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What My Client Taught Me for Military Justice

I have started this blog-post many times.  Let’s see if I can get it done.  Honestly, it feels really strange to let go of a case that I have been fighting for three years.  Feels even stranger to let go of my client, so I guess I won’t.  He calls me his “best friend for life.”  I’ll hold onto that as well.  The day I made any meaningful progress on this post was Wrongful Conviction Day, and even though he walked out of court a free man, walking into court each and every time I repeat the mantra “As soon as you expect to win, you should expect to lose.”  Every time.

As I have mentioned in the social media posts about this case, when I first started private practice, I drew a line against handling cases of child sex abuse allegations.  In my last assignment on active duty I exclusively prosecuted special victim cases for two years in uniform and I carried an inordinately high number of child incest and other child penetrative cases. Those cases took their toll on me, and the military does a poor job of ensuring the emotional health of attorneys that deal with those cases, on both sides of the aisle. I told myself it was best not to even consult on the cases, lest I be tempted to take on even one.  I rationalized my choice by cleaving to the notion that it was more than I should take on; it was too soon, I told myself.

And then in 2015, I received a call that would change me forever.  I agreed to take a look at the child forensic interview.  His insistence that he was innocence did not carry with it false tones of sanctimony or righteous indignation.  I decided to dip my toe.  It was only a video after all.

So I met with the man and his detailed military defense counsel in the conference room.  The military counsel hooked up his laptop to the office’s large screen and I began to watch the forensic video.  After about 15 minutes, I turned to the client and I said, “You really didn’t do it.”  He looked at me and said, “that’s what I’ve been telling you,” to which I immediately replied, “that’s what everyone says.  But now I believe you.”

Not only did I believe him, but I could tell also that the forensic interviewer did not believe his accuser.  Despite repeated requests for interview of the forensic interviewer, she denied them all. I think she feared lawsuit.  Or maybe she felt guilty because she did not confront the inconsistencies within the interview.  Perhaps she hates defense attorneys.  She sat in a waiting room for two weeks at trial.  We decided not to call her as a witness.  In my daytime reveries, she sat there worried; she felt guilty; she hoped for the right outcome.  Who knows?  I never bothered to lay eyes on her.  She was part of the machine that failed this man.  I know that contempt for her or disgust for the rest of the machine that failed my client is not where I should put my energy.  It is a precious commodity, and post-Trial Lawyers College I am more vigilant of where I place that energy.  But I would be naïve to believe there is not room for it in my soul, and I would be lying to you that I have been able to transcend my disdain.  Instead, I’ll draw motivation from the knowledge that but for tireless effort by those of us that believed in my client, he could easily have been wrongfully convicted.

The word of a child means a lot.  In many cases, it is all that is needed, even in the face of contradictory evidence.

My client’s stepdaughter first told a family friend (an eleven year old) about the alleged abuse when she was eight years old, which she claimed began when she was five or six. She claimed that her stepfather would wake up by talking to her, would make her walk downstairs to the living room where her stepfather’s friends would watch and laugh while my client molested her.  Because, that’s credible.  Did I mention the home where she lived was a one-story home?  Prosecutors did not realize that until the middle of the defense case at trial.  Because, you know, investigation.

The girl swore her friend to secrecy, which she honored.

The “investigation” showed that a few years later, in some instant messages her boyfriend made reference to not liking her stepdad.  The instant message history contained some dialogue about her willingness to engage in sex with her boyfriend and her biological father reviewed the messages. Concerned, the biological father alerted the girl’s mother.  When the girl’s mother (my client’s wife) reviewed the messages she saw the reference to her dislike of my client, she asked her daughter over the phone (she was out of state for visitation with her biological father) why she didn’t like her stepdad.  Her response? Because he touches me.  Where?  Down there. Feeling too close to the situation, her mother asked her sister to look into it.  The girl’s maternal aunt was hosting her niece for a visit.  The aunt asked the girl what had happened, what her stepdad had done to her.  The girl told her aunt that her step dad would place three or four fingers inside her vagina; she claimed she would pretend to stay asleep when it would happen.  No, it didn’t hurt.  No, she never saw blood.  The aunt told her niece that she loved her but that she did not believe her.  The aunt explained that she did not believe her because she said it did not hurt and because she said that she had not bled or seen anything in her panties.

Within a week of returning to her residence (my client was deployed at this point), her mother told her that she was not going to say anything to her husband while he was deployed. She said they would get to the bottom of it when he returned and was out of the stresses of deployment.  A few weeks later, the girl tells her mom that she left something for her mom at her bedside table.  When the mother went to look it was a note that read, “Maybe I dreamed it, maybe it was somebody else, maybe it didn’t happen at all.  But [Name] didn’t do anything to me.”  In other words, she fully recanted.

My client’s wife never told my friend for life about the allegation.  She would later explain through tears from the witness stand that she worried her husband would throw her daughter out of their home.  She was probably right.

As the child grew older she was showing signs of rebellion and generally was not showing appreciation for what her mother and stepfather provided in their home.  They told her she needed to apologize for how she was treating her brother and sister and how she was behaving in the home, and that if she would not apologize perhaps it was best she stayed with her biological father. My client and his wife fully expected the apology but none ever came, so the child stayed living with her biological father.  Not long after, the girl broke the one house rule about boys in the house, was caught in flagrante with her boyfriend, and her dad came home to kick her out. She staged a suicide attempt (faked a pill overdose), claimed she took more pills than science would show, and staged a note that claimed she was “doing this for her [grandmother]” and recounted years of alleged abuse in the note. She was savvy to ensure that the note was not left in an overt location, but she knew to place it where it would be found. When she “awakened” at the hospital she feigned surprise. The manipulation continued on the brink of each trial date.

We ramped up for trial five times.  Just before the fourth trial date, the girl suddenly claimed during my defense interview (one of the few I have gotten under the new rules that place complainants all but within my reach) that she had outlined the abuse in a journal. You know, the one she started contemporaneously with the abuse. When she was five. Because, that’s credible. You could tell that she believed she could tell this lie (claim that the journal was in California) and get away with it now that trial was two days away. Nope. Not having that. We sought and received a court order to seize the journal and the cell phone of the girl who claimed we misunderstood her during the (recorded) interview; that she had in fact not recorded the information in a journal but had written some memories in the “Notes” section of her iPhone. Which is totally the same as writing in a journal contemporaneously with abuse. The judge was having none of it and he directed military law enforcement to seize her iPhone given our fear that she would alter its contents. Oh to have been a fly on that wall. A CID Special Agent with whom I had worked when I was a prosecutor recounted the tale for me slowly so that I could take in every drop of her misery.

After two long and grueling weeks in battle, the trial concluded with a full acquittal. Strangely a sense of calm took over; usually while a panel is out deliberating my stomach is doing back-flips. And I cannot say that I knew what the verdict would be, merely that I knew what it must be. There were so many lies we exposed, and so much impeachment achieved. And then there were the members of the “teenager parade” in whom she had confided about seven different versions of events. She is a troubled young lady and I pray that I find the capacity to pray for her. I spoke to Jesus a whole lot during my cross-examination of her. My client and I tried to work through some of the disdain and the betrayal together but I had to be careful not to tap into it too much. I needed to show humility, I needed to feel it, for it to be my authentic self as I sifted through the story and carved out the truth from her. I needed to walk a path of humility, one that the prosecutors could not find in the brush and thorns of their own egos and desire to win.

My best friend for life and I keep in touch, and I hope that we always will. A friendship like ours, forged in the fires of a shared truth, has to survive. It was my privilege to speak his truth in court and to share it in this space, to have come out on the other side of this experience, forever reminded that it is not my place to judge. I cannot imagine having turned down his cause now that I have lived it for over three years. It is not a mistake I will make again. For this, I remain in his debt; for reminding me that I am an instrument of justice, and I cannot exempt a class of cases out of some ill-conceived notion of what or who deserves the best of me.