Meaningful analysis in most military justice shops is lacking, if not completely dead. The result is a docket that never keeps its promises of swift justice and the second and third order effects are costly from both a financial standpoint and an emotional one.
Whether it’s Staff Judge Advocates telling convening authorities to decline defense requests for expert consultants and expert witnesses, inexperienced trial counsel (prosecutors) denying witnesses and evidence through discovery or advocating no witnesses or no process at the Article 32 preliminary hearing, Victims’ Legal Counsel / Special Victim Counsel refusing (sometimes) government or defense (often) requests for interview, or the accused service member beaten down by a lengthy often one-sided law enforcement investigation, so many of its parties in the realm of military justice are “living in a state of denial.”
The easy answer is “no.” Right? That way, if the SJA, the trial counsel, or the victim’s advocate is wrong, the judge will set it straight. Right? The answer is not always. But even still, disavowing the government’s statutory duty independently to analyze the request is not the right answer. Not by a long shot.
This notion of denying everything to fight every battle is at best a pathetic consequence of a lack of experienced military “justice” practitioners and at worst evidence of blatantly unethical practices. But it sure is easy. Why conduct any independent analysis after all? Why consult case law? That takes thought. That takes time. That takes work.
But that is precisely what the Code envisions. Before requiring the military judge to make a ruling in every aspect of military practice, the Code envisions reasoned analysis. Rule for Court-Martial 701, Article 46, and other provisions govern discovery; Rule for Court-Martial 703 directs witness necessity.
WITNESSES DENIED AS A MATTER OF COURSE
Prosecutors (and presumably the less experienced ones are being supervised by persons with greater experience) are first served with the defense’s request for production of witnesses so that they may review the synopsis and determine if the threshold for relevance and necessary has been met. Only if the standard is not met is a prosecutor empowered to deny the witness so that the military judge must intervene in ruling on any filed defense motion to compel. But that is not what is happening in practice. Instead, the knee jerk reaction is to “deny everyone and make the defense compel them.”
EXPERT CONSULTANTS’ AVAILABILITY DISAPPEARS
The same goes for defense requests for expert consultants. There is an overarching movement in several offices in which I presently am handling cases to deny the expert outright, and even in cases where the government intends to employ an expert consultant in the same area of expertise. Seriously. In response to requests for expert consultants, the convening authority has three choices: 1) grant the by-name requested expert; 2) deny the by-name requested expert but grant instead a person that works within the Department of Defense as an “adequate substitute”; or 3) outright deny the expert.
If the government concedes the expertise is needed by granting an expert consultant from the DoD, the defense must evaluate if the expert granted is indeed adequate for a potential motion to compel the by-name requested expert. If the government denies any expert, defense must file a written request for relief to the judge, known as a motion to compel, to obtain any expert assistance. Motions take time to litigate, and that initial denial by the government risks losing the trial date. Experts that had set aside time to devote to a particular case, when their consultation is denied, give up those dates to other cases, resulting in even additional more delays. Worse yet is when a military judge errs in refusing to grant a defense motion to compel expert assistance. In United States v. McGinnis, the trial judge refused to grant an expert consultant in coercive police interrogation techniques, McGinnis was convicted and the appeals court overturned his conviction. If the government is so convinced of guilt and the corollary of their goal of obtaining conviction is to maintain it on appeal, then why jeopardize conviction by opening up the military judge to committing plain error?
Recently, a trial counsel admitted that if the military judge grants a convening authority denied requested expert in child forensic psychiatry in a case that alleges…wait for it… child sexual abuse, the convening authority would appoint an “adequate substitute.” The DoD is not exactly raining available experts in child forensic psychiatry. By even waiting the weeks or months it will take to litigate this issue, any that may have been available no longer are available. And that presumes that defense would have sufficient time with which to consult in advance of the trial dates. More delay.
MILITARY ACCUSED AND THEIR OWN STATE OF DENIAL
The agony that ramps up for a military accused with an impending trial date cannot be reproduced for any palpable understanding. When trials are delayed at the last minute because the military judge grants an expert, a witness, or discovery previously denied, the reprieve often causes the military defendant to fall back into a state of life before charging. Attorneys move onto other cases that are approaching and the delay lulls the accused into a false state of normalcy. The resulting effect is often a client that is not best positioned to assist in his own defense or to focus on the looming trial; he falls into his own state of denial that the allegations already are not resolved.
GOVERNMENT, DO YOUR JOB
Are blanket denials a by-product of defense counsel submitting needless requests and saturating the government with unnecessary costly demands? Perhaps. But that does not excuse the absence of reasoned review. The cost is too high to all concerned. So, government, do your job.