I cannot possibly count the number of potential military clients who call me after feeling like they have been railroaded. By their detailed military defense counsel. Yep. I said what I said.
I recall my second of three senior defense counsels telling me when I was in uniform to never, ever try to broach the subject of a guilty plea with a client during the first meeting. I remember feeling like that did not need to be said. But apparently, I was so wrong.
Uniformed defense counsel – if you bring up the idea of pleading guilty during your first meeting with your client, he isn’t going to trust you. All those conspiracy theories about how you play basketball with the prosecutors and therefore are in cahoots with them against the client suddenly seem plausible the moment you start trying to convince your client to plead guilty during the first meeting.
And the same goes with trying to convince him to submit a discharge in lieu of separation, otherwise known as a Chapter 10 in the Army, a Chapter 4 in the Air Force, a SILT (separation in lieu of trial) for the Navy, and so on.
There is no possible way that you can have gone through ALL of the evidence in a case to form a reasonable forecast itsoutcome. First, you have only looked at the case file compiled by the government. Let me say that again: the case file is compiled by those trying to convict your client. As soon as you limit yourself to the four corners of a government case file, you should expect to lose. That file is not even close to the whole story, and when you limit your assessment on a case to that file, you have already failed your client.
There is no possible way that you have begun to understand possible defenses in the case. Military law enforcement agents are half-way decent at eliciting admissions. Barely. But they NEVER explain defenses. Acquaint yourself with the judge’s instructions and hone in on defenses. Read those instructions, and then ask yourself whether any might apply. Even before that, ask yourself whether each offense is a specific intent or a general intent crime. Hint: it matters to possible defenses. Read caselaw. Hint: it will point you in the direction of defenses you may not have considered. Even if the client gave a statement, and even if the client made admissions.
There is no possible way you scrubbed the charge sheet for how many errors they made in drafting. Not only do prosecutors fail to state offenses (all the time), but also, they make poor choices in the manner to charge. All the time.
Stop racing to a resolution. Take a breath. You have time, even in the busiest of military court-martial jurisdictions (like Joint Base Lewis-McChord), you have time to do a meaningful assessment of the case. You owe it to the uniform you wear and the client base you serve. Talk to the client, hear them out, and investigate beyond the case file.
By not taking these basic steps, you are potentially sentencing your client to what a clever colleague of mine dubbed “a pretrial fine.” By that he meant a civilian defense counsel with little or no military justice experience, but who charges a comparatively low sum to potentially land your (now) mutual client behind bars for an exceedingly long time. You’ll spend the next several months trying to clean up behind that poor excuse for an advocate, with both of your necks on the line. Chances are the client won’t be able to afford competent counsel. And now your grand plan of getting that case off your desk landed you three times as much pain. Do it right, the first time. Every time. Every case.
Restore faith in military justice.
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