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Transcript for Trial Lawyer Talk, Episode 8, with Phil Stackhouse

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Scott Glovsky: Welcome to Trial Lawyer Talk. I’m Scott Glovsky and I’m your host for this podcast, where we talk to some of the best trial lawyers in country. Today, we’re very fortunate to have with us a phenomenal trial lawyer who focuses on military criminal defense, as well as civil criminal law, based frankly all over the country, although he’s practicing primarily out of San Diego, Phil Stackhouse. Phil is a wonderful, creative, devoted, and dedicated trial lawyer and we’ve got a lot to learn from Phil. He’s going to share with us the story of defending a soldier who is accused of murder. Let’s get started.

We are very lucky to have with us today Phil Stackhouse, who’s a phenomenal lawyer on military criminal defense and non-military, regular defense, as well as personal injury work, in cases all around the United States. Phil, thank you so much for being with us.

Phil Stackhouse: Thanks for having me, Scott, it’s really cool.

Scott Glovsky: Phil, can you share with us a case that had a profound impact on you?

Phil Stackhouse: I think the case that comes to mind for me is my client David. It’s been a little while now, I guess it’s been about five years. David was accused of killing somebody in Afghanistan, and not in a combat operation. He was charged both with involuntary manslaughter, they attempted to add a charge of murder for the conduct, and he was also charged with negligent homicide.

The allegations took place in Afghanistan. The preliminary inquiry, or military equivalent of a grand jury investigation took place in Afghanistan. The trial itself actually took place in Afghanistan as well. It’s probably, if not the case that had the most impact on me. It’s one of the cases that had the most impact on me, for sure.

Scott Glovsky: Great. Tell us about the story of the case.

Phil Stackhouse: Well generally speaking, the allegations were where David was on guard duty at a combat outpost in Afghanistan. He was on duty with another soldier. The allegation was that he picked up his weapon, aimed it at an individual that was walking down a dirt road several hundred meters away from his guard post, sighted in on him, and pulled the trigger.

Scott Glovsky: So essentially just killed him?

Phil Stackhouse: Just killed him indiscriminately, worst case scenario, from the government’s perspective. Probably from our perspective, the best case scenario, the allegation was he aimed at the individual pulled the trigger, but didn’t know that there was a round in his weapon. So was acting with disregard to the reasonably foreseeable consequences of his conduct. David was a fantastic soldier, was on his third combat tour, very well respected in his unit. He’s just a great man, and still is, he and I are friends still today. Come from a great family, his dad was a Navy officer, surgeon, great family, great kid.

His father contacted me in Washington D.C., asking me if I would represent his son. I told him that I needed to talk to David first, to make sure that he and I got along well. That was going to be on the phone to begin with, and was going to be on the phone until I could travel to Afghanistan to meet him for the first time.

So what happened is, these charges came down, I bought a plane ticket from Washington D.C. to Afghanistan, via Dubai. We, I say we – it was me. I flew out from Dubai, we get on contract 727, fly from Dubai over by Bagram Air Base. I think you fly into Bagram Air Base at 30,000 feet, and then the jet goes into a 30 or 40 degrees’ bank, and then spirals down from 20 or 30,000 feet to the airstrip in Bagram Air Base to avoid anti-aircraft fire being zeroed in on the aircraft.

It was me and a bunch of civilian contractors landing at Bagram Air Base. They have a little customs immigration type facility there at Bagram that you had to go through. You had to have an Afghan visa in your passport, so I did that and met David. It was an interesting situation to say the very least, showing up in Afghanistan to represent somebody I had never met before.

Scott Glovsky: So what happened when you met David?

Phil Stackhouse: Well David and I had spent quite a bit of time on the phone talking about just things, not really about the case. But just me getting to know him, what his family life was like when he was growing up, what high school was like for him. He enlisted in the Army right after high school. So that was his civilian life, was being raised by family and going to high school, is the things he remembered.

We talked about his military service up to that point, he had been in for a little over four years, had been stationed at Fort Brag, NC, and had moved to Italy and was stationed in Italy, and deployed to Afghanistan from Italy as an infantry men. So we spent a lot of time on the phone talking about that, when we got to Afghanistan, it was during the day.

It was a real treat for me, because there was an Army trial defense service office at Bagram Air Base. So there was Army attorney’s there, we had office spaces that were in this rundown utility type building. They introduced me to David’s military attorney, the Army Captain that had been working with him. He and I went to where I was going to be billeted for the few days I was going to be there.

Scott Glovsky: What does that mean?

Phil Stackhouse: It was where I was going to sleep. It was basically a woodshed with a couple other Army officers that were housed there for their entire one-year tour in Afghanistan. I was only going to be there for a few days.

So after I met the Army attorney, we had David come over to the trial defense service office, and got to meet each other for the first time. Again, just spent some time talking about him and introducing him to me, and what my life is like, and the things that I’ve done. So we got to know each other pretty well, and got to know a little bit about each other’s background.

Scott Glovsky: What did you share with him about your life?

Phil Stackhouse: One of the things for me, especially when I’m representing an enlisted service member, is just let them know that I’ve been there. I was an enlisted guy in the Marines for nine years. So I let them know that, while we might have had different jobs, or served in different places, that I’ve been in the position that they’ve been in, and came up through the ranks like they come up through the ranks.

It allows us to bond a little bit quicker, because true or not, I think people assume that we’ve shared some of the same experiences. I think by and large, that’s true that we had shared a lot of the same experiences. But it lets you make that jump a little bit quicker.

Scott Glovsky: Did you share, with him, any of your fears that you had when you were in the military?

Phil Stackhouse: I did. One of the things for me is, I was an enlisted guy for nine years. After I got commissioned, before I became a lawyer, I was an infantry officer. So it also allowed us to bond pretty quick as well. But for me, when I was an enlisted guy, and when I was infantry officer, it was before the war on terror had begun, before 9/11 took place. So my experiences as an enlisted Marine and infantry officer, were in peace time preparing for combat operations, but not engaging in combat operations.

So one of the things I shared with him, that was an ongoing joke, was how I had finished 22 years and retired. It was another five years after I retired, before I deployed to a combat zone, when most of the guys are on active duty itching to go into a combat zone. So we had a pretty good time talking about that. I think we got to know each other pretty well, pretty quick.

Scott Glovsky: So what happened next?

Phil Stackhouse: So the next thing that takes place is, we went to a forward operating base called Shank. We took helicopters to Shank. So we were in these combat transport helicopters, and it was probably, by the time we were all done, a five or six-hour helicopter ride, because it was a very circuitous route we took. Because we were just jumping on flights as we could jump on them to get to where we needed to be.

Scott Glovsky: So you would jump on a military flight to get someplace, and try to get from there to your destination?

Phil Stackhouse: Yes, it’s a leap frog kind of thing. So it took us some time to get there, but we ended up getting to forward operating base, Shank. Once we got there, we did what ended up in a couple day hearing into the allegations. Unlike a grand jury investigation in the civilian community, in the military the grand jury equivalent called an Article 32, the accused gets to be there.

So we actually had the opportunity to be at the hearing. We got to cross examine witnesses. We got to see a little bit about what evidence the government had against David. That’s where they asked the investigating officer to add a charge of murder onto the charge sheet. Ultimately, we were able to defeat that request.

But at the end of the day, what’s called referred, they ended up referring charges of involuntary manslaughter, or manslaughter I should say, and negligent homicide to trial. So that hearing took place, I flew back to the states, and probably a week or two later we found out that the charges were going forward with manslaughter and negligent homicide.

The next step was to begin the process of preparing for trial, which we knew was going to happen in Afghanistan. It was after that pretrial investigation, I ended up going to Trial Lawyer’s College, and learned some very cutting edge techniques, and representing clients. Probably a month or so after I graduated from Trial Lawyer’s College, I flew to Afghanistan for the trial.

Scott Glovsky: So tell me what happened when you flew to Afghanistan?

Phil Stackhouse: It was kind of the same run through on getting there. It was from D.C. to Dubai, and then corkscrewing in to Bagram. The difference this time was, it wasn’t just going to me that was going to be there, David’s mom and dad flew to Afghanistan as well. They showed up a day or two after I got there.

But it’s a much nicer building in the office space that we were working out of, or that the pretrial investigation took place in. It was a very nicely apportioned building. The courtroom was large. There was an opportunity for there to be witnesses to the trial, not witnesses in the trial, but an audience could be there and watch what was going to take place.

So David’s mother and father came to Afghanistan to watch what was going to happen. I think it was one of the first times I had a client’s mom and dad actually come and see what was going to take place during the trial. So that was some added pressure, I guess for lack of a better term.

We had spent a lot of time working with David during the pretrial investigation phase, now several months had gone by. One of the things that was really hard, was that David had become very cold to what happened. When I first met him, he was very remorseful for what happened. He had written a letter of apology to the family of the man that had died.

It turns out that the man was a doctor that was walking to a well. David was doing some quick reaction controls with his weapon in the guard tower, and inadvertently left a round in his weapon. Wasn’t even aiming at anything, he literally had a negligent discharge of his weapon. After that happened, he had taken time to write an apology letter to the family.

When someone is hurt, or property is damaged in a combat zone, the military can and does make these payments to the family called solatia payments. Where they can essentially try to make the injured party whole for what happened to them at the hands of the military. That was going to happen in this case to the family of the man that had died.

David tried to make that payment himself, and not have the government have to make that payment. He wanted to talk to the man’s family to apologize personally to them, that’s who he was. When we came back, several months later, for the trial, he had become very cold, and was almost of, well shit happens in a time of war. That’s not who he was a few months earlier.

We spent some time talking about what I absolutely saw as this being a defense mechanism, that he had taken on to deal with the guilt that he felt for what had happened. The pain that he felt of what happened. So having to be in Afghanistan while he was removed from his unit, he was still in Afghanistan, he wasn’t home dealing with regular day to day matters, and it was a defense mechanism that he had put up.

So when I got to Afghanistan, and we had seen this change had occurred, we worked very, very hard on getting him back to where he had originally felt after the accident had happened. We spent an entire day working on that.

Scott Glovsky: How?

Phil Stackhouse: It’s a little hard to describe on the microphone, but I’ll do my best. We spent time with…It was David, my co-counsel who was an Army Captain, a paralegal who just by circumstance happened to be an active duty Marine assigned to the Army legal office. We spent time with David doing reenactments about what had happened on that day, trying to get him back in touch with… In fact, getting him back in touch with the emotions the had felt once he realized what had happened.

We did some things called encounters where we had David reverse roles with the man who was killed, and take on those kind of feelings. Again, reverse roles back into his own feelings and emotions. We spent some time looking at the pictures from the scene. We spent time talking to some of the huge supporters that he had there in his unit, that connected with the feelings and remorse and guilty that he had felt after it had happened.

That he had accidently taken somebody life, and had them share their feelings about David and how he had responded when the accident had originally occurred. How remorseful he was, how sorry he was, how concerned he was, not just for the person who had been shot, but how that person’s family was going to be provided for after one of the elders of the family had been taken.

All of those things allowed David to get back in touch with those emotions that he had originally felt. He was able to shed that defense mechanism that he had put up, and I think that we would all have at some point.

Scott Glovsky: So then what happened?

Phil Stackhouse: So his mom and dad came, like I said, a couple days later. We continued to witness interviews. There was another person in the guard tower with David when this happened, we spent some time with him. Having him go through some re-enactments about what he observed during the day with some of David’s soldiers that were around him at the time, not in the tower but around him, and saw what had happened afterwards.

Did some reenactments with them to really take us through what took place? How were people feeling, what was the energy around the combat outpost when that happened? How did it affect everyone? We worked on those types of things for about a week, and then the trial began.

The next thing that really had to be decided was, first, is David going to testify, we always felt that he did and he committed to testifying. Then the next thing was, was he going to fully embrace what had happened and accept responsibility, and whatever the results of the trial those were going to be the results. That was his decision as well, and he did.

We went into the trial knowing that he was going to testify, knowing that he was going to embrace what had happened. All of the remorse, all of the guilt, all of the actions, he was going to embrace everything. Once we decided that that was going to be the case, it made it a much easier…. I shouldn’t say easier, it made a much clearer path for us on how we were going to take the trial to the jury.

So the next piece was selecting the right jury. It’s a tough area to select a jury in. In the military, it’s not a random grouping of people brought from the local community that sit as a jury. In the military, the commanding General, who has made the decision to send this soldier to trial, hand selects the jury veneer.

We know that the officers and the enlisted soldiers that are going to sit as jurors have had their backgrounds screened by a Commanding General. He has, among other things, selected those individuals that he felt had the best experience, the best leadership traits, the best judicial temperament, would be the most objective group of individuals that he had available to him.

All of that sounds great, but they’re also a group of jurors that you’ll never, or rarely, be able to pull the wool over their eyes. These are people that are highly educated, highly experienced. I think the jury that we had, almost everyone, had a college degree. They almost all had…. They certainly all had more than 15 years of professional experience, some of them had well over 20 years of professional experience. So it was an experienced, well-educated jury that we were going to be dealing with. So getting the right jurors out of that veneer was a very important aspect.

Scott Glovsky: So how did you do that?

Phil Stackhouse: One of the benefits of this trial was that we had a very good trial judge, that let us try the case however we wanted to try it. There were at times, he was paternalistic, but he was paternalistic in making sure that David was protected. I’ll talk about that in a minute. But essentially, he let us try the case that we wanted to try.

So we had some fears in the case, the fact that somebody had died and David did it. We were going to let them know that David did it, and how they were going to respond to that. There were going to be pictures, the pictures… We can say everybody is a battle hardened soldier, veteran of multiple combat operations. But when you are looking at pictures of someone who’s been shot, there are very visceral reactions that come from that. We were going to have to deal with those evidentiary photos that were going to be coming into evidence.

It was said to us, that the family members, of the man who was shot, were going to be flown in for the trial. So there was going to be some real emotions that was going to be evoked during the conduct of the trial. And how people respond to those types of emotions vary. So what we did is… And quite frankly, how it was going to affect us, and how it was going to affect us in dealing with those witnesses.

So what we did is, we shared those fears, that we had, with the jury. And asked them for their thoughts, their feelings, about those same fears. It allowed us to engage in a real conversation with a group of, I think we started out with 12, maybe there was 10 that we started out with. It allowed us to have a real conversation about those fears, and how they thought it might affect them, what their feelings were about the things we shared with them.

Like I said, the judge allowed us to really try the case that we wanted to, he didn’t get in the way of us having discussions with the jurors, to see if they were going to be able to put aside those emotions. Or if they were going to be able to make decisions in spite of those emotions and feelings that they had.

There were a couple who didn’t think they were going to be able to. We tried to, and in fact did, create an environment in the courtroom that they were comfortable that with us. I think we excused a couple because of their concerns that they might be able to be fair. It was a good jury selection process, a good voir dire, because it wasn’t us excluding somebody from the jury.

It was a couple of the jurors, they call them members in a Court Marshal, saying that they weren’t sure they could be fair and asked to be excused from the jury. So it allowed us to keep a jury intact, that all communicated well with us, and we had all bonded with, during the selection process.

Scott Glovsky: What happened after that?

Phil Stackhouse: After we had the jury selected we began opening statements. Based upon the work that we had done with David, and the decisions we had made, during the opening statements we told the jury exactly what had happened. We told them that David had come back from sleep, he had the night off. Not that he was going out on liberty or anything, but he didn’t have to work the night before.

He had gotten up about 5:30 am, grabbed breakfast for him and his soldier that was going to be on guard duty with him, put it in a to-go box, and brought it to the tower. We set the scene of the guard tower right in the middle of the courtroom. We didn’t have the ability to build one, but we mapped out the 10 x 10 size of the room, and we oriented the jury to everything that was inside that guard room.

I was able to take the jury all the way through it, reversing roles with my client during the opening statement. Speaking in the first person, telling his story to the jury. The story that he was going to tell from the witness stand. We committed that to the jury, we said, “you’re going to hear from David because he’s going to take the stand, and he’s going to tell you: ‘I got up that morning at about 5:30, and got dressed, shaved, and went to chow hall,’ and told the story just like that.

We told the story about how he had picked his weapon up and unloaded it, and did some quick reaction drills that he was trained in, and that he trained other people in with these presentation drills of a weapon. He had put the magazine back into the gun, set it in the corner, talked to his soldier there for a little while. They joked around a little bit, had a little bit to eat.

He picked the weapon up again, started doing the same reaction drills, and he didn’t take the magazine out before he pulled the trigger. So he had actually racked a round into the chamber and pulled the trigger, and the bullet went wherever it was going to go, whatever direction the weapon was pointed. Unfortunately, it passed through the window of the guard tower, and traveled a few hundred meters from the guard toward and hit somebody that was innocently walking down the road and killed him.

Scott Glovsky: At that moment, when you told that to the jury, essentially that your client killed him, what was going on inside of you?

Phil Stackhouse: Well it’s the first time I had ever done anything like that, that I can remember anyway. Where I was essentially saying, my client killed somebody and it was an accident, but there’s no way to sugar coat it. He had the round in the magazine. He put the round in the chamber. He took the weapon off safe. He put his finger in the trigger well. He depressed the trigger, and a bullet exited his weapon, and hit somebody and killed them.

I can tell you, when we were preparing that opening statement, it was really hard to say. I had probably more fear in saying that to a jury the first time in a courtroom than I had ever had before. The jury, they were pretty stoic. So there wasn’t a lot of emotion on their faces. I didn’t know if it was resonating with them, or if they were like, you just screwed your client, or if they were, wow this is horrible about what happened to him, because they were very poker faced.

When I was talking about the judge being paternalistic, after the opening statement, he excused the jury for a little while. On the record, started to almost chastise us by admitting our client had committed if not manslaughter, negligent homicide. What were we doing, and why would we admit our client did that? Wanted to talk to our client about whether or not he agreed with the strategy that we had developed in the case. Which he said that he did, because we had spent days working on it.

But it was not the direction, certainly that the court thought we were going to go. Ultimately, I don’t think it’s a direction I thought the prosecutor thought we were going to go either.

Scott Glovsky: Yep, I don’t think many prosecutors are used to having defense attorney’s essentially acknowledge that their client did what they’re being accused of doing.

Phil Stackhouse: Right, I think that’s exactly right. The government put on their witnesses. They put on the soldier that was in the guard tower. They put on some doctors that had treated the man who was killed. They put on some of David’s leadership, and soldiers that he had admitted responsibility for shooting the gun. He had expressed remorse of all of these things, to show what we had already admitted took place.

But they put on all those witnesses and they rested their case. I think they put their case on over a couple days. I think the third day of trial, we began our case by putting David on, and he was our first witness. David, through the question I was asking, it allowed him to get out of the witness box and be in the well of the courtroom.

He described, set up, and oriented the jury to the exact same guard room or guard house that I had in the opening statements. He truthfully and emotionally told his story. I think one of the most telling, and probably the biggest turning point of the trial was during David’s testimony.

When we got to the point where he had picked his gun up for the second time, and was going to engage in some of these quick reaction drill again. He gets to the point where he’s picked up the gun, and he’s getting ready to lift it, not up to his shoulder, but lift it up like he would present it in one of these quick reaction drills, and he can’t lift it up.

He doesn’t have a gun in his hand. He just pretending like he had a gun in his hand. But he can’t lift his arms up to present what would be the gun, because this time he knows what’s going to happen. He is really in the moment; he’s put himself back on that day when the accident happened. He’s living it in the courtroom, just like he lived it on that day, except he knows what’s going to happen.

As he’s to the point where he would present the weapon, he has tears coming down his cheek, his chin is quivering, and he’s not responding to my question about show us what happens next. I’m back away from him a little way, I’m able to look over and to the jury box, and several of the jurors have tears coming down their cheek, because they know what’s getting ready to happen too.

They can see the emotional struggle that David is having right now. I think it’s right there at that point, at that time, that the jurors fully and completely bonded with David. They know what happened. They know that he didn’t do anything on purpose. They know this was a terrible accident.

We continued on with the testimony with some prompting. I took about, I think, six hours for David to finish his testimony that day. So it was super hard day, I think it was somewhat cathartic for David, to be able to give his story in the courtroom. I think it was one of the most powerful things that I’ve seen every happen in the courtroom, what he did that day.

Scott Glovsky: What’s next in the story?

Phil Stackhouse: There were a couple more witnesses that we called during the trial, and then we rested. So we took some time to work on jury instructions with the judge, and we came in and argued the next morning. The arguments for the most part, for us, were very similar to the opening statements.

We told David’s story, not the story of the case, but the story of the trial. Which for us was somewhat similar, because they were told that story in the well of the courtroom. We didn’t reenact everything again, and important piece of it we respected the scene that we had set in the courtroom. So that that well in the courtroom was always going to be the guard tower, and that’s the way we address it, that’s the way that we dealt with it.

It was good closing argument, because I got a lot of favorable nods from the jurors. They were very engaged, not personally, but they were engaged emotionally. You could see it in their eyes, you could see it in their facial expressions. You could see it in their nods and their shakes. It was a good closing argument. It’s one of those days, for me, where you feel like you’re in the zone, when you’re in flow, and that’s the way I remember it.

The jury close for deliberating it. They’ve been deliberating for hours, and they came back with a question. The question that they asked to the court was, “If we believe that this was an accident, do we have to find him guilty?” We spent the next hour or so arguing with the judge that if he went back with the jury, and told him that the answer was yes, that even if it was an accident, if it met the elements, they would have to find him guilty.

Our concern was, with the instruction for negligent homicide including the absence of due care, that if they judge went back and said yes, you would still have to find him guilty, we didn’t know if they were asking about negligent homicide or voluntary manslaughter, and how that worked, that they would convict him of manslaughter.

What ended up happening is, not long after the judge essentially just reread the negligent homicide instruction to the jury. They came back probably 20 minutes later, and convicted him of negligent homicide. That was hard, it was…

Scott Glovsky: What did the judge say, in respond to the juror question?

Phil Stackhouse: So the judge essentially went back and said, I can’t define what an accident is to you, if you believe there was the absence of due care, essentially yes, you had to find him guilty. Our concern was, we didn’t know if they were asking about manslaughter or negligent homicide. So when they came back with a conviction of negligent homicide, we were disappointed because there’s an additional element in a military case, it’s not just a death resulting from the absence of due care. His conduct had to be prejudicial to good order and discipline or service discrediting, and that was our entire case.

What happened, happened, but it wasn’t service discrediting, and it wasn’t prejudicial to the good order and discipline of his unit. Regardless, they came back and convicted him. Then probably the most powerful thing that I’ve ever seen as a lawyer happened. When we learned that they were going to bring, the person who died, his son and his brother in to testify at sentencing.

They came in early that morning, and we were given the opportunity to interview them. They didn’t speak English, so there was a translator that was there as well. My Army counsel and I went in to talk to them. There really wasn’t anything we needed to interview them about. We talked to them about, expressed our apologies for the loss of their father and their brother. But it rings very hollow, I’m just an attorney, and I’m an American attorney at that.

But one the things that we asked them, at the request of David, is if they would be willing to meet with David. They said that they would, and so we went and got him. We brought David into the room with them, and you could tell that they were angry, but you could also see in David, through the tears that were coming down his cheek. You could see it in his eyes, you could see it on his face, how sorry he was, and how remorseful he was. This was his opportunity to be able to look them in the eye and tell them that it was his fault, and that he is sorry for what happened.

It was super emotional, it was a time when it had to have taken incredible courage to come face to face with the family of the person that you killing, to be able to tell them that you’re sorry. We spent probably 20 minutes with the family, and went back into the courtroom. The prosecutor presented the brother and the son as witnesses. We didn’t ask any questions for them, we just acknowledged their loss from David.

The prosecutors rested and David took the stand to testify at his own sentencing case. He talked about how much he enjoyed his career up to that point, his serving with soldiers in combat. How badly he still wanted to be able to serve in the Army, in any capacity that they would allow him, and that’s what he asked for the jury to do for him.

The prosecutor, during cross examination, had seen David come out of that room. But he came in and said, you killed this individual, you took a father away from a son, you took brother away from a brother. You did all of these things, you did it by your hand, by your negligence you did all of this, isn’t that true? Then he said, you actually talked to the son and the brother, didn’t you? That was a private conversation, it didn’t have anything to do with the trial, but the prosecutors made it part of the trial.

So I was able to stand up on my redirect examination of David, and ask him about the meeting that he had. I said, “This was a private meeting, but since the prosecutors have brought it up, tell the jury about the meeting if you would.” David said, words to the effect of, what happens to me during this trial it doesn’t matter at this point because I’ve gotten everything that I ever wanted. Which was to be able to apologize by looking his family in the eyes, and apologize for what I had done, and I’m at peace with that now.

So we had the opportunity to put on a couple of witnesses after that, David testified that described examples of David’s conduct in combat operations during other deployments, and the awards for valor that he had received while fighting against the enemy. Then both sides had got the opportunity to argue. This was one of these fast heart, heavy beat, times.

The jury closed for deliberations on the sentence. They had been deliberating for about two hours. Our flight was leaving in an hour, to leave the States, I was flying back with David’s mom and dad. Our paralegal had gone to, what’s essentially a shipping container turned into an office, that was the flight line for the jet taking off. They gave him our boarding passes, which were literally playing cards, that was our boarding pass.

We had everything ready to go. We could be from the courthouse on the plane in 15 minutes. The jury came back with a sentence about 30 minutes before the flight was going to leave. They came back, and they gave David a punishment that included a reduction in rank by two ranks, and put him on some restriction for, I think 45 days. So he didn’t go to jail for a day. He didn’t get discharged from the Army.

When the jury went back to the deliberation room to get their personal belongings. When they exited the jury room, they walked between a group of people that included David on one side and his mom and dad on the other side, and they had to walk between us. Each of the jurors patted him on the arm, or thumped him on the chest, and told him that it was going to be okay.

Seeing that care from those jurors after hearing what had happened, and actually looking into David’s eyes as he told the story, that really, truly allowed me to know that we had really connected with that jury, that our story resonated with them. They connected with David at some point during that trial. They had put themselves in David’s place and that he acted the way that they would have acted. They did for him what they would have wanted a jury to do for them if they had engaged in that kind of act as well. So it was super powerful.

Scott Glovsky: So how did that case and result impact Phil Stackhouse?

Phil Stackhouse: It was huge in a bunch of different reasons. Like the initial and quickest impact was, I was going to be on a plane for the next 14 hours with David’s mom and dad. So it was a really good thing that we got a good result, because it made the trip back to the states much more comfortable.

But what it did for me is, it really showed me that when you have a deep caring for your client, and not a superficial care as a lawyer representing a person, but when you really care for your client. When you can stand in front of a jury and speak from the heart, when you believe to your core, the story you’re telling about client, and when you believe to your core, your client. Those beliefs, they connect with the jury, and it allows the jury to connect to those feelings.

When you can build that type of connection through story, with a jury, they will do the right thing. That right thing might not be what you always wanted at the end of the day, but if you’re able to build those connections, and you’re speaking from the heart, and you’re speaking with emotion, that it will allow the jury to do the right thing.

I think the other thing that it did do for me was, it gave me a deep belief that the methods that I learned at Trial Lawyer’s College, and through my mentors, is super effective because it’s real, it’s not a gimmick, it’s not a game, it’s not acting. It’s telling a story of real life, and I think that’s how it’s affected with me professionally anyway.

Scott Glovsky: This is an amazing story of a wonderful victory. Can you share with us how it feels to lose?

Phil Stackhouse: I can, and it’s another case out of Afghanistan. My client, Cal, was charged with three murders, and a host of other crimes all originating in Afghanistan that included aggravated assaults, mutilating dead bodies. They accused him of leading this group of soldiers, as part of what they characterized as a kill team, it was ridiculous. But that’s what the government has alleged, that’s what had gotten into the press.

That’s the aura that had surrounded the allegations and the trials that preceded Cal’s. I spent an enormous amount of time getting to know Cal. When you read in the press about how he was this ultra violent, murdering marauder, gallivanting around Afghanistan, killing indiscriminately, and killing innocent Afghans.

You compare that to how I know him, which is a loving husband, father of a two-year-old, who I spent a lot of time with as well. And spent time watching him interact with his son Junior, coloring, playing games, playing video games, taking pictures together, wrestling around on the floor in the private office that we had while we were working on the case in Washington state.

Again, it was on a military base, and it was a military case. They have brought him back from Afghanistan, but all of the allegations stem from Afghanistan. I got to know him well. He became somebody very close to me and still is. I care about him more than I can tell you, his son, his entire family, and I’m still in touch with all of them.

We put on a case in the face of government informants, who had obtained very sweet hard deals to come in and plead guilty to murder of one, two, three people, in exchange for getting decades of their life back, all they had to do was come in and say, “Cal did it. It was Cal’s fault. Cal started it, Cal was the leader.” That’s all they had to do, and they did one after the other, told the same story.

We worked with Cal for days, preparing him, because he too was going to testify, and it was going to be a case where he was going to admit to an enormous amount of misconduct. He had to accept responsibility for that. What he did not do was, he didn’t murder anyone. He did a lot of other things, that set him up to be an easy fall guy for some junior soldiers to point at, and that happened, and point away, they did.

I think during his trial he testified for eight or nine hours. Again, in the face of the individuals who came in and admitted to an enormous amount of misconduct, and just grouped him into it. There was no proof other than their testimony. We prepared him to testify, he got out of the witness box and drew maps for the jury, and reenacted things for the jury about how things took place.

Scott Glovsky: He trusted you?

Phil Stackhouse: Yeah, I think he trusted us, and I think he still trusts us. His biggest disappointment in the entire process was the betrayal that he felt from soldiers, in his own unit, coming in and testifying against him, in order to save themselves. That sense of betrayal, it destroyed him, and the effects are visually, and emotionally apparent today, about the betrayal of these individuals coming in and lying.

Again, he set himself up by engaging in conduct that was wrong and that was illegal, but he didn’t commit any murders. But he put himself in a position where the allegations could be made.

Scott Glovsky: How were those signs visually and emotionally apparent?

Phil Stackhouse: You can see it in his face. Cal’s a huge guy, he’s probably 6’4, 225-230 pounds. He’s an extremely powerful guy. When these soldiers from his unit would come in and testify in the way that they did, you could see the visceral anger, sitting at the table next to him, you could see…. From where I was sitting, you could see the clenching jaw the entire time that they were testifying.

When we would go back into our private rooms during recesses, or overnight adjournments, you could just see he looked beat down; shoulders slumped over. It took a toll on him seeing these guys come in and say these things about him, when he knew they weren’t true. Even today, when we talk about it, those are the things that affect him the most.

We had spent time talking to him about, if there was something that you could change, if you could go back before these allegations came up, what would you go back and do? He said, ‘if I can do anything, I would go back and where a helmet camera the entire tour, so that I can show that these guys are lying. I did what I did, but I didn’t do what they’re saying I did.’ That betrayal, like I said, it affects him today; it affects me through today.

Scott Glovsky: How so?

Phil Stackhouse: Because when you see the toll that it takes on someone… I mean at the end of the day, he was convicted. He was convicted of the crimes he was charged with. He was sentenced to life with the eligibility of parole. So I’m still in contact with him. When I think back about this case, and these guys coming in and just taking liberty of the fact that there were no witnesses to what they’re saying took place. So nobody can dispute it, nobody can prove it, nobody can disprove it. That they can come in and indiscriminately say what they want to say.

A prosecutor’s going to put them on the stand and embrace that, it tells me the potential of anyone being convicted of a crime is always present. These soldiers who should have a special bond with one another, especially soldiers that serve in combat should have with one another. The fact that this handful of soldiers came in and betrayed that trust, betrayed that brotherhood, it’s disappointing. It’s exhausting. I don’t know how to say it, other than it has an effect.

Scott Glovsky: Do you feel responsible for him being convicted, on some level?

Phil Stackhouse: Probably more than just some level. I think any case that I’ve had, where my client was convicted, more so in the last probably five or six years, because I get much closer to my clients than I used to. I feel an enormous responsibility. Having been convicted of what he admitted to on the stand, I would be okay with that, and he would be okay with that. But when you pour your heart and soul into a case, you believe in your case because you believe in your client.

There’s evidence that supports exactly what your client has told you. Do I feel responsible for it? Yeah, I feel completely responsible for what happened. Do I feel like we connected with the jury anyway? I think the answer is yes. When they came back our and read the verdict, there was a woman that was the President of Court, or the equivalent of the foreman of the jury in a civilian jurisdiction, had tears in her eyes coming out to read the verdict.

So I know that we connected with them, they weren’t angry. I think that they were sad about the situation. I’ll never believe there wasn’t something else that I could have done that would have resulted in a different verdict. So do I feel responsible? Yeah, I feel completely responsible for the result of what happened in that case. I feel professionally responsible. I feel morally responsible for all my cases.

There’s more to this story, and that we have discovered new evidence that wasn’t available at the time of trial, in Cal’s case. It’s April 1st now, so the beginning of last month, we went in and argued the first level of appeal in his case. It is under advisement right now. I don’t know what the appellate court is going to come back with.

But the questioning that we received from the court was very favorable. The questioning that fell upon the government was the type that would put them in a very tough position to try and answer. So I feel good and hopeful that there’ll be something that happens on appeal in that case. I don’t know what the results will be, but I can tell you my fingers are crossed.

Scott Glovsky: What do you think the public has no clue about when it comes to military prosecutions?

Phil Stackhouse: What they have no clue about? I think one of the things that I talk to civilian practitioners and people in the general public, is when…. I talked about this a little bit earlier. When you are in the civilian community, you get a jury summons. Whether they randomly pull numbers off of driver’s license, voter rolls, household names, however it comes, it’s a random poll, and you get pulled in. You get a juror number and then you randomly get pulled out of that veneer to go to a particular courtroom. It’s all this random hodgepodge of cooks, bakers, and candlestick makers.

In a military court, what they call a convening authority, that’s a Commander who makes the decision to send a service member to a Court Marshal. When that decision is made, that same person who is making the decision to send a soldier or service member to a special Court Marshal, or a general Court Marshal. When that decision is made, that exact same person, hand selects the jury from that person’s own command.

So if you’re the Commanding officer of a division, and you make a decision that one of your soldier’s needs to go to a Court Marshal. You then are going to hand select a jury from that same division, that’s under your charge, to decide whether that soldier is guilty or not guilty of the offense, which you believe he committed, or you wouldn’t have sent him to the Court Marshal to begin with.

Scott Glovsky: So not only is, essentially, the prosecutor picking the jury, but also these are people who are under the direct command, of essentially the person deciding to prosecute.

Phil Stackhouse: That’s exactly right. Yeah, so they already know that this Commander who they ultimately work under, has made a decision to send a service member to a trial. They’re getting selected to serve and decide whether the person is actually guilty or not guilty.

So there’s a very interesting and novel concept in military law that’s not present in civilian jurisdictions, called unlawful command influence. There’s books written about it, it’s too much to talk about here. But the courts recognize that this can be an issue that commanders can influence jurors, commanders can influence witnesses, commanders can influence charging decisions, commanders can influence prosecutors.

The appellate courts can be and sometimes are paternalistic in protecting the accused from this unlawful command influence. But that probably the biggest difference between the military and civilian jurisdiction, as to how a jury is selected. However, that said, I will tell you that I believe in general, and at large, the jurors that are selected to preside or to listen to evidence at a Court Marshal take their responsibilities extraordinarily serious. I think that they really do what they believe is right.

Again, by and large, I think they disregard the fact that a Commanding General, or Commanding Officer, that has sent some to a court. I think they put aside the differences in rank, and what people say, and they do the work that they are assigned to be jurors in a case, or to be members in a Court Marshal, and follow the instructions that are given to them by the judge.

Scott Glovsky: Well Phil, thank you so much for spending your time with us today, and sharing your great stories, and all the tremendous work that you do for clients all over the country, and all over the world. Thank you.

Phil Stackhouse: Well thanks, Scott, it was a lot of fun.

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 scottglovsky.wpengine.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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