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Participating in a Military Investigation through Counsel

A close cousin to the dirty little secret of retained civilian counsel is advice to ride out the investigation and hope that nothing comes of it. I disagree wholeheartedly. Even in the age of allegation as truth, there is much to be gained by actively investigating the case parallel to the investigation that law enforcement is conducting and often in providing evidence to the investigation.

The fallback and default position of most criminal defense practitioners is to never give a statement (the adage “no statement; no ‘poly’; no waiver”) under any circumstances. I disagree that the blanket position is true in every case. Indeed, there are often advantages to help guiding the investigation earlier in the process than later, though admittedly not always. I agree that a military suspect should never attempt to undergo a law enforcement interrogation without the benefit of counsel. Not ever. Police officers lie as a matter of course and devote a significant amount of training in perfecting interrogation skills designed to elicit admissions, and not even necessarily to elicit the truth.

Last week, I learned that another military client is avoiding court-martial despite sexual assault allegations, and I believe a substantial factor in that result is the sworn statement he provided through me to law enforcement, one that I assisted him in authoring and helped editing several versions. Word choice matters and the wrong choice could imply an unintended implication. In addition to the body of the sworn statement we crafted together, we provided independent documentary evidence that corroborated his version of events to the extent possible in addition to substantiating documentation of the motive to fabricate by his accuser. The prosecutor (trial counsel) gave a no probable cause opinion to law enforcement and is advocating that the law enforcement remove him from the title block as “subject” of an offense. Make no mistake: avoiding the preferral of charges in a military sexual assault investigation and likely avoiding titling is rare, but I am firmly convinced that he was sure to receive charges had we sat back and waited to see what the investigation produced.

Even in cases where all signs point to charging, sitting back and waiting on one’s heels does not benefit anything except the attorney’s bank balance. Especially where the client needs to brace for the inevitable charge sheet, an attorney can assist the client in an impactful way by beating the pavement obtaining evidence on his behalf and by attempting to interview potential witnesses. The military justice system represents a barrage of unrealistic timelines and process that creates a disparate advantage for the government counsel who has been reviewing and shaping the military law enforcement for months and even for over a year in some cases.

I’ve had the same client since the fall of 2014 and a few months ago, we received word that the prosecutor’s office was declining prosecution on an allegation of domestic violence and sexual assault. This is true in a case where the complainant is vocal in her desire that the case go forward and wants to be part of the judicial process. To not go forward under these circumstances is almost unheard of. Over the last year, I have handed over no less than five hundred pages of documents, including sworn affidavits from more than a dozen witnesses the investigators never questioned; I also consistently advocated the significance of those documents against the credibility of the accuser and on the multiple accusations she was lodging. He is still my client because the government is taking lesser-alleged misconduct through the administrative mill, and we are working to uncover more evidence to whittle down if not annihilate those accusations. And though the administrative process still poses a threat to his ability to retire, he is not at risk for conviction, incarceration, or sexual offender registration. And all because we did not sit back and wait to see what would happen.

Without intervention, the system will only “work” one way: toward charging, prosecution, and court-martial. Is conviction assured if the attorney does nothing during the investigation stage? Not hardly, but I would venture the risk of conviction becomes far more likely. Can every case be stopped before charging? No. Setting aside cases with confession or eyewitness evidence, however, even unmeritorious cases go forward. The best chance at avoiding risk of prosecution is evaluation of each predicament on its own factors by an experienced attorney, not some blanket “let’s see where this goes” policy. Otherwise, the military accused’s cost of retaining civilian counsel is merely a “pretrial fine,” with nothing to show for it except assurance of that counsel’s availability.