In a previous iteration of a blog post that was aimed at addressing a recent case, I broke one of the cardinal rules of advocacy: I allowed my own emotion to get in the way of my message and then allowed that emotion to be an impediment to my message.
In a recent administrative separation board, I encountered an issue with government advocates that broke a different rule of advocacy: they failed to be self-aware. And in doing so, from my perspective, they did not well represent their client, the command.
They mocked my client. A client whose demonstrable bravery and valor exceed the highest standards of achievements. In a military context, it is crucial to remember that as members assess credibility of counsel, they are necessarily assessing the experience level of the counsel involved. The members are palpably aware of youth and inexperience. This is not to say that junior counsel cannot and do not make valid contributions. But key to making this possible is ensuring to keep in mind a self-assessment of one’s own experiences. To do otherwise, threatens to compromise one’s ability to be heard as an advocate.
Perhaps the most important lesson of advocacy is that of self-awareness. To the prosecutors that dared question the patriotism and honor of my client, I beseech you to stop for a moment and look within and then without to find that THIS IS NOT A VIDEO GAME. This is a man’s life. You are the gatekeeper of justice. And by failing to act with self-awareness and foremost to remember the role as a gatekeeper for justice, you failed the process.
The irrefutable facts: my client tested positive for methamphetamines. Open and shut, right? Wrong.
During a temporary duty assignment, client drinks alone, to excess in a hotel room. Hours later, with only flash memories of the last 10 hours of his life, he feels differently than he ever has before. This is not like any hangover he has ever felt. He reports for duty. After concluding his duty of about four to five hours where he is observing others, he begins to feel worse and worse. He becomes concerned for his own wellbeing. He asks his military supervisor to drive him to a hospital; something is wrong. A military facility “diagnoses” him with dehydration, and after a few bags of saline, they discharge him. But he begins to feel worse. Frightened, he asks his supervisor to drive him to a second hospital. He tells the staff that he fears he was drugged. His blood pressure is racing, his stomach is bloated, cramping, and he can hardly swallow. He submits a second round of blood and urine samples. His supervisor is with him when the doctor announces “there are amphetamines in your system”. His mind races. How can this be?
He immediately reports the results to his chain of command. Their response? Report back to base immediately. Give us another urine sample. This one based on “probable cause” because, you know, we want to use the results against you.
Result? Presence of methamphetamine.
By the time he finds me, so much evidence is already lost. We gather as much evidence as is possible – phone record, text messages, bank statements, which yield “more questions than answers.”
What is clear: there is no way that he knowingly ingested methamphetamine.
The next morning as he is trying to piece together what has happened, he finds a number of items in his room, for which he has no basis to know their origin. Chief among them? A vape device.
After much research and digging, we learn that meth addicts are taking to the streets and using vapes to ingest methamphetamine. Police are growing in awareness of this method. Some are so bold as to use meth on in the open because the fragrance of the vape flavored tobacco solutions mask meth’s chemical smells. Many discuss the intricacies in open online forums.
Our best guess? Someone used the vape device before the client and the residue is what got into his system. The government’s expert conceded the residue could account for the positive urinalysis.
The prosecutors of the administrative separation board (known as board records) objected to nearly every piece of evidence we offered, including hair follicle analysis demonstrating he had not used any drugs in the last 90 days.
Objections should be reserved for acting as a gatekeeper for unreliable evidence. Your goal is supposed to be justice, not to get in the way of evidence that can inform the decision makers.
I have never been so angry in a proceeding as I was during the cross-examination of my client (you know, the one cited for valor on the battlefield) that morphed into outright mockery at his insistence to sleep on the couch in the hotel room of his supervisor because he was afraid he was going to die. “So you thought you were going to die, did you?”, she said condescendingly. The method and mode of cross-examining him says more about the counsel than it does about my client. Of thine own self, be aware! There is a way to attempt to undermine credibility without making a personal and condescending attack. And therein lies my own deficiency in the first iteration of this post…
During the process of discussing instructions, it became clear that counsel also had not thought through defenses that could be raised, the applicable case law to support or refute those defenses, or the standard necessary to having them fairly raised. As a result, it took more than seven hours.
When the squadron commander testified that he did not understand my client would need to KNOW he was using an illicit substance to be guilty of the offense, I was extremely saddened. A legal gladiator’s dream, right? Wrong. It should never have gotten as far as it had. When the standard is not clear, everyone loses.
At the end of this process, I was proud to have the privilege in standing up for this hero, for standing between him and the machete of “justice”.
The amount of emotional energy this process exacted from me cannot be measured on any scale. Make no mistake: I would do it all over again. Because there is no end in sight to the immeasurable and lofty power the government can exact against the individual military accused. It won’t get better any time soon. Not so long as the services (except for the Navy) continue to refuse to allow for specialization among military justice practitioners.
Without doubt the board recorders came away from this experience believing a “dirty” defense counsel had thwarted justice, rather than been its champion. For many, the draw to uniformed service as a judge advocate is the tremendous experience earned early in one’s career. Maybe it is time to rethink how quickly government counsel are thrust into positions that demand self-awareness, at least until more experience is built into the middle and upper management.
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