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Friday, November 08, 2019

Leavenworth Ep. 3, Judgment

The latest from Eric Carpenter of FIU on the series. Episode 3 featured Eric and his Military Justice class.

After you are convicted of an offense, one option is to blame your defense attorney for that result instead of the facts. Another is to come up with conspiracy theories to explain what happened. In this episode, we see Lorance use both options. I’ll talk about some issues related to those options and comment on some of the unusual features of the military justice system (why wasn’t Lorance in pretrial confinement leading up to the court-martial? why did he have a civilian defense counsel?) that come up in that context.

First, the ineffective assistance of counsel (IAC) claim. To start, every military accused, indigent or not, gets a military defense counsel. Military defense counsel work for a stove-piped, independent defense organization, are licensed members of a state or federal bar, and are well-trained and supervised. I was a military defense counsel for four years, and I have full confidence that military defense counsel, even though they are often junior attorneys, provide extraordinary service to their clients.

An accused also has the right to hire a civilian defense counsel (CDC) at his own expense. Here, Lorance did that. Many people in the system do not trust the system, and if they or their families have money (usually a court-martial defense costs $10-20k), they often hire a CDC.

After the conviction, Lorance filed an IAC claim on appeal, asserting (among other things) that his CDC did not meet with him frequently and didn’t show up to Fort Bragg, NC, until the day before the court-martial. One thing that did not come out in the episode is that Lorance also had several military defense counsel working for him who were doing a ton of work.

When someone hires a CDC, the military counsel stay on the case but take on a second-chair role. Often, the CDC will do the opening statement and closing argument and will handle a lot of the guilt-phase witnesses. The military counsel will do the sentencing case (in the military, the sentencing case is as intensive as the merits case). Even with this division of labor, the military counsel meet frequently with the client and do a lot of the prep work for the guilt-phase witnesses. Lorance’s defense team divided up labor along those lines. Viewers should not come away with the impression that Lorance did not have an active defense team.

The producers interviewed Lorance’s defense counsel for this project (I am going to assume he got a waiver from his client—the Army has rules of professional conduct that are essentially the same as the ABA’s). His attorney said that he thought he made a mistake by not asking for instructions on lesser included offenses to specific intent murder, like manslaughter. However, under the facts of this case, that was not a mistake.

The military does not have degrees of murder. It just has murder, but six types: premediated, specific intent to kill, intent to inflict great bodily harm, wanton disregard (the same thing as abandoned and malignant heart or implied malice, akin to super-recklessness), and felony. Premediated and felony are capital-eligible. Lorance was charged with specific intent murder, and the facts are that he intended to kill the men on the motorcycle when he ordered a soldier to shoot at them.

Like most jurisdictions, murder can be mitigated to voluntary manslaughter if the killer acted under adequate provocation. The provocation must have been adequate to excite an uncontrollable passion in a reasonable person. Words alone are not enough. Here, the problem is that there was no provocation. The men on the motorcycle did not do anything to Lorance or his unit. Even if the CDC asked for this instruction, the military judge should not have read it—the defense did not raise sufficient evidence of that issue. Failing to ask for it was not a mistake.

The military also has involuntary manslaughter (culpable negligence) and negligent homicide (simple negligence). Neither of those mental states (examples of unintentional homicide caused by risk-taking or failing to recognize a risk) occurred here. It is uncontroverted that Lorance intended to kill those villagers. The military judge should not have read an instruction on these offenses, either.

The only thing the CDC could have hoped for was that the military judge would read one of these instructions and then possibly the panel would have compromised on something that is legally illogical—basically, hoping nullification would trump reason.  Failing to do something that relies only on jury nullification to work is not IAC.

I went through the trial transcript in preparation for my interviews, and I am confident that his CDC did a competent job. His cross-examinations of the witnesses were pretty good. Lorance just had bad facts.

Now to the conspiracy theories. The director exposes us to some of these, but my sense is that he does that to show their absurdity rather than to give them validity. Here are some of them: the CDC was in cahoots with the Army; the Army knew what the result was going to be all along; the Army was doing this to appease the Afghan government in partial response to another mass murder than was committed by an American soldier; and, senior officers were doing this to protect their careers.

Of these, only one holds any reflection of the truth. One of the reasons we prosecute soldiers who commit crimes within the host country is to show the people of that country that we hold our soldiers accountable. That is a legitimate reason (among other reasons) for prosecuting soldiers who commit crimes.

There were a couple of facts that need some explanation. First, the names of the dead men were initially written on the charge sheet, then prosecutors lined through those names and wrote in something like “adult male.” The conspiracy theory is that had to do with a cover-up or hiding the fact that they may have been enemy combatants. The better explanation is, things like that happen all the time in the military on charge sheets and it is allowed, provided the defense gets proper notice.

Proving the name of an Afghan is difficult. For most Afghans, there are no birth records or death records. But proving that two men died was easy: there were aerial photographs of their bodies. The names were not legally required to be on the charge sheet. By crossing through the names, the government did not have to try to prove the names. They just needed to prove two dead bodies, and they can point to the photos for that. 

The other fact is that one of the people on the motorcycle may have had some contact with the Taliban. The government did not disclose this to the defense ahead of trial. The conspiracy theory is basically the same: the government knew Lorance did the right thing but scapegoated him to appease the Afghan government.

The defense raised this on appeal as a Brady issue. Under Brady, the government must disclose evidence that is favorable to the defense. If they don’t, the error is tested for prejudice: if the evidence was material to the defense (essentially hyper-relative), then the error requires reversal.

Here, there was no error. The only way this information could be favorable is if Lorance knew about it before the shooting. If he knew that information, then it could factor into the self-defense reasoning. But he didn’t. It was irrelevant to his decision making. (The Army appellate court decided this issue the same way).

Further, even if the men on the motorcycle had been known Taliban, under the Rules of Engagement (ROE) Lorance was operating under, he would not have been able to shoot them on sight. He would still have had to have perceived a hostile act or imminent threat. (Under the laws of war, you can shoot the enemy on sight, even if they are not shooting at you. Those were not the ROE in effect in Afghanistan, though).

One side note. Viewers may have been surprised to see that Lorance was not in jail pending the trial or during the trial. He rode to the courthouse every day in a van with this family.

For the most part, service members do not go to jail before trial. There is no bail in the military. You either go into pretrial confinement, or you don’t. The unit commander makes that decision, but the rules are weighted heavily in favor of not putting soldiers into pretrial confinement.

To do so, there must be probable cause that the service member committed the offense (this is usually apparent). Next, confinement must be necessary because it is foreseeable that (1) the accused is a flight risk OR will engage in future serious criminal misconduct, AND (2) less severe forms of restraint are inadequate. Here, Lorance was not a flight risk and there is no indication that he would commit a violent crime or engage in obstruction of justice. Like many accused, he spent his time before trial doing productive work in his unit.

Posted by Howard Wasserman on November 8, 2019 at 02:18 PM in Criminal Law, Law and Politics | Permalink

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