Winning Your Court Martial Can Be Easier Than You Think, Part II
In my previous post, I addressed the ways the Government can mess up their case and the ways a good military defense counsel can hone in on those mistakes to secure a victory. In today’s post, I want to address affirmative steps the defense can take to make winning your court-martial a real possibility.
Government Witnesses in a Court-Martial
There are three critical questions every defense lawyer must find out about Government witnesses: their motive for testifying, their interest in testifying, and their bias against you. Too often, busy defense lawyers fail to adequately investigate these three critical questions. Often, they don’t even ask you why these witnesses are so willing to testify against you.
I’ll give you an example of how I honed in on the motives and biases of a witness to secure a dismissal for a client. I had a Security Forces (i.e. Military Police) client charged with drinking alcohol on duty and while armed. He was accused of going to his dorm room during his shift and drinking a bottle of beer before returning to his patrol car. The Government thought their case was rock solid. My client’s supervisor heard my client was in the dorms, and thought he wasn’t supposed to be there. He went to my client’s dorm suite and found his roommate there. Upon entering the room, he saw empty beer bottles next to my client’s desk and asked his roommate about my client’s whereabouts and the beer bottles. The roommate said my client had just been there and that he had chugged the beer.
My client turned down an Article 15 and was ready to face a court-martial. First, I found a witness the Government didn’t know about… the other NCO that told my client to get study materials to read while he was on duty that night and approved his return to the dorms. Next, I brought in the roommate. Now, the Government swore to me he was reliable because he had no beef with my client (and my client affirmed there were no issues between the two). But, what the Government didn’t figure out, I uncovered in under 5 minutes. I brought that witness into my office, put him in an uncomfortable chair, in a corner of my office and made him wait for me. I walked in the room, stood not more than 3 feet from him and didn’t sit the entire time. I told him I knew his supervisors suspected him of repeatedly being involved in Alcohol Related Incidents (facts the Government didn’t know). He squirmed. I told him I didn’t believe his story, I thought he was trying to protect himself since he shouldn’t have been drinking, and that I didn’t even think he would have been able to see my client enter the room since he was in another part of the suite when my client had come back to get his study materials.
Like most liars, he wasn’t ready to admit it was all fabricated. So, I used a strategy most don’t know of, and I won’t revel here. But, what I will disclose, is that within 5 minutes of me entering that interview he requested a lawyer of his own. Within 10 minutes he had a lawyer and was asserting his rights to remain silent. In under 24 hours, the Prosecution dropped all charges against my client and the Court Martial was cancelled.
This is an excellent example of finding a motive, even when the obvious motive (not liking the Accused) isn’t there. In this case, even though the witness wasn’t facing any direct threat of trouble, he was so worried about protecting himself, that he pointed a finger at his roommate and was ready to see him be court-martialed for it.
Court-Martial Character Witnesses
Character witnesses in your favor are the single biggest advantage for a military accused. Even though this is no secret in the military, inexperienced or lazy defense counsel won’t venture down this path. Often, the witnesses you identify as good character witnesses won’t want to testify. Why? Not because they don’t think highly of you, but rather because they don’t want to get involved. They often don’t want to offend the command that has brought the charges against you. These are generally people of integrity, though, and if you order their appearance at court, they will testify to your good character.
Another excuse defense counsel use for not calling character witnesses is the fear of “opening the door” to your bad character. While this is a fear that must be evaluated, too often it’s given too much weight. I have found military juries don’t like courts-martial to get off topic. They especially find it distasteful when the prosecutors turn vindictive.
Most aggravating, is when a defense counsel tells you your good character witness can’t testify because they are stationed elsewhere or are deployed. That is down right lazy! Any defense lawyer worth their weight will motion the judge to order their presence at the court-martial or delay it until they can be present!
Finally, don’t confuse the character witnesses I’m talking about with the letters your attorney has told you to get for your sentencing case. Those letters are only important if your convicted… why save those letters and positive witnesses for after you’re convicted. Use them when it matters, to get you acquitted!
Testifying in your Court-Martial
There is literally no bigger decision that you have to make than whether you should testify in your defense or remain silent. This is always a decision that is made by the client and only advised by the attorney. The advice you receive shouldn’t be a guess, it should be based on experience! Too often, the young appointed defense counsel are doing their best to guess whether you should testify or not. Their biased by law school professors that might have said, “a defendant should never testify,” or they are jaded by the one other case that their client testified and was found guilty.
You need to be guided by someone with years of experience and hundreds of cases under their belt. In the dozens of sexual assault cases I worked on, an Accused taking the stand was the single biggest factor in securing acquittals.
Too often, the assumption is that a client won’t testify. That thought should be put on its head, and the assumption should be to testify unless there is good reason not to.
Every case needs to be evaluated on its own, but you are only hurting yourself unless the evaluation is done with the experience and knowledge you can trust.