In criminal law, a suspect has the right to request a lawyer. Everyone who watches any of the CSI shows would know that. But, what happens when the request for lawyer is not clear? In Demesme v. State of Louisiana, the suspect was being interrogated. At some point, he said, “. . . so why don’t you just give me a lawyer dog?” Or, did he say, ” . . . so why don’t you just give me a lawyer, dawg?” The Louisiana Supreme Court was confused. It found the request was ambiguous.

Mr. Demesme said, “If y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.” The defendant filed a motion to suppress evidence acquired after he made his request for a lawyer. He argued that any evidence obtained pursuant to this interrogation should not be used at trial. The Louisiana Supreme Court found that the defendant’s motion to suppress should be denied. The court explained that referring to a “lawyer dog” is not an unequivocal request for a lawyer. See ABA Bar Journal report.

Of course, the problem with that reasoning is that whether he said “give me a lawyer, dawg,” or he said “give me a lawyer dog,” he is still asking for a lawyer.

The thing about Bowe Bergdahl is why was he even in the Army in the first place? It is near suicide to walk off a FOB with no weapon and no protective gear. Yet, that is exactly what he did before he was captured by the Taliban. He had washed out of Coast Guard basic training after only three weeks. Coast Guard training is not as easy as some think it is, or so says Task & Purpose. But, being rejected from any of the services’ basic training suggests he was not ready for the Army and deployment. The Coast Guard psychiatrist who saw him recommended that he be evaluated first before any of the military services choose to accept him. That ought to have served as a major red flag. The Coast Guard diagnosed him with “adjustment disorder with depression.” In layman’s language, that means he did not adjust well to changing circumstances. Nothing changes more often or more quickly than a war zone.

He had an episode in the Coast Guard basic training in which he simply broke down. In the middle of the night, it appeared that he had gone into the latrine and smashed his face into the mirror. There was a lot of blood. When the trainees found  him, he was balled up and crying.

In 2008, the Army was struggling to meet its annual quota of recruits. They waived many entry requirements. According to Task & Purpose, the Army granted waivers to 20% of the new recruits that year. That was way above the normal 4-5%. Waivers are typically given for everything from convictions to excessive weight to psychological issues. See Task & Purpose report. Some of the waiver recruits actually do very well. But, studies have shown that many of the recruits who enter with a waiver are later problem soldiers. Certainly, Bowe Bergdahl was.

And, now it turns out the judge gave SGT Bergdahl no time in prison for his offense, apparently viewing his 5 years as a POW prison enough. He will lose his stripes, which is a big deal to most NCO’s. He will have to pay $10,000 out of his pay. See CBS News report. I know he did not intend anyone to get hurt looking for him. With his mental state, perhaps he did not realize soldiers would be looking for him. But, sure, for months no one knew what happened to him. Of course, they would move mountains to find him. Shame on him for bringing that on all the soldiers in his area of operations. I do not know what to think. He certainly suffered as a POW. But, he caused a great deal of suffering for his fellow soldiers.

 

There are reasons why Presidents never comment on pending criminal prosecutions. Anything they say will be amplified across the country and could undermine the prosecution. But, precedent never hinders Pres. Trump. Two days after the attack in New York City, Pres. Trump called for the attacker to be given the death penalty. He called for “strong” justice. Certainly, if anyone deserves “strong” justice, it is Sayfullo Habibullaevic Saipov. He killed eight people with a rental truck. But, in making those comments, Pres. Trump actually makes it more difficult to achieve those aims. Defense lawyers will not hesitate to ask for a change in venue if the local jury pool is tainted. But, since the publicity about the attacker and the President’s comments are national, there may not be a jury pool that is not tainted.

As one former federal prosecutor said, “Mr. President, your tweet takes it harder for DOJ to impose the death penalty, not easier.” See CNN news report.

But, this is what happens when you have a President who is anxious to change the topic of the news day.

The judge in SGT Bowe Bergdahl’s case will not limit or dismiss the court-martial because of Pres. Trump’s comments about the young sergeant. The judge found Trump’s comments, while inappropriate, would not affect Col. Nance. Col. Nance is the judge. He can judge whether the comments about Bergdahl will affect him. But, he is also implicitly saying he does not believe denial of the motion will provide basis for an appeal for SGT Bergdahl. See Task & Purpose report.

As I mentioned here and here, Pres. Trump has loudly condemned Bergdahl. SGT Bergdahl’s lawyer has claimed those remarks constitute unlawful command influence. COL. nance is set to retire in 2018 and is not eligible for promotion. Yes, that would make him unlikely to be influenced by what the President says or by what others might think of the President’s comments.

Of course, it should not be necessary to say that Pres. Trump and Candidate Trump should not make comments like that. There is no reason to create possible issues for an appeal.

Bowe Bergdahl was supposed to be sentenced on Oct. 23. But, instead, his lawyer renewed a motion he had filed before. Eugene Fidell re-argued a motion alleging there has been unlawful command influence (UCI). Pres. Trump talked about SGT Bergdahl last week, saying he cannot say anything, but he said things earlier. The President, in effect, affirmed his prior comments about that “traitor,” Bergdahl. The judge, Col. Nance, was not impressed by the prosecutor’s argument that Pres. Trump was simply responding to the reporter’s question. He had a “hard time” with that explanation.

So, Col. Nance postponed the hearing for a couple of days, so he can review cases about UCI. The challenge is this UCI is unprecedented. Never before has a president gone after one particular soldier. Pres. Nixon once referred to the My Lai massacre as a “travesty,” But, he did not focus on one specific soldier. Pres. Trump brought up SGT Bergdahl often during his campaign, referring to him as “dirty rotten traitor,” “horrible traitor,” “dirty no-good traitor,” and more. In the military, the President is always spoken of as the top person in the chain of command. Yet, in some ways, the President is removed from the military. So, the judge is being careful with this issue. As he should.

See San Antonio Express News report.

Bowe Bergdahl is expected to plea guilty to a charges of desertion and misbehavior before the enemy. SGT Bergdahl’s lawyer has refused comment. But, a former U.S. Air Force JAG officer explained that pleading guilty makes sense. The evidence against the former Taliban POW is rather clear, he said. See San Antonio Express News report. I previously wrote about SGT Bergdahl here and here.

Many veterans think SGT Bergdahl is a plain coward and that he deserted. But, I think most of us just think what he did was strange and stupid. I have heard stories about other service members doing things that were just odd. One soldier, I was told, tried to walk off the FOB in Kirkuk in civilian clothes with no weapon. He apparently just lost his senses. Serving in a war zone is incredibly stressful. People react differently.

We all suffer from some biases. That is part of human nature. There is, these days much discussion about the Confederate statues and what they represent. Here in San Antonio, we have one Confederate monument in Travis Park. County Commissioner Tommy Calvert, a fine person, insisted last week that that statue represents racism. He stressed that the Secession Declaration from 1861 mentions slavery as the motive for Texas’ secession. He did not explain how the how the secession declaration is related to the Travis Park Monument. In reality, the connection is tenuous.

The statue depicts one Confederate soldier with his finger pointed skyward and his rifle at rest. The statue does not represent Gen. Lee or any of the Southern leaders. It represents the average Confederate soldier. In today’s Army, we refer to the lowest soldier as Joe Snuffy or Private Snuffy. Pvt. Snuffy gives no one orders. He has to take orders from everyone. Pvt. Snuffy is the average soldier. Joe Snuffy is the soldier who stepped up when his state and what he believed to be his country called. We may disagree today with Pvt. Snuffy’s choice, but we cannot disagree about the sincerity of his beliefs.

Commissioner Calvert and others insist that the soldier in Travis Park represents racism and Jim Crow laws. I cannot say, and I think no historian can state categorically what all motives lead to the erection of that monument. But, if we look closely, the statue does not represent the things it has been accused of.

The statue was designed by Virginia Montgomery. We know from newspaper articles of the time period that Virginia was the daughter of Julia Montgomery, a former member of the Daughters of the Confederacy here in San Antonio. The statue’s critics have assumed that because of the connection to the Daughters of the Confederacy, there must become hate-filled motive behind the erection of that statue. But, beware of assumptions. Every discrimination lawsuit is based on someone’s false assumption.

Virginia Montgomery was an artist living in New Orleans. How did her mother end up in San Antonio? Mrs. Julia Montgomery was simply trying to make ends meet. Her husband was John Alfonso Montgomery, a captain in the Confederate army. He enlisted in April, 1862. He enlisted a year after the big rush to join. The more patriotic Southerners tended to join in April-May, 1861, when the war first started. Joining in May, 1862 suggests Capt. Montgomery was not among the more patriotic or devout Southerners. Two years later, he was dropped from the rolls of active soldiers in June, 1864, indicating he was probably wounded and could no longer perform his duty.

Capt. Montgomery was a Quartermaster for the 32nd Alabama Infantry regiment. Prior to the war, he was a “cotton merchant” in Mobile, Alabama. “Cotton merchant” is a generic term that probably means he was a cotton broker. Cotton brokers accepted crops of cotton from a planter or farmer and then took the risk of selling it to overseas or New York markets. Cotton brokers generally lived well. They were solidly in the middle class. It was an occupation, for example, that was generally not open to the Irish and German immigrants of the time. So, John Montgomery was doing well. That was good, because he and his wife, Julia, had seven children. The youngest child was Blocker Montgomery, born 1861-62. Blocker was Julia’s maiden name.

It was said that John came back from the war “broken in body and fortune.” He returned to Mobile after the war. The family suffered. John was listed with no occupation in the 1870 census. That means he was not working. In the 1871 Mobile City Directory, his occupation is simply listed as “merchant.” A description that means nothing for that time period. It is equivalent to describing someone in 2017 as a “businessman.”

A year later, John is a policeman. A year later, he has no occupation. The next year, he is listed as a “cigar dealer.” The next year, he is a clerk. At the age of 50 years old, he is employed as a clerk. The next year, he is not listed in the Mobile City Directory, at all. Like many returning veterans, he could not hold a job. Even worse, every year, the address for the family of nine persons changed. Capt. Montgomery could not even hold onto the family home.

In 1873, Mrs. Julia Montgomery appears in the New Orleans City Directory. That appearance suggests she left Mobile looking for work as a teacher.

The next year, 1877, John, the former captain does not appear. Instead, his son, John A. Montgomery, Jr. is listed. That likely means John, Sr. died or moved away. Since we know Julia will later be described as a widow, it is likely he passed away. And, now surprisingly, his son, 25 years old, is the head of the household. Normally, the widow would be listed as the head of the home and she would be described as the widow. But, Julia does not appear in the 1877 Mobile City Directory. We can only surmise that she was living elsewhere, perhaps in New Orleans trying to earn a few dollars.

Julia was surely in San Antonio by 1899 because in that year she is described in San Antonio papers as a member of the Daughters of the Confederacy here in San Antonio. She is described as someone who lived in San Antonio for many years. That sort of movement means she was moving for work. Year later, she will be described as an educator for some 50 years. It is likely, she was moving to San Antonio or New Orleans or both for work.

And, where was Virginia during this time? Virginia appears in the 1880 census living with her sister Faith. Faith Montgomery married a farmer, David Dunlap, in upstate Alabama. They were not wealthy. They listed a net worth of $350 in 1880, which was normal for a working class family.

By 1878, John A. Montgomery disappears from Mobile records. Apparently, he too passed away. The whole family was scattering to the four winds.

By 1887, Virginia is living in new Orleans on her own. Shock. Take a breath. It was very unusual for a single woman to live on her own, not with family. We know she was alone, because other family members who were working would have been listed in the City Directory for the same address. But, no other Montgomery’s appear.

Virginia was listed as an artist. This was a time when female artists were very unusual. When she designed the Travis Park monument in 1899, she was described as the first woman to ever design a monument. That could very well be true. In 1899, Virginia designed the Confederate monument for free. So, she was still in touch with her mother in San Antonio.

Julia attained some notoriety. She died in 1922. Her lengthy obituary explained she was very active in clubs, the Daughters of the American Revolution, the Daughters of the Confederacy, the Woman’s Club and others. She was one of the leaders of the suffragette movement in New Orleans. She voted for the first time in her life just two years before – in the 1920 presidential election. She was said to be the oldest voting woman in New Orleans the 1920 election. When she passed away, her age was given as 99. The 1870 census indicates she was born in 1830.  Regardless, her age was advanced, but he was still very active up to her death.

Virginia acquired some local fame as an artist. In 1930, she wrote a lengthy article for the New Orleans Times Picayune about “Bachelor Girl, A World Leader.” In the article, she explains that a single woman is not “unnatural” and that she can be a “world leader.” Virginia never married. But, she lead a full life. In one year, she is mentioned teaching Bible Study to students in Lower Algiers, a working class neighborhood across the river from New Orleans. In another lengthy Times Picayune article, her artistic approach is described. She favors, she said, three watercolors about “Negroes.” Doubtless, Virginia shocked readers again by suggesting African-Americans were appropriate subjects for serious art.

Julia passed away while living with Virginia. The home was and still is located at 7924 South Claiborne. It is a humble home. Nearby is a small park known as Palmer Park. The DAR planted a tree there in honor of Julia.

It is said in a 1911 San Antonio Light article that Julia came up with the concept for the Travis Park monument. That likely means she suggested that it represent a typical soldier, not a general. If Julia developed the concept and Virginia designed it, they are not what we expected from the Daughters of the Confederacy. I think most of us would expect the Daughters to be more like Gone with the Wind if we were to meet them. Perhaps, Commissioner Calvert and Councilperson Trevino expected the same.

The two Montgomery ladies were not Gone with The Wind. Julia struggled, having to move from city to city to work. She had to leave her family to make things work. Her children were scattered or dead. Yet, through all that, she maintained her love and affection for her veteran husband. Capt. Montgomery was a failure by some standards. But, to those who knew him best, he was apparently much more. To his family, he was Pvt. Snuffy of the CSA.

 

Awhile back, I watched another episode of Undercover Boss.  As they often do, the boss revealed himself at the end of the show, handed out thousands to deserving employees who are struggling, promoted one or two who clearly deserved it, hugged his workers and explained why his company was good and pledged himself to make it better.

I hear everyday about employers who do not treat workers with respect. I hear about employers who implement company policies with untrained, uninspired managers. Recently, I attended a legal training at which the well-versed Mike Maslanka spoke.  Mike represents employers and has done so for 30 years.  He reads much about teamwork, leadership and managing for success. I always enjoy listening to Mike.  He talked about how as lawyers, we need to be reminded of our values from time-to-time. If we did so, we could work together better and our country would be a better place.

The military is far from perfect. But, speakers like Maslanka always remind me how lucky I was to serve in the Army. The Army, like all the services, requires periodic training. When I was first commissioned as a lieutenant, I attended the Infantry Officers Basic Course at Ft. Benning, Georgia. We learned the Army values, duty, loyalty, selfless service, and more. We then practiced them and debated them in a class known as “Leadership.” In Leadership class, our instructor let us know our opinion had value. He listened to every opinion, no matter how ignorant. We learned a value not stated, that every person’s opinion had value.

A few years later, I was back at Ft. Benning for the Infantry Officers Advance Course.  As captains, all of us now had substantial experience with troops. All of us had now experienced the ups and downs of trying to lead disparate groups of men and women in missions they may not respect. How motivated is any soldier to stay until midnight getting ready for a 0530 inspection the next day? So, as captains, we spent a lot of time practicing counseling. We would role play soldiers in trouble and how to help them through major crises. We role played how to deal with selfish commanders and obstinate NCO’s. A few years later as a Major, I attended the more intellectual course, Command and General Staff Officer’s Course. I shook hands again with Army values, learned about Army history, and how to work as part of a staff.

At each step of our career, we are, in effect re-trained, re-armed and re-fueled for the wider Army world.  The system is not perfect, but it does produce “workers” who share expectations and who willingly surrender their individuality for a larger purpose.

One Undercover Boss tonight was from Rally Checkers. At the end of the show, he re-pledged himself to teach his workers his company values. Company values lead to greater retention, less re-training, better cooperation between workers and quicker turn-around time for the basic burger.

One thing I learned in the Army, when a leader compromises on one policy or one value, that inevitably leads to compromise on others. I told my son the other day that we tell the truth on the small things because that is practice for telling the truth on the big things. Soldiers and workers see it when we compromise once or twice. They remember.

When I first got to Iraq, we were replacing a unit that was seriously dysfunctional. The member of that unit violated some very basic principles of leadership and teamwork. We had to spend ten days with them, learning their jobs before they rotated back home. We got to know them too well.

One basic rule in the Army is that a leader never eats before his soldiers do. The leader eats last. In the Army, when you are in the field, food choices are limited. There is no McDonald’s on the corner. Food takes on added importance. The commander eats the same meals his soldiers eat. The President might get two scoops of ice cream. But, leaders do not eat what his soldiers cannot eat. The leader does as his soldiers do.  In that unit we replaced in Iraq, I am sure the commander ate whenever and whatever he pleased. Do not be the leader who eats before his people do. Do not be the leader who revels in the perks. The employees see that. They remember.

There is a song about a Scottish soldier who perished during WW I in the trenches. It goes like this (with English translation):

Lay me down in the cold, cold ground

Where before many more have gone

Thoughts of home take away my fear

Sweat and blood hide my veil of tears

Once a year say a prayer for me

Close your eyes and remember me

“Sgt. MacKenzie” by Joseph Kilna MacKenzie.

Every veteran wants to be remembered. The biggest fear when you serve in some far off land is that the folks back home have forgotten about you. Even in Iraq, as closely tied as we were to the home front, we wondered, usually after six months or so in country, whether the folks back home had moved on with their lives and forgotten us.

Now, some folks in San Antonio want to forget the Confederate veteran. Things have changed so much since 1900 when the Confederate monument was erected. Many people find the monument offensive. The monument does not recognize some great general. It represents the common soldier, with his rifle at rest, he points skyward recalling his departed comrades.

It is wrong to suggest the statue was erected to keep African-Americans in their place or to show who controlled the Jim Crow South. Yes, even San Antonio had some Jim Crow laws. But, the statue was built not to overwhelm others, but to recall the sacrifices of those Confederate veterans. Veterans were dying in greater and greater numbers in the 1890’s. A movement spread across the South to recall their sacrifices. The San Antonio monument specifically asks us not to forget the Confederate veteran. It says, “Lest we forget.” It was nothing more than an attempt by the families of veterans to recall their departed loved ones. The state government did not erect the San Antonio monument.

My ancestor helped erect the Robert E. Lee monument in New Orleans. In his diary, he wrote about the public entertainment put on by volunteers to raise money. He said “thousands” came and had to be turned way because the hall was so full. Paula Allen in the Express News explains in today’s paper that bake sales and subscriptions by San Antonio businesses paid for the Travis Park Confederate monument. The city government donated the land. So, no, these monuments were generally not erected by Jim Crow governments. They were erected by average people, like you and me.

In a recent editorial, Josh Brodesky of the San Antonio Express News, and others, have suggested the Confederate veteran was motivated by racism and a desire to maintain slavery. That is not accurate. The veterans are long gone. We cannot now ask them to take a survey and study their motivations. But, James McPherson in his book, For Cause and Comrades, (Oxford Univ. Press 1997), accomplished a pretty decent survey by reviewing the personal letters and diaries of some 400 Confederate soldiers. He looked at the contemporary correspondence and diaries of some 647 Union soldiers and 429 Confederate soldiers. In his career, he explains that having looked at perhaps 25,000 such records, he believed this was a representative sample. For Cause, p. viii. Dr. McPherson is a well known Civil War historian.

According to Dr. McPherson’s study, some 57% of Confederate soldiers espoused patriotic fervor for the South. That is, their service was motivated by patriotism. For Cause, p. 102. Just some 20% of Confederate service members espoused pro-slavery views during the war. For Cause, p. 110. That is still too large a number for us today. But, it pales when compared to Union soldiers who referred to slavery as a motivation for serving in the war. The number of Union soldiers who espoused anti-slavery views was much higher. As the author explains, slavery was a political issue among the Union army. It was discussed and debated more. It was not such an issue among the Confederate army. So, perhaps, if there was more actual debate, then the pro-slavery view might have been higher among Confederate soldiers.

But, the point remains, if they fought to “own people,” they did not discuss it much. And, I can speak from experience. When you are hungry, tired, hot, far from home, you devote much of your free waking moments to why you are here. Why are we in this god forsaken land? If the Confederate soldier was concerned about continuing slavery, he would have said so.

Should it matter what motivated those Confederate soldiers? When I went to Iraq in 2005, I did not stop and say to my commander, “please explain to me the basis for this war?” Sgt. MacKenzie, it is said, died protecting a wounded comrade in the trenches. At those moments, you do not ask why. You simply react. In the song, Joseph MacKenzie, the great-grandson of the sergeant, did not ask for bugles and flourishes to commemorate the death of his ancestor. He simply asked that his great-grandfather be remembered. That is all any veteran can hope for. Say a prayer for those who fell. Recall the rest of us when our times come. We answered the call. We did not hesitate.

Its a tough life working in Big Law. A partner at Wilson Sonsini Goodrich & Rosati in New York became dependent on drugs. Identified only as “Peter,” his former wife wrote about him in a New York Times piece.  Peter worked 60 hours a week for 20 years. He was by all accounts successful. His former wife, Ellene Zimmerman wrote about his life. He constantly stressed over pay, competition and clients. Ms. Zimmerman pointed out that if he had asked for help, he felt there would be ten other lawyers waiting to take his place. The competition was never ending.

In the months before his death, Peter was at times angry and threatening, then remorseful and generous. He would leave messages on her phone, meandering soliloquies. He never sacrificed a client for his family life. He departed any social gathering if a client called. In his last few months, he would sometime lose consciousness. The drugs helped him stay awake, but they took a toll. He died from an infection contracted from a syringe. His ex-wife found him, lying dead on the floor, with half-filled syringes, crushed pills, a spoon, a lighter, a bag of white powder and a tourniquet next to him. His last cell phone call was to a conference call, vomiting, unable to sit up, slipping in and out of consciousness.

At his funeral, many of the attorneys attending the service, were bent over their cell phones tapping out email to clients and attorneys even as they laid to rest one of their own who could not stop tapping out those same messages. Ms. Zimmerman wrote a book about her former husband’s death. In a recent ABA survey, 20% of judges and lawyers reported alcohol problems, 28% reported problems with depression and some 75% skipped the question on drug use. See ABA Bar Journal article.

My old professor at Tulane Law School, Luther McDougal, would jump in at times like this and remind us, “Its all about greed. About Greed.” That would signal it was time to move on to another topic.