Regrettably, I recently was solicited for a letter to support a former military supervisor who is facing adverse action for an investigation into “mismanagement,” the current code word for the buzz words “toxic leadership.” I was disappointed to find him in this predicament, and I was disappointed in the lackluster request for a letter. I make such requests on behalf of clients and in them I try to convey sincerity and a professional call to action. The request also made me think about and consider how many of these requests I make on behalf of clients that go unanswered.
When I reach out for letters or support for a client, I typically receive three categories of replies: 1) a positive response pledging support; 2) a positive response indicating the person does not wish to provide support usually accompanied by a brief explanation such as their observations will not be helpful to the client’s predicament; and 3) crickets. I get it, not everyone with whom you have served is a person you have had a positive experience. I far more respect the answer that tells me that I am going down a path that won’t bear fruit for my client than silence. Everyone deserves an answer, no matter what that response is.
By not responding, the requested individual may be trying to leave open room for the “maybe she’ll think I didn’t get the request” way out. That calls to mind the toddler playing hide and go seek by closing his eyes and thinking no one will see him. By not responding, the solicited party may be reasoning that by my silence, they will “get” it, she’ll understand that I am not someone who the client can count on. What comes through for me by silence is that the would-be supporter is unwilling to choose a harder path, a more uncomfortable path of letting that person know, even through the buffer of counsel. If a person chooses not to support only because he fears association or reprisal for support, then I would say that the would-be supporter lacks intestinal fortitude. I daresay he may regret a politically motivated opt-out if he ever finds himself the respondent to a baseless or even substantiated accusation.
The idiomatic phrase “deafening silence” comes to mind. A person that awaits an investigation for “mismanagement” or misconduct knows the emotional strain that comes from the silence of not knowing. That member does not know the particulars of the allegations during that investigation, how soon the investigation will end, what will be the resulting end, and then once some of those answers come, he is made to suffer the humiliation of silence from those he reaches out to ask for help.
Am I arguing that everyone solicited for a form of support to a colleague, subordinate, or superior should give it in each case? Absolutely not. But I am advocating that you empathize with what your silence means to that Soldier, Airman, Sailor, Marine, or Coastguardsman. Put yourself into their position; feel for a moment what their silence would mean in your life. Imagine the personal humiliation and what feelings of desperation it would take for a person to reach out and ask for your help. Court-martial, administrative reprimand, administrative separation, grade determination?
In 2005, I recall military judge, COL James Pohl, calling for an Article 39a session in a case I was not assigned but I was the trial counsel (government prosecutor) in trial in front of the same judge and that court-martial panel had just closed to deliberate on findings (verdict). The military judge knew that two colleagues in my office were handling the case, but since I was there in the courtroom in the right uniform I would be the party with the target on me. Appropriately so, given what was going on.
I knew from situational awareness that the defense in the case had previously submitted a request for a civilian expert consultant in DNA. More than six weeks had passed and the convening authority had not yet taken action to grant or deny the defense request. I also knew from situational awareness that the lead counsel on that case had told our mutual supervisor that he was working on getting the government lab to provide a DNA expert for the defense instead of the by-name person the defense had requested. Let that sink in for just a moment. Other than common sense, I had already been tasked to find the same proverbial “chem-light battery” so I knew from first hand experience that the government lab would not provide a defense consultant and had even explained to this there was a policy memorandum to that effect. Bull-headed nature aside, he was convinced he could make the boss happy by finding a no-cost way to get the defense their expert. Only he wasn’t coming to any remedies. So week after week went by, and trial was fast approaching.
As if by some strange coincidence, the lead counsel on this other case was in the gallery, sitting almost directly behind my position at counsel table, though he was not dressed in court attire. I didn’t mind it when the military judge bellowed in my direction as the government’s representative, “Everyone deserves an answer!” I agreed with him. Whole heartedly. The military judge’s frustration was that his hands were tied to fashion any remedy because the convening authority had not taken any action. The convening authority’s decision is reviewable by the military judge, but not until he makes an actual decision. Not until he gives an answer. Eventually the defense got their requested civilian expert, as they were entitled.
The lesson of that day stays with me, and I think it is an important mantra that applies to many aspects of justice practice. When you are the government, process defense requests timely so as not to preclude relief. When you are defense, make sure you do not take on too many matters that you are not available to your clients. And when someone who is being targeted by the government reaches out to you for support, no matter what your opinion of that person is, give him an answer.