We recently had the pleasure of speaking with attorney John Maher about his legal career and some of the high-profile cases he has been involved with. In this conversation, we also get into his thoughts on the recurring issues with the military justice system and how they might be fixed. He also provides several tips for what service members should look for when selecting an attorney for legal representation — and what not to do.
John, can you tell us a little bit about your background and how you began your legal career?
My background began when I graduated from law school in 1996, number three in the class magna cum laude. And I had several civilian opportunities, but in my heart, at the time being 25 years of age, I had three objectives: I wanted to serve, I wanted to see the world, and I wanted to try cases early in my career.
I applied for and competed for a direct commission in the U.S. Army Judge Advocate General’s Corps and was fortunate enough to be selected. And the army said they’d send me to Germany in the First Infantry Division and within six months make me a prosecutor.
So, all three of those objectives were satisfied in relatively short order. And what I was too young and inexperienced enough to realize was the friends I would make and the relationships I would build in terms of like-minded people of character who are Patriots, who are athletes, who are team players, who are loyal and true and dedicated.
Such that today I look back on my decision to try and get a commission as one of the best decisions and pivotal moments in my life. So, after active duty in Germany, the Balkans, in the United Nations peacekeeping mission, the army sent me to Washington, D.C., where I became a defense appellate attorney.
And that was my first experience with being on the defense side. After that I became a prosecutor when I walked out of the Pentagon on September 6th, 2001, crossed the Potomac River and became a civilian attorney for the United States Department of Justice. Of course, several days later, 9/11 occurred. I was still on transition leave and have stayed on reserve ever since.
Presently, I’m a Lieutenant Colonel with 24 years in the U.S. Army IRR (Individual Ready Reserve). But in the intervening years, I’ve served at Fort Sheridan, Andrews Air Force Base, two tours in Afghanistan, one in Kabul and Kandahar, and the other in Parwan as a civilian where we prosecuted the Taliban and insurgent fighters for crimes against the coalition and crimes against citizens.
And I was a program manager on a state department contract under the International Bureau of Narcotics and Law Enforcement. While as a civilian, I entered the Justice Department and I returned to my home in Chicago, became a litigation associate at one of the biggest firms in the world, Mayer Brown, and then became a partner at the law firm of Duane Morris, also a very large firm in Chicago.
And from there, I was appointed by President Bush to be the general counsel for the United States Office of Personnel Management in Washington, D.C. during the latter part of his administration, and that was the civilian equivalent of a three-star general. And I was the main lawyer for the personnel department for the federal government.
And then finally, I’d like to mention that throughout I’ve been an adjunct professor of law and business holding not only a Juris Doctor degree, but also an MBA, and a BS and LLM degree, which is a post-juris doctoral specialty. I’m also a graduate of the U.S. Army Command and General Staff College and the United States Army War College, and a by-name deputy general counsel for acquisition for the Defense Intelligence Agency in Washington.
And then by day, presently, I run three companies. After the MBA, I started my own law firm, Maher Legal Services. Then I started a funeral home with my brother, Maher Funeral Services. And having served in Afghanistan twice, I developed some relationships with some pretty good Afghan attorneys, and we started what’s called the Misbah Maher Consultancy in central Kabul. So, it makes for a full day. In addition to that, I’m very, very fortunate to be betrothed to a wonderful gal by the name of Katherine, whom I met in MBA school. And we’ve been together now for almost six years.
Is there a particular moment in your career that you are most proud of and why would that be?
Thank you for asking. I think there’s two. And that is standing next to UAP CEO, Lieutenant Colonel David “Bull” Gurfein, U.S. Marine Corps retired as well as Sergeant Terry Buckler, a Green Beret from Vietnam, on November 15, 2019, in the commandant’s office at about 10 o’clock at night at the U.S. Disciplinary Barracks at Fort Leavenworth and saying we were there to pick up Lieutenant Clint Lorance, 82nd Airborne.
And one of the questions was something along the lines of “by whose order?”, and we were able to say legitimately, by order of the President of the United States, and then to actually drive Lieutenant Lorance off post across the street and hand him off to his family who was waiting there, who had driven up from Texas, and him being a free man after six years behind bars when he otherwise had a 13-year stretch still ahead of him.
We were completely confident that when we took the case, but everyone said, there’s nothing you can do, it’s dead. About 10 different law firms and attorneys passed on the case saying, there’s nothing we can do. I was of the mind of, “well, let’s take a look at it. There’s probably something we can do.” There’s always something we can do. So, that would be the first moment.w
And I think the second moment was just last December 23rd, when U.S. Marine Corps veteran and a Blackwater security guard, Dustin Heard, was convicted of manslaughter for 2007 actions in Nisour Square in central Baghdad. While protecting American diplomats, they came under fire in their four-vehicle convoy.
Heard was a tail gunner in the last vehicle and they got sideways with the United States government politically. And they ended up in civilian penitentiaries, even though the Blackwater security guards were all decorated soldiers and Marines and combat veterans, you know, and they fired, and they followed the rules of engagement and accomplished the mission and protected their package, but they ended up in the penitentiary.
Having the president grant that pardon was quite something. And hopefully this is humorous, but some people said after the first pardon with Lorance in November of 2019, some naysayers and detractors said, “oh man, your team just got lucky”.
But then a year later we were able to duplicate it and they didn’t say we were lucky anymore.
And then, you know, there’s actually a third one, which is not really a moment. It’s an ongoing, continuing moment. And that is as an adjunct professor of law all these years, as well as business. It’s awfully rewarding and fulfilling to see the lights go on in young students’ lives. And to realize and see them get excited about ostensibly boring, monotonous material but they’re excited by it.
And then you go out and you hear, they asked you for a letter of recommendation or a reference, and next thing you know, they’re influencing lives for the better and paying it forward. And so that too is very fulfilling in a legal career.
Are there any active cases that you’re working on now that you’d like to tell our supporters about?
Yes. There’s a couple of cases that are not UAP cases. I think that the general public, if they were aware of the amount of deference that civilian federal courts give to military justice officials, they might be surprised. Because military justice officials, they’re not jurists and experts as federal judges are. Federal judges have probably been prosecutors and defense counsels, and they have committed themselves to the study of law at the highest levels.
Military justice officials are military officers first, managing careers, and they don’t have that expertise and breadth and depth of experience because they’ve been stovepiped with only military experience. They haven’t been in a civilian prosecutor’s office. They haven’t been in private practice.
They have not been in other government agencies. They had not had those points of reference to develop an appreciation of constitutional law and how it may affect someone’s rights as fully, because they’re concerned with good order and discipline first and foremost, which is the backbone or the spine of military justice.
So, I think that’s been one of the things we’re trying to do right now with the Justice for Warriors Caucus is get sponsorship for a bill to get through the House and the Senate to be signed into law by the president, changing how a civilian court looks at military justice. Ordinarily, back in 1950, when the UCMJ – the Uniform Code of Military Justice – was enacted, there was great deference to the military because most court-martials were conducted in an expeditionary area, or in the field, or overseas in combat zones and there was swift justice in order to maintain good order and discipline.
Well, that’s no longer the case. Now cases take a year, two years to come to trial. Soldiers and personnel are sent back to the United States from wherever they might be. There are experts. There are expert reports. There’s a forensic analysis. There’s delay. There are depositions. And what you would see today is no longer a field expedient trial to send a message to soldiers and Marines. Instead, what you see is a full-blown civilian trial. But our personnel aren’t getting the rights they are entitled to. And one of the main themes that I think are consistent with the cases we’ve seen, both Marine Corps and army, are soldiers and Marines are not getting the full benefit of a prosecutor’s disclosure of the exonerating evidence and mitigating evidence under what’s called the Brady rule. And the Brady rule by background is from the case Brady versus Maryland, a 1963 Supreme Court case where the Supreme Court said the fifth amendment to the U.S. constitution requires a prosecutor, even in the absence of a defense request, to voluntarily disclose to the defense, any and all evidence that tends to exonerate, meaning not guilty, and to mitigate (meaning lessen punishment). And we see, especially in the Lorance case, the Robert Bales case, and the Calvin Gibbs case where the prosecution had in its possession, custody and control, exonerating evidence, and never turned it over.
That’s a violation of the United States constitution. The public needs to know that.
Another case if I may, it’s a non UAP case, because it’s not involving a crime committed in combat, is the case of Private Anthony Santucci. He’s doing 26 years in the Disciplinary Barracks at Fort Leavenworth, which is another word for the federal penitentiary for soldiers and military personnel, for rape.
But here’s the thing. He was in a bar in Fort Polk, Louisiana and an older woman came in and hit on him, and the two of them went back, and according to him, had consensual sexual relations, however, she was married. And when her husband found out that she had been having an affair or having sex, she claimed rape.
At the trial, Santucci got on the stand, denied everything and said, here’s the following reasons why I believe this was consensual. She was dancing with me. She bought me a drink. We were dirty dancing out the dance floor. Here’s pictures of me dirty dancing. She said, let’s go back to your room and play. She took her clothes off. We had consensual sex. Afterwards, we had oral sex. Then I asked her for her phone number, and he says, “no, I don’t want my husband to know”. All of that to say, he was entitled to a complete defense of what’s called the mistake of fact. His belief was she consented.
And if the jury believed based on what the evidence was that they heard that she consented, there was no rape. The military judge refused to give the instruction, even though it was clearly called for. Secondly, the military judge lowered the standard of proof in a criminal case from beyond a reasonable doubt, which is a very high standard, to preponderance of the evidence.
It says you could find him guilty, even if you’re not convinced beyond a reasonable doubt, but only by preponderance of the evidence, which makes a mockery of the American criminal justice system. So, it was clear that this young man did not get a fair trial because jury instructions are cornerstones of American due process.
Moreover, Santucci passed a post-trial polygraph examination. There’s no detection of deception. Now, ordinarily that would not be admissible at trial, but it’s admissible pretrial to have negotiations with the prosecutor. And it is admissible post-trial on appeal to say, “listen, had the proper jury instructions been given, they would have believed him”, but because the proper jury instructions weren’t given, mistake of fact, that she consented, and then secondly, that the standard of proof is beyond a reasonable doubt, rather than preponderance of the evidence, the jury never knew they could send him home.
It’s a travesty of justice.
There are obviously multiple issues with the UCMJ, but is there one in particular you feel is the biggest issue? Can it be fixed?
I think the biggest issue in the UCMJ right now is there’s no provision to discipline prosecutors for failing to turn over evidence. And to the extent there is, it’s not enforced. And to me, that needs to be heightened. In order for the military justice system to be in keeping with American constitutional law, state courts, as well as federal courts, there has to be some sort of consequence for prosecutors to either knowingly or even negligently sit on evidence that tends to exonerate a man or a woman. And secondly, defense counsel can only do so much. Defense counsel in the military and active duty, if you don’t have civilian counsel, you can have a young captain who is probably 25, 26, who doesn’t necessarily know as much yet because their career is still developing.
And they don’t have the resources to hire their own investigator, to get their own expert, to conduct their own investigation, to challenge everything the prosecutor has to say. So, I think the one overarching theme that could improve military justice and ensure that every military member who faces military justice officials ensures every constitutional right that he or she walked into combat to protect and defend, is a consequence for prosecutorial misconduct and prosecutorial overreaching.
And another thing too is after the trial is done and a soldier or Marine goes to the penitentiary, the appellate courts, and I’m picking this up now after 25 years of experience, the appellate courts, rather than being objective arbiters to determine, “okay, one side says this, the other side says this, here’s our decision”, their appellate opinions read more like government briefs defending the branch of service and the convening authorities’ decisions rather than being objective arbiters and decision-makers. And that’s largely where there are military officers defending the decision below rather than being open-minded and fair, providing justice for constitutional mistakes.
At what level will that need to be addressed? How does that get resolved?
It would have to be Congress. Or it would have to be the president through an executive order, adjusting the rules for court martial to say that you have to write what each side is saying, and then you have to apply the law.
Sometimes you’ll make a 25-to-30-page brief. They won’t give you an oral argument. They don’t have to explain why. And they’ll just write “denied”. That’s it. They’ll say, “we considered everything, and we denied it”. And that is frustrating because you have nothing and we’ll ask, “Well, what did you do? At least explain it. This person is in the penitentiary with felony convictions”.
And an appeal is just that, it’s an appeal. In civilian court, many times the rule is you’re going to get a written opinion. You’re going to get an oral argument. You’re going to be able to look the three-judge panel in the eye and have a discussion and make your points and answer their questions. By contrast, it’s really rare that the appellate courts in the military for the branches are going to grant oral argument.
And when they do, it’s very rarely successful because I do believe, trying to be as objective as possible and as professional as possible, if you read these opinions, sometimes it’s as if it’s a cut and paste from the government’s brief.
It’s very hard to get traction, to shed light of some of these issues, which is why an organization like United American Patriots is essential for people with integrity and character and experience with both combat and active-duty service are there. Because they could share some other experiences and insights and perspectives, and they get it. Same goes for the Justice for Warriors Caucus.
I think it’s fantastic that there’s a body in the House of Representatives of the United States that recognizes there are serious problems here. And there’s some traction. Now, the composition of both houses does not bode well, if you ask me on a political side, because I don’t think Mr. Biden is behind military justice reform, but I do believe that the caucus, can still do things, in terms of awareness and in terms of support and in terms of clemency and parole hearings.
And in terms of encouraging visits to the U.S. Disciplinary Barracks, hope is something that is important for someone who’s confined – that nobody forgot about them.
And I’d like to share one of my stories in terms of fulfillment. Here’s flesh and blood. I’m standing with Bob Bales in the disciplinary barracks in a private office with Staff Sergeant Robert Bales, who is doing life without parole, separated from his wife and his two children and who, by the way, moved to be close to him so they can be a part of his life and vice versa. He’s in hand irons and leg irons and he is being escorted by two soldiers, both of whom he could probably snip staff if he wanted to, but as he turns around, I’m behind him with my papers and my file.
And over his left shoulder, he looks, and there’s a tear running down his face. And he looked at me and he says, “Hey, sir. Everybody walked out, but you walked in”. I’m here to tell you that you can’t put a price tag on that. And now he has hope.
And we have a documentary coming up to be released about him. We have a book being written about him and we still have his case in court.
Are there particular challenges specific to each branch of the military when navigating the UCMJ, or is it pretty much just the same mess across the board?
I think that’s a good question. I personally, and my team, we have not seen a variance in terms of the mistakes.
What is consistent is the mistakes across the board, and not just mistakes like somebody didn’t sign this paperwork and now we can get them to sign it. Constitutional mistakes. The Marine Corps made them by withholding evidence, the Air Force has withheld evidence, the Navy has withheld evidence, and of course the Army has also.
And then the SHARP program, although it is laudable and noble in it’s intent, in its execution it has turned the sacrosanct presumption of innocence until proven guilty on its head. Now you’re guilty upon accusation, and that to me is a counterproductive result. And we’ve come too far past fairness.
It’s overcompensating now for some of the mistakes in the past where people probably got a pass when they did not deserve one and actually committed a sexual assault. And to me, there hasn’t been a variance.
Every court I’ve been in front of, whether it be any of the branches, I’ve not been in front of the Coast Guard, so I can’t comment about them. I don’t know if they commit any crimes (laughs). So, I don’t know how many cases they have even though they have tough jobs and are tough people. You know, I’ve been very welcome, it has been very professional in all the other service courts, but at the same time, though, it’s a completely different feel to walk into a central civilian court than it is to walk into an article one legislative court martial. Completely different.
And to have the jury chosen by the commanding general, and to have the jury educated on SHARP, and have the jury already knowing that there’s a special victim sitting here with a special victim counsel and being with a special victim prosecutor. And everybody’s using those words without any formal adjudication whatsoever – that’s turning the tables on an accused.
So, we’re trying to fight that in a UAP sponsored case called the United States versus Captain Richard Camacho, who’s just a good man. He’s out of the penitentiary now. Remarried. Children. He’s doing very, very well. A West point graduate and helicopter pilot. Put in for the Distinguished Flying Cross because he responded to a ground force commanders request for assistance, a green on blue attack, where Rangers were pinned down and the Taliban had the high ground, and his crew chief, Sergeant Cronin, was shot in the throat
And Captain Camacho did another gun run and put his hand into his crew chief’s throat, flew the gun ship back safely, and his crew chief survived. And then they took his Distinguished Flying Cross away because he got court martialed for sexually assaulting his wife, after he found out she – a fellow West point graduate, judo champion, helicopter pilot, and a captain – was having an affair with a Staff Sergeant during a time she was deployed.
So, they charged him with sexual assault, and he was convicted of it. Tragedy. Had the SHARP program not been there and it had been an ordinary trial without those reversals of the presumption of innocence, I do think that Captain Camacho would have been acquitted.
When selecting an attorney, what should a service member look for?
I think that the answer depends. I do believe that if you’re facing felony charges in any branch of the military, having an assigned military council is not going to be as helpful because they are military officers first. And they’re comparatively inexperienced. Having basically an attorney who is a former active-duty prosecutor as your defense counsel is a plus – I would dare say essential.
Secondly, if your case involves combat and today’s wars, you have to have someone who’s been there recently. So, you might not want to have the, the 60-year-old attorney who fought in Vietnam or who was between Vietnam and the first Gulf war, because he or she are not going to be up on how we use biometrics. They’re not going to be up on the standards of our operations and rules of engagement. And they’re not going to know to investigate biometrics and DNA and iris scans and family histories. And they’re not gonna understand, necessarily, because they haven’t been there.
For example, in the Lorance Case, had Bill Carney and I not been to Afghanistan and run part of a biometrics program, we would not have known to look for that. I mean, and I can see how older guys and gals who are incredibly competent criminal defense attorneys and military justice practitioners, they might’ve missed that.
Even Clint Lorance’s trial attorney, a combat Marine from the Vietnam War, who went on to become a Marine judge advocate. He admitted it in the docuseries Leavenworth that, you know, it would have been important to know if the purported civilian casualties had indeed left their fingerprint and DNA on bombs at grid coordinates where American personnel had been hurt or killed.
That would have been incredibly helpful to mount the case because there’s an instruction to be had and a rule for court martial Rule 916, which says killing an enemy combatant in battle is justified. Well, if he’s an enemy combatant that should have been disclosed to the defense and at all times relevant. The prosecution had access to that stuff.
They could have walked across the hall to the S-2/G-2 intelligence shop and run the search, but they didn’t.
In Bob Bales’ case they flew enemy combatants from Afghanistan and put them on civilian airliners, on Delta airlines, with unknowing American civilians, from Atlanta, Georgia to Seattle, Washington, used alias social security numbers, alias visas, false identifications that said they were government contractors.
They brought them all the way to Seattle and bought them blue jeans, leather jackets, prayer rugs, and took them on base to get them pizzas.
Is it a problem that most juries for war crimes cases are comprised of people from the command that lack combat experience comparable to that of the accused? How is it a “jury of peers” when an enlisted service member has a jury comprised of field grade officers with no combat experience?
It can be addressed. There’s room for improvement. Here’s how it can be addressed. And that is you’re entitled to a jury of your peers under the constitution. And the constitution is a superior authority than the rules for court martial or the UCMJ, so to have a jury of your peers as a second lieutenant in the 82nd airborne, that means you should probably have people who’ve been walking on combat patrols in Afghanistan or Iraq.
And that should have been one of the criteria to have a jury of peers. Similarly, with Bales, you probably should have a jury that did not have any military police on it. You probably have a jury that didn’t have any motor transport, medical support, or dental soldiers. You should have probably had people who had actual patrol experience and in-country experience at a minimum. That to me would be a great room for improvement.
When it comes to how the juries are selected, the case law says unlawful command influence is the enemy of criminal justice because it deprives the jury of being impartial. Cause they’re going to vote with what their boss says, and it’s gonna be awfully tough for a Sergeant Major or Lieutenant Colonel to sit in a jury room, in the deliberation room, with a full-bird Colonel who rates everybody and then vote impartially. More often than not, it is “ah, guilty”. And they all report to the commanding general in some form or fashion – directly or indirectly.
There’s room for improvement there too.
I don’t think the public knows. For United States citizens at large, awareness is fundamental. So, the more awareness we can get out there in terms of these challenges, I think the better for not only the military justice system, but for the country as a whole. Who’s going to want to send their son or daughter into the Army or the Marine Corps and then have them thrown in prison because they fired the “wrong” shot while protecting their platoon. That’s got to have a chilling effect, I would think.
And then secondly, for something to really get done, not only do we need awareness, but it has to be politically supported. In other words, you have to have politicians who are going to vote and sponsor and drive the bills through the House and the Senate and get it to the White House by people who have something to gain for it.
Very few of them are going to do it out of nobility or character. There has to be some sort of political game. So, making their constituency aware of the problems then becomes the member’s problem, if you ask me.
Well, thank you, John. I appreciate you taking time to answers my questions and to educate our supporters on these topics.
Oh, that’s very kind of you. It has been my pleasure!