Why am I here? Part 2 (Being an Underdog)

Some of you have asked about the change in blog title. I went from the boring and mundane “Eric L. Mayer, Attorney at Law” to “The Military Underdog.” This ties in with my previous post about why I do what I do, and I hope to answer this fully and universally, though you will often note that I reference my niche, military law.

In short, it embodies a lot of what I love about my job.

Criminal defense representation is inherently an acceptance that you will be the underdog in every (or almost every) case. Why is this?

1. The prosecutors have a blank check. They are able to prosecute on behalf of the government without regard for the cost. I have seen tens of thousands of dollars spent on cases with shaky evidence. They don’t care. They don’t get a bill.

Defense can present their case, but most actions that cost money require asking permission from the government attorney, military commander, or judge. Whereas the government can secure an expert witness without notifying the defense ahead-of-time as to the nature and purpose of the expert, the defense must put all of this information in a written request prior to the expert being hired or retained to serve on the defense team. Even then, the requested defense witness may be denied in favor of a cheaper one provided by the government.


2. They outnumber us. Consider Fort Leonard Wood, Missouri. Each brigade has its own prosecutor (4), plus a floater that works all the random units, plus a special victim prosecutor, plus the Chief of Justice, plus the Brigade Judge Advocate for 4th Maneuver Enhancement Brigade, plus the two senior supervisors. This means they have 10 attorneys capable of working criminal prosecutions. Then, consider the number of paralegals and victim advocates assisting those matters, and you have more than 30 legal professionals available to work to make a charge stick.

Trial Defense is a different story. They are authorized 4 attorneys. During my time as the Senior Defense Counsel, we never had more than 3 (only during my last 4 months on the job). Most of the time, only two attorneys were available to take cases. Additionally, Trial Defense is authorized one paralegal to assist in running the office.

There you go! Greater than 30 vs. less than 5. Sounds like Vegas odds to me. Nothing like going against 6 to 1 odds when your life and good name are at stake.

3. They have a lot more tools. Not only do they have the edge when it comes to the number of attorneys and paralegals, they also have more tools available.

Prosecutors have special agents, police officers, special investigators, victim coordinators, military commanders (and other members of the chain of command), experts, and others. All work in concert to help the prosecutor secure a conviction. Depending on the case, there could be dozens (and possibly hundreds).

Defense? Once again, the pickings are slim. No special agents. No investigators. No special advocates. When military defense counsel needs an expert or other assistance, they must request that it be provided by the government or ordered by the court. Either way, the defense must substantiate the need for the assistance, thus allowing the government more than enough time to counter the assistance with their legion of supporters.

4. Public Opinion. You hear many politicians talk about getting tough on crime. Normally, this includes harsher sentences, fewer chances, limiting the discretion of judges on sentencing, and a focus on victim rights. How many times do you hear them talking about lowering sentence standards based on new scientific studies delving into the areas of rehabilitation, therapy, and inflated recidivism rates? Face it, you do not get elected by talking about protecting the underdog from the potential tyranny of the masses. Votes of the masses are necessary to secure and maintain a lawmaking job. This is why they regard possessors of child pornography as a likely child molester rather than an aggravated voyeur. It is why crack cocaine is sentenced as though it is a supernatural, nuclear-powered drug rather than just a smokeable version of its powdery sibling. They forget that 10 years is a large chunk of someone’s life, all for the sake of votes.

So, why on earth would anyone want to be a criminal defense attorney for military cases? After all, most of us can see that the casino makes all the money, not the poor, buzzed schmuck at the blackjack table.

The underdog role is fun, rewarding, and fulfilling.

During one stretch of good luck, the attorneys in my office had a streak of positive results in the courtroom. It lasted long enough to feel like habit. However, all good things come to an end, and a later case resulted in a harsh sentence for a client. Afterward, we learned that the government attorneys celebrated the victory. While we felt badly about the fate of our client, the thought of the government celebrating the victory made us feel extremely good about our overall operation. Why? It would be like the LA Lakers celebrating a victory over the East Hickory Middle School Seventh Grade Basketball team. One victory by East Hickory over the Lakers is an amazing triumph. Meanwhile, a victory for the Lakers should be routine and expected. For a while, the tables were turned on the government, and nothing felt better than that–especially when I saw the effect it had on my junior attorneys and the lives of our clients.

Plus, the disproportionate odds make the job of defense attorney even more rewarding because it means, objectively, that our representation is critical to our clients. They are facing often insurmountable odds, and that is when choosing to stand next to someone and face the gauntlet together becomes a nearly indescribable lesson in leadership, humility, and humanity.

More than that, standing with another human being during their hour of need is a remarkable experience. Words cannot adequately describe the feeling. Letting them know they are not alone is critical in their surviving the judicial process. In my representation, standing next to them is always an honor.

For much more discussion of what it means to be a Criminal Defense Attorney, check out Scott Greenfield’s blog, Simple Justice along with the various links to other defenders. We all have our own take on the niche.

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