Prosecutors favorite-we’ve always done it that way

Friend Christian Capece liked a post on Linked-In

“The most dangerous phrase is, “we’ve always done it that way.””

That amused me because it immediately brought to mind United States v. Fosler.

And Fosler came to mind so readily because I was just discussing litigating issues with some younger counsel, and a question was, and often is – did you win it? No, is often the answer. But you the defense litigator should not take that as the final answer. The law changes, see e.g., Fosler. So, I recently continued an issue I have been raising for some years now – true without success. But I think the Navy may have done something to help.

I have at times challenged how (by who) the Article 32, UCMJ officer is selected and appointed. In some cases I have challenged the IO on the basis of that selection. Well this week it just got more interesting. I did a Navy 32. I began my standard voir dire and developed what I needed – I thought – and challenged the IO. While we were discussing this with the SJA on the record, and then waiting for a AA decision and new “fact” arose. The IO is a member of a Reserve unit, that as I understood the evidence (discovery to come) is there “to support the RLSO,” or words to that effect. Bingo, it seems as best I can tell at the moment that this is a RLSO unit. Now, let’s see, the RLSO is now the prosecuting officer and provides the prosecutors. The RLSO Reserve unit is “part” of the active duty RLSO. Didn’t the AA just appoint a member of the RLSO as IO? Well I’ll let you know, more discovery to come, etc. I’ll need the mission statement for the reserve unit to see how it is incestuously intertwined, or inextricably intertwined, or . . . with the RLSO, and go for a new 32.

Perhaps the Pres. should go with the proposal to have IO’s appointed to a panel maintained by the Circuit trial judiciary and appointed from and by the trial judiciary. That allows for some independence and certainly a perception of independence. So, back to my teaching point.

First the trial defense counsel has to find the issue.

Then the trial defense counsel has to raise and litigate the issue, or preserve it on the record.

Then appellate counsel have to raise the issue.

You may well lose the first, second, and subsequent times. Here’s the real point, keep raising the issue. It may take several cases and several years before the judge grants on that type of issue, or the appellate courts deal with it, and the appellate courts deal with the issue in the defense favor.

At trial you must represent the individual client, not necessarily a particular issue. I agree. But there is no reason you can’t raise issues in each case. You are allowed to and in fact are ethically encouraged to keep raising issues. How you go about that is a different point.

Make the trial counsel regret having always done it that way.