Now that I’ve got your attention, let me explain what I mean when I imply that military defense counsel should give up exactly. Many of you probably assumed that I mean efforts of defending military accused. That could not be farther from my message. What I mean precisely is that there is a trend among many military defense counsels to keep too much too “close to the vest.”
Military practice demands that the defense disclose a great deal of their strategy before trial in order to ensure that they are armed with the resources and tools they need to put on a robust and full defense. It seems counterintuitive, that anyone could make the defense reveal their theory of the case, how they want to attack the government’s case or what kind of case the defense will put on, if any. It feels wrong to the uniformed defense counsel (and even to some civilian counsel), especially in an age where government attorneys continue to play games with discovery and disclosures.
One of the strengths of the military’s system is that the government must fund defense expert consultants to ensure that the military accused is afforded an adequate defense. [Explain this concept to anyone that practices in state court or other federal court and she looks at you as though she’s just been “punk’D.”] But defense expert assistance can be funded by the government if the defense would just “give it up already.”
Over the past decade or more, I have watched the same problems come up repeatedly in expert requests: Defense does not describe with sufficient particularity why the defense needs the expert assistance; defense counsel does not want to “give up” their case strategy. The government denies the expert. Litigation ensues. The military judge does not have adequate information or justification to compel the expert assistance. Accused is the one that loses in this battle. Give it up already! Sometimes the hybrid happens and during the Article 39a session, the defense counsel tells the military judge enough to justify the expert.
I have practiced before one or more military judge’s that will not look beyond the four corners of the defense’s original request to the convening authority when ruling on expert requests. And rightly so. After all, the military judge’s job in ruling on the defense motion to compel expert assistance is to evaluate if the convening authority made the right call. Would it be fair to allow defense counsel to expand their request to the judge when the convening authority was precluded from making a decision with all information? I tend to think not.
Another strength of the military’s system is that the government must fund the travel, accommodations, and expenses for all relevant and necessary defense witnesses. [Again, the jaws drop when you explain this tenant to state and federal criminal litigators.] The tradeoff is that the pertinent rule for court-martial demands that you provide a synopsis of that person’s expected testimony sufficient that the government understands that witness’ relevance and necessity to the defense. I continue to hear about requests that barely cover what the person might attest to, let alone connecting the dots of relevance or necessity.
Explain why what that person would say is relevant. Hint, relevance means that it tends to make a matter in dispute more or less likely. Tell the government counsel what matter in dispute this person’s testimony bears upon. Then tell the government why it is necessary. Hint, because you say so is not a good enough answer. Necessity derives from its tendency to exculpate the client from one or more allegations. Whether or not the testimony has a tendency to impeach a government witness’ expected testimony, or represents extrinsic evidence of bias or a motive to misrepresent are reasons that a person’s testimony is relevant and necessary. Spell it out for them. Every defense counsel’s request for production of witnesses should be written with an eye toward you needing to justify compelling their production to a military judge. Because, let’s face it; even if you spell it out for them, there is a substantial chance in many jurisdictions, the government will deny the request (mostly because that defense witness would “hurt” their case). [Keep in mind that if one witness can attest to three or more separate relevant facts, defense counsel need not provide them all to justify that witness’ production. But for the point you reveal, ensure that you connect all the dots.]
Judge E.J. O’Brien (now retired) warned counsel from the bench that if that witness is so very vital to the defense, then that counsel must be prepared to explain that import to the government. The consequences to not do so are too grave. “What is more important? That you have the witness? Or that you can keep your strategy secret?”
I hate to break it to you: there are very few defenses that the government cannot (or at least should be able to) anticipate. So give it up already!
The same issue arises in motions practice. Are there some motions left un-litigated to avoid highlighting for the government counsel why you believe one or more facts or pieces of evidence are important? Sure. But in motions that a defense counsel commits to litigating, all too often motions are lost because the defense counsel did not present sufficient information upon which the judge can understand why the prayer for relief should be granted.
The gravest example I can give is the litigation of Military Rule of Evidence 412 motions. In “rape shield” litigation, defense counsel must outline precisely why a particular fact of a complainant’s sexual history is necessary for that military accused to receive a fair trial. Failure to explain the theory of relevance and necessity means that the judge will not be overturned when he disallows that evidence. And the last thing a military accused wants to have to do is to rely on appeal. You need to win at trial. So give up your theory already and explain it to the military judge. Connect the dots, or else you risk losing your evidence. And if you don’t succeed the first time, ask for reconsideration. Spell it out and continue to do so until the military judge understands why the evidence must be admissible. See United States v. Collier, 67 M.J. 347 (C.A.A.F. 2009).
WAY MORE TO LOSE THAN YOU HAVE TO GAIN
Defense counsel, on behalf of your client, understand that he has way more to lose in the arena than you think you stand to gain by keeping your theory of the case secret. First, it probably is not a secret. There are only so many theories of defense: it wasn’t him; it didn’t happen; she consented; he believes she was consenting and that belief was reasonable under the circumstances; or you just don’t have enough evidence to convict. Second, you are only hurting your own ability to defend your client if you don’t receive the resources you need to put yourself in the best position to win at trial. Third, you are setting yourself up to also lose on appeal if you did not put enough on the record to show why the judge made the wrong call. Unless of course your strategy is Ineffective Assistance of Counsel. P.S. You will never be found ineffective for divulging too much of your case strategy to procure experts and witnesses. [Caveat: don’t give up your client’s statements pursuant to a Rule for Court-Martial 706 board without really knowing that you should.]
Does the government play too many games? Absolutely. But don’t let them drag you down into the same nasty practice. Stop playing games yourself. Give up what you need to in order to obtain the tools you need to put on the best possible defense. Give it up already!