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“God Was Here Today” for Military Justice

One of the significant differences between representing military clients as a civilian UCMJ defense attorney and doing so as a uniformed counsel is that I get to choose my clients. When you wear the uniform, you take the assignments you are given with zero say on who your clients will be. One of the luxuries of private practice is determining where and how to expend your energies.

I am grateful for the clients whose causes I take up because I learn from each one.

I just finished another stage on behalf of a client who I am honored to champion.

Last year in Bagram, Afghanistan a customs MP came across four H&K magazines that seemed a bit heavier than they should be. So, he set them aside and continued his search. Two or three members of the unit being searched approached him and reassured him H&K magazines are “supposed to be” heavier than regular magazines. The customs MP redirected them away from his search, and he brought them to the area designated for taking a closer look.

The team lead for the customs MPs was processing paperwork next to the confiscated magazines when three to five members of the unit approached her about the magazines. They all had been briefed that once items were in that designated area for scrutiny, they were off limits. Each person tried to tell her nothing was wrong with the magazines and they should be released back to the unit. Two of them distracted her while another two or three of them picked up the magazines. She ordered them to put them down and to leave the area.

Both agents would tell Army CID agents that they would recognize these individuals again, but CID never followed up on either lead. Big Mistake.

When customs officials dismantled the magazines, they found the coils had been tampered with and that something was at the bottom of the magazines. At the bottom of each magazine was tightly wrapped black tape around plastic used to form a makeshift protective bag. Inside the bags was just over $25,000.00 in U.S. currency.

No one kept track of which bill was the outer most or the inside bill. Another big mistake. While they dismantled the magazines and tore apart the plastic and tape, no one wore gloves.

Once the customs officials realized they had in excess of $10,000.00 in undeclared currency, they followed their protocol to call Army CID. On scene, the lead CID agent identified the need to wear gloves, but not the need to change gloves between handling each piece of evidence. Contamination much?

The fact that at least five different team members approached the confiscated but not yet searched magazines to try to convince the customs officials nothing was out of the ordinary and that they should be put back is significant. It did not convince the customs officials to give back the magazines, and in fact, their inquiries and insistence only piqued their curiosity more. That at least two or three of the team members picked up the magazines and handled them also is of critical import. No one really understood that event’s import until my summation at the board – if their prints and DNA were found on the magazines, they would have an “innocent” if public explanation for why.

Despite the customs officials passing along this information and that they would each be able to identify the team members who tried to convince them nothing was amiss and the ones who physically grabbed the magazines despite clear orders not to… no one from law enforcement conducted a lineup or even a show up. Invaluable leads lost.

The investigation focused on trying to figure out who was the “owner” of the bag where the magazines had purported to come from. Another mistake was assuming the magazines even came from that bag. There were so many opportunities to do a throw down in front of the bag. The bag’s contents had some items that appeared on the surface to link the bag to my client. It didn’t further our cause when the magazines, tape, and plastic wrap were tested and found forensic material linking my client to the magazines, tape, and plastic wrap. But none of the currency bills.

The most important aspect of finding the truth is to dismantle the assumptions and start anew with leads, if at all possible. In this case, it was critical to stop following the rabbit holes of the government.

First, they had no idea if the magazines originated from the bag, but the government counsel spent more than an hour of total testimony trying to credit the “system” the customs officials used to working their way through the bags and ensuring that the board believed the magazines came from the bag. The bag, you see, contained some items that at least superficially looked like they belonged to my client. One was a holster that bore his call sign; another was team swag that they wanted to connect him to.

Second, they assumed that the agents were accurate in their reports of these alleged dichotomies between my client’s statements and the statements of others. They painted a report filled with gross and inaccurate generalizations like “most of those interviewed stated X.” When you bothered to look, in that specific instance, only one member had. The list goes on.

Third, they did not know how to interpret the forensic evidence they’d received. They did not know what questions to ask those on the scene or those examiners to understand the contamination and alternate explanations than that of guilt.

The most significant problem with their forensic evidence is that its limitation was about timing. DNA without more or a different context does not tell us when the DNA got to its destination, just that it was there by the time of testing. Same goes with fingerprint evidence. Unless it is under specific circumstances (like a bloody fingerprint at a murder scene that at least places the print there after injury) the limitation of fingerprint evidence likewise goes to timing. We don’t know when the fingerprint was placed there.

I wish so desperately that the agents knew how they had influenced the evidence before they interpreted it to mean my client was a guilty party. I wish even more so that the prosecutors had the training and experience to step away from the bias rampant in the investigation to understand the limits of what they had, and rather than go down the path to assume my client’s guilt, really analyze what they had and all its limitations. Ask themselves, is there an innocent explanation for the forensic evidence? Even if that colloquy did not result in them ending my client’s legal nightmares, at least they might have been ready for our defense. I don’t think they truly saw us coming.

Instead, the “theme” of their advocacy was “this is an open and shut case.” Nah, not if you knew what to look at and how to figure out whether the evidence had integrity or was botched from the start.

We are grateful to the board members who came along on the journey to seek the truth because after they’d sorted it all out, they saw what we knew: there was some superficial indications of my client’s involvement, but that he had not actually committed the misconduct.

I remain indebted to the American patriots who place their confidence in me. These quiet professionals are the best at what they do. If only the lawyers assigned to those units focused on being the best at what they are: lawyers, and worried less about trying to gain acceptance to entrench themselves as a part of the community, perhaps they would have realized that they did not lose to a tricky lawyer; but rather, that justice was done.

For me in the aftermath of this kind of “win,” the difficulty comes in setting aside the puzzle. I know how the government could go about learning the identity of the true smugglers, and for hours and days following the outcome, my mind continued to trace over the puzzle, like twisting and reforming the Rubik’s Cube. But that isn’t my job, and it doesn’t further my client’s cause. It will be another puzzle left unsolved.

When we walked out of the building on that beautiful April day to the sun and breeze of the pacific northwest compound, my client spoke in a confident and assured voice: “God was here today.” Indeed, my friend, he was.

 

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