The celebration here of Dallas DA Craig Watkins’ installment of an open file policy to ensure that crucial evidence that might exonerate a criminal defendant doesn’t get “inadvertently” left out of the material shared with defense counsel prompted this comment from one of the Ethics Alarms resident Marine vet, THE Bill:
“I’ve always wondered why the civilian courts haven’t adopted the military practice of having both the prosecutor and the defense council in the same office under the same command as they do in JAG. It would seem that this would eliminate the US versus THEM mindset.”
“It’s because of loyalty and trust, Bill. The adversarial relationship and the appearance of such assures the accused that the two lawyers aren’t colluding against the defendant, and attorney-client confidentiality is surely at risk if there is not physical distance. That’s why in law firms a lawyer with a client who might be adverse to another lawyer’s client in the same firm has to be screened from substantive contact with the other lawyer.”
(I will note here that the last section about screening is an over-simplification of a very complex and confusing issue, as when and if screening is permitted varies state to state, and in many cases still isn’t enough to deal with an unwaivable conflict of interest.)
texagg04 then added the following discussion of the cultural differences between the military and civilian America, and how this informs the differences between the ways the respective systems deal with criminal prosecutions.
This is an appropriate place to salute tex, who is among the most prolific, serious and vital Ethics Alarms commentators. As his comments are often in an advocacy or adversarial mode rather than an expository one, his percentage of officially recognize commentary excellence is less than it should be considering the consistent quality and frequency of his participation here. He has long made Ethics Alarms better and sharper, if perhaps scarier for first time swimmers in these waters, since thanks to tex (and others), the tide is swift and merciless.
I hope he realizes how much I value and appreciate his thoughtful and vigorous contributions.
Here is texagg04’s Comment of the Day on the post, “Ethics Hero: Dallas District Attorney Craig Watkins.”
There is a presumption given the weight of military Commissions combined with the added weight of the Oaths of Office, that barring any obvious corruption, the officers in charge are not corrupted. Whereas in the civilian world, the presumption that so much burden lies on the state and the accused’s innocence until proven guilty, that even a hint of amiability between defense and prosecution is enough to worry about corruption.
The military, for internal issues, is given more leeway and trust. I recall, once as a Lieutenant, seeing a Sergeant engaged in misconduct… Not court martial worthy, but Article 15 worthy, when he argued with the first sergeant that “here’s what really happened” and I informed the 1SG what I observed, I asked, “what further investigation do you need? More witnesses? Evidence?”
His response- “none sir, you outrank him, and have the presumption of integrity, you’re testimony is beyond reproach.”
Weighty stuff to recognize when you don the uniform.
Had I been a private and given the testimony or had the accused outranked me, further investigation would be required. Or if it was court martial worthy, further investigation would have been necessary. If a higher ranking officer gave witness different from mine, his would receive precedence though if substantively different, there would then be a need to check on my testimony.
Of course I don’t recall if that’s how it would work with summary court martial or even general court martial.
Seems very prone to corruption… If our military were chock full of the dishonorable. But it isn’t. And the system has to work that way.