July 20, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Kansas-base military criminal defense lawyer, Eric Mayer, head of the Mayer Group and blogger at Unwashed Advocate.

Q. You’re a Kansan born and raised, and an Eagle Scout, so it’s not surprising you decided to join the military. But you weren’t just any recruit. You qualified for the most prestigious education the Army has to offer when you were admitted to West Point. To get in, you had to demonstrate mad academic skillz and be in peak physical shape. This was a lifetime commitment, to be a West Point man. Why did you choose the United States Military Academy? Was getting in as tough as the admissions stats lead us to believe? And when you got in, what was life like for a cadet? Did West Point live up to the legend? West Point is as much about honor and discipline as it is about education. How did that frame your view of yourself and your world?

A. The judge said to me, “Son, you can go to West Point or go to jail.” So, I chose West Point. The rest is history.

I’ve repeatedly been the beneficiary of dumb luck. While being a Kansan with a background in the Boy Scouts may lend itself to a perceived patriotic calling, the larger influence for me was my father, a veteran of the European Theater of WWII. Up to my generation, every male in my family served in the military at some point.

Having said that, I entered West Point on a relative whim. Summer 1995, I attended Boy’s State, a program sponsored by the American Legion. There, a cadet and former Boy’s State attendee visited to tell us about West Point. I thought, “That looks cool.” In the fall, I applied. In the spring, I was accepted (though, as I later discovered, Bob Dole’s first couple of choices declined appointment and decided to go elsewhere).

I’d like to say that my thought process was more complex than “that looks cool,” but it wasn’t. What else can we expect of a 17-year-old? They all make strange decisions. I was no exception. Sometimes, those decisions work out well and you’re a West Point graduate. Other times, they don’t work as well, and you become the unfortunate client of a West Point graduate.

Being a Cadet was a huge challenge for a kid from small-town Kansas. Back home, I was a big fish in a shallow puddle of mud. Going to West Point was like being the same fish dumped into the ocean. I wasn’t prepared for it, but I stumbled through somehow. It was tough—physically, academically, and emotionally.

Frankly, I’m still in awe of the United States Military Academy and have no idea how I graduated. I guess they had quotas to fill. It was a great place, and I got extremely lucky.

One thing it taught me is that one should never expect privilege based on achievements. Instead, achievements give us the tools necessary to demand more of ourselves, and others should expect more from us.

Q. After graduating in 1996, you were commissioned as a second lieutenant. In addition to picking up some seriously impressive awards, including the Ranger Tab, you were deployed to Bosnia and Saudi Arabia. You were an infantry officer, trained to lead men into combat. What were the demands of Ranger School? Tell us everything, including the stuff you’re not allowed to say. And if you won’t do that, tell us how the trials of becoming a Ranger — and officerhood — prepared you for your future in the courtroom. Is an officer’s responsibility to his troops anything like a lawyer’s duty to his client?  Endurance, split-second decision-making, knowledge of strategy and tactics. How well do your military skills translate to representing people?

A. Ranger School is a rite of passage for Infantry officers. All of us were expected to attend and graduate. I started in November, 1996 at 6 feet tall, 175 lbs. After I completed the final phase in March, 1997, I weighed-in at a whopping 125. To this day, I still can’t feel one of my big toes.

I kept a log each day during the final phase. One of the things I recorded was the amount of sleep each night. In 10 days, I slept an aggregate of 7 hours.

While this sounds bad, the school taught me to understand my limits. Most people don’t—considering themselves “starving” because they missed a mid-afternoon snack.

So, after Ranger School, I reported to Ft. Drum, New York, where I served the balance of my time as an Infantryman. There, I was subjected to several classified briefings. After each, I walked out of the room thinking, “That was it? Where’s the stuff about aliens and big government conspiracies.” Nothing in the military is more of a letdown than your first secret briefing.

Being an Infantry leader was an immense privilege for me. Every day, you’re expected to show up and do things that make a difference to the Soldiers with whom you work. Looking back, working under such a mandate was an amazing opportunity.

The two most important lessons I learned from those formative Army years were that you work to a standard, not to a time, and that high standards are an achievement, not an obstacle. I think those translate into what is necessary to represent clients fully.

Q. After your infantry career ended in 2001 (you left at the rank of Captain,) you went home and studied law at the University of Kansas. Did you go in with the plan to become a military lawyer, or were you looking for a change of pace? Was it difficult to readjust to civilian life after five years in the Army? What was it like for an experienced soldier to rub elbows with soft, squishy 1Ls? Did U Kansas do a good job of preparing you for practicing military law?

A. I had no intention to go back into the Army. The 90s Army was stuck in a training and maintenance rut. So, I decided to attend law school on a similar whim to the one I rode on my way to West Point. Going to the civilian world took no adjustment for me. Then again, I was not (and am not) a combat veteran. I don’t have PTSD. My service in Bosnia and Saudi Arabia did not injure or disable me.

I was going to get my degree and work for some fancy-schmancy firm in Kansas City in order to develop a sense of entitlement and a high degree of self-loathing.

The question reminds me of a problem I have with a lot of veterans. They leave the military and immediately assume that they are better than their civilian counterparts. Entitlement reigns supreme. Let me be clear, we are not better than others, and there are plenty of civilians who are just as tough or tougher. Our experiences may be different, but that doesn’t mean we are more capable or aware. In some cases, our experiences blind us to the worth of others, and that’s a shame.

Military service should not entitle me or anyone else to special privileges. If anything, it should cause others to expect more of us. We should be held to a higher standard and looked upon to carry a heavy load. In short, the guys who run around farting about their military service and demanding discounts in coffee shops are not friends of mine.

I was actually humbled by the skills, abilities, and potential of my law school classmates.

Having said that, I appreciate getting 10% off at Golden Corral. Please don’t take that away, despite what I just said.

Q. When you were done with law school, you re-upped in the Army and became a member of the Judge Advocate Genera’s Corps, a military lawyer. JAGs wear many hats; one day, they’re prosecutors. The next, they’re defense attorneys. You even instructed military police on the finer points of the law. Did your varying roles ever conflict? How hard was it to juggle your responsibilities? Did you feel drawn to any one role? Did the breadth of your military criminal law experience give you a leg up over less versatile, or more “passionate,” attorneys? What do they not get that you do because of your experience?

A. People who are “passionate” are not attorneys. They are activists. I’ve never been an activist, as I’ve always been able to see issues from multiple, logical perspectives—not just the one that made me happy.

The roles never conflicted. Each duty assignment I completed had a different mission. My goal was to accomplish each mission to the highest possible standard.

I love what I do right now, but I could just as easily enjoy prosecuting cases. I just like the freedom that my current business model provides.

Q. Most people are unaware that America has a two-track legal system. There’s civilian law, and then there’s military, literally a legal system unto itself. They both derive their authority from the Constitution, but the law of the military actually predates it. To what extent are they comparable? Is persuading a civilian jury the same thing as persuading a military judge and jury? Constitutional protections apply to military defendants, but it doesn’t work quite the same way (For example, soldiers don’t have a right to bail). Are there instances where soldiers enjoy stronger protections than their civilian counterparts? What challenges do military defense lawyers have to contend with that don’t come up in the civilian world? Given the two, which in your experience is the better system? Are there lessons from one that ought to be learned from the other?

A. There are a lot of folks who see military justice as completely different from its civilian counterpart. I don’t.

If you consider the important, constitutionally-necessary aspects of criminal prosecution, there are procedures within military justice that fulfill those mandates. The path is merely a bit different. Sure, service members do not have the right to bail, but they have a right to a hearing if they are being considered for pretrial confinement. At this hearing, the government must prove that the accused is a flight risk or that they are likely to commit future misconduct. This is by no means a rubber stamp. As a military magistrate, I found several occasions where pretrial confinement simply was not warranted.

One of the biggest benefits to being in the military is that counsel is provided at no charge, regardless of income. Knowing this, should they hire a civilian? The answer is that it depends. In some cases, that one free lawyer may be all that is necessary. What I think matters is that the accused feels that they have the defense they need. That may mean one free attorney. That may mean a team. It all depends.

I think the differences in systems cancel out over time. For instance, a court-martial only needs 2/3 to convict (as opposed to unanimous), but there also is no such a thing as a hung jury. If fewer than 2/3 vote to convict, the accused is acquitted. The differences are striking, but when they are weighed as a whole, it comes out pretty even.

If you told me that I was going to be prosecuted for a crime, I’d want to be prosecuted in the military. The process is transparent, lawyers are less burdened by caseloads, and the panel (think jury) is almost always highly educated and professionally accomplished.

One of the biggest benefits to being in the military is that counsel is provided at no charge, regardless of income. Knowing this, should they hire a civilian? The answer is that it depends

Q. Many lawyers are too shy to ever stand in the well, but you were a paratrooper. Tell us about your first trial. Did you get an adrenaline rush, or did your history of doing cool stuff in the Army inure you to that? What side of the courtroom were you standing on? Did you have backup? Were you sufficiently prepared? In retrospect, were you the lawyer you thought you were? What would you have done differently if you knew then what you know now?

A. If I were the lawyer I thought I was, I’d be Chief Justice of the Supreme Court by now. Instead, I’m the lawyer I am, which is, well, not Chief Justice.

First, I was not a paratrooper. I did graduate from Airborne School, but I only have 10 total jumps and was never assigned to one of the Army’s Airborne units. To be considered a paratrooper, you must serve in a unit with an airborne designation. Semantics, I know, but it is important to military folks and is akin to the fact that, while I have a Ranger Tab, I was never a Ranger (someone who serves in the Army’s Ranger Regiment).

My first panel (jury) trial was as a prosecutor. The Soldier I was prosecuting was accused of molesting three girls, all under 10-years-old. Procedurally, I was fine. The JAG corps does a great job of training young attorneys to perform in courts-martial.

The toughest part was preparing three child witnesses to face the man who abused them. All the advocacy and moot court training cannot prepare you for that. As a human, it was tough. As a parent, it was excruciating.

I did have help in the form of a very detail-oriented co-counsel. I need that. I’m a big-picture guy. I want to distill everything into big central themes and just a few talking-points. My weakness is that this is sometimes done at the expense of details that need to be addressed. For this reason, I try to always have co-counsel who are highly skilled at breaking down the minutiae. Luckily, in this case, I had one of those. Based on that experience (and confirmed by everything since), I think the perfect defense team consists of two attorneys, but they must each have complementing skills and abilities. Yin and yang, I suppose.

As a young attorney, I felt that there were things I could just wing. That’s a horrible thing to do, and I’m lucky that it didn’t bite me hard in the ass. I got lucky. I don’t wing it anymore.

Q. Representing military personnel is a unique challenge, in part because of their struggles with mental illness. How frequently do you defend soldiers or veterans who have been diagnosed with PTSD? How does the diagnosis complicate things? Do military judges understand? What about prosecutors? Is the Army doing enough to help mentally ill soldiers? What about the Department of Veterans’ Affairs?

A. In my experience, everyone in the military is very sensitive to mental illness, especially when it is clear-cut and properly diagnosed.

The problem is that everyone is trying to get on the PTSD bandwagon, and the new DSM-5 errs on the side of diagnosis. Consider this: A Soldier may be involved in a horrific firefight. This person may have PTSD, justifiably. However, you also have basic trainees who claim PTSD because their drill sergeant yelled too loudly at them. They want to be treated the same as that Soldier who was in the firefight. Because of people like the basic trainee, PTSD and traumatic brain injury face an increasingly skeptical audience.

At one point, I could say, “My client has PTSD,” and everyone would respect that (judges, prosecutors, the VA, etc). Now, I have to prove it to a higher and higher standard—all because everyone is claiming PTSD.

Well, except for the VA. They diagnose someone with PTSD if they stubbed a toe and felt sad about it. (I might be exaggerating, but not by much.)

Q. Until 2011, when the military repealed its “Don’t Ask, Don’t Tell” policy, homosexual conduct was grounds for a discharge. You’ve practiced military law for twelve years. Have you represented soldiers facing separation for homosexuality? In the civilian world, gay rights advocates decried DADT for decades. Did it seem quite as outrageous from within the military? Was the military just stuck on old habits, old prejudices? Does sexual preference (or, gender identify as has recently been addressed) have anything to do with being a good soldier? Is any of this a real issue? Should it be?

A. Even 20 years ago, the majority of people with whom I served did not care about sexual orientation. I’m proud to say that I defended several folks who were subject to this policy. However, I was defending them to leaders who, as a whole, said, “Yeah, I think the policy is bullshit, too.” The Pentagon had more of an issue with DADT than the Soldiers in the field. So, while I’m proud of defending those subjected to DADT, the cases were not hard to win.

In my time, I saw more people kicked out because they made up a story that they were gay in order to obtain an early discharge. If there’s a rule, somebody will exploit it. DADT was no exception.

Q. You’ve appeared at more than a few courts-martial. In 2011, you were actually flown to Iraq for one. In military law, this is the big leagues; courts-martial are analogous to felony prosecutions in civilian court. One prominent example of a soldier facing a court-martial for his actions is Sgt. Bowe Bergdahl, who deserted his post in Afghanistan in 2009 and was held prisoner by the Taliban until 2014. At your blog, The Unwashed Advocate, you’ve written about the case: you said Bergdahl’s decision to appear on the Serial podcast effectively destroyed his ability to defend himself. But can you give us your personal opinion? Does Bergdahl deserve further punishment for his crime, or has he suffered enough? Is it important for the Army to make an example of him? Does playing to the public, despite its lack of understanding of the Uniform Code of Military Justice, advance knowledge or play to people’s ignorance and prejudice?

A. This Bergdahl thing is getting out of hand. His lead counsel is Gene Fidell, a Yale law professor who focuses largely on military justice. Bergdahl also has four assigned Army counsel. Read that again. He has five free attorneys (I’m assuming that Fidell is not being paid via Bergdahl’s spare change). The assigning of four uniformed attorneys is extraordinary. To put it in perspective, I had a murder trial, and we had two. I can’t help but wonder if at least two of the four are appointed largely to assist with damage control for some of the boneheaded things that have already transpired.

I think playing to the public is insanely stupid. Of course, I’m on the outside without access to case files, but here’s how I see it:

First, his mental state is clearly at issue. If you want to maintain that your client is fragile, impaired, or damaged mentally or emotionally, why would you let him talk to the press for hours and hours? I see the prosecution leveraging this as evidence that he knows (and knew) exactly what he was doing.

Second, if he takes the stand for any reason, the prosecution will use the unedited transcripts of the Serial interviews liberally and at will. Heck, they will likely be able to use them even if he doesn’t take the stand.

Third, it is no longer a hot issue. Most of America has made up their minds. No changing them.

Finally, how is it likely to materially help at trial (for the defense, not the prosecution)? I can’t think of a way. Even if there is a way, does it outweigh the clear benefits the same provides to the prosecution?

If I were one of the four assigned counsel, I’d already be like Steve McCroskey (Lloyd Bridges’ character in “Airplane!”) at the end of the movie.

Q. After you left the JAG Corps and the Army in 2010 (at the rank of Major, by this time), you set up a private military criminal defense firm, The Mayer Group, in Overland Park, Kansas. How difficult was it to transition from practicing law as a JAG to defending military personnel as a civilian attorney? Do you get the same respect, the same access? Soldiers are entitled to free military counsel; why should they hire private counsel? Is it easier to zealously defend clients now that you’re free of the Army’s bureaucracy? Are you still that West Point man, Army Ranger, without a uniform? Do you secretly wish you were still wearing the uniform?

A. As with most things, it is a trade-off. Being in uniform grants greater access, but being in a suit allows greater leeway.

I’m still the same guy. Whether I wear a polyester uniform or a black label suit from Alton Lane, I am who I am, and I’m from where I’m from. It is most important to always remember that last part—where we’re from. Kansas, West Point, my father, my mother, Boy Scouts.

But, if you’re looking for a more vivid answer…

If you’ve ever seen an action movie set in a desert area, there’s always one character who gets no respect. Typically, he wears a suit, has dirt thrown upon him at every turn, and is both comical and sad simultaneously. However, he is always happy and alive in the end. In the movie “The Mummy,” this character is the brother of the movie’s heroine.

In 2011, I found myself in Iraq representing a court-martial client. During a break in which we stepped outside the courthouse, I looked around at the military folks in their field uniforms, and it hit me.

I’m the asshole in the desert wearing a wool suit.