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Military Prosecutors: Use Discretion, Choose Wisely

No matter a person’s role in the military justice system, whether a prosecutor, defense counsel, commander, or accused, justice would finds its way more often into the courtroom if each of these parties made a conscious effort to make less (or even no) moral judgment against the accused. When a person is pending investigation, even one that is likely headed toward court-martial, that person remains a Soldier, an Airman, a Marine, a Sailor, and a Coast Guardsman. No matter the allegation, no matter the evidence, and no matter what anyone envisions the outcome will be, they are someone’s son or daughter, and maybe even someone’s father or mother.

Prosecutors, even in the military justice system in which justice is “driven by commanders,” possess an extraordinary level of discretion and power. Who to charge, how to charge, what to charge, and when to charge someone are among the most burdensome of responsibilities with which they are charged. In a recent conversation with a government trial counsel (military prosecutor / commander’s legal advisor for military justice), he related to me that when it came to a charging decision he had absolutely no discretion. The elements were the elements, he declared. Then and now, I must “respectfully” disagree.

In order to illustrate my vantage point, I told him about a case I had as a young trial counsel in Germany. The Soldier had been driving his vehicle on the Autobahn coming back from a club in Spangdahlem on his way back to Kaiserslautern. He was intoxicated, and it was raining. He was speeding on an S-curve on the road and was speeding when he lost control of his vehicle and flipped it. In his car, he was carrying two of his closest friends in the world. When the vehicle flipped, the roof of the vehicle caved in on one of his comrades. He did not survive. I came to learn that the decedent’s mother immigrated to the U.S. from Ethiopia to make a better life for her children, and when she expressed reservations about her only son enlisting in the Army, her son insisted that the U.S. had given him and his family so much and that it was time for him to give back. His girlfriend was expecting their first child. Such tragedy, such loss, and such grief in this “file” not only for the decedent’s family but also for the driver. His life would never be the same. I wondered if he would ever forgive himself.

I explained to the trial counsel that in reviewing the various options that I had in pursuing charges, I had among others a choice between alleging a violation of Article 119, Involuntary Manslaughter and Article 134, Negligent Homicide. [The military bears no “vehicular homicide” offense.] As the decedent’s mother wailed from the stand during the sentencing proceedings in moans that at times bore no discernible words, only the sobs of a mother being crushed by grief, I noticed the military judge fighting back visible emotion. He would later yell at me and would demand to know why I had put that poor woman through the emotional toll of testifying. I explained that it was a part of her grieving, a catharsis she needed in order to try to move on and past this horrible tragedy in her life, and that she had demanded the right to be heard.

The judge would then turn to criticize my charging decision. Why, he asked, had I not opted for Involuntary Manslaughter, why had I “just” charged Negligent Homicide? Because, I explained, I did not value his punishment as being in excess of three years, because, I explained, I did not see the need to expose him to as many as ten years in jail, and because I knew that no matter what punishment the Court gave him, perhaps the greatest judgment would come from within himself having to live with the choice he made that night when he put so many lives in peril. “Well, okay then,” he responded. And we spoke of this choice I made no more.

I used discretion; I had a choice, and thankfully in explaining this choice several months before to my superiors, I was persuasive, they listened, and they agreed.   Prosecutors have discretion, they have a choice, but seldom does it seem that they use it. Instead, I often see charge sheets that bear little resemblance to discretion, but rather as though its drafter is treating it like a law school exercise, filing up the pages with every possible offense, rather than approaching this heavy burden with thoughtful countenance or deliberate wisdom.

Above all else, I approached my decision in reflection of this moment in a man’s life as a choice he made, admittedly a very poor choice, but only a choice. I did not view this man as defined by his actions. He made a poor choice on one day. [And yes, I recognize that some military accused have made poor choices on a number of days]. No one understood more than I that the grave consequences of his choice required punishment. The difference I see in making the charging decision that I did versus the one many others may have reached is that my choice reflected the valuing of this person and the rehabilitation his crime warranted.

What I tend to see in the current generation of prosecutors is the devaluing of the person and a moral judgment on the accused in stark contrast of how the prosecutor sees himself. The trial counsel passes judgment in the most sanctimonious of ways from the greatest in charging to the smallest of choices he has to divest himself of any similarity of this person who wears the same uniform, who swore the same oath, who nobly volunteered also to serve the same country. This moral judgment suddenly bleeds over into every aspect of the member’s life as if to say, “you are not one of us anymore.” Suddenly, even small requests that might reflect an ounce of humanity are denied for no valid reason other than because he is pending investigation for misconduct. What I wish to impart on this generation of trial counsel is that when you deny every request for a man awaiting his final judgment, you say very little about the substance of the man over whom your actions weigh, and you say a great deal about the man you are or are not. Choose wisely.

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