The Defense is Entitled to a Defense

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A few weeks ago I wrote a blog about the process to go through when the government denies a requested witness for trial. Hopefully, I came across as level headed and tempered. I write today incredibly ill-tempered. There is a trend across the services among government counsel to deny every witness that could damage the government’s case. It is alarming, it is troubling, and frankly I find it disgusting. As a former active duty officer, a former trial counsel, a former Special Victim Prosecutor, and a former instructor at prosecutor conferences, I want to scream. To the young, inexperienced, or just plain lazy, I say to you: the defense is entitled to a defense. If I cite a rule of evidence in my request, know that I am not blindly asking for a witness. Here’s a thought: if I cite a rule of evidence to you, why don’t you look it up? Or better yet, do some case law analysis on the rule that I cite to you. Educate yourself before you embarrass yourself in court. And if you are tempted to use the “my boss told me to do so” excuse, then shame on you. Educate your boss.

An outside observer could easily believe that the trial counsel who acts to “deny” production of relevant and necessary witnesses does so with cunning, a fervent desire to see that the accused is convicted without due process of law. At every turn, I attempt to assuage the concerns for those members of the public. My default is incompetence. But at some point, indeed probably today, I cannot say that I will draw a distinction between incompetence (and ignorance of the rule of law) and cunning because the result is the same: efforts at an unfair trial.

I have always prided the military justice system for its transparency. Defense is entitled to the government paying for and producing its witnesses with the caveat that the defense has to explain a synopsis of what that witness will say. In 2010 at Fort Hood, the government dismissed a case against my client three days before trial “in the interests of justice” because of my witness list. The transparency worked that day for that client, though to be sure, it should have occurred far sooner had the government done due diligence in its investigation.

What is missing from the current trend in military justice is the trial counsel taking responsibility for educating himself about the law. What seems to drive trial counsel instead is to gage their choices of whom they will produce and whom they will not is the cost of production and / or ease of production. “Oh, gee, that Special Agent that I previously told you I would produce because I assumed they would be local for trial?  Oh yeah, I just found out that they will be on maternity leave or on a mission out of the area, so now I am not going to produce them. Even though before I acknowledged that they were relevant and necessary…” Because to the trial counsel, when they take these ludicrous stances, the message they send is that for them and for the government at large, it isn’t about a fair trial; and forbid, in light of production issues they should, oh, I don’t know, ask for a brief continuance to ensure that all relevant and necessary witnesses can be produced for trial.

The nearly universal lobotomy that seems to have occurred across the services and across jurisdictions is alarming, and it is at times exhausting. But the fight rages on.

For those of us in the trenches battling out motions to compel production of witnesses, each and every time, we look forward to the day of reckoning in court when we anticipate a military judge will take a bite (or two) out of the trial counsel for taking such ridiculous positions as “character for peacefulness is not relevant in a trial where I have charged kidnapping by forcible abduction and sexual assault by bodily harm” or “the accused’s character is not at issue in this trial when the defense is asking for merits character witnesses” or “I am denying both witnesses because they are cumulative with each other,” but the bites are not coming. No matter how ridiculous the position, no matter how absurd their “application of law.”  There is no consequence to the government when they take such untenable positions, when they waste defense efforts, and even the court’s time. Military judges today are encouraged to be patient with counsel, are being discouraged to promote what was once a healthy sense of fear of the judge, and accordingly are partly to blame for the lazy, untenable, and obstructionist behavior of counsel. Where are the consequences? Where are the sanctions? I will accept the role I play in not helping to improve the system because I have not asked for sanctions against counsel. There is an unwritten rule that attorneys do not turn on themselves and make ethical allegations, and a clear bright-line rule that attorneys never ask for sanctions. Attorneys know that judges do not grant sanctions so we don’t bother to ask for them. That needs to change. Starting with me. Starting today.

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