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An Open Letter to the Military Trial Counsel from a Civilian Defense Counsel

We are not friends. Don’t act like we are and especially do not in front of my client.

Don’t call me by my first name, not in person or on email. We are not peers, and nothing you have done in the months you have been a trial counsel entitles you to assume that we are. Do not mistake my southern accent or that my mother raised me to exhibit manners to indicate that I like you, because chances are, I do not.

Be professional. Do not send emails and address me, or my co-counsel merely as “defense counsel” or worse yet “defense.” I have a name and so does my co-counsel. Use our names, but also use our professional titles. See above. To do otherwise makes you appear lazy or as though you want to depersonalize your opponent.

Don’t assume because I am a “civilian” that you may speak to me as though I do not know the military justice system inside and out. Don’t assume that because you have not bothered to check on my background to learn my level of knowledge, skill, and experience that I already have not checked on yours. Because I have. I know how long you have been in your position, and I usually know at least a ballpark figure for the number of cases you have handled. [Hint: guilty pleas don’t count.] In many instances I know someone that has supervised you, and I always make a point to learn what your peers think of you. Pretending that you are more experienced than you are is an embarrassment to you, the position you hold, and the uniform you wear.

Work harder. No matter what are your expectations for your present position, I am telling you that you cannot accomplish all you need to in the timespan of a “normal” 9 to 5 work day. If you try to fulfill your obligations in an eight-hour workday, you will fail not only those you represent but also you fail me, and the client that I represent because you fail the system.

Be better. Remember that you represent the commanding general / flag officer of your installation / jurisdiction, and you do so every single time you send an email (or ignore mine), draft a pleading, or set foot in a military courtroom. If you would not be proud or confident enough in your preparation to have the commander reading your work product or watching you, then work harder and be better until you would be. When you cannot do your job, you make mine so much harder, and more importantly you risk thwarting justice.

Cut out the games. Give me discovery. All of it. Even the parts that don’t help your case, and frankly, especially the portions that do not help your case. Don’t hide those parts from your commander at preferral so that you don’t have to give those parts to me for the Article 32 preliminary hearing. And especially give all discovery to me before the week before trial. Stop advising your superiors to deny every request for defense witness and expert assistant you receive. If you know that you are obtaining an expert in a given field, then anticipate that I deserve one too. And don’t deny my request for months only to give notice the week before trial that you have a declared witness in the same field. When an expert is approved, move along the contract so I can use said expert. Don’t wait to have the contract for my expert approved until after your expert already produced her report. Your job is to “wear the white hat” so act like you deserve said hat.

Stop placing the blame for your failures and inadequacies on others. Stop blaming your superiors for your lack of training, your co-counsel, military and / or local law enforcement, a paralegal, or anyone else around you. You are responsible for your successes and your failures. Hint: there is a book that contains most, if not, all of the answers. Or at least a starting point for those answers. Read it. It is called the Manual for Courts-Martial. But don’t stop there. There is an entire body of jurisprudence that assists us all in interpreting that book and other federal case law. The world also contains a plethora of resources for you to seek out and add to your personal library. Take pride in competence and stop acting like your supervisor needs to walk you through every evidentiary issue, foundation, or element. You went to law school and now you are a lawyer, so act like it. If no one taught you a given issue, teach yourself.

My client is a person. He is not a name or a case number or a matter for you to deal with when you get the chance. Investigations drag on because trial counsels are not proactive and because many of you push my client’s case around like my toddler does the peas on his dinner plate. Cases continue (that’s what it is called when a case starts but has to delay) because you are failing in your job. Don’t assume that the defense wants delays and don’t ask the defense to seek one. Do your job and do it timely because my client is a person and the time ramping up to a trial is the most stressful of his life. Decide to care that he is a person and acknowledge that he is at risk for suicide. Even if he is completely innocent and sometimes especially because he is completely innocent. Ensure that you are not taking actions or are failing to take actions that put him at increased risk.

Stop making decisions based on your own sense of moral judgment and your conclusion from a very Spartan investigation that he is guilty. Stop viewing him like he is the dirt beneath your shoe. Stop advising commander’s to deny his reasonable requests for leave; if you believe he is a flight risk, then put together the pretrial confinement packet and we will see if a magistrate agrees.

Stop treating me as though my efforts at his defense are an annoyance to you and your time. If I deign to call you, call me back. If I email you, respond. I am not going away, and I am documenting each time you ignore me. It matters to your professionalism, and it may matter later in the case.

Evaluate cases honestly and charge them in a fair and efficient manner, IF AT ALL. Interview witnesses before you prefer charges; maybe you will find you shouldn’t prefer any charges at all. Don’t rely on an interview obtained from anyone else, law enforcement included and probably especially.

Do not succumb to the popular sentiment that you have no choice but to charge every allegation that comes across your desk. Have the backbone to say no, not me, not this case, not on my bar license. Be persuasive when you make that call. Don’t punt the decision to an Article 32(b) hearing officer’s recommendation, and then act like there is no choice when you see a report that states there is probable cause.

Be open to the idea that you got it wrong when you concluded my client was guilty and recommended charging. If I present you with evidence to try to stop a case in its tracks, take the time to honestly and fairly evaluate what I give you. Do not become so entrenched in your belief of guilt that you become more cemented in your position because you hate to be wrong.

Do not ever assume that my client wants to plead guilty. To anything.

If the government achieves a conviction, argue for an appropriate sentence instead of arguing for the maximum in every case. It says far more about you than it does about my client.

Be the guardian of justice that you are charged with being. It is an enormous burden and responsibility. And remember that I have walked in your shoes, but you have never walked in mine. And neither of us has walked in the shoes of my client. That makes him no less human, of no less of value to this world; he volunteered to serve his country the same as you, and the same as I did more than twenty years ago.

You will not steamroll him, his statutory rights, or the Constitution. Not as long as I am here. Not on my watch.