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.
I was wrong.
One particular situation came to mind today.
First, my good friend, Dave Koon, worked as one of my Defense Counsel at Ft. Leonard Wood in mid-2008. I assigned him a case involving a young Sergeant who returned for a vacation from Iraq and then refused to return when ordered. His command charged him with desertion.
Two levels of commanders agreed he should be charged. A military prosecutor drafted the charges, and presumably at least two levels of legal supervisors reviewed the matter for the more junior prosecutor. The charges were signed, read to the young Sergeant, and he was informed that he faced up to a year in prison and a Bad-Conduct Discharge from the Army.
There was a problem. Upon returning from Iraq, he discovered that his wife abandoned his two young (below the age of 7) children while she fed her drug habit. For more than 20 hours each day, the children were left alone surrounded by filth. Food and water were obtained through the children’s ingenuity and resourcefulness. They were malnourished and dehydrated. It was sad and disturbing.
The Sergeant did not know what to do. He had very little family, a mother with severe health problems, and few resources. He obtained the kids, moved them into a clean house, and filed for divorce. However, his 14 days of mid-tour leave was almost up. He asked for an extension. The command gave it to him. In the 10 extra days, he talked to friends, distant relatives, and anyone else he knew. None could care for his children, and he certainly would never trust his wife again.
He informed his commander and First Sergeant. They said they were sorry, but duty called. They told him to turn his children over to the state and deploy to his military unit in Iraq. That sounds vaguely interesting, so I’ll repeat it. They told him to turn his children over to the state and deploy to his military unit in Iraq.
Dave scoured the case file, facts, witnesses, and the command. He couldn’t believe it. Would a military commander (several, actually) really expect a father to commit his children to a foster home in order to return to Iraq? Would they really discount his very legitimate and unexpected plight? They did.
Luckily, Dave appealed to a higher commander (Brigade) and Command Sergeant Major who were appalled by the situation. They ordered the charges to be dropped, and the Sergeant was allowed to discharge due to hardship with an Honorable Discharge.
I don’t need to tell you that I was extremely proud of Dave and his accomplishment. His client was lucky to have him.
What saddened me was that over 10 soldiers, leaders, and legal professionals (maybe more) reviewed the matter and decided to seek conviction and punishment. Don’t we expect the same level of care from them as I expected from Dave? After all, these are the individuals we employ through our tax dollars to seek “justice” in our society.
Even more frustrating: They all believed they had the best interests of justice and the Army in mind. When told of the Sergeant’s predicament, they rolled their eyes (literally). In their mind, the dirtbag just wanted to avoid the rest of deployment.
We like to think that justice is a universal principle with evenly-spread application to all humans. It is not. To some, justice is quiet, evenhanded professionalism. To others, it is a roll of the eyes.
So Dave, my thanks go to you and the rest of the criminal defense bar. Thanks for not allowing justice to prevail.