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David Court, the only American criminal defense lawyer living in Germany, doesn’t ever work for free. But here’s some free legal advice from him:

“Confession is good for the soul,” he said, “but bad for the defense.”

Court’s 30-plus years of defending criminal cases within U.S. Army Europe have given him a unique perspective on military justice and changes in the kinds of cases prosecuted.

He said he defends far fewer defendants accused of drug crimes, especially marijuana, than he did years ago, primarily because the military had gotten better at testing for illegal drugs and, along with the use of drug dogs and raids, discouraged its use.

The downside?

“They took a mellow person and made them a raging drunk,” Court said.

Court said in his experience, the military system punishes most harshly those offenses that are seen to disrupt good order and discipline or the military ethos. “You want to see someone punished? Try someone who assaults his commander,” Court said. “That’s not just an assault against a human being, it’s an assault against the hierarchy.”

Conversely, an assault against an equal can bring less severe punishment than it would in civilian society.

“The military is a society of controlled violence,” Court said. “A person convicted of illegal violence is guilty of uncontrolled violence. The military is likely to say, ‘We’ll re-channel the violence.’”

Court said he doesn’t deal in words like “innocent.”

“I do believe there are cases where the government evidence was not sufficient,” he said. “I’ve had a lot of people who I don’t think were as guilty as the panel said they were.”

Court is critical of the way the military uses its trial lawyers, first making criminal law a first or second assignment out of law school, then reassigning them after one tour to something else, including those who excel at it and would like to continue.

“They have a tour as a defense counsel where they did 12 cases in 18 months. Then they go off for two years, then they come back as a senior trial counsel. But they’ve only had 18 months [experience], and they’ve been away [from litigation] for two years. They all have law degrees, they all want to, but they all have to reinvent the wheel.

“I always ask a prospective client why they want to hire me,” he said. “They say, ‘My lawyer doesn’t seem to know what he’s doing.’ I see that as a problem.”

But there are two areas in military law that Court says is superior to the civilian criminal justice system. The first is the process of accepting a guilty plea. It’s almost automatic in civilian trials. But in military courtrooms, it can take hours for a judge to be satisfied that the soldier pleading guilty really knows what he or she is doing.

The second is the military jury or panel. Not only do all officers have a college education but many enlisted people and most NCOs are more highly educated, he said than many civilian jury members — and it really is a jury of peers.

Military panels can be as unpredictable as civilian juries, Court said, but one thing only they deal with — whether to kick a convicted person out of the military — may have a lessening effect on prison terms.

“One judge said he looked at a punitive discharge as equal to two years’ confinement,” Court said.

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Nancy is an Italy-based reporter for Stars and Stripes who writes about military health, legal and social issues. An upstate New York native who served three years in the U.S. Army before graduating from the University of Arizona, she previously worked at The Anchorage Daily News and The Seattle Times. Over her nearly 40-year journalism career she’s won several regional and national awards for her stories and was part of a newsroom-wide team at the Anchorage Daily News that was awarded the 1989 Pulitzer Prize for Public Service.
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