Wednesday, August 10, 2011


The most important thing one learns at law school is the ability to analyze. It's an asset more valuable than talent and ability. It steers you through the roughest waters. If you get it right and stay on course, you'll formulate and present the strongest case possible. To put it another way, you'll be doing your best. Come with me, now, on this difficult, and sometimes treacherous journey of preparation and trial.

It was a difficult case, it was an impossible case. (What the dickens?) It was the first time that a Marine was court-martialed for gross misconduct during the Vietnam war. Most parties to this case are still with us. Accordingly, I shall intentionally omit names, dates and places. It was that controversial. Many said it was unpatriotic to represent the accused.  But, I am a criminal defense attorney and I had a job to do.

I put together the facts: My client (I'll call him "Pat") had joined the Marines as a private first class and quickly earned a poor reputation. During basic training, he stood out because of his lack of stamina. He was unable to complete, or finish, many endurance tests. It was apparent that he was not physically qualified to be a Marine. Yet, no one intervened.

Two weeks after arriving in Vietnam, his company was heavily engaged. He was consistently unable to keep up with his unit and had fallen behind, many times. Ultimately, he dropped to the ground. A Corpsman found nothing medically wrong with him. His superior officer fired his weapon at Pat's feet in a vain attempt to get him up. It was decided to move on without him, with rear elements instructed to return him to base.

He disappeared. Only his weapon and ammunition were found.

Nine months later, a North Vietnamese broadcast, beamed to U.S. forces in Vietnam, was intercepted by the Foreign Broadcasting Information service. It contained a statement by Pat, urging American troops to stop fighting and stage demonstrations against the war. As long as the circumstances of the broadcast remained unknown, he was continued in a P.O.W. status and, in accordance with Marine Corps policy, was promoted at the same rate as his non-prisoner contemporaries. (This was difficult to explain at trial in the context of the charges.)

Pat had been captured and held in Hanoi for eighteen months. He was then released for reasons not explained by the North Vietnamese. At the time of his release, he had been promoted to the rank of Sergeant. Holding a North Vietnam passport, he was escorted to Sweden, with intermediate stops in Peking and Moscow. He was then presented at a press conference in Stockholm where he echoed his previous anti-war statements.

He, eventually returned to the United States and was placed under military arrest. He was charged with: deserting his unit in combat, running from the enemy and communicating with the enemy by broadcasting disloyal statements. To say the least, I had my work cut out for me.

The most incriminating non-testamonial evidence was an audio recording of the statements made and broadcast, and a video tape of the Stockholm press conference. Both portrayed Pat making disloyal statements. I tackled them one by one.

With regard to the recorded statement, Pat said that he was placed in a small room and seated at a desk. In walked a North Vietnamese officer who placed two things on the table: a typed document of several pages, and a tape recorder. The officer ordered Pat to read the statement into the recorder. When Pat did not respond to this command, the officer unholstered his weapon, placed it against Pat's head and repeated his order. It was under these circumstances that the audio recording was made. It could be authenticated by anyone who could recognize Pat's voice and , besides, Pat had admitted making it when he was first debriefed. It was coming in. How to deal with it?

Pat insisted that I was the only person to whom he had explained the gun-to-head threat. I kept asking him, "Have you ever mentioned this to anybody else?" His answer remained constant. He had not. The bell of experience, comfortably ensconced in my brain, sounded an alert. I had, on two prior occasions, relied upon the defense of "duress". As it could apply to this case, it declared that if one were forced to commit an unlawful act under, a reasonable fear that he would be killed should he disobey, his conduct would not constitute a criminal offense. I placed that arrow in my priority quiver. Regarding the press conference video, I'd play that one by honed instinct.

Pat was being held in the stockade on the Marine base which served as the trial forum. Each day, he would be marched to the courtroom handcuffed and in leg irons.A double escort was required for his own protection. Suffice it to say, every Marine that he passed had to resist the urge to strangle him on sight. The tension was tangible.

On the first day, luck came my way. Obviously, you can't plan on this happening and you can take no credit for it. Sometimes, negative circumstances happen. It tends, over the long haul, to even itself up.
I learned that the Judge was not a Marine. He was a  Navy Captain, from the JAG Corps (himself a lawyer), scheduled to retire in six months. Go figure. You didn't have to be a rocket scientist to appreciate the attitude of a Marine jury. Barricades would be necessary to prevent them from jumping over the railing, lynching rope in hand. I elected, right there and then, to waive a jury. The case would be decided by the Navy lawyer, alone. One other prompt for this move: the Captain had a nice face. This, to me, signaled nice guy.

The trial began. Each Government witness testified as to the numerous times that Pat had failed in performance, during training and in combat. This followed their statements which I had been afforded. My cross was a repeat of direct, only with more emphasis. I kept pounding home Pat's physical shortcomings and the over-the-top reactions of his superiors. Over and over again, with each prosecution witness. When I elicited the details of Pat being shot at after having collapsed, I detected the Judge biting his lower lip and wincing.

The Government introduced the audio tape and played it for the judge. They then rested. No attempt to address the press conference video. I called my only witness. My client. He was as prepared as he could be. My simple instruction had been: don't bob and weave, just tell the truth. My ace in the hole was "duress". I asked the questions, gone over so many times in rehearsal (that's the way to prep your witness) as I led him to the making of the audio tape. He related how the gun was held to his head and that this was why he read the statement. I heard a stir behind me. This testimony was obviously a surprise. The cross-examination centered on, and attacked this (now realized) crucial aspect of the case. Pat stood his ground. A truth teller is a most formidable target. Shaken off stride, the prosecutor asked Pat if he recalled the Stockholm press conference. Bad move. He simply should have asked an "isn't it a fact" question. He had now, unnecessarily, made Pat's memory the test of admissibility. Pat shot me a glance. I closed my eyes, trying to send a symbol of negativity. He looked back at his inquisitor and replied, "no".

The prosecutor asked permission to turn the window shades down and and the lights off. He was going to play the video in an attempt to refresh Pat's recollection. As they were setting up, I walked by the witness stand and whispered "the next answer is no".

The tape was played, clearly showing Pat at a table, surrounded by microphones, before a crowd of reporters, speaking to them. No audio. The Government had obtained (captured) just a video recording. When it was over, the prosecutor sarcastically asked, "does that refresh your recollection?" The answer: "no".

The prosecutor was stunned. He moved the admission of the video. I objected on the ground that the Government could not verify its authenticity. And, of course they couldn't. Nobody could say that they were there and had personal knowledge that the video was accurate. The Judge did not admit it. Similarly, nobody could dispute the "gun-in-the-head" incident. Nobody had been at the scene.

The evidence concluded and closing arguments were presented. The Judge took a recess of thirty minutes and returned to announce his verdict. Not guilty on all counts.

Marine brass have referred to the trial as the "greatest miscarriage of justice ever witnessed in the Marine Corps." I'm human. I am not a robot. But I had, long ago, understood, that to be a criminal defense attorney, you must have the ability to place your personal opinions to one side and be able to extend your best efforts, your feelings, notwithstanding. If you can't, practice civil law.

Did the outcome thrill me to the heavens? No. Would I have committed suicide had my client been convicted? No. My vocation was of choice. I did my job. Being criticized goes with it.

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