word “try”). It will probably be in the next paragraph because this one has already gotten out of hand.  Being serious is not easy for me.  However, I have had some difficulty in finding material since Mary Hartman, Mary Hartman went off the air.  But, as a young trial attorney, I found that saying something silly would confuse the other side, and the judge and sometimes the jury.  And when your client was observed committing the crime and then confessed, the only thing you have left on your side is a hope for confusion.

I took leave this week and was coming back from Herington, Kansas when KJCK interrupted its regular programming.  It announced that while the facts were still sketchy, it appeared that President Reagan had been shot. Those of us who lived through the 1963 President Kennedy ordeal surely relived horrible thoughts and memories.  That terrible, helpless feeling of again not knowing.  In the next few hours, the radio and TV announced everything from the President had not been hit, to the other extreme that the doctors were gearing up for open heart surgery.  Again, that helpless feeling of just not knowing.

At times like this there is a great desire to do something.  This just fuels the frustration, because it seems there is very little that any of us can do. But, at the same time, think about these things.

First, we are a constitutional government that will continue regardless of what tragedy occurs.

Second, in order to ensure that continuation, the United States must be strong.  This strength is transmitted to other nations in many ways, but probably the most significant is by our military power.

Lastly, we who wear the uniform of our nation have the ability on a daily basis, to do our utmost to make this great Army better.  Our military community, which includes the civilian work force and all family members, also has the ability to contribute.

So, when that helpless feeling starts gnawing, keep in mind that serving our nation at a time of crises is nothing to take lightly.  Everyday, your effort and energy is doing something toward making this nation’s Army a little bit better.

Written by PJ Rice at

The Judge Says – It’s the Little Things

“A little neglect may breed mischief:  For the want of a nail, the shoe was lost; for want of the shoe, the horse was lost; for want of a horse, the rider was lost;” and for want of the rider, the battle was lost.  That’s just a little something I thought up while I was sitting here.  And, if you believe that I have some beach-front property in Grandview Plaza that I’m trying to sell.

No, that was written back in the 1700’s by a man named Ibid (I never understood why he always italicized his name).  But the point old Ibid was making back then is still valid today.  Those little things that we do add up and are important.

Let me give you some examples.  How difficult is it to check the oil in a vehicle?  How difficult is it to make sure your property is locked up before you check out for the evening?  How difficult is it to treat the men and women around you with respect [back when I wrote this, there was no such verb as disrespected!].

You say, “Hey, those are easy.”  How about this?  How difficult is it to sew on a button or cut off some loose threads?  Are you getting the picture?  Most of the things we do in the Army are one step at a time.  All you’ve got to do is give it your best and you succeed and so does your unit.

When a sharp unit marches by the reviewing stand, there are no standout stars.  It’s every soldier giving that little extra to make the unit look good.  And it pays off.

Do me a favor.  Don’t walk by any trash on this post.  Pick it up and throw it away.  There are so many trash containers on Fort Riley that the next time you see some trash play this little game.  Pick it up and then, without moving, look around.  I guarantee you will see a trash container.  If you don’t, then you get to keep the trash!

Speaking of trash, we don’t need to talk any trash.  You know all kinds of animals make strange noises when they are trying to attract the opposite sex.  But there are noises and there are noises.  And, some of the trash that some of you guys are coming out with is only going to attract the military police.

It’s a crime here at Fort Riley to use indecent, insulting or obscene language to a female.  How difficult is it to treat the women around here with respect?  Here we go with those little things again. “Little strokes fell great oaks.”  Ibid.

Written by PJ Rice (with the help of Ibid) at

The Judge Says – Military Jurisdiction and Child Abuse

February 16, 1981

There comes a time in every soldier’s assignment where he can no longer say, “I’m sorry, I don’t know.  I haven’t been here very long.”  I usually try to use that excuse for the better part of a year.  But, as to this assignment, the excuse is long gone.

Shortly after I arrived here, certain concerned parents brought a very serious problem to my attention.  The problem was child abuse and the inability on Fort Riley to remove a battered child from the home.  It was believed that the state courts had no jurisdiction to act concerning matters on the post.  We could remove the family from the post and then let the state wait for another incident, but that was not acceptable.  The concerned parents explained to me that they expected my support, or they would have to assume that I beat my children.  Their argument was not logical, but extremely persuasive.  Seriously, it took some period of time before they could convince me that we even had a chance.

Eventually, we were all convinced we had a fighting chance of changing 30 years of Kansas law.  We solicited the help of Steve Opat, Geary County Attorney and his assistant, David Platt (they are the ones who would be carrying the workload burden).  Our sessions with them were fruitful.  We then jointly posed the question to the Attorney General of Kansas, Robert T. Stephan.

In an opinion dated January 16, 1981, Mr. Stephan gave us exactly what we wanted.  He concluded that when the Federal Government ignores an area of law (such as child abuse), then the state district court may “hear and adjudicate proceedings pursuant to the juvenile code, with respect to neglected, wayward or abused children, concerning incidents occurring on the Fort Riley Military Reservation.”

This little victory doesn’t solve the problem.  However, it does give us one more tool to use in combating child abuse.

Written by PJ Rice at

The Judge Says – Judge is a Short-timer

The United States Army is rich in tradition.  Among others, the change of command is particularly impressive.  All the troops standing on line and then marching in review.  By the time you place an entire brigade on line your eyes will be really, really big. 

Well, change of command requires a commander and we in the JAG Corps have very few.  The last time I checked, The Judge Advocate General, the Commandant of the School and the Chief of the Claims Office were our only commanders.  So staff judge advocates, in charge of offices on post had no change of command.  This led me to write the following article back in 1982 as I was getting ready to deploy for my next assignment.

Judge is a Short-timer  (April 9, 1982)

Guess what?  I’m a two-digit midget.  Yep, after three great years here at Fort Riley, I’m going to check out in the middle of July.

A couple of people have asked me if the Staff Judge Advocate has a change of command.  I’m not a commander, so that means no parade, no band and no little munchies afterwards.

Now when the Adjutant General moved on, he had a change of stewardship (whatever that means).  But, of course, he had the 1st AG company to stand tall.  Maybe my last official act here will be to submit a suggestion to the Suggestion Awards Program recommending the creation of the 1st JAG Company.

Just because we don’t command or know what stewardship means doesn’t mean we won’t have a ceremony.  At my last assignment (in the Puzzle Palace), each chief in our office used a different colored ink.  The division chief used green, the deputy used red and the branch chiefs used blue.  The actions officers wrote their draft opinions in black.  This was necessary when four attorneys were all correcting the same draft legal opinion.  You only had to know which ink outranked which.

A poorly drafted opinion would come back to the drafter looking like a Christmas tree.  Anyway, when I moved up from branch chief to deputy, the deputy bundled up all of his red government pens in a rubber band and presented them to me.  I was moved.

The ceremony we have planned here at Fort Riley will be held in our crowded little law library.  The entire office will attend, each bringing their own jelly donut in a small brown paper bag.  We have selected 200 Supreme Court cases.  The ceremony begins when I stand up and begin to read the first case.  I will continue reading case after case until I become exhausted and collapse.  At the time the new SJA takes over and it is done.  Then everyone can eat their jelly donut

I forgot to mention that I am entitled to receive assistance from members of my office.  While I am reading, should I begin to doze off, they can all rattle their paper bags to revive me.  Whether they actually will assist me may depend upon how hungry they are.

This column should satisfy even the hard to convince that I have never let the absence of quality nor the lack of a topic stand in the way of meeting a deadline.

Written by PJ Rice at

The Judge Says – Cutting a Deal

June 12, 1981

In 1969, Uncle Sam sent me to Chicago (Northwestern University) to further my education.  Not a great time for an Army major to be on a university campus.  I joined up with a bunch of graduate law students to take some courses that would prepare us to defend serious criminal law cases.  Our professor was Bill Martin (he was the lead prosecutor in the Richard Speck case).  Sure, you remember Speck.  He was the one who killed all the Filipino nurses in Chicago.  The jury was out for 32 minutes before coming in with a death sentence.  Anyway, for two hours credit each semester, we defended indigent (no money) clients from the Cook County jail.

One of the things I learned how to do was “deal a case” – to cop a plea, to squeal for a deal, to “plead to a lesser and walk” (you think the Army has buzz words).  What I am trying to say is that I learned how to enter into an agreement with the prosecution so that my client would plead guilty to something (my clients usually were guilty of something) and receive something in return.  Sometimes my client would receive a lesser sentence or, perhaps, probation.

The way it worked in the civilian world (or at least in Chicago) was that the court didn’t start until 10:00 AM, but the prosecutor would be there before nine.  Defense counsels would wait their turn to see him.  I would huddle with the prosecutor in a corner and I would tell him about my case and he would tell me what he had.  We would look at my client’s record and see if we could work out a deal.  If my client had previously been clean, I could usually work something out.  Then I go back to the cage (oh, I’m very sorry – back to the holding cell) and see what my client thought.  If he bought it we were golden because the judge went along with whatever the prosecutor recommended.  If he didn’t the system wouldn’t work.

Boy, I’ve taken a long time to get there.  What I have been getting ready to say for three long paragraphs is we do the same thing in the Army.  Only, I think we do it better.

First, why do we do it?  If a soldier knows he is guilty and knows the prosecutor has the goods on him, why shouldn’t he try to get something for a guilty plea?  On the other hand, it costs time and sometimes big bucks to prosecute a case.  If the Government can save time and money and still be assured a fair sentence for the crime, then what’s the harm?

Here are some of the safeguards the Army has built into the system.  First the offer must be submitted in writing by the accused and his counsel (no hashing it out in the corner of the room).  Second, it has to be approved by the general court-martial convening authority.  That’s the commanding general.  He will look over the offer and decide if it is fair to the Army.  Then, if all agree, the military judge will look the deal over during the trial.  But, he won’t just rubber stamp it.  The judge will satisfy himself that the accused is only pleading guilty to what he really did.  The judge will also make sure that the accused fully understands the terms of the agreement.  Only then will the judge accept the agreement.

So when you read somewhere that the accused pleaded guilty for no apparent reason, the answer most likely is that he had a deal.

Written by PJ Rice on

The Judge Says – Judge Seeks ‘Respect’

Below is another article written while I was the Staff Judge Advocate at Fort Riley, Kansas in the early 1980’s.

May 2, 1982.

Rodney Dangerfield (I wonder if that is his real name. I would never name a child Rodney) says he don’t get no respect.  The way he throws a bowling ball, he don’t deserve no respect.  If he thinks things are bad now, he should try being a JAG Officer.

I went over to the Officers Club last Friday night for Happy Hour.  The place was so empty there was an echo.  Come back.  There is no truth that there are MP’s roaming the halls with breathalyzers.

You don’t have to get drunk to have a good time and Friday night, after a long week, is a good time to relax.  They also have free chow on Friday night.  It’s a little overpriced, but the heartburn is also free.  You have to eat the meatballs with a toothpick, because the sauce had been dissolving the plastic forks.

Again, back to the plight of the poor JAG.  I’m standing in the chow line with my last two Tums clutched tightly in my left fist.  There are two officers in the front of the line and one of them has a black lunch pail.  After they fill up their plates and the pail, they head out of the club.  One officer in line said, “I didn’t know we were providing carry out.”  Then a lieutenant behind me in line announces in a loud voice, “they are probably JAGs.”

It didn’t take the lieutenant long to find out that they weren’t, but that I was.   I think he also lost his appetite.  The whole thing really gets me.  It was a cheap shot.  So, if we seem a little defensive at times, humor us.

Once in a while we do good work.  My legal assistance attorneys are really hotshots when it comes to protecting the consumer rights of our soldiers.  They have a zeal that is really exciting.

They found out about a gas station downtown which was charging $10 per bad check, plus $1 per day until the check is redeemed.  Now nobody wants the GI bouncing a bad check, but fair is fair and that ain’t.

One GI bounced three checks for a total of 28 bucks and he ended up paying $70 in service charges.  The Soldier didn’t have the money for the service charge so he had to wait till payday, and each day cost him another buck.

We took our best shot at the gas station trying to convince them to change their policy.  They seemed concerned and were willing to make some token offer in this one case, but they refused to change their policy.

So my legal assistance office has now brought in the horsepower of the Consumer Protection Division of the Attorney General’s Office.  And we have every reason to believe that the gas station policy will be struck down because it is unconscionable (that’s a fifty-cent word meaning it stinks).

Written by PJ Rice on

The Judge Says – Guest Writer for “Plain Talk”

Back in the early Eighties, along with being the Staff Judge Advocate at Fort Riley, I was writing weekly articles for the Post newspaper and the Junction City Daily Union.  It is amazing how much you are wanted if you work for free.  The Officers’ Wives Club was publishing a monthly paper called Plain Talk, and they asked me to contribute an article.  Below is the first article I wrote for them.  I wrote three articles for them before I was fired by the Commanding General’s wife because I was a male.  I was disappointed that it took her so long to figure that out.

                    PLAIN TALK      December 1981

                    The Judge Doesn’t Say

You want some plain talk?  Well you’ve come to the right person.  I used to fly on the DC-3 when they didn’t have the movies.  I talked all the time because the magazines made me sick.

OK, are you ready for some plane talk?  “The houses really look small.”  “My ears just popped.”  “They tell me my luggage will be on the next flight.”  “Your bottom cushion is also a floating device” (They have seen you at the pool).  “It’s really easy  once you take the little brown bag away from your face.”

I could go on, but you’ll have to trust me.  Nancy O’Malley asked me to talk about something you ladies were interested in.  So I told her I would talk about Burt Reynolds shaving off his mustache on the Johnny Carson Show.

That wasn’t what she wanted.  I suggested expanding into railroad talk (“the houses really are zipping by” and  “are you sure this is a dry state?”), and boat talk (“gee, all the houses on the shore seem to be bobbing up and down”).

Well, here I am smack in the middle of this thing and I still haven’t figured out what to say.  So I asked Carole to let me see the previous issues of Plain Talk.  She had them all neatly filed in a three-ring notebook.  Don’t you just hate people who are so well organized that all they do is act as a bad reminder?

Well, I looked through the first four issues.  PT is really a neat publication!  I would have been happier if I had not read the article on men’s fashions.  The only good news is that my threads may come back in style in five or ten years.

I got a little tired of seeing Ro smiling at me [she was the wives club president].  I don’t know if you noticed, but in each issue Ro’s picture gets a little smaller.  I think by March there will be nothing but teeth.

OK, that’s it.  Now you know I had nothing to say and I said it.  I think your paper is great and if I ever have a good thought, I’ll send it to PT.

Written by PJ Rice at

The Judge Says – This Racket is Really Tough

June 4, 1982

This journalism racket is really tough.  I had no idea that there was a grand scheme behind smacking print on paper. 

You know I’m a lawyer by profession and I’m doing what I always wanted to do.  After 19 years of plugging away, I am finally a Staff Judge Advocate here at Fort Riley.   I have 20 attorneys working for me.  And, that probably makes me the head of the largest law firm in Kansas.  But cracking the newspaper business is another game.

After I got to where I felt comfortable writing The Judge Says, I decided to branch out into Junction City’s finest, The Daily Union.  Each Tuesday, I would carry my little column down to the editor.  He would read it and then tell me it was too long or too short (no such problem with the Post paper).  Sometimes he would just ask me what in the world I was talking about..

Two weeks ago, I wrote about the Army’s silly name changing game (“recruits” are not called “trainees” so they can learn faster).  And when I came to a particularly meaningless change, I would insert in parentheses, “humma, humma.”  Later, I vented my concern for conservationism with a “humma, humma, humma.”

The editor was concerned whether all his reading public would understand humma, humma.  I advised that some would and those who didn’t probably wouldn’t lose any sleep over it. 

He thought it was inappropriate to use technical military terms such as humma, humma, in a civilian newspaper.  I explained that hassle was originally a military term which was now in common usage.  And early use of the term humma, humma would just give the Junction Citonians a leg up on the rest of the nation.

As I was leaving, I told him to do what he felt was best.  But, by the time I got home for lunch, I had the solution.  I called and told him if he would agree to leave the humma, hummus in, I would write the next weeks column explaining what humma, humma meant.  Then the editor became concerned about his reading public being confused for an entire week (tough and subtle racket).  I reassured him that anyone who reads my column expects to be a little confused.

Well, the humma, humma didn’t make it that week, but I still felt compelled to explain the term.  Hence, this column.  Then, to my total disbelief, I discovered that humma, humma was not in the Army dictionary (I found HUMRRO, which is a lot closer than I want to talk about).

So now I’ll just have to give you my definition.  But I’m uncertain whether humma, humma doesn’t have more than one meaning (like foot).  It may depend upon whether the accent is on the first or second humma.

I believe it means much to do about nothing.  The grand overplay of something insignificant.  My discussions with the editor would be a good example.  But the best example is this week’s column (humma, humma).