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"The special topic that we're going to cover in this episode of the military law news network
is: is the army trying to stack the deck even further against soldiers accused of crimes.
We are seeing a growing trend around the world, where the military, the army in specific,
is appointing senior defence counsel, the lawyers responsible for training the defence
lawyers of the United States army with no experience. So you're having lawyers put in
charge of a bunch of other young lawyers that have not experience and their supervisor has
zero experience defending crimes. On top of that we're noticing a lot of hostility towards
the use and the hiring of civilian defence lawyers that have the experience to fight
and win cases across the army. And Tim, you have some particular experience with this
recently if you won't mind elaboration on what you're seeing out there in the Pacific."
-- Mike "Sure Mike, it's been a very disturbing trend
what we've been seeing out here and as you put earlier, it's particularly in the army.
I have not seen this in the Marine Corps, I have not seen this in the navy and I have
not seen this in the air force. This particularly applies to the army at least out here in the
Pacific, that's Korea, Japan, Hawaii and all of those areas. The senior defence counsel,
now remember those are the individuals who are specifically chosen and placed into the
position of the trial defence service where they supervise and they mentor all of the
other defence attorneys, they're their leader, they're their coach, their mentor, their OIC,
they're supposed to be the most experienced in their rank for that position. What I'm
seeing out here is the army has chosen individuals who have never done defence work in both the
cases I have out here in the Pacific, the senior defence counsels have no experience
defending cases. None." -- Tim "Hey Tim let me ask you to clarify that. You're
saying that they have been chosen to come into this position to train other defence
lawyers and they were hand selected and they have zero experience? Like they've never defended
someone in their life." -- Mike "Mike unfortunately that's exactly what I'm
saying. They have done cases as a prosecutor, but never as a defence attorney. They are
the young captains, the leaders for them and when I'm asking basic questions of counsel,
what I'm hearing is, just the blank stares and the I don't know because they've never
done it before. If that's the question how can the army in good faith appoint someone
to be the leader, the senior defence counsel who has never tried a case as a defence attorney
before. I cannot fathom that Mike" -- Tim "Tim, the bottom line is the army is not trying,
they're not putting people in these positions so that the soldiers have a fair fighting
chance. It sounds to me that they're putting these people in these positions to set their
soldiers up for failure. And I know it's going to hurt some feelings that I say that, but
I've seen that in a lot of my cases where you have senior leaders, not everyone but
a lot of senior leaders in the army defence service, that have very little to no experience
and they're put into those positions, in my opinion, to start to generate more guilty
pleas. As civilian lawyers that are experienced and that are fearless start getting into the
court martial business and coming after these army base installations and fighting these
cases the acquittal rate is going up because we have the experience and its not good, its
not good for business. So the army it seems to me is specifically placing people in these
positions that they know will start to encourage more guilty please and that they know they
don't have the experience to effectively fight. And when a case, and more importantly they
don't have the experience to train an office of young defence lawyers." -- Mike
"Mike, think about it on a macro level, from an army standpoint. If you appoint individuals
who don't have any experience as a defence attorney to be the senior defence counsel
and you don't have the ability to teach and mentor the junior defence counsel and how
to be a defence attorney because remember it is fundamentally different defending individuals,
defending soldiers, than it is to put them in prison. It is completely different. Yes
the rules of evidence are the same, some trial advocacy carries over, but defending a person
is fundamentally different than prosecuting someone. So what happens then, they get into
the mindset of plea cases and plea cases. That also changes the mindset of the prosecutor's
office which means they can prefer more garbage because as they prefer charges they walk across
the hall, they show a brand new charge sheet and say this *** assault case is worth
18 months and they take the plea deal. Cases move quicker, more soldiers go to jail and
it makes the system work smoother. So on a macro level I can understand perhaps why it's
done, but on a micro level and as a defence attorney it floors me Mike, that this actually
happens, it shouldn't happen. But I'm seeing it over and over. And like you put Mike, it's
not just in the Pacific we're seeing it worldwide and then what we have is the younger brand
new attorneys for example some of the counsel out here not naming any in particular have
never tried a case before. And I am okay with that if you are a brand new junior attorney
at TDS, you've never tried a case before, in theory you're supposed to be able to look
to your seniors and your supervisors to say okay, how do I do this, what's the next step?
But they don't have the proper leadership so it's almost the blind leading blind and
what happens? Innocent soldiers are going to jail, soldiers who should have a fighting
chance are getting convicted and individuals are not, you're not seeing the level of advocacy
that you should. Now let's take that to the next step Mike. We are seeing which is even
more, not more disturbing, it's more frustrating is this trend where they do not want civilian
defence attorneys on cases. And that I just don't understand because as an advocate for
soldiers and someone who truly believes in the justice system and being a defence attorney
one would think that you would want to have the best defence team possible on a case.
So if a soldier comes up to their TDS attorney and says hey I'm thinking about hiring a civilian
attorney the response should be fantastic, I would love to have them on board, it gives
us a better chance of winning the case, I can learn from them and at the end of the
day it gives us a better shot at winning. What we're seeing is their egos are getting
hurt, frankly, and they say no, no we can handle this ourselves, we don't want to look
bad. And so when I see that, again, it boggles my mind Mike that people put their own pride
and getting their feelings hurt over the ability of a soldier to get a fair shot at a trial.
I see it over and over and over out here and I think it's a real problem, tell me what
you're seeing out there in your end Mike." -- Tim
"Tim, it's the same exact thing. There are stories that go around and a lot of these
are based on reality where you hear about military defence lawyers who have no experience
and really shouldn't even be, some of them really have no experience and shouldn't be
handling felony level cases with zero trial experience. Period. But when the client senses
that lack of knowledge, that lack of experience, or maybe the client just wants to have a better
chance, to have better representation they say hey listen, an this happened to me twice
in the past week. I'm thinking of hiring this guy Michael Waddington, I check out his website
and the response from the two military lawyers were very similar, they were strikingly similar.
Both of them, first of all neither one of them knew me, and really knew nothing about
me other than I've been a criminal defence lawyer for years, but they're response was
no, no, no you don't want to get someone like that. If you want to get a civilian you need
to get this guy or this person because we don't really want to work with anyone from
the outside and then these two people went and looked at my website and they saw on my
website that I have ten times, hundreds of times more experience then everybody in their
office and that's not an exaggeration. And what they did then is they then even pushed
that client even further to look elsewhere because they didn't want me coming out there
and rocking the boat. In one case the lawyer recommended to the client that he go hire
one of his old buddies from the JAG corps, and the client said to me no he recommended
that I hire this person, and I looked at that attorney's website. That attorney again had
no experience, had been out of the military for a couple of months, had never spent a
single day defending a soldier in her life. Why, and I said what are they buddies or something?
You know you can hire whoever you want but when you talk to that lawyer that was recommended
to you ask her: what are the results of the last 10 or 20 or 30 general court martial
cases that you've defended or fought in front of a jury. What are the results? Now obviously
you can't win every case, but you should at least have done dozens of cases before you're
stepping into the ring in a serious case where your client's facing life. Well guess what
happened? He asked her that and she got angry, his parents didn't like that, his parents
also knew that she had no experience defending people and so I get retained on the case.
But the interesting thing Tim that happened after that is when that attorney found out
that I was on the case, he was not happy and he expressed that the client, although he
didn't know me, that he might have trouble working with someone like me. Well someone
like me is someone who wins cases and fights the government tooth and nail for our client's
rights so I don't know what his problem is working with me. And if you have that experience
and Tim I know you have this stuff come up all the time, just get rid of the attorney.
If you don't trust the military lawyer on the case, they're not looking after your best
interest, then fire them. You have to replace them with someone who [?]." -- Mike
"And to anyone who's watching this who's criminally accused or is the parent of someone that's
criminally accused, know who your defence attorney is. I say this to everyone, you brought
it up, having someone represent you, you need to ask the results of their last 10 or 20
trials. And if they have pled every client guilty is that someone you want representing
you? Have they ever taken a case like the one you're charged with to verdict and won?
If not that should raise a red ***. And for God sakes if the never tried a case before,
do you really want to be the first one? You don't get any second chances at trial. And
I say that all the time and this notion, I'm going back to this notion that junior attorneys
don't want civilians on their case is just ridiculous. It would be the same Mike if I'm
on a high school basketball team and the coach tells me that Lebron James is personally coming
to train me, yes Lebron James. And I say no I don't need Lebron James because I'm the
best. I don't need a Lebron James. I mean how ridiculous would that be if Lebron James,
king James, will come down to your high school and be a one on one coach and train you, but
your ego got in the way because you think you're a better baller than he is." -- Tim
"And Tim there's a whole other level here. It's like Lebron James is not only going to
coach you, he is then going to lead the team in the state championships, you and Lebron
can play together, learn his moves, work together as a team and then that high school punk says
oh we don't need him around here I can handle this. That's ego, but it's also stupidity
Tim, there's no other way to put it." -- Mike "And you know if you lose the basketball game,
fine, if you lose your trial you're going to prison. It's a big big difference. And
the other thing I'm seeing to is where the senior attorneys are actually having meetings
with the junior counsel talking about discouraging hiring civilian attorneys because it makes
their office look bad. I don't get that. What makes your office look bad is when you lose
all of your cases or when you plead every case guilty, that's what makes you look bad."
-- Tim "Tim, I'm sorry I keep jumping in here, but
this stuff really upsets me because I see it happening. When you have a senior lawyer
who has never defended someone and who could probably care less if they defended someone
in their life, they'd rather throw people in jail and then not only are they put in
the position, they are teaching the lawyers to plead everyone guilty no matter what and
then they're telling you don't let experienced expert defence attorneys come in our office
because it makes us look bad. They're not on your team. What makes them look good, and
think about it, those lawyers they want to be able to say that they did a whole bunch
of cases that they want to pass their two year assignment; PCS back to the prosecution
side, check the block and not rock the boat. You need an attorney on your case that doesn't
want to just rock the boat, it's going to flip the boat and start kicking butt, rather
then sitting around waiting to make sure that you don't step on any other lieutenant colonel's
toes. And Oh My God what if I got to that, and here's what a lot of these guys think,
what if I go to that Helen Fairwell and the colonel's there that I defended one of his
soldiers and I won, it's going to be awkward, lets just plead him guilty because that doesn't
help me in my career. And second of all, they don't have experience or the cojones to stand
up and fight these cases anyway. So it's both things, they don't know how to do it, they
don't have the courage to do it and they don't want to do it. That's why they're in that
position, they're paper pushers." -- Mike "And the difference between a young captain,
their career aspirations are going to be the staff judge advocate one day. They're not
in the same boat as individuals like yourself and other big name civilian defence counsel
who winning is what we do. We want to win, the people we associate with, national criminal
defence association and other big named individuals, we want to have the reputation of winning.
Like you said, I don't want to just rock the boat, I want to fire a missile and to sink
the boat. Okay and my career aspirations are to win cases and not to be the guy who pleas
everyone guilty so at the [?] farewell I don't have to look at the colonel and say well you
know, I know your soldier got acquitted and so I don't have to worry about any of that.
My reputation frankly is made by winning cases and being a heavy hitter and not being the
guy who one day wants to be the judge advocate general, or want to be a staff judge advocate.
Frankly Mike I could care less. If I cared about that stuff I would have stayed in the
army, okay. But I'm out and I want to win cases and I do what I can, everything I can
within the left and right lateral limits of the rules of professional responsibility to
win and that does not include going out and having a beer with the prosecutor, going out
to [?] and doing PT with them and so again, we want to win and if your attorney doesn't
want to win and do everything possible that he or she can to win you have the ability
to fire them and get someone else. And I encourage you to think through that option and know
exactly who's defending you and who the individual is that you're placing you future and your
life in their hands." -- Tim "That's exactly right Tim. And you know what
this video right here is very controversial to certain people, primarily the lawyers we're
talking about. They know who we're talking, if you're watching this and you're guilty
of doing this, then you should leave that position for the sake of our liberal profession,
for the sake of your client, for the sake of our military justice system. If you don't
have what it takes, you don't have the experience, and you don't have the courage to do the right
thing, then you have to follow your obligations as an attorney and not take the case, okay.
If you can't do it, you don't want to do it for whatever reason you want be the SJ one
day, then stop screwing up soldiers' lives. And if, for those other captains, primarily
captains that are young captains and that have a leadership problem like we're describing,
you need to do the right thing, regardless of what your boss says, you have an obligation
to zealously fight for your client, you have the obligation to make sure that your client
gets the best representation possible. That could include, working hand in hand with an
experienced civilian defence team and not discourage soldiers from bringing in someone
who has experience because of your ego. Because in the end, you're not the one that's going
to prison, it's your client. If you don't know what you're doing, you're ineffective,
or you're incompetent, or you just don't have the experience then be man enough or woman
enough to stand up and say so if your client asks you about your past experience. And don't
be telling him don't hire a civilian defence lawyer just because your boss might not like
it, because again, your boss isn't going to jail, it's your client that's going to prison
and you have an obligation to your client, to your family, and to our country to uphold
the Constitution and to uphold the UCMJ and to do your job." -- Mike
"Mike, I agree with everything that you said and it's very well said and while that's a
message for some of these attorneys, the message I have for some of the soldiers out there,
as I said, know who your lawyer is. If you're a PFC or a specialist and you don't feel comfortable
asking a captain their last ten results, give one of us a call we'll vet the lawyer for
you, I'm not going to charge you for it. give me a call and if you're concerned that your
attorney is going to plead you guilty when you've got a fighting chance whether you have
the resources to hire counsel or not, call one of us, either Mike or myself, we'll vet
the lawyer and we'll tell you straight up if this is someone who's got your best interest
in mind. And if they're not and they don't and you don't have the ability to hire a civilian
counsel, we can steer you in the direction of a TDS attorney who actually cares and you
can do an individual military counsel request or an IMC request and get someone who cares
about your case and as Mike said has the cojones to actually stand up and fight for you. Because
at the end of the day, once you're in prison and you're in the [?] somewhere they're not
going to call or write you, they're not going to send you Christmas cards. They're probably
going to be out prosecuting other soldiers. So again, if you don't have the resources,
or you don't have, you're not comfortable asking you attorney that, give one of us a
call and we'll give you the straight talk, and we'll give you the straight answer on
it." -- Tim "Well said Tim. Well like Tim had mentioned,
ask around, talk to someone with experience. Every lawyer that's experienced out there
that I know, myself and Tim included, and other members of our firm, we do free initial
consultations; we will discuss the case with you. And a lot of times the clients just don't
have the money, so we get them put in the right direction, advise them of what their
rights are in terms of whether they have to go with their current attorney, whether they'd
request someone else and it's free of charge. If you're being accused of a serious crime
in the UCMJ then you need to call and speak with an experienced court martial defence
attorney as soon as possible." -- Mike "Thanks Mike, I think that we covered this
topic well and again, if there's any questions give one of us a call we're happy to speak
to you. This is Tim Bilecki from Honolulu saying take care." -- Tim