I’m going with “Yes.” Call me cynical. Maybe it’s the rough couple of weeks I have experienced. But, still I’m going with “yes.”
I’ll even take a position that my colleagues will probably think warrants me to be committed, given what I do for a living: Buying your best chance at military “justice” has far more to do with funding independent investigation than it does with the lawyer that makes a pretty speech in court. Lawyers need evidence. After all, if a practitioner relies on the “evidence” in the military law enforcement case file, the probable outcome for the defense is to lose.
Exonerating and helpful evidence is out there. Outside of the case file that is provided in any typical case. But it takes time and it takes effort, both of which are for sale. Time and effort (read money) can, under the right circumstances, ensure justice.
In a recent case, I embarked on an investigation on behalf of a client charged with sexual assault. In the course of my efforts, I came across a witness who at least according to the case file had never been interviewed. As we chatted, I came to learn that not only had military law enforcement interviewed this witness but that law enforcement had collected exculpatory evidence from the witness. From a year before. And then what happened to the evidence? Gosh, maybe it ended up under the cushion of the couch, or maybe it mysteriously rolled under the seat of the car. Because I surely never received it. Not in my case file, which purported to be “everything the government has on the case.”
So now I have the evidence, or at least a close second. And the prosecutors don’t.
The defense’s discovery obligations are not yet triggered. I’ll hand it over when the time comes. We will litigate a motion to dismiss for discovery violations next month.
But beyond the issue of what this infraction means to this client, there is an opportunity for a broader discussion. Without independent defense investigation, I never would have found this evidence. Without the client’s ability to fund my investigation, exculpatory evidence would have been lost. In how many cases is it being lost every day? The thought frankly sickens me.
Military “Justice” is for sale. There can be no doubt.
Approximately 18 months ago, the U.S. Navy took great strides in this area by hiring 8 defense investigators to embed in the busiest jurisdictions across the world. The work they are doing on behalf of Sailors is historic and to be commended. I hope the sister services follow suit. But one issue that still presents itself is that even the Navy’s defense investigators cannot come onto a case until it becomes a case, and investigative leads can be lost if left until charging.
Those that are resistant to independent defense investigation do so under the auspices of the classic argument “but military law enforcement is independent and they can work too for the defense.” If it weren’t so serious an issue, I would laugh! The idea that I, as a defense counsel, could call up to CID, NCIS, OSI, or CGIS and ask for an agent to pursue an investigative lead for me is incredulous; it just wouldn’t happen. Believe me, I have tried. In a case from a few years back (one that is still going on), I made a formal request for CID to reopen an investigation to pursue a lead that would unequivocally prove the complainant in a sexual assault case was lying. They declined to reopen. Their stated reason? Because the Army was not pursuing court-martial. Right. Because the evidence we had obtained independently raised significant doubt on the allegation. Right. Because the administrative process isn’t trying to deprive my client of his retirement. So, gosh, seeking the truth must not be as critical as was once touted.
Make no mistake: Military “Justice” is for sale. And for those without the financial means to hire independent defense investigation, the cost is too high: the risk of conviction, confinement, and punitive discharge.