Time After Time…

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It seems these days I spend a significant amount of time justifying delays on behalf of clients, rather than focusing my efforts on preparing work product and other services for them and the due administration of justice. More time than is reasonable, in fact. And though certainly not true of every jurisdiction, it is true for most.

Understand that I know all too well why providing justification is a necessary part of the great machine of “military justice.” Processing times are tracked, command elements are often frustrated by the lag time from the investigation standpoint, plus there’s that whole client having a right to a speedy trial. But each service member also has the right to process. My ability to digest, independently prepare, and respond to an investigation that likely took months and in some cases more than a year on the part of the government, is impacted not only by the individual client’s case but also is affected by efforts being made on behalf of other clients. The myopic vantage point of government actors that are suddenly in a hurry despite the months of anguish suffered by the day-to-day grind of not knowing what the government will do is symptomatic of what is wrong in contemporary justice.

Probably the greatest frustration that I find from jurisdictions that are loathe to grant reasonable delays is the implicit and sometimes even explicit sentiments by government counsel that “the case is simple, so why would a defense counsel need any time at all to prepare?” Military co-counsel have confided in me that their trial counsel (prosecutor) counterparts have literally told them, “oh come on, you know you’re going to lose, what really is there to prepare?” Those sentiments, in addition to being counter-productive to their role as “champions for justice,” reflects an over-zealous attitude that preclude them from being able to neutrally evaluate whether or not delays, for example, are reasonable. For therein lies the rub: inexperienced counsel, overconfident in their case and emboldened by their leadership to move cases, are in a position of power and when they lack the ability to fairly appraise issues of speed versus fairness, they are failing the system.

In recent court-martial motion litigation, I received a pleading from a government counsel with limited experience in the military justice realm. The issue in the brief was an attempt on the government’s part to preclude my cross-examination of the government’s central witness about prior instances of that witness’ untruthfulness. The crux of the government’s argument was that any cross-examination along those lines was irrelevant and a distraction. This counsel wrote, “…as is often the case when the government facts are irrefutable, a good defense attorney is often relegated to attempting to shoot the messenger.” Well gosh, if the government’s facts are irrefutable, then why does my client even get the right to a trial of the facts? Why not skip the trial and proceed straight to sentencing? As taken aback as I was, the more I pour over these words, the more I come to know that this is the same mentality that many government counsel share. Backhanded compliment aside (that I am a “good defense attorney”), the arrogance of his position is astounding. Unfortunately, this counsel’s comments are not his alone, but rather appear to be a generalized collective of those tasked with advocating on behalf of the United States.

When counsel who share such a singularly haughty appraisal of a case’s evidence, and they are not able to divest themselves from their view when assessing a request for delay, what happens is what I see day after day and time after time: reasonable delay requests are arbitrarily denied. What counsel forget is that the end result of months’ long investigations is sprung on defense attorneys; we don’t receive sometimes weekly and often at least monthly updates from the investigators, we don’t get an advanced look at the sworn statements, and we certainly never are afforded the opportunity to help direct and shape the investigation. No, quite the opposite is true. Defense attorneys receive sometimes hundreds of pages of investigative material and are expected to respond on behalf of clients in an administrative reprimand realm within seven business or even seven calendar days. Separation boards are expected to convene within 15 days of notice of date/ time/ place for members who face Other Than Honorable (OTH) discharge.

What becomes evident in the constant jockeying for position on a calendar is that government counsel do not care that an attorney has more than one client. The issue before them is the shiny thing in their world and should be for you. As much individualized attention as an effective attorney gives to a particular client, most of us do not have one client at a time. Our firm makes it a point not to thinly distribute time and resources over too many clients than we can handle, but we are not able to take on only one case at a time. The government’s insistence on scheduling would appear to take the position that each attorney only has one matter pending at any given time, or at the very least we should.

I attended a recent continuing legal education training event (let’s make sure we don’t call it a “conference”), and a senior Staff Judge Advocate gave a presentation on how to supervise a military justice office. He articulated that the government’s primary goal is to do justice “with a close second for speed.” I submit that speed has given way as the primary focus and that justice is no longer in the forefront when speed has taken on such a significant role. Being deliberate and doing it right the first time is in the best interest of all concerned. A few months ago a new potential client contacted me in need of representation for a board of inquiry. Nothing strange there. But as we continued to speak, I learned that he had twice been to a board of inquiry and each time for errors, it had been “kicked back” so he needed counsel for his third board. Among the defects from the first two boards was an arbitrary denial of delay requested to prepare and to obtain relevant evidence. When the government steamrolls an individual service member for the sake of expedience, the clearest danger is injustice, with a “close second” of losing speed.  Time after time.

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