Newton Weighs In

12/27/2023

The Army’s first-ever lead special trial counsel just got fired for behaving ethically

He makes good points, but his use of the ellipses here cuts out the most controversial part of the email.

"The email read in part, “hopefully a Soldier will be able to get a fair trial. You and your teams are now the ONLY line of defense against false allegations… [y]ou literally are the personal defenders of those who no one will now defend, even when all signs indicate innocence.”"

What was omitted? The reference to "sobriety regret" as well as the potshot at Congress. Maybe these would change nothing for Newton, but he does everyone no favors by hiding the ball.

Nathan Freeburg

12/27/2023 17:04:05

Leaving aside the merits of it as an argument, “sobriety regret” is absolutely a defense argument in some cases (e.g. zealous advocacy); just like “police misconduct” or “self defense” or “an order to vaccinate is unconstitutional.”

Nathan Freeburg

12/27/2023 17:28:27

And talking about political and media pressure to convict is part of the defense counsel job in every jurisdiction. (If you say that being an a military defense counsel means you have different duties; you’re saying that the entire independent uniformed defense counsel project was a lie.)

What I do know is that as a civilian defense counsel I could express the same sentiments all day long without it being a threat to my livelihood.

Gene Fidell link

12/28/2023 08:00:58

If anything, the last two sentences of the Wells email understate DC's responsibility. They have a duty to fight for the client even when there are neither "false allegations" [presumably meaning "demonstrably false"] nor "sobriety regret" or "when all signs indicate innocence." Simply raising a reasonable doubt about a prosecution witness's allegations or motives, for example, or about the government's case in general also and always comes with the territory.

Nathan Freeburg

12/28/2023 10:05:19

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidnc e. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth. United States v. Wade, 388 U.. 218, 256-58 (1967)(Justice Bryon White concurring)

Tami a/k/a Princess Leia

12/28/2023 18:31:54

"Sobriety regret" is a valid defense, as well as regret in general. Nothing controversial about it for those who don't drink too much of the Kool-aid. Unfortunately, the amount of Kool-aid being forced down Servicemembers' throats is overwhelming.

As for the "potshot" at Congress, perhaps it would've been preferable to call out individuals in Congress by name, starting with someone we all know to be a problem--Gillibrand. Nevertheless, it was not disrespectful of Congress as an institution, and it was a private email to a select group of individuals, it should've remained that way.

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