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Caught in the in Between of Military Justice

Legal assistance says they can’t help you, so they forward you to the trial defense office or defense service office. The defense office says they cannot help you until your case becomes a court-martial or some other derogatory action that jeopardizes your career. So, what do you do? You are caught in the in between of military justice.

I get it. It’s legal triage. Sending their life-sustaining measures to those most in jeopardy. That doesn’t make it right. Especially when so many investigations can be stopped in their tracks with early intervention.

One of the many frustrations I have had with the system since I had a front row seat in 2004 is the inability of a military suspect to receive counsel during interrogation. This is true in spite of the military specific rights warning telling service members that they have the right to counsel before, during, and after interrogation.

In nearly two decades of practicing in the military system, I have never seen uniformed counsel show up to an interrogation. And in the rare instances when a military suspect asked for one, I know the military law enforcement investigator told the suspect they did not “allow” counsel to come to the interrogation. Excuse me? What?!

As I accept fewer and fewer cases each year, I have tried to push back on this part of the system. The first way is to urge those who know they are suspected of military offenses to go back to the defense service office to insist the uniformed counsel reach out to the investigator for a list of questions for the attorney to vet.

Let me be completely transparent if my central message was somehow missed: the answer is never to submit to interrogation.

More and more suspects do not have any clue who is their accuser. Would-be interviewers will refuse to let them in on any orienting information unless the suspect waives his rights and submits to interrogation.

I promise there’s another way. And that is always through counsel.

If military counsel refuses to vet the questions of the investigator, the suspect can at least insist that the counsel reach out through email to the investigator and ask to receive a list of questions “for consideration.”

In having reviewed the answers a military suspect sent through military counsel on several occasions, I cannot say they always set up the suspect in the best position.

There has to be a better way. If the military’s equivalent of Miranda tells its suspects that they have a right to answer questions with an attorney present, someone needs to figure out how to make that happen. Or else, simply, they don’t have that right.

Whether availing oneself of that right is in the military suspect’s best interest is another matter. But the military should not “offer” something that isn’t available. Period.

The military clients are caught in the in between. And the military owes them better for their sacrifice and service.

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