In a recent interview of a (rather hostile) government witness, she asked me, “Are you even human?” My immediate reply was, “Yes, I am. Now will you please answer my question.”
I believe this is the first time I have been asked a direct question on my humanity, though I know it is doubtless not the first time someone uttered those words behind my “back” or at least thought it. [Note: the usual question is “how can you possibly defend those criminals?”]
This witness questioned whether or not I am human in this eleventh hour interview (mid hearing) after my office had contacted her no less than three times to request an interview, and she had refused. I sent an email to the government counsel asking that they take any steps they could to encourage the witness to submit to interview prior to the hearing, lest we unnecessarily be delayed when I conducted the interview before she testified. The government counsel’s response? “I have never told any witnesses not to follow up with you; I believe I said to most of them that they should expect a call and to feel free to answer truthfully and openly.” Gee, that sounds helpful. And then the co-counsel had the audacity to say, “I wish we had known so you could have interviewed [the witness] before the hearing.” Thanks, me too!
At the outset of every in-person interview, I attempt to shake the hand of the interviewee. In this instance, which is true in a fair few, the witness refused. I suppose one need not shake the hand of someone that is not human. Later, when confronted with the outright hostility in tone and answers, I broke my normal stoic routine, and I said, “Can I ask why you are displaying to me such hostility, especially since I have shown you nothing but courtesy?” As you might imagine, the response was not very gracious. She looked at me incredulously and claimed I had not shown her any courtesy, so I attempted to move along. That opened me up for a hellacious rant wherein I was informed that I was worse than my client, who is a monster. Huh. That’s new. I am accustomed to being labeled as on par with my client, but in this LAWYER’s (yes, the witness is a lawyer) perspective since I have taken up his cause, I am worse than he is (she assumes he is guilty, which I am convinced given the evidence and he is not). Enter the “are you even human?” question. Did I mention that this attorney witness is also in uniform? Yes, that’s right folks! She swore an oath to defend the Constitution of the United States…guess, she hasn’t read all of it. Or at least not since law school, which I presume she attended. Maybe that isn’t such a safe assumption. The question I most often would like to pose to my adversary is “did you actually attend law school?”, but I have yet to ask. Just trying to be “human.”
Snarky-ness aside, I believe at the outset of many problems currently plaguing the military justice system is the ability of prosecutors, paralegals, and witnesses (for the government) to depersonalize me and my client. If we are not human, it is easier to hide discovery. If we are not human, it is easier to deny relevant witnesses. And if we are not human, it is far easier to lie on the stand.