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Odds Are…

An enormous part of being an effective trial advocate is being able to assess the evidence and provide guidance about the anticipated outcome. It is a natural inclination for a person facing criminal charging to want answers about what to expect; clients ask me daily and sometimes repeatedly about what is going to happen in their case. Armed with Google results of how other cases ended up on either side of a spectrum of victory or defeat, the client wants to find comfort in comparing the facts of their predicament with those that came before because the prior case has a result and theirs does not. The fact of the matter is, I don’t know with certainty what will happen in any given case before we both are on our feet in response to those oft pulse-raising words, “Accused and defense counsel, please rise” when the findings (verdict) are announced. Beware of any attorney who makes promises about guaranteed results. No one on this earth knows what is going to happen in a given contested case before that moment. But what a seasoned advocate does know is what are the risks and what are the potential second, third, and even fourth-order effects of all possible results. An advocate’s job is to explain what are the chances for a successful outcome (however that is defined in any given case) and to advise her client of the full spectrum of possibilities.

How an advocate views the risks and assesses them is based largely on that advocate’s experience, not only because experience provides a better pool of outcomes to draw upon but also because experience breeds comfort. An inexperienced counsel likely feels greater anxiety about the potential for a disastrous outcome for the client and is accordingly more risk-adverse than a practiced veteran. Such inclination to the path of lowest risk is probably the highest factor that leads clients to my door (or at least my webpage and phone for consultation); risk aversion is to a client a strong indicator at least in appearance that the less experienced military counsel somehow is guided by factors beyond their independent judgment about what is in solely the client’s best interest. An assessment that less experienced military attorneys are in a conspiracy against the client is an unfair appraisal; those counsel are not in cahoots with the government counsel, they are instead the product of their own inexperience, unsure and unwilling to learn at the client’s expense. Their anxiety translates to an apparent effort to convince the client to plead guilty.

I would venture that the client’s frequent insatiable desire to know what will happen and an inexperienced military counsel’s pitch at the guilty plea are born from the same insecurity and desire for the known. Everyone knows what will happen at a guilty plea (assuming the elements of what the member is charged with fit what he is articulating to the judge); guilty pleas are easy in that regard. There is a script, literally. Less experienced military defense counsel learn early how to formulate a sentencing case, they slowly relax to the rhythm of the process of pleading, and anything that would disrupt the easy flow causes panic. Clients interpret this pitch to plead as the counsel selling them out and being unwilling to fight for them.

The difference I see most often between the experienced counsel and the novice is that even when the evidence is most likely going to result in at least one finding of guilt, the experienced counsel is able to dispassionately evaluate the government’s best offer and independently assess if whatever safety net it provides is worth what the client will give up in exchange. And certainly, on occasion after I assess all of the evidence and the charging decision that the client also should consider pleading guilty depending on the terms the government is willing to give the client. But seldom is it my recommendation to plead guilty. In most cases, the government has an overinflated sense of what their case is worth and an unrealistic impression of how the facts will play out at trial.

I remember approaching a contested trial at Fort Hood in 2009; my co-counsel was new to defense work and had never been a military prosecutor (trial counsel). The evidence against the client firmly convinced me he would be convicted of having sexual intercourse with an underage girl (14) especially in light of the sworn statement the client had provided law enforcement that he was aware that she was in the eighth grade at the time of their intercourse. I had advised the client about the government’s best offer (which included years of confinement) and that by pleading guilty he gave up a trial of the facts, had to stipulate to facts that would omit the full picture so as to not portray this young lady in any way that could be construed as negative, and that I did not believe a panel would give him a significant amount of jail time but there was always a risk. Most importantly to this client and as is mirrored by many clients who both preceded him and have followed him was that by standing up in court and pleading guilty, he was guaranteeing that he would be a registered sex offender. He knew his chances for acquittal were almost zero, though he knew our plan was to argue that knowing a person’s grade did not always correlate to age because of failing, being held back, etc. but that given her physical appearance and development, her observed behaviors of smoking, drinking, her makeup, and that he was essentially put on a blind date by his friend, her brother-in-law also in the military caused him to reasonably believe she was of legal age to consent.

The client knew the risks, he understood the potential outcomes, and I was comfortable with the idea of contesting the allegations and so was he. My co-counsel was not.

This attorney had what is best described as an all out meltdown freak out and about two days before trial was to commence began screaming at me when it came to a head; this counsel alleged that my ego was the only reason we were not having the client plead guilty because he was sure to be convicted. It wasn’t pretty. I calmly reiterated to the counsel that we had fully explained the risks to the client and that I felt that he understood them; I informed the attorney that I was more than happy to have the counsel bring back in the client to verify his understanding. The attorney did and he looked at us both like we had two heads: “hadn’t we gone over all this the whole time?” he said. He understood and was comfortable in whatever would be the outcome. We went to trial. He was convicted (though it did take the government three tries to even sit a panel, which I enjoyed), but the sentence was reduction in grade from E-4 to E-1 and was confinement for 120 days. Not years by any stretch. No punitive discharge. Given the evidence, I count this as a win, and the client sure did.

In a later moment of clarity for that co-counsel, the attorney admitted trial work was not where this counsel belonged; in the attorney’s words, “I can’t stomach trial work.”

Not everyone can and unfortunately, the military does not choose its defense counsel by who can “stomach” it and who cannot.