Marshalek: Why Independent, Experienced Military Defense Counsel Matters

Why hire experienced civilian military counsel when the military gives you a lawyer for free?

the accused’s lead military defense counsel had represented him for more than six months and devoted 215 hours to his defense. She came to believe that continuing to represent him zealously could affect her next Army assignment, her professional reputation, and her military career. She told the military judge that those concerns would affect the quality of her representation. She was excused and the accused hired experience military counsel.

The critical point is not that her concerns later proved mistaken. It is that she believed them.

Marshalek wanted her to remain his lawyer. He expressly objected to her withdrawal. Nevertheless, the military judge released her after finding that counsel genuinely and reasonably believed her personal interests conflicted with her client’s interests.

ACCA upheld that decision. Relying on United States v. Hardy, the court explained that the question was not whether an actual conflict ultimately existed, but what the lawyer reasonably believed. A lawyer who believes that representing a client zealously may damage her own career has a problem even if the feared consequences never materialize.

That is one reason we emphasize the value of independent civilian military defense counsel. We work with detailed military defense counsel, often very closely. But we are outside the military personnel system. We do not have a military evaluation, promotion, next assignment, or military career to consider when deciding how aggressively to defend a client.

Marshalek demonstrates why that independence can matter. See more from Phil Cave and Cave & Freeburg: CAAFlog; Unlawful Command Influence in Military Sexual Assault Cases

In a separate piece, we discuss “UCI in the jury box.”