In military justice and elsewhere, always at odds in the heart of the gladiator (litigator) as she enters the arena (the courtroom or in any advocacy role really) is the tension between the win for the sake of the gladiator’s ego and doing whatever it takes (even supplanting the need to say “but I’m right!”) to put the client’s interests above all else. In my younger years of practicing military justice, I remember cleaving to the notion that if I was right, nothing else should matter. I also remember thinking that anyone else with any differing worldview of justice as to the role of an advocate was really just a sell out.
When I was a uniformed defense counsel in Wiesbaden, Germany, after putting in hours toward a false eye-witness identification defense (with cross-racial dynamics), his co-accuseds flipped on my client and agreed to testify against him, making it all but impossible to secure a “not guilty” verdict. Based on my advice, we put in an offer to plead guilty to several lesser-included offenses but not guilty to conspiracy, etc.
The government’s charge sheet seemed the classic over-charge – choosing aggravated assault for a barracks brawl and opting for conspiracy when there may have been a hint of agreement but certainly not the standard formal Mafioso type agreement. Realizing that one of the pressure points in the case was that 9 forward deployed witnesses would be needed to prove the case and that their travel put them in actual peril given their location and the operational tempo at the time (this was late 2007 / early 2008), our offer to plead guilty included that the government could prove up the greater offenses and the conspiracy with telephonic testimony. Yes, we were waiving confrontation. The deal was structured that if he was only found guilty of the offenses to which he pleaded guilty, then there was one maximum confinement cap (8 months), but with the aid of telephonic (and safe) witnesses, if any greater offense or the conspiracy was proved, the cap went up (to 15 months). The client was also waiving his right to a panel (military jury) and agreed to litigate in front of a military judge alone. The convening authority disapproved the deal. I was infuriated! This was a reasonable deal that balanced the government’s desire to characterize the case in the way they apparently believed was accurate while keeping deployed witnesses as part of the fight and free from the added risk of travel.
Brushing aside the disapproval, we readied for court. The client ended up pleading guilty naked as he had offered in the deal (which means he pleaded without benefit of a pretrial agreement or confinement cap), but in front of a panel of officers, including three full colonels, and with the benefit of confronting the witnesses against him. The findings? Guilty of only that which he pleaded to – Yep! The sentence? 4 months and no kick (no punitive discharge). I was confinement the military judge would have given the punitive discharge, which in the end I believe meant more to the command than the delta in the number of months of confinement.
So then we turn to post-trial matters. After findings and sentence, because the UCMJ is command-driven, the convening authority must ratify the findings and sentence (though now with much limitation given recent Congressional amendments). Did I think for one second this client with this outcome given the procedural history of the case had one iota of an opportunity for a reduced sentence? Not a chance. And let’s face it, clemency rarely happens in any case, and it certainly wasn’t happening in this one.
So what did that petulant, ego-driven litigator submit for clemency matters? A big fat “I told you so.” I questioned the convening authority’s and the SJA’s appreciation for the safety of forward deployed Soldiers, and their ability to apprise the worth of a case. Oh, yeah. I was so “right.” P.S. The SJA from that case *may* have ended up as the three-star general Judge Advocate General of the Army…
Ego is dangerous on either side of the aisle (and also from the bench, for that matter). Whether its denial of witness production, expert consultants, or discovery, ego by the military prosecutor risks justice.
When I was practicing in Wiesbaden, I was detailed to a case with another military defense counsel to a case in Hanau, Germany. Our defense was duress for the client’s missing movement and willful disobedience to his superior’s order to go back to Iraq. There was evidence of death threats to the client if he returned to Iraq, after a beloved team member had been killed in a convoy when he took our client’s place. The government wanted more time to investigate the death threat communication and we wanted to press for trial. During an Article 39a, the military prosecutor told the judge on the record that he was unable to get our defense witnesses out of theater and to Germany in time for trial; the judge dutifully believed the counsel’s representations. Being suspicious, we interviewed the government paralegal after the motion’s hearing and learned that all of our defense witnesses had been boarding a plane to make it to trial on time when the government prosecutor told the paralegal to “stand down” and not allow them to get on their plane. This happened BEFORE the hearing; the paralegal was certain. We obtained a sworn statement to that effect and processed the matter through our chain of command (in addition to filing a motion on the matter). JAGC leadership did nothing with the lie; we were told to stand down because this particular member had put in his resignation paperwork from the end of his commitment. And then, guess what? He pulled back his paperwork and later promoted (maybe even BZ, but I digress)… Hooah.
In an unrelated “murder” case in Germany, another JAG prosecutor directed junior prosecutors to withhold from the defense that the pathologist who had performed the autopsy in the case had failed his forensic boards. Three times. In a case where cause of death was of crucial significance [one punch caused the retiree to fall back, hit his head, and he died], this information was absolutely Brady evidence. We learned of the intentional withholding of this evidence after the client was fully acquitted. Lucky for them. Lucky for the Corps that this military prosecutor finally eventually active duty.
For me, both of these grave violations stem from a desire to win, from placing the ego before justice. And that is dangerous for all concerned. Whether its from the passage of time (maturity), I would like to believe that I have checked my ego at the door when it comes to the manner that I handle cases (and in some cases doing so may keep you from being held in contempt and out of jail). Make no mistake, as a trial attorney to my core, I take special pleasure in “the win”, and I thrive on the best words in the English language (Not Guilty!), but it isn’t ALL about me. It is about seeking justice on behalf of my client. So, please: Leave your ego at the door FOR military justice.
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