I am often asked whether or not I feel any guilt concerning my experience when compared to the inexperience of the trial counsel (military prosecutors) whom I routinely meet in military courts-martial. My answer? No. Not for a moment.
When compared to the resources at the military’s disposal my experience stands in small relative comparison. And unlike the relative advantage the military brings to bear over one person, my experience is forged over time, energy, and at great personal expense. The advantage and power the military brings to bear against a solitary accused is wielded without comparative expense; their power, weight, and advantage exist without effort. It merely exists.
When I face a military prosecutor with little to no experience, as the representative of such lofty power, I feel no guilt. None at all. My experience represents a great leveling of the otherwise disparate advantage of the United States government.
In my last trial, the two trial counsels faced their first-ever contested court-martial. Their naiveté and amateur status was palpable. Despite their inexperience, the conceit, at least at the outset of the trial, was suffocating. They did not know enough to realize defeat was approaching. The smugness with which they approached the trial was the very least of my advantages. In this particular trial, truth bore out and the defense celebrated a victory long overdue. Such is not always the case. Last spring, I tried a case the government should have won but did not because of a series of failures on their part. First, the government failed in its charging decision. Second, the government failed to offer evidence, which would have supported the charging decision they should have made. Third, the government failed in its decision to introduce evidence it never should have. With each mistake, I delighted in those tactical decisions; guilt never entered my consciousness. And it does not upon further reflection.
In a recent preliminary hearing, wherein the government as usual attempted to block the calling of any defense witnesses, the preliminary hearing officer pummeled the government’s case in his report; finding no probable cause for any offense charged and recommending dismissal of all charges. They never saw it coming. Time will tell whether the report will fall on deaf ears.
With the weight of the responsibility of the government comes a heavy obligation to carry out proper prosecution, both in the subject and manner. The first of those charges is only to take forward those cases that should. Prosecutorial discretion is a weighty duty, and is the first that the military largely has cast aside. The second of its duties is to arm itself with the gladiator of commensurate ability. Though superficially the military has created a team of prosecutors with skills and experience, in reality they remain outclassed by a small class of civilian defense counsel, which I am pleased to count myself as among. Lacking even a basic level of understanding as to the rules of evidence, those operating on behalf of the government in the trenches largely make a mockery of the process. Cast aside to the ordinary plug and play of assignment roulette, specialized prosecutors, at least in the Army, are not valued, thus perpetuating the crisis of experience. The title “special victim prosecutor” assuages Congressional concern, but does little to address the seeming “epidemic” of a sexual assault crisis in the military. Plagued by poor public relations, the military is losing both an external battle and internal struggle.
Unless and until they change a cultural bias against specialization, disparate advantage will continue to undermine case results. Increased experience will mandate discretion; discretion begets an automatic increased probability of successful prosecution. The longer the military undermines specialization and the honing of understanding and proficiency, the better opportunity for those that possess knowledge to capitalize and win.
I win an inordinate number of cases because the government loses them. And never will I suffer the slightest pang of guilt for mine is not the responsibility of ensuring justice, though in many cases I appear to be its only guardian. I, before all else, am a mercenary, hired by the accused to exploit every possible benefit for his case and solely in his name. Mercenaries feel no guilt. The comparative emotion bears no place in the tempered and dispassionate practice of law. Yet I see trial counsel shedding actual tears when they lose. For their concern is not justice, they merely desire to win. Their inexperience and the deficit of seasoned judgment to supervise them combine with potential for disaster, especially if they face equally inexperienced defense counsel. When a green prosecutor left to his own devices seeks to win above all else meets an unqualified defense, the entire system is in jeopardy yet the only one to pay any price is the military accused.