When someone faces court-martial charges in the military, they receive a military lawyer at no charge. This is usually a lawyer in the pay grade of O-3 (sometimes O-4).
If the accused chooses to hire civilian counsel, they must pay for the civilian counsel out of their own pocket, but they keep their assigned military lawyer. So, they have the potential of having two for the price of one.
I spent over 2 years as a military counsel, essentially functioning as a military public defender, and I’ve been on the civilian side since that time.
OK, with that out of the way, let’s move to the hot military law topic of the month, the murder case involving SSG Robert Bales.
Latest development: Bales and his civilian attorney have fired military counsel.
This Reuters article is very superficial, but it seems to indicate a great deal of friction between civilian and military counsel. Please read it before proceeding. However, if you’d rather not, here’s the most important passage:
“You are fired, sorry, but we have much more experience than you,” Seattle-based John Henry Browne, the outspoken lawyer who has been the public face of the defense of Staff Sergeant Robert Bales, said in an email to military lawyer Major Thomas Hurley.
Working with other attorneys, particularly ones unknown to you, can be difficult. Ego always plays a role. Philosophy on defending cases also complicates matters. Sometimes, it’s a simple clash of personalities.
I’ve worked with several other attorneys during my time on both sides of the fence. Here are a few of my thoughts concerning a joint military/civilian defense.
- When the civilian is retained as counsel, they assume the lead role. Unless the client specifies otherwise, this is the assumption. As a military counsel, this was difficult for me because of my history in leadership positions. However, I also knew that a unified defense was best (usually) for my client. In every case, I learned from my more experienced civilian counterpart. As a civilian counsel, part of my representation agreement specifies that I am lead counsel in the case. Any change to that status constitutes a material change in representation and may be grounds for me to withdraw. Now that I’m in a position to pick-and choose my cases, that’s just the way it is.
- Conflicts between counsel should occur in private, and initially just between counsel. Whenever part of a joint defense, we never argued in front of the client. When we differed, we discussed it privately. Ideally, we’d reach common ground. If not, we’d calmly and professionally present our differing courses of action to the client and allow the client to decide which path he’d rather follow. Hyperbole was strictly forbidden.
- Our roles were always decided beforehand, and each of us knew our duties, responsibilities, and limits. During initial meetings, we carved-out our roles. The civilian almost always finalizes motions, takes the bigger witnesses, merits opening, and merits closing. Miltary counsel will usually draft motions, take lesser/supporting witnesses, and prepares a sentencing case (if necessary).
- Publicity was almost always the call of the civilian, but not without gaining the opinion of military counsel. Military counsel cannot approach media unilaterally. They must first get approval from their boss(es). Civilian counsel can independently approach media (after, of course, consulting the client). Again, working together is critical.
- Someone must check their ego at the door. Preferably, both counsel, but at least one. If ego drives representation, then the client is hurt.
Here, I’m not sure the specifics, but the apparent tone of the email from civilian to military counsel is troubling.
Now, I have a few questions (which will likely never be answered):
- How the hell does an email between defense counsel become leaked to the press? If it was intentional, then shame on the person who intentionally did it. The concept of hiring/firing counsel should never be public and is not germane to effective representation or public awareness.
- Did anyone bother to check their ego at the door? The public knows of the ego possessed by Bales’ current civilian counsel. His statement of “we have much more experience than you” is a clear indication. OK, so what about military counsel? Did the Major assigned by the Army to represent Bales appropriately voice his dislike/distrust of the civilian’s chosen public affairs tactics? Did he appropriately discuss this with civilian defense counsel and then calmly and professionally with the client? Ego can kill a defense.
- As far as military defense counsel goes, Bales’ assigned counsel has oodles of experience. Chances are that they will not find another with his resume’ (particularly in defending murder clients). So, what does civilian counsel think they are going to get? A stool pigeon? I’ve never felt that a compliant attorney helps in a defense.
So, there are my thoughts in about 10 minutes of writing and analysis. I may amend this from time-to-time as ideas pop into my head and information becomes more public.
Note: For what it is worth, I’m probably more aligned with military counsel in this case. As I’ve made clear before, I am very hesitant to take a case public (let alone putting my client’s spouse on the “Today” show). I’m not above it, but I’d rather obtain discovery prior to shooting-off my mouth. Evidently, the biggest rub in this case centered around the (indiscriminate) use of media and publicity. My rule: if I cannot see a clear (repeat: CLEAR) benefit in the overall result of the case (judge or jury), I avoid the media.
Note 2: I am not personally acquainted with any of the actors in this play.