Mark Bennett, at his blog Defending People, recently published a poignant post concerning plea negotiations. Specifically, it addresses the tactic used by prosecutors where, early in the case, they say “We can deal this now for X-years, but tomorrow it goes up.” He compares this tactic with haggling for bangles and bracelets at bazaars in remote overseas vacation spots.
This happens in our military justice system in almost every General Court-Martial prior to the Article 32 Investigation (military grand jury equivalent). I hear it ad nauseum: “If we have to go to a 32, the deal goes up.” The warning does nothing more than piss me off.
Before I start this, let me make one thing abundantly clear: I was not creeping around ladies’ washrooms today.
However, a female colleague of mine happened to be in a restroom in a public building at Ft. Leonard Wood, Missouri. While there for a relatively extended tour in one of the stalls, she overheard a conversation between a couple of basic training soldiers seeking a restful bathroom reprieve from their drill sergeants. As with most basic training folks, they talked loudly as though nobody else could hear through their imaginary bubble. They spoke about usual things: which drill sergeant was handsome, the next weekend break, graduation… Then, however, the conversation took an unexpected turn. They began talking about finances. Not just finances, but they spoke of giving their money away to family members. Bear in mind, they each earned approximately $1450 each months before taxes.
A lot of folks say that being a Criminal Defense Lawyer (CDL) is a lonely profession. Until now, I read such articles/posts and moved forward without questioning them.
Today, I read a blog post by Mirriam Seddiq (a CDL from the Washington, DC area), and it caused me to reflect on the plight of the lone defense attorney. She cites the need for mentorship in order to fully develop as a CDL and the loneliness that often accompanies our chosen profession, and she talks about several recent events in her own practice:
Scott writes the inimitable Simple Justice blog and is a Criminal Defense Lawyer in New York City. If his blog is not on your morning reading queue, it should be. He comments regularly on the state of the courts, criminal law, and advocacy. His perspective on the civilian criminal justice system often throws my thoughts on the military justice system into sharp relief. This is one of those times.
A few days ago, he wrote a post entitled “In Oregon, Three Out of Four Ain’t Bad” which addressed a newly-kindled discussion in legal circles surrounding non-unanimous juries. This piqued my interest since, in the military (per the Uniform Code of Military Justice (UCMJ)), a felony conviction can be awarded by a 2/3 vote from a 5-person (minimum) jury.
Several months ago, while still the Senior Defense Counsel at Fort Leonard Wood, Missouri, I learned a valuable lesson about justice and its definition.
As those who read this blog know, I have no use for justice in my work as a Criminal Defense Lawyer (CDL). My goals do not involve it unless “justice” benefits my client. At the same time, I am mindful of the opinions and views of others involved in the process. After all, determining what the prosecutors might/will do is part of my job.
As a prosecutor, I talked a lot about “justice.” As with many in the business of representing the government, I used the word like a professional nervous tick. I used it to make others feel good about taking away a human’s freedom. I used it to sleep at night.
At the same time, I tried to be fair. Balancing the needs of the government/military command/public with the life of a fellow human being was a necessary part of my job. I used prior cases throughout the military, current judicial trends, the facts of the case, the history of the soldier, and the sentencing history of the particular military judge to determine a fair deal for each of my cases. This is what I was taught, and it seemed a decent way to do business.
My assumption was that all (or at least the vast majority), saw things similarly. Even if you have one bad apple, the presence of several layers of oversight would dampen their perspective.
Major Nidal Hasan will finally face a judicial proceeding. The man who stands accused of the horrible, faith-fueled killing spree at Fort Hood will appear before a judge and answer for his crimes. Right?
Wrong. For those of you feeling enthusiastic about this important step in the process, curb it. This will be particularly anticlimactic for everyone involved. In fact, I’ll do you the courtesy of showing exactly what will happen. I’ll be your military law Nostradamus.
Here are the highlights:
1. Witnesses will appear and talk about the horrible things they saw and experienced. They will say that Hasan did it. They might point at Hasan at the request of the military prosecutor.
2. John Galligan, Hasan’s defense attorney, will question the government witnesses at length. He will probe for details, details, and more details.
3. Major Hasan will remain silent in his chair, speaking only when addressed by the Investigating Officer regarding his rights.
4. At the end, there will be no immediate decision, and most people will wonder what just happened. Those present will all have a glazed-over look on their faces.
Not exactly the latest episode of “Law and Order,” is it? Contrary to what “A Few Good Men” showed us, most judicial proceedings are boring, tedious, and confusing to the average bystander.
Boring and tedious? Yes. Important and necessary? Absolutely.