As a trial counsel (government prosecutor) I handled a number of child sexual abuse cases. Early on, my trainers introduced me to the idea that my role was to help the child find his or her voice through the process. Literally, the prosecution’s role is to be a conduit for that child to articulate what had happened to them.
In this my last phase of practice, overwhelmingly I hear from my clients (though often articulated in different ways) that they feel the system has silenced them. It does not matter what he says; no one is hearing him. Not the interrogator. Not his command. No one believes his version of events (if they made a statement). Physically they often are moved out of the unit or at minimum, removed from their position. Put into the corner, and effectively told to disappear.
My job as a trial defense advocate in a military courtroom is to help him find his voice. My approach is first to listen to the facts and circumstances, as he understands them. When I do this, I create a list of all of the documents and evidence that will either support or refute what my client told me. What’s that you say? I do not trust my client’s word? I would not be doing my job if I did not approach each case open to the idea that my client is not revealing to me the entirety of the concrete truth. Aside from the idea that clients omit or distort information intentionally, when someone comes under attack by the military justice system, he may not be the most reliable witness to what happened. Memory is a tricky thing. In order to protect my client’s interest, I need to know if his memory is accurate and comports with other evidence in the case.
Finding His Voice in Investigation
In helping the client to find his voice during the investigation step, as I am listening to the client’s take on what happened, I am considering what I hear through the lens of “what document or other evidence can help me prove that what he is saying is true and accurate?” For example, the client says, “she called me, like, twenty times after we slept together and everything was fine.” What helps me corroborate the phone calls? What helps me show who initiated the call? The current rules preclude me from contacting the complainant, but I can assign my client the “homework” of obtaining his phone records. Depending on how long ago the events were, the client should be able to obtain his own records either by logging into his account online or by going to a local phone carrier and obtaining them. Beware that some carriers are taking the opinion that a client cannot obtain his own records if they are more than six months old, and will require a subpoena. But recall that defense still does not have independent subpoena power. Defense may only obtain records using a subpoena by asking the government to obtain the records on behalf of the defense.
Text messages and phone videos often provide crucial evidence to the defense. Military law enforcement does not always seize the client’s cell phone. If the complainant leaves out from her statement post-incident contact and she does not articulate otherwise a valid reason to seize and to search the client’s phone, defense can obtain significant strategic advantage in marshaling evidence from the cell phone. (Or from the “cloud,” even if the phone is seized). Remember that screenshots are not enough. In the new world of “spoofing” anyone can create a screenshot of any conversation the user wants. [This firm uses one particular digital forensic evidence company that will take and maintain a forensic copy of the entire phone to safeguard the integrity of the evidence from the phone.]
Finding His Voice at Court-Martial
When efforts do not thwart the charging of a case and court-martial preferral and referral happen, a trial defense advocate has to shift gears to provide a mechanism to help the client find his voice at trial. Though he has the absolute right to remain silent and to place the burden of proof on the government, the reality is that panels want to hear his side of the story. Making the decision to testify or to remain silent is one heavy with calculations and tactical considerations. Ultimately the client makes the call, but the trial advocate will prepare for all possible scenarios.
In a time when the accused is presumed guilty, having formidable counsel to stand up for his voice is paramount. I am always astonished and then saddened by the outrage of the collective societal consciousness that is quick to anger at zealous advocacy. How dare I stand up for him? How dare you not? Those that question why he “wastes his time with a trial” scare me the most.
The desire to silence any voice is un-American. And it “speaks volumes” when those in a position of power wield it without consideration for the origins of our nation. Ironically and typically they are the same people that are quick to lay claim to patriotism every Fourth of July, Memorial Day, or when someone kneels to stand up for justice.
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