Since the first case in the USMC that I tried as a civilian defense counsel, I had to accept that there was a seeming (hopefully) rebuttable presumption that civilian defense attorneys were unethical and incompetent. I felt it from the judiciary, from trial counsel (prosecutors), and even from uniformed defense counsel. I get it. They’ve all been burned before. ALL of us have had experiences with lazy and incompetent civilian defense counsel, who collect the fee but rely on the work performed by the appointed military counsel. It is unconscionable, and one of the main reasons I started a non-profit. There needs to be reform in the minimum requirements for civilians who want to practice military law. How about we start with the basics and demand an annual CLE to make sure they care enough to stay current? I’ll leave that rant for another day…
But today’s rant centers on this notion that after more than 17 years in military justice, more than 9 of which have been as a civilian CDC, and 3 more in uniformed defense, I am more than competent. Yet, I still have interactions with prosecutors who talk to me like I am new and ignorant. I’ve reversed roles with these folks, and I can imagine addressing me in this way is deflection for their own insecurities. Great. I’ve done the work to empathize with others, and now it’s their turn. I’m over it!
What is worse are the counsel who question my ethics. Hint: Winning doesn’t make me unethical. There seems to be a steadfast belief that the only way to attribute my success rate is that I must be doing something unethical, immoral, and / or dishonest. I’m not. I win cases largely because the cases should not have been charged, because the charging decisions were poor, and because the government theories of prosecution are so outlandish that they don’t have the facts to back it up. Hint: Not all of your military accuseds are targeting weak prey.
I am beyond over having my ethics called into question. I am beyond over it with military prosecutors who won’t communicate with me and instead go to my military co-counsel to profess their “knowledge” that I am “shady.” And I am beyond over it when uniformed prosecutors declare in open hearings that I “staged” something “just to get a delay.” Seriously.
I have tried (again with that pesky empathy) to imagine that these folks are again speaking from a position of gross insecurity, a lack of self-awareness that their words have significant meaning, and genuinely from a place of not knowing any better.
But you know what? It doesn’t matter whether they know better or not. What matters is that they should. And it isn’t my job to teach them. I am SO over it!
The lack of professionalism overall (there are always notable exceptions) in the uniformed bar is not a new topic for this blog. Goodness knows my ire for it has contributed to many posts on this site. But nothing changes. And a significant reason that nothing changes in the professionalism of the military bar is that no one policing them has demanded that it change. There also is no consequence for those offending notions of proper and respectable conduct. Turnover rates continue to plague any potential ROI on prosecutor performance, knowledge, and skill. There are ways to improve, and those ways largely will thrive or fail on the self-motivation of the counsel. Because let’s face it, the military continues to starve itself of expertise, touting the well-rounded judge advocate over the expert MJ practitioner, notwithstanding a new announcement of a specialized tract.
What I would suggest would give us all hope for a more professional bar is a shift in mindset. It need not be drastic in its approach, but subtle shift can bring great ripple effects.
When I was a trial counsel in my second year and under a new Chief of Military Justice, he called me and told me that I did not have the authority to say “no” or “denied” to any defense counsel. He told me that if I had researched the rules, case law, and still believed that I should say “no” to them or deny them a witness or an expert, then my a$$ needed to be sitting in his guest chair in his office to walk him through exactly what I thought and why, BEFORE I ever relayed it to the defense. Because, again, I did not on my own have the authority to say no to the defense. Guess what, he “raised” me right. The default is and should be that the defense is in the best position to know what they need.
A few years ago, the Chief of Military Justice for a Corps level SJA office told me that he did not care if the defense had a bona fide need for a given expert, that if their written submissions did not meet his standard, he was going to recommend denial to the SJA who would then recommend denial to the CG. Again, this was not because there was not in reality an actual need that he could see or imagine or author a perfect submission to justify. You know, form over substance.
The difference in these two approaches has ripple, even tidal impacts. The former encourages justice and the latter breeds waste of time, energy, and resources, and worse fosters a climate of resentment. Resentment from the defense bar looks for underhanded conduct by the prosecution, and professionalism on both sides circles the drain.
We need more Chiefs of Justice who have been defense counsel, and we need more people who want to get to the right result. Denying requests because they don’t meet the receiver’s view on a correct submission doesn’t teach that submitter to get better; it makes them bitter.
The wheels of justice will keep turning (though in very different ways) regardless of the mindset of its practitioners. There was a time when I thought my efforts (here and elsewhere) could fix the problems plaguing the practice. But you know what? I am TOTALLY OVER IT. And I am done trying to shape its military justice practitioners and “Chiefs of Justice.” If ever there was a title that was seldom earned it is that – Chief of Justice. Yeah right. Sounds like a superhero but is really filled by a staff action admin assistant.
I’ll keep doing what I do best: winning cases and seeking actual justice. To the rest of you who follow this blog, carry the torch to raise the bar of professionalism if you’re so inclined. Because I am over it.
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