Zen of Trial Counsel

Taken Sept 2011 near Kumamodo.

After I got back from China I moved from Legal Assistance to Trial Counsel.  In non-military lawyer terms, that means I went from be a normal non-criminal attorney helping people with random legal problems (like bad landlords, creditors, divorces, and adoptions) to Prosecutor (an actor for the government). 

In the first job I did not have to go to court or represent a point of view in front of a court of law.  A Court Of Law is far more structured, detailed, and unforgiving than writing a Last Testament or arranging for custody. 

In the court of law, I have set deadlines that if I miss them a potential perpetrator could walk free.  I have motions to exclude or include testimony or real evidence; I have victims to talk to, witnesses to prepare and arrange transportation; tactics to analyze; and Convening Authorities to advise.

Legal Assistance, while important, is less stressful.  When I first took up the reins as the Legal Assistance Attorney, I also became the Officer-in-Charge of that section with four Marines to train and educate to how I want my office run and how to protect our clients.  I felt underwater.

Taken Sept 2011 at the Springhead near Kumamodo.

I called and emailed other attorneys I knew who were doing the same job all across the Marine Corps.  Some had more experience than me, others had experienced attorneys to ask those questions to, and a few were in the same boat--alone and unafraid.  I learned fast and created an office that worked efficiently.  I wasn't underwater for long.  I began to swim and even dive for oysters. 

When I left for China in June, I had a shop that I could leave for 4 weeks and know that I would not come back to a mess or ethical violations.  In fact, I had left my office for four weeks and it held solid for those four weeks.  When I came home from China, I had a new office, with different Marines, different duties and I had more demanding responsibilities.

Trial Counsel has deadlines.  90 days or 120 days are my most important deadlines.  If I miss that deadline, I am getting bad paper--unless I have an absolutely airtight excuse.  I have to be aware of every investigation going on; know what the Commanding Officers are planning in each case; predict the outcomes if things progress in a certain fashion; and I need to show results.

In the month of July, I had two guilty pleas that I walked into court.  I learned a lot.  The deals expected too much, my evidence was not sufficient, and the judge came down lighter than I expected.  I also had a contested case that nearly backfired--I had my butt handed to me, along with two other attorneys' rear ends.  I had to put my tail between my legs and beg forgiveness from the victim and the Convening Authority.  Reputation damaged.

Lesson Learned?  Nearly.  Since then, and with learning how to draft charges better and talk to Convening Authorities, I've gotten better and so has my office.  My Marines stepped up and have done everything I've asked of them.

Underwater?  I don't think I'll ever feel like I'm above water.  I'll probably always feel like I'm treading water in this job.

Countryside near Kumamodo

Trial Counsel is a job where you do teeter on a limb.  You have to balance between competing interests.  The only solid ground you have is what is right beneath you.  And sometimes, that ground isn't all that close.

The judge in the July guilty dives talked to me and the defense counsel afterwards about how we performed.  He gave an interesting take on what the Prosecutor's job is.  He said "Your job is to present the evidence, not seek a conviction.  You are suppose to seek Justice."

Those words are with me every day.  Those words have become my new mantra in working through this role--Present the Evidence and allow for Justice.  How I present evidence will dictate an outcome (where the tactics and procedures come in).  But I shouldn't be looking to pull the wool over the Jury's eyes to get a desired outcome.  Others can want blood, but I shouldn't.  I should be looking to present the case and allow for Justice.

I did that in a case in September.  I had two cases that saw a courtroom, one for a sentence and the other for sufficiency.  I think the outcomes reflected the evidence in the case.  The first I presented evidence for returned a sentence in excess of what we'd been getting before--I'd learned from the July cases that I need to adjust my tactics and procedures to make sure everything made it in and triggered the correct responses.  The other case failed to meet sufficiency--but I presented the evidence.  I didn't try to create a mountain out of a mole hill.  I went in with what I had and laid it out--and defense counsel performed his duties admirably.  If it doesn't work, then it doesn't work. 

Working with the assumption that I am suppose to present the evidence and Justice will be done by the jury or the judge, stress about an outcome disappears.  I'm no longer worried that I'll get bad paper for not obtaining an outcome--because I don't decide that. 

"I represent the Government, and I am here to present the evidence in this case."

Taken Sept 2011 at the Springhead near Kumamodo