Welcome to Trial Lawyer Talk. In this episode, we speak with famous criminal defense attorney Colby Vokey, from Dallas, Texas. Colby, who is also a consultant for the podcast “Serial,” discusses a case in which he defended a soldier who was accused of murder during a combat mission. All of the Marines that were witnesses testified against Colby’s client. Guess what happened? Listen and find out.
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Transcript for Trial Lawyer Talk, Episode 9, with Colby Vokey
Scott Glovsky: Welcome to Trial Lawyer Talk. I’m Scott Glovsky and I’m your host for this podcast, where we speak with some of the best trial lawyers in the United States. Today, we’re very lucky to have with us Colby Vokey. Colby is a phenomenal criminal defense lawyer, based out of Dallas, Texas.
In addition to his criminal defense practice, Colby is also working as a consultant on the podcast Serial. When I think of Colby, I think of honor, integrity, devotion, and justice. Colby is a phenomenal story teller, as well as an amazing, amazing trial lawyer. So, let’s get started.
We are very fortunate today, to have with us today Colby Vokey, a phenomenal criminal defense lawyer with an emphasis on military defense. Colby, thanks for joining us.
Colby Vokey: Yeah, it’s my pleasure.
Scott Glovsky: Colby, is there a case that’s had a profoundly impact on you, either personally or professionally?
Colby Vokey: There’s been a few, but I think there’s one that stands out in my mind. That was a military case that I’d done just a few years ago. It was at Camp Lejeune, North Carolina, and it was Marine Lieutenant. It was a platoon commander, who had deployed to Afghanistan. He was involved in some of the heaviest fighting in the entire war.
After a particular 19-day operation, in a place called Salaam Bazaar, he was charged with two murders for shooting Afghan Taliban persons, and a couple of aggravated assaults, all for combat operations there. It was a very serious case. You don’t have too many military officers charged with war crimes. It was a particularly difficult case given how it was reported, and how it came up.
Lieutenant Shawn Blair had about served his four years, and he was going to get out, but he had never had the chance to deploy. Shawn was about to get out but offered him a chance to deploy with another battalion, if he would agree to extend his time. So he did that and joins this battalion.
Right before they go to Afghanistan, as in a number of weeks right before they’re supposed to go on the plane and fly to Afghanistan. They move him and replace him, and make him a Platoon Commander of a platoon. He didn’t know the Marines in that platoon at all. He’s new to the battalion.
So if you can imagine, right before you supposed to lead a platoon to combat, you take over and don’t know any of them. What little interaction he had with them, some of the Marines there resented him, didn’t like him. They didn’t really know him, but they didn’t like him. Part of that was what happened in the platoon right before he got there.
The other Lieutenant who had been there was fired. The Marines of that platoon thought that they got that other Lieutenant fired. They thought we don’t need that Lieutenant and we don’t need this Lieutenant telling us what to do. They made complaints about the Lieutenant and the other Lieutenant was relieved.
In comes Shawn Blair, unbeknownst to him, he’s taking over a toxic group of guys who has some resentment towards the last officer. So that’s the situation he was in when they take off and go to Afghanistan. They land there, they move out to the field, and at first it wasn’t a lot of action. They were stationed in one place where they had to do patrolling 24 hours a day.
The Marines there started to resent Lieutenant Blair, thinking that he’s pushing them too hard. They believe that he was just out to get a medal. He kept pushing his guys out on patrol to go find something to fight. They were really building up resentment towards him for that. The ironic thing is those orders on how to conduct those patrols was not coming from Lieutenant Blair, it was coming from above him, the battalion Commander.
But Lieutenant Blair was the convenient one for all the younger ones to be angry at. So then they had this little operation they’re supposed to go to in this place called Salaam Bazaar. It was in a place called Helmand Province in a really nasty part of Afghanistan, a lot of Taliban. This bazaar was at a crossroads it was supposed to be a Taliban logistics hub.
So the plan was for this company, that had Lieutenant Blair’s platoon in it, was supposed to go down there. It was supposed to be a two-day thing. Clear out the bazaar, make sure there’s not Taliban there, and then they were going to be going back. Well that one to two-day mission turned into a 19 to 30-day mission. It was some of the heaviest fighting.
Every single day, they set up in the bazaar and they would go on patrols. Every day they would push out a little bit further. Their mission was movement to contact, which mean they are supposed to patrol until they find the enemy and they get in a fire fight. They’re out there looking for the enemy, looking to whoop a little ass is what they’re trying to do.
Every day, they’re trying to push a little further and further; get a little bit further distance. It’s important for that, because the further you can push out a patrol, you’re denying the enemy the opportunity to come in and put IED’s, explosive devices, to kill the Marines.
But from the Marine’s perspective, that Lieutenant Blair was leading, he wanted to push them further and further because he wanted to get medals for something, or seeking glory. So on the 19th day, these guys are sleeping one or two hours a night, it’s hot, they’re exhausted. Resupply of food and water was not very good.
Lieutenant Blair is also worried because they’re not quite as sharp as they should be. They’re on this patrol when Lieutenant Blair sees something in the distance that looks a little suspicious. So he takes his patrol of about, I think that patrol had about 18 Marines in it, and he splits them into two groups.
He takes one group and has one of his Marine’s take another group. They’re circling around to investigate this movement they saw from some people, and they get attacked. Enemy PK and machine guns are firing at them, and they come together and they’re returning fire.
Not long after the firing stops, because as the Taliban often do, they’ll attack you and they’ll break, and then they’ll scatter. So as they’re doing this, right after the firing stops, and the Taliban jumps on their motorcycles and start driving away in different directions. Lieutenant Blair is calling on the radio reporting what’s happened in this engagement.
Another Marine says, “Hey sir, we got a guy on a bike,” one of his Marines that are standing there. Shawn says, ‘stand by’ on the radio, gets up runs over and investigates. His other Marine had taken a shot at the guy on the motorcycle who was driving to stop him. Shawn runs over next to his Marine, raises his weapon, looks through the scope, and he sees somebody standing at the corner of a compound about 300 meters away.
What Shawn sees in that split second, is someone standing at the corner by the building, thinks he’s talking to somebody else, thinks he has a weapon in his hand, and for a second looks like he’s turning toward the Marines. Shawn doesn’t hesitate he pulls the trigger and drops him. The Marine who took that initial shot and called the Lieutenant over was a Corporal who had become one of the main witnesses against Lieutenant Blair.
They all run to where the man was shot, and they don’t find a weapon. Lieutenant Blair is saying, “Look around for a weapon. I saw a weapon.” They can’t find a weapon. They don’t find another person. They find nothing else except for the motorcycle, no other weapons. Shawn is sending people out to look, and they find nothing.
Right after that happens, the man he shots is not dead, he’s wounded. So Shawn actually calls a Medivac, a medical evacuation, for the Taliban guy that he shot, to evacuate him so he can be treated. While he’s doing that, he takes the same Corporal, would later be against him, and tell him, “You’re going to go with this man, so you can tell them what happened.”
You need to send somebody who knows what’s going on that can describe what happened. The Corporal says to Lieutenant Blair, “All right sir, what’s our story?” Shawn keeps telling him, “Just tell them what happened.” “All right sir, I understand, but what happened?” He says, “Corporal, you were right here, you saw what happened.” “Sure, I know that, but what did I see?”
It was like the Corporal was trying to get Shawn to suggest to him certain answers. Shawn’s getting more and more frustrated. He’s like, “This is what I saw, this is what I did, I took the shot. Just tell them that, and tell them what you saw.” “All right sir, I think I got it.” So the Corporal goes with the wounded guy when the Medivac helicopter lands, and goes off.
That would later form almost a conspiracy charge, or more of an obstruction charge against Lieutenant Shawn Blair, for trying to suggest to cover up an illegal shooting. The ironic thing is, as soon as the Medivac helicopter landed to take away the wounded Taliban guy, they started coming under fire again. They were even firing at the Medivac helicopter with a red cross on the back.
So after this happens, the patrol was ending and they were heading back to their fort operating base. On the way back, we don’t know who said it, but some Marine said, “now’s our time to get Lieutenant Blair.” So they get back, and someone ends up reporting to the first Sergeant and to the CO, that there was a shooting on this patrol, and the guy was unarmed, there was no reason to shoot him.
A few other Marines come forward, so Marines are talked into it. Before you know it, they call the Naval Criminal Investigative Service, NCIS, to come and investigate. That’s when all hell breaks loose. They end up charging Shawn Blair with two murders, two aggravated assaults, obstruction of justice, and a slew of other charges. All concerning his ground combat operations there.
Now, there were two murder charges, but the one I was talking about the most, the one I just described to you on day 19, that was really the gravamen of this case. That was the murder charge against him. The problem for me, when I get the case, is that he’s got his company commander, and some of the other platoon commanders, and platoon sergeants; they all support him but they weren’t with him on that patrol.
Of the Marines that were with him on that patrol, there were some that didn’t see what happened, and the rest were all saying things that were not helpful to Shawn Blair. Either that he shot an innocent man, or ‘I didn’t see a weapon.’ So there wasn’t one Marine on that patrol that was offering anything that supported Lieutenant Blair.
So when I get the case, I know that’s the main… The other murder charge, I know it was a murder charge, but it wasn’t as serious, as crazy as that sounds. This was the one. The difficulty is, how do I prove that he’s not guilty? How do I show that subjectively, that he perceived a real threat? When every Marine that’s on that patrol is either didn’t see it, or they’re saying things that don’t support his story. So that’s what I was faced with.
Scott Glovsky: What was your initial thought, when you saw a case like this? Did you have any hope when you first got this case?
Colby Vokey: I did. What I do, if I can… I knew a little bit about the case before I started, but I had not read the entire investigation. So first thing I did was I sat down with Shawn Blair, they didn’t not have in him pretrial confinement, which was good because I could work with him freely. But I sat down and tried to get to know him first.
I got to know Shawn. Shawn was a fantastic guy, but he’s very, very reserved, never shows emotions. He’s not a loud guy. He was an engineering major in college, that’s the kind of personality he was. Think of an engineer who keeps everything compartmentalized, neat, and orderly. Just not a very loud and boisterous guy, keeps things to himself.
As I got to know him, and I read this investigation that makes this person in here look like Gunga Din, or Genghis Khan, the two don’t match. Looking at the investigation, this is not Shawn Blair. So I knew there was something wrong reading that investigation, it just didn’t fit.
But at the same time, as I kept looking through all the statements being gathered from all these Marines, not one of them are coming up helping Shawn Blair. Then we had that conversation that he had with the Corporal afterwards, before he got on the Medivac helicopter.
That short conversation of two minutes, was so important in the case. If they believed that Shawn Blair is trying to this Corporal to lie for him about what happened. Then they’re going to think that he’s covering up for this shooting, and that it was illegal, and then they’ll convict him of murder. If they convict him of those two things, all the other charges are going to follow too. I think the spill over would have been tremendous. I think he would have been sitting in Leavenworth for life.
This was the main charge, and this was something I had to be able to tell the story of what happened and make the jury understand exactly how Shawn felt that day. That was the problem that I faced. How did I go about figuring out what story to tell? Frankly, I didn’t know what story to tell when I first got it. I had no idea.
I know he’s not guilty of this, he did not commit murder, any of these crimes he’s charged with, but I had no idea how to tell the story. So I started to the Trial Lawyers College method of Trial Lawyers College 101, by discovering the story.
I would take Shawn, military co-counsel, a paralegal, some other TLC friends, I’d bring them in, anybody that I could get, and we would start reenacting things with Shawn. We would reenact that shooting, the other shooting, things they did on different patrols, when he first took over the platoon when he met them for the first time, when he joined the Marine Corps, understanding why he enrolled in the Marine Corp.
We did in all, over about a year and a half, probably at least 75 reenactments. This is by far the most discovering of the story that I’ve ever done on a case, the most extensive. Every time I’d get out to North Carolina to visit with him, sure we might have an arraignment or some kind of hearing, and some motion. All that law stuff really getting in the way of me trying to tell the story.
We just did it over and over again so I could understand what story to tell. Slowly but surely I’m starting to understand. I start understanding Shawn Blair himself, what kind of person he is, his relationships with all the individual Marines, his relationship with his platoon in general. The environment that he was operating in, both how dangerous it was, and the toxic leadership environment he was in, and I started understanding these things.
Scott Glovsky: You used the word reenactment, so you would go back and have him show you different scenes of his life, of the things that mattered in this case, so you could understand them?
Colby Vokey: Absolutely. For example, the other shooting that he was charged with was another Afghan on a motorcycle that passed too close to Shawn Blair and his patrol on a different day. That involved Shawn and three other Marines that were key into what happened in that scene.
They were next to a compound. They had just cleared a compound. Shawn sees this motorcycle, he thinks he sees something suspicious, he thinks he see a radio antenna coming from the bike, and he takes a few steps forward.
Some of the Marines are saying things to him saying, “Sir, what do you got there?” He is trying to get some of them to get up and to engage the motorcycle, but they’re tired, sitting, and they’re lazy. There’s even a few smartass comments to Lieutenant Blair right before this thing starts.
In order to reenact this scene, we need to hear from Shawn Blair, but we also need to hear from Corporal Trombley and Corporal Kessler, and Sergeant Richardson. Those were the three that were at that scene. How do you do that so you understand how all those people think?
I had to have other people there with me that could play those parts. Now, you don’t want to have somebody play a part and think they know Sergeant Richardson is thinking, because that person doesn’t even know Sergeant Richardson.
So you take Shawn, and you reverse roles with him, and he takes the positions of say, Corporal Trombley. I’ll have him introduce himself as Corporal Trombley, tell me what you look like, tell me about yourself, and then I will ask him what did you see that day. You put him in present tense, that’s happening right now.
Once you get it about Corporal Trombley, I would reverse him to back into himself, and then we would look at another character, what that one was saying, thinking, and doing. Now, we don’t know their actual thoughts, but Shawn has a pretty good idea based on the relationship and the conversation.
So by him reversing roles of all three of these people. The people we have as acting like them take on that role. So once everybody understands their role, and Shaw is really educated us to who these people are, and what they do, then you can actually make the action happen.
It’s not unlike putting on a play or a movie scene. By using Shawn who knows the people and what happened there, it’s very authentic. We don’t do this just for grins, for entertainment value. When you put things in action facts and feelings come to life, that you can never get sitting there and just asking somebody about something.
Clients will remember facts that they over looked, that they may not think are important, and they are earth shattering and important to you. You start understanding the feelings between the two, like thought very highly of this one Sergeant Richardson. Although, secretly Sergeant Richardson detested Shawn Blair, and Shawn had no idea.
Trombley and Kessler, they were the smartass pair. He thought they were the biggest trouble. He really thought they were the only people that would say anything bad against him. He would find out that these two would influence a lot of the other Marines.
Through these reenactments, you start understanding that relationship. Now, I’m starting to see the story here. This is a discriminate group of scared Marines, who are in a very dangerous environment. The last Lieutenant they had was a terrible leader, and they were resentful of someone else coming in to do the same thing. That’s the resentment you’re showing towards Lieutenant Blair.
So everything they say is a little bit colored. So now I’m discovering that this is almost a legal mutiny that was happening. It’s not that they were all lying about what happened, it’s just their version, their view of all these facts, is skewed or different.
In order to tell that story, I have to be able to explain the relationship with all these people, between all these people. By doing that reenactment, all of a sudden you’re starting to understand. Again, at least 75 of these things I did, maybe more than that, maybe up to 100. I can’t count how many hours I spent. I sent more time doing the reenactment than anything else, certainly than writing legal motions.
Scott Glovsky: So if you would have put those days together, it would be probably months.
Colby Vokey: It would probably easily be a month. If you did nothing every day but reenactments, it would probably be a month’s worth. It was quite a bit.
Scott Glovsky: So then what happened?
Colby Vokey: Well the story starts coming together. As we’re getting ready for trial, the only problem was Shawn, while he’s willing to do this stuff, he’s a very reserved guy, he doesn’t not show emotions well. Well we need to see the true emotions to really understand the relationships and the feelings.
So sometimes with Shawn I would have problems. I want him to say what he said that day, exactly the way he said it. I need to know how loud it was. I need to know what he’s feeling. That’s a problem with Shawn, his whole life he’s kept that in. We discovered that by looking through how he was when he grew up.
Reenacting that scene with the conversation with the Corporal, I became very, very frustrated. We did that a number of times, and it was not feeling authentic. I wasn’t feeling how Shawn really felt, and it didn’t come out that way. I’m afraid again, if the jury thinks that Shawn is not authentic, that he’s trying to get this Corporal to lie, he’s going down for the whole kit and caboodle.
I couldn’t break through to Shawn. I couldn’t get him to show that true emotion. So I tried Trial Lawyers College style, if I can’t do it there’s people around me that can help. So I called Donna Clarkson, who’s one of the premier psychodramatist in the country.
Donna came down to Camp Lejeune, and we spent the day with Shawn. Within about 20 minutes, Donna cracks Shawn open like an egg. By midafternoon, we have to stop what we’re doing because we’ve got Shawn so emotional, he’s weeping.
Once through we cracked through that exterior, now when we go back and we’re reenacting that, we can show real emotion, and show how frustrated he was getting with this Corporal. He’s trying to tell him just tell the truth. Now when we do it, it’s authentic, and you can feel the frustration.
You can identify with it, because you’ve had people that have frustrated you like that before. We were trying to show these emotions that everybody shares, so they can see them in themselves. Once we get to that point, now we’re getting ready for trial.
Now the beautiful thing about discovering the story, the way you do it, if you do it seriously, and you put a lot of effort into it, is you will save time at trial later on. It makes trial so much easier. I’ve done so much in Shawn Blair’s case.
By the time I got to trial questioning witnesses, the trial was I think three-and-a-half-week-long trial. I barely took any notes the entire trial. I knew the story so well. So when I’m questioning my own witnesses, I’m cross-examining the government witnesses, I’m telling stories to those witnesses. That’s all we are anyways, is story tellers.
So I knew the story, I discovered it so much, I knew what I was telling through every witness. So at most, I would have one piece of paper with bullet outlines on there, to make sure I remembered all the parts of the story. Aside from other documents that I would have to use for the impeachment, or introduce things into evidence, I needed almost no notes, I knew the story.
Just as if you were to read the script of Die Hard, and try to answer questions about it, it’s very difficult. If you watch the movie and experience all of those same feelings, oh yeah, you can remember it clear as day. It made trial so much easier.
I could focus on the story and not worry about, am I doing this question in this order, and how is this going to work. It made everything else so much easier, the introduction of evidence seemed to be easier. Everything seemed to fall in place a lot easier. I handled objections a lot easier. So not only does it help you for trial and you know the story, but it also helps you in exactly what you’re doing in the court room.
In this case, I had Shawn take the stand. He took the stand for I would say four or five hours. My goal with Shawn was, that jury had to feel what Shawn was feeling, to see what he was seeing. They had to feel like they were standing in his shoes in that same situation.
So as much as possible, I like to not just have testimony in the courtroom, I like to have action. I like to do demonstrations, get people off the witness stand. Sometimes I’m do it even with government witnesses, and have them demonstrate things. I did that throughout the trial.
But with Shawn, that was the culmination. Now, all this discovering the story, putting these things in action, Shawn knows how to do this. If you’re going to demonstrate something in court, this is what you do. Now what I did not do, is we did not rehearse his testimony. We did not rehearse what I am going to show him and get him off the stand.
What he does know, is that we’ve gone over these stories, many of them, and he knows how I am going to do it, the mechanics of it. So I have him testify and get down off the stand, and we’re going to show this scene. So if you can picture this, we’re in a courtroom in North Carolina. Shawn is on the witness stand, and I go to tell the story of this shooting.
So if you can picture a courtroom. There’s a witness stand in the back wall, to the right of that, actually about 15 feet away not far, is the jury box, I think we had two or three rows of jurors. To the left of the witness stand, I’d say about 25 feet, is the court reporters desk. It’s a chair with a wooden guard around it. To the left of that, of course up higher is the judge’s bench.
Almost directly in front of and a little to the left of the witness stand, was a lectern, one you can move around the courtroom. Directly in front of that was the prosecutor’s table; to the left away from the jury is the defense table. So when I have Shawn come off the stand, and I’m having him describe that place in Salaam Bazaar right after they had gotten attacked by the machine guns, before this whole shooting starts.
I have say, “Shawn, set the scene for us, where are we?” Shawn is not saying, let me tell you the way it was back in Afghanistan, or way it was. Shawn is in first person, in present tense, as it’s happening right now. So for example, Shawn would say, “I’m looking out 300 yards and there’s a compound there, and there’s a dirt road in front of it. Behind me to my right is where the machine gun firing just came from. I’ve got Marines all over the area here.”
He’s pointing to the court reporter’s desk, “Here, is the compound of the first house. Right here…” He’s point to the lectern. “… is the corner of the other compound of the nearby house. I can see Corporal Kessler over here, and there’s some Marines at this compound to my left. Some Marines that are inside the compound in front of me.”
So he’s describing presence tenses, happening right now, what he sees. Then I have him say, “what time of the day is it?” He’ll say, “it’s late afternoon, we’ve been patrolling all day.” “How are the Marine’s feeling?” “My Marines are tired right now; they’ve been patrolling all day. Frankly they’ve been tired for a while and they’re getting kind of sloppy. I can look at them, and they’re not as alert as they need to be. When I see this Corporal he’s slouching against the wall smoking a cigarette, and he know he shouldn’t be doing that right now.” So I have him describe exactly the scene.
Once I have the scene, then I have to get the action of exactly what he’s done. I do this slowly at first, and incrementally. I have him demonstrate, he gets off the witness stand and he’s crouching down by the witness stand. Although the witness stand in the story is a pump house.
So he’s crouched by the pump house, I have him demonstrate exactly what he says on the radio when he reports the shooting. We hear the voice of the Marine saying, “Sir, I got a guy on a bike,” and there’s that bang sound. I have Shawn show exactly what he does, what he says, how he moves around between the two compounds to stand next to the Corporal. How he raises his weapon. What he sees through the scope. When he pulls the trigger what’s going through his mind.
All throughout this, from the actual episode from the time he’s reporting it, until he runs over and fires that shot, last maybe 15 seconds. As I have him describe it, I’m stopping him and getting his state of mind. I’m getting what he sees, what he feels, what he smells, who does he see around him. I break it down and we do it very incrementally up until the time he makes the shot. So they under and feel those feelings.
But the problem with that, is that’s not reality. That breaks it down and gives you the impression of, he’s in control and can make these decisions, and you have all this time. So what we really need to see, to really see an authentic scene, is we need to reenact this at full speed.
So after I had it broken down, that whole period of him up till the shot, in the courtroom, takes us about I’d say 15 minutes, may 20 minute. Then I have him go back to the spot he was, I told him I would be where Corporal Kessler was and give the word, Sir, I’ve got a bike and bang for the shot. That would be Shawn Blair’s cue to go full speed, every word he ran.
So the courtroom is now transposed, it’s now Salaam Bazaar, about 10 clicks northeast of Salaam Bazaar in Afghanistan. Shawn’s beautifully described where everything is. He’s using things in the courtroom as significant landmarks that fit with the scene, as best he can.
When I started to go, and he’s running around the courtroom full speed, he was talking on the radio, he hears the ‘I got a guy on the bike.’ He’s standby, and he runs away from the pump house, and running around this one compound and guns up. Raises his two arms, he’s not holding a gun in the courtroom, and says bang.
It happens so fast. The beautiful thing about it, Shawn did such a great job, it’s like you’re watching the movie. This is Salaam Bazaar: The Movie. Out of the corner of my eye, I’m watching the jury, and the jury is riveted. They’re following every one of his movements. There’s nobody writing notes, or scratching their face, everybody is riveted exactly what happens.
It’s was so authentic feeling, Shawn did such a good job, that when he finally ran up there with just his two hands pretending to hold a gun and makes the sound bang, one of the prosecutors ducked.
Scott Glovsky: Wow.
Colby Vokey: I almost laughed at that point. So he gets back on the stand. We reenacted about four things through the trial, that was the most powerful. We also had to reenact their conversation, again I thought that was crucial. Now, had we not worked so hard to reenact it, maybe not brought Donna Clarkson in, I think we would have lost the trial.
So as much fun and helpful the action the shooting was, the reenacting of the conversation was not as action packed, had to also be authentic, had to also be real. I think it came out well. The jury actually deliberated for quite some time, I think it was for 2 and a half days. Which in a military jury is an eternity, I’ve never seen a military jury be out that long ever. They acquitted him of all the aggravated assaults, all the murder, not guilty, all that stuff.
After the trial, I had the opportunity to talk to a few of the jurors. The interesting thing was, when it came to that primary shooting and that conversation afterwards, I asked him what do you think about that. As they are giving their opinions, they’re sighting the facts, not as the prosecutor listed them from the witnesses. They’re sighting the facts of what happened in there, as what Shawn demonstrated in that courtroom, so that was the starting point.
Those were the fact that they had to decide the case. If it’s authentic and true, and they can identify with the same feelings, then that’s what they’re going to be using as a reference point, that’s what they did do. Then they found him not guilty. The same thing with the conversation with the Corporal. They all were shaking their heads, we’ve all known people like that, and had Marines like that. We didn’t think much of it. So that was music to my ears.
The reenactments, the discovering the story of the case, was so crucial in me figuring out what story I’m going to tell at trial. It prepared me for trial like nothing else, and allowed me to put demonstrations in place, in the courtroom, getting Shawn and other witnesses off the strand to tell the story.
Now I would say one other thing on the case was, how I did an opening statement in the case. I did do an opening statement, and I did a first person opening statement. I became Shawn Blair. I reenacted some things myself, on opening statement, being Shawn Blair.
People were watching it, and the jury… The first 20 seconds or so, they’re looking at me like I got corn growing out of my ears. It looked very odd, they’re like what the hell is going on. Prosecutor starts objecting, he actually objected two or three times, to me to doing an opening statement where I’m Shawn Blair in first person, but I kept going.
It was important that they get a preview of exactly what’s going to be coming, the story that we’re telling. So after voir dire, the opening statement, and they know my story’s coming, it’s a matter of weighing my time in trial until I can tell it. Now I tell a little piece through their witnesses. Then when I get to my case, through my witnesses, and definitely through Shawn. I put into full action, everything that they got the sneak preview of during opening statement, and it was perfect bookends.
Of course we did closing arguments, which I think I did a good job, and the prosecutor did a good job, and I don’t think either one of them mattered. I think the case was over before we got to closing arguments. I think the case was over after Shawn Blair testified.
Scott Glovsky: This case sounds like a virtually impossible case to win. When you are confronted with every witness to the event, who is against your client, testifying against your client. How did that feel to win that case?
Colby Vokey: It was terrifying, at least at first. Once I understood the story I was going to tell in trial, it became a little less terrifying. But it was still a pretty daunting task. You had to get to know every single one of these Marines that were testifying against him, and why they were testifying against him. There were a few that obviously had bias, they didn’t like him, they had something against him.
But not every one of those Marines is a bad, evil person that want to throw an innocent guy in jail. You have to understand where they’re coming from. So getting to know them, and when they’re on the stand and you’re cross examining them, you can beat them up on every inconsistent little thing they said and yell at them, but that doesn’t do any good. I think the jury is going to hate you for it.
So you have to understand why they’re saying what they say. You’re listening to them, I understand why you’re testifying this way, that makes sense to me. Let the jury decide that they’re wrong, instead of trying to beat them up and make them look like a liar. While you do, do that with some witnesses, if you do it with every witness it’s not effective and it won’t work.
So I had to show that, with many of these guys that, they weren’t lying, they were just wrong. Perhaps they were mistaken about where they were or what events occurred. Or the fact that they talked to so many people since then and it’s changed their story.
So in this case, what was really important I had some imagery and maps. Based on all of what they said, where they said they were standing, what they saw, and who was where. I basically made a graph of representation on a different map for each witness of their story, at least the story they gave to NCIS.
Then when I know what I was going to get from them on the stand, and what I ended up with was about 14 different maps with people that were completely different. So I don’t need to beat up a witness about him being wrong, about where Smith was standing and where Jones was standing. I can just say I understand, are you sure this is where it was, or what else was going on?
Sometimes being a little bit more understanding can be more devastating to a witness than beating them up. So a combination of using physical exhibits that I use with just listening to testimony of what they were saying, and telling my story to those government witnesses, it just created a picture of hell.
These guys don’t know what happened, and I think it came across very effectively. Despite them either not saying what happened, or being all against him, it came out as very inconsistent and a little bit chaotic, which is what combat is.
Scott Glovsky: Colby, can you share with us a little bit about your background in military, and how that impacts your lawyering?
Colby Vokey: Sure. I was in the Marine Corp for 21 years. I retired in 2008 as Lieutenant Colonel. I started in the Marine Corp as an Artillery Officer, saw combat in Desert Storm, and then did a law program and became a lawyer. The rest of my time in the Marine Corp I was, as a lawyer all I did was courtroom jobs. I was pretty lucky that I avoided all those other jobs, and all I did was prosecutor defending the entire time I was a lawyer.
After I retired, I just continued to practice as a civilian lawyer wearing a coat and a tie, but doing a lot of military cases. I’d do some other criminal, state, and federal criminal stuff, and I’ve done personal injury cases. But primarily what I do is military law. Defend guys in Court Marshals, and other hearings and boards.
So I take with it, a lot of military knowledge and background that I have, which is tremendously helpful. I can understand the culture. It’s helps understanding the terms, he military uses so many acronyms it’s like a different language almost sometimes, so that helps quite a bit.
Scott Glovsky: It seems like the ultimate betrayal when you’re a soldier fighting to defend your country, and under incredibly stressful circumstances. Then to be accused of murdering someone in the heat of battle, and have your own troops testifying against you.
Colby Vokey: Well, unfortunately, it’s a lot more common than you’d think. I’ve been involved with at least 25 different war crimes cases, either helping or actually representing these guys. I think I’ve handle more of these case than anybody in the country. It’s my favorite kind of case to do, because they make me very angry.
A lot of times these cases are the result of really strict unrealistic rules and engagement that we place on these guys. It’s amazing, you look at a shooting like this in Afghanistan, where Shawn Blair has shot somebody, where there’s no question he’s clearly Taliban.
We actually found out later through some other mean that I can’t discuss here, but the guy was Taliban take my word for it. To be charged with a crime for killing somebody who’s actually the enemy, but the way the rules of engagement work is, there are certain requirements before you can actually engage.
You have to first identify him as the enemy, and then there must be some kind of hostile action or hostile intent on the part of that guy against you. So for example, you could see a guy, you get identification, clearly Taliban. That’s one of the big leader’s there, and if he’s just walking down the street, he could be the number two Taliban guy in the entire country.
If you see him walking down the street, if he’s not, at that time, showing you hostile action or hostile intent, you cannot shoot him, as crazy as that sounds. They could have been over in Afghanistan and seen Bin Laden walking down the street, and they can’t shoot him, as crazy as that sounds. It becomes very subjective to person pulling the trigger, of whether there’s hostile action or hostile intent.
Now in this case with Shawn, that’s what he thought. He’s hypervigilant and they just been attacked. It makes common sense that the motorcycle that he’s now shooting at obviously is one of the guys who broke off in the attack. When he raises the weapon and thinks he’s seeing him talk to someone else and a weapon in his hand. He’s not taking any chances; he squeezes the trigger.
Now, this is a guy who the lawful intent to kill every day he wakes up, all these Marines do. We train them to do that. Their mission in Salaam Bazaar was movement to contact, movement until you find the enemy and you engage them, and you kill them.
That’s what Shawn does, but at the same time they still hold him to these rules of engagement. Whereas, if you can’t show that there was a proper hostile action or hostile intent, you’re not justified in that shooting. If you’re not justified in a killing, then you’re guilty of murder. It seems like a huge giant leap to take and it is.
So there’s a killing, defense to a murder is justification, self-defense or in the line of duty. But with the military, for that justification the shooting must be in accordance to the rules of engagement. If you think there was hostile action or hostile intent, and there’s a question as to whether it was, and you have other Marines saying it’s not.
All of sudden they say no, when you fired it was not in accordance with the rules of engagement. It violated the rules of engagement, therefore you get no justification defense, therefore you’re guilty of murder. That’s the thing that they don’t advertise when they send these guys over. So there are many, many cases like this.
Not all of the war crime cases involve fact like that, but they all make me angry. So I handle a lot of these cases. I’m handling four guys that…. Two of them are in Leavenworth and two of them are of them I’ve already got released on parole, and we’re trying to seek pardons, or commutation from President Obama.
I’ve represented other guys at trial charged with war crimes. We’ve had some cases dismissed, one case is at trial.
Scott Glovsky: Wow. Lastly, what impact did this case have on Colby Vokey?
Colby Vokey: Well, this was probably the most pressure I felt in a trial. It’s not the only murder case I’ve taken to trial. But this one was… I got to know Shawn Blair so well. I really became to like him. I love the guy. I feel like he’s a brother of mine, and I just knew he is not guilty of murder, it wasn’t even close.
There’s nothing more terrifying than knowing you’re representing somebody who is really innocent. Matter of fact, not only is he innocent, this guy should be getting a medal. If I screw up, and I don’t do my job at trial, if I don’t tell his story the right way, it’s not just a little slip up, in this case he goes to jail for the rest of his life, life in prison at Leavenworth.
It really caused me to focus on the process. At first it was overwhelming. When you first get the case you say, ‘oh yeah this is great, this is cool.’ Then you start realizing what’s at hand and it’s terrifying. What it really taught me to do was, rely on the process of how I prepare these cases for trial.
All these things I’ve learned at the Trial Lawyers College, the methods, the steps I took. I completely surrendered myself to that process. I said, I’m not thinking about it, I’m going to discover this story. I’m going to do all those things I learned through Trial Lawyers College 100%. Complete surrendering to the method, and it was transformative.
I’ve done things like that for a long time with Trial Lawyers College. I think I’ve never given in so completely 100% to the process, maybe because I’m always a little afraid to do that, or controlling on something. But by giving in completely to the process, it was amazing what happened.
I think it was the most complete case that I’ve ever tried. Again the most pressure I’ve ever felt in a trial. The most I’ve ever thrown up before trial.
Scott Glovsky: How many times did you throw up?
Colby Vokey: I’d say the first four days before trial. No, I’d say maybe the first two days of trial, but we had some hearings right beforehand. I was throwing up before there. It was a very intense experience. I think it wasn’t just the seriousness of the case, but the way I was able to tell the story, and to show what happened. Show the story in a courtroom, it gave me more confidence that I can do that in any case.
Scott Glovsky: Does your lawyering adversely impact your health?
Colby Vokey: Oh yeah, absolutely. Does my lawyering impact my health? Yes. Since I do military cases, I’ve got to travel a lot, I’m always travelling. Which sometimes means you’re not eating the best. Exercise, sometimes it just takes a back seat, you just don’t have time to do it. You’re traveling, you’re getting somewhere to get with a client, you have such a limited amount of time.
I think when I get there with that client, I make use of every single minute, and it’s incredibly stressful. Stress is never good for your body. I think it’s also one thing I’ve learned about Shawn Blair’s case too is, you have to be able to manage that stress.
Scott Glovsky: How do you do that?
Colby Vokey: Exercise, diet, but you’ve got to be able to turn off your mind at some point. If I don’t do that, I know what my body does. If I can’t be able to turn it off and take a break so I can recover, I will get sick. I think it was three years ago, I was on the road nine straight weeks, of that there were five trials within those nine weeks. The rest of them were just hearings or appearances, or whatever. A few judges just screwed me and wouldn’t give continuances. It was the worst stretch that I have had.
Again, on the road nine straight weeks, with five trials within those nine weeks. By the time I got to the end of that period, I was supposed to go into another trial, and the judge reluctantly had to give me a continuance, because of some other issue. I was sick for about three or four weeks in a row, stomach, fever, I couldn’t get well. I just about had a nervous breakdown, but my body was ready to collapse.
So when I had that week that I was supposed to be in trial, now all of a sudden I get the continuance, I was in bed for four days. It was terrible for my body. So I know my body, if I don’t give it a break, I’ll get sick. My body will just fall apart, and that doesn’t do anybody any good.
Scott Glovsky: What advice to you have out there for other lawyers who care about their clients, who work hard, and how to deal with this stress?
Colby Vokey: If you can’t manage the stress and take care of yourself, it will adversely impact your ability to defend your clients. So not only for our personal health that we got to take care of our self, but you have to take breaks away. You have to take time for yourself, and time for your family. Because if you don’t take care of you first, then you can’t care of anybody else.
It’s a challenging thing, as a trial lawyer, it’s one of the most demanding things that we do, is to try to take care of ourselves first, but it’s absolutely critical. Because in the long run, if you don’t take care of yourself, you can’t take care of anybody else well.
Scott Glovsky: Well Colby, thank you for the wonderful stories that you shared today, the tremendous advice, and I certainly learned a lot. I know that our listeners have learned a lot. Thanks for being a phenomenal lawyer, phenomenal human being, and just a great guy. Thank you.
Colby Vokey: Scott, I appreciate it. Keep spreading the word.
Scott Glovsky: Thank you for joining us today for Trial Lawyer Talk. If you like the show, I’d really appreciate if you could give us a good review on iTunes, and I’d love to get your feedback. You can reach me at www.scottglovsky.com. That’s S-C-O-T-T-G-L-O-V-S-K-Y. com, and I’d love to hear your feedback.
You can also check out the book that I published called Fighting Health Insurance Denials: A Primer for Lawyers, that’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people. It provides a general outline of how to fight health insurance denials. Have a great week and we’ll talk to you in the next episode.
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