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An Open Letter to the Military Client On the Fence About Investing in their Legal Defense

These situations are always so difficult. Every one of your questions and hesitations is valid because it weighs on you. This is true when there are several less expensive alternatives, including military counsel which is provided at no expense.

I want to tell you about another case that I had years ago as you make your decision. About 6 years ago I took a premeditated murder case out of Fort Riley, Kansas, and the evidence against my client was fairly overwhelming.

The Military Counsel assigned to the case was working a grand conspiracy theory that would have had him found guilty in about 3 seconds if it was even deemed admissible or relevant. And I believe the military judge assigned to his case actually would have disallowed her theory altogether. I took the case as a favor to a family friend of the accused and even at highly reduced rates it was a hefty sum for any family. We fought hard and spun together a defense.

The panel deliberated for 9 hours (which is an eternity in most military cases, even for premeditated murder). He was found guilty.

We went to the sentencing phase where the panel only had two options: life with parole and life without the possibility of parole.

Despite “only” having two options, the panel (jury) deliberated another 8 hours on the sentence.

And when they filed back into the courtroom after having reached a sentence, the two females who I could tell had sympathized with us were red eyed and puffy from crying. I knew the others had pressured them, and they’d caved. The jury sentenced my client to be confined for the rest of his natural life.

I tell you his story not because the result is a reflection of the work I put in to the case or because it is particularly flattering to me. I share this story because it weighs on me the burden I ask when quoting fees.

It took me a long time to work through the guilt that I had. Early on a large part of me felt like he would have been better off with the detailed Military Counsel. She would have lost but at least his family and friends wouldn’t have “wasted” his money on me. Same result, right?

A family friend sat through the entire Trial and chastised me significantly for doubting my contribution. In her mind I gave him the only shot he had and she said that chance had been well worth it. Eventually I concurred. But I think of him and his case often.

I pride myself on not pitching to clients. I am not a used car salesman, and I cannot make guarantees for a result. All I can do is be honest so that I can continue to look myself in the mirror and know that I give my very best effort on any case I take up. But I also pride myself on reflecting back an honest assessment of the evidence and making sure you understand the risks.

In many cases, the government prefers charges to leverage a quick guilty plea, and sometimes that leverage includes being open to what is called a summary court-martial.

I suspect in some cases at the outset the government is looking for you to plead guilty in exchange for a summary court-martial referral (which is not a federal conviction you’d ever have to report) but they would want you to waive your rights to an administrative separation board. You’d lose your retirement as a matter of course. I am confident your detailed Military Counsel could negotiate that “deal” for you. And he could do it at no cost to you.

I’m confident many of my colleagues in the civilian defense bar wouldn’t tell you this information before you paid them, and then would try to work that “deal” for you and keep all of the money for far less work than the fully litigated Trial. The way we write our agreements we would be within our rights to do so. But I’m a Christian, and that’s not how I do business.

So I put it back on you. It is about your goals and your future.

I’ll respect your decision, no matter what. It is your life, your risk, and no small sum of money. Please talk it over with your supporters. And I would ask the Military Counsel to ask the government if they would hypothetically entertain a summary court deal but make sure the lawyer is specific that he’s not speaking for you- just laying the potential groundwork. If the government says they would take it then we know it’s a viable option. If they say no then I think your path to fight is clearer.

Please let me know of your decision either way. Our firm does not take on a high volume of cases so it is important that we know how many positions for new clients that we have available at any given time.

My best,

Jocelyn