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Be Human (Guarding Against False Confessions) – For Military Justice

The culture alive and well among military law enforcement agents that use trickery, deceit, psychologically coercive techniques to achieve a “confession” or at least “admissions” cares little for the human sitting in the chair. It is a game, where the agents known for breaking the most suspects receive praise and acclaim. I find it repugnant.

The culture that has been on the rise for the last 15 years or more among the military prosecution bar likewise seldom looks at a military accused as a person. He is a human, and so are you. So be human to him and to all military accused.

During this latest board of inquiry (an administrative hearing that decides if misconduct occurred, and if so, whether that misconduct warrants separation of a military Officer, and if so, what characterization of service is appropriate) for a military sexual assault complaint, I was grossly offended by the lack of humanity extended to my client. He’s human, I promise.

At issue in the matter was a 6-hour interrogation that produced some incriminating statements (though they were far from a confession) and whether or not the statements my client made were reliable. My client suffers from Traumatic Brain Injury (TBI). He boxed for his country at the United States Military Academy, and it has taken its toll on him, including issues with his memory, especially under stressful conditions. You know, like an interrogation. And the longer he is under that stress, the more likely he will doubt the validity of what memory he has.

My young Officer client walked into the CID office expecting to be interviewed as a witness about one of his Soldiers. Even when he learned he was the target for the investigation he waived his rights and tried to provide the best information he could. After all, the event in question happened five years before.

Let’s just let that soak in for a moment. His accuser reported the event five years later. In a memorandum she wrote for the board, she explained that she never intended to participate in any proceeding after making her report; she decided it was for therapeutic reasons that she should, you know, potentially ruin a man’s life without having to face one tough question on cross-examination. I have never been a fan of the restricted report, though far less so of the third-party report, but if this young lady felt the need to make a report for her own therapeutic benefit, she should have made the report restricted.

How is anyone supposed to defend against an allegation five years later? And especially when he would never have the opportunity to cross-examine her. Because you surely know that military law enforcement will blindly accept her statements as truth. Despite discrete facts that were wholly contradicted by independent witnesses in the investigation (she got so drunk that night because she never drinks versus she drinks all the time; she never spoke to him again versus they hung out multiple times and remained friends until graduation), law enforcement never scheduled a follow-up interview to try to “understand” the apparent contradictions. Nope. Because, you know, truth-seeking.

As my client became more stressed by the agent’s tactics, trickery, and pressures during his nearly six-hour interrogation, my client became unsettled and confused, questioning his own recall of the events. His recollection was already strained from the passage of time and that he had been drinking alcohol prior to the sexual encounter at issue. His TBI, PTSD, and depression made him a person vulnerable to suggestion, and this agent, though unaware of his conditions (because he did not ask) took full advantage of it. He probed into his sense of morality, his religious beliefs, and his deeply rooted relationships with familial women in his life.

I have no doubt that this agent was lauded with praise by his fellow agents; he is the Warrant Officer in charge of this small detachment and no doubt felt good about showing his guys “how its done.”

Before the agent ever set foot in the room to interrogate my client, my client had already been put in the title block, meaning they had already made a probable cause decision that the client was guilty. But yes, tell me more Mr. Agent, how you are merely there to collect facts and to seek the truth. Tell me more of your company line BS. Tell me more about how you are a neutral information-seeking agency. Because if you believed in fact gathering from a suspect, you would ask them to tell you what happened, collect that information, and then, oh I don’t know, call me crazy, you go out and investigate to see if his story holds water. If it doesn’t check out, consider a re-approach or just recommend charging false statement. Starting at the outset that he is guilty does not and cannot elicit an informative statement. Pretending that you are an omnipotent, all-knowing harbinger of truth is an insult to due process.

And as for the trial counsel on the case, they displayed an almost equally appalling lack of humanity. We called two live witnesses during the board (interspersed with multiple memos of support and medical evidence concerning his TBI and what that meant for the reliability of his statements) who attested to my client’s impeccable integrity and of their trust to go to war with him despite this allegation. During cross examination, each recorder asked these respected Officers whether they had seen the accused perform in high stress situations and then whether they had ever seen any signs in him of TBI (what would those be, exactly??) or memory problems. Their responses? No. They went a step farther to ask if they had ever seen symptoms of PTSD or depression? Their responses? No. These junior judge advocates were setting up to argue that my client’s statement to law enforcement had been reliable because he was essentially claiming TBI affected his memory afterthe fact. I saw it coming a mile away from their cross-examinations, and I sat ready to pounce to call them on their disgusting behavior.

I thundered away at them during my closing argument. The idea that anyone would make up TBI and memory issues THAT ARE DOCUMENTED IN MEDICAL RECORDS that precede any investigation tells me a lot about those counsel. The government counsel’s argument played “fast and loose” with important definitions and was danger close in misrepresenting the law. They do not see my client as human, and their behavior did not display an ounce of humanity.

I was asked (really shouted at) once by a government counsel, “Are you even human?” I so very much am.

As I held back no punches during my argument on behalf of this young man whose life this process sought to ruin, I started to lose my bearing. In talking about the repulsion I felt at the idea of their cute ploys to imply he was faking his issues to “conveniently” get him out of the trouble he was in, I tapped into all that I knew he had done to ensure no one saw how he compensated for his memory and depression issues. The need that is fostered in military culture to never show a kink in one’s armor is what often breaks them;no one should wonder why the suicide rate is what it is.

It disgusts me that these counsel approached this event in the life of a human like it was a video game. Some exercise to win.

The quest for the victory, without regard to the person whose life they are impacting, is the core component of the problem. Justice is not a game; and for so long as I am around and those like me, we will continue to battle against their lack of humanity.

The government leaning legal advisor tried to coax the trial counsel into making a rebuttal argument (that is nowhere in the regulation’s suggested script); she (rightly) declined. What could she possibly say that would respond to the forthright blows I had landed during my close? Her silence gave me a glimmer of hope that my words reverberated for her. I hope that I shamed her. Maybe next time she will approach a case with the realization that there is person sitting at the other table. I will make certain of it if that person is sitting at the table next to me.