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The Right Answer – for Military Justice

It was the first time I set foot at West Point since 1996. That place, the physical location, its omnipresence, and its traditions has carried a great deal of power over me. For too long.

When I accepted a case there, at least initially, I only agreed to head up the investigation. In many ways, I enjoy the investigation stage of cases even more than being in the arena as the trial attorney. If I can stop a case from progressing before my client is staring down the barrels of a charge sheet, I am all about it. Running circles around the poor excuse for military law enforcement “investigations” is always enjoyable. I like digging in, finding evidence, conducting witness interviews, and piecing together my client’s experience.

When the command at West Point decided to press on to a misconduct hearing for my cadet client, the family and the client wanted me to be physically present. In the aftermath of COVID-19, much has changed in the landscape of legal practice. While the pandemic was occurring, little changed – all of our trials continued in person. When the entire country moved to “Zoom court” it opened practitioner hearts to the ease of representation at a distance. I have dabbled, but for a case like this one – where the accuser was expected to testify in person, I knew that I would not be doing the client or his case justice by trying to make an impact over a screen. I knew I needed to return to that hallowed ground.

For those who have followed my blog or allowed me to answer questions on my live TikTok feeds, or even watched my military retirement speech, you know that I left West Point long before graduation. I was 17, and I felt like an absolute failure. There’s so much to that story, one that I am easing along the road of revealing in the memoir I am braving, in pieces, when I can muster the emotional currency.

In part, I wasn’t certain that being at the Academy was the right call. For me, personally. But in bigger pieces, I knew I needed to be there. It felt important. Not just for my cadet client, but for me to reclaim a part of myself.

The allegation was largely what I see too much of and have seen for the last two decades of practicing in military courts-martial: alcohol, memory issues, filling in the blanks with assault instead of responsibility for lowered inhibition-motivated choice.

We had the text messages to prove it.

One of my greatest frustrations in this and what seems like every military “investigation” that I review is the agents’ failure to collect all messages between the accuser and the accused. Or at least to try. The agents explain that the messages they collect are the ones that the accuser tells them are “relevant.”

Let me just tell you, there are plenty of attorneys that don’t know what is relevant in a case. Agents? Yeah – relevant for whom? So, you’re telling me that you want to rely on what THE essential witness tells you is “relevant.” Again – relevant for whom?

Nearly a year later after the events, the accuser reports my cadet client for sexual assault. The more she tells the story, the bigger it gets. The details get “more clear.” That should be everyone’s clue that these memories are really false memories. The scariest part is that they feel real to the reporter. Which makes the person seem credible. Because they believe the memories to be reality.

One of the main reasons that defense attorneys are losing sexual assault allegations in the administrative board setting is that they don’t have the budget to put on memory and alcohol experts. But they are critical.

In these administrative hearings, whether they are boards of inquiry, administrative separation boards, or in this case, misconduct hearings, the standard of proof is only by a preponderance of evidence. That loosely means 50.0000000001% – only more likely than not. With a burden so low, these cases are that much more susceptible to unjust results.

My dear friend and colleague, Thomas Grieger, passed away last year, and I used him as my first choice in these kinds of cases.

I was sitting at my desk wondering who I should reach out to use in this cadet misconduct board when an email popped up, sending me a message really from the universe.

Dr. Kim Fromme, another friend and top notch expert, emailed me to let me know she had recently retired from her teaching position as a full professor at the University of Texas at Austin. She would be more available for cases. Kim is essentially the best. We have collaborated on past cases and value working with each other as trusted professionals and people we each enjoy being around. Is that essential in a business relationship? Nope. But it doesn’t suck when you can get it. In her instruction, she used my original legal brand video as a prompt for a writing assignment.

I reached out, and she immediately accepted. I am grateful she did. She was the linchpin for our success.

The prosecutor who attempted to cross-examine Kim got waxed. Not only does she know how to answer questions in the most cogent manner, but I sure as hell know how to redirect. And he went for all the softballs that he didn’t understand were softballs.

He asked her was she getting paid for her testimony? Seriously – um, let’s revisit that for a moment, shall we? Kim – how many cases have you consulted on? And in how many of those did you testify? Why the big difference? Because her opinion isn’t for sale. She gets paid for her time to consult, but when her opinion isn’t helpful to her client, she doesn’t take the stand. Fancy that? She has ethics.

And it went like that… not well for him. Maybe google her next time, eh ace?

They determined no misconduct had occurred – and we are talking about sexual assault x 4. The cadet went onto graduate on time with his class, commission as an Army second lieutenant, and he is now receiving training at Officer Basic Course. He didn’t get kicked out, have to join the ranks as an E-4, or encumber his parents with a $300K bill for his education. He gets his life back.

It was the right answer.

As a bonus, I got to hear some praise from an O-5 active judge advocate who was a voting member of the board. He shook my hand after the hearing had concluded and told me that my reputation was well deserved, that it had been his privilege to watch me, and he thanked me for fighting for this cadet. When I had questioned him as part of the preliminary portion to ensure he had no biases that would impact his service on the board, I asked if we knew each other. He said he knew of me. I asked whether what he knew of me could hurt my client. He assured me it would not. You just never know.

As I explain on too many platforms, when people have tried cases against me, they often don’t like me. Others who have been in the trenches alongside me on behalf of a client in common do. I have one of those images that is often polarizing. And I am okay with it. This job, this calling, isn’t about being well-liked. It is about the client. And taking all possible steps to make sure that “they” get to the right answer

Jocelyn Stewart is a UCMJ court-martial attorney who specializes in defense of allegations of sexual assault for all branches of the military worldwide.

 

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