A good argument can be made that reasonable doubt is different in courts-martial than in civilian courts.

After all, military members sitting as decision makers are solid citizens. They tend to vote Republican, boast clean records, and view civil liberties groups like the ACLU as suspect.  In short, these military members may come into the courtroom as trial counsel’s potential best friends.

So how to address this military ‘inelastic disposition?’

One possibility:  Take a neutral subject….as unemotional and everyday as possible.  Then, discuss that ho-hum issue, inviting the members to consider whether they are open to both sides.

A subject which should not raise huge emotional turmoil is…of all things…the public water fountain!

Hopefully, this can be raised during voir dire – if an easygoing  military judge permits.  If not, there’s always closing argument.

You might try something like this—

Captain S , I notice that you drinking bottled water.   If you don’t mind, I’d like to talk to you —  and the rest of the members  — about bottled water.   Believe it or not , bottled water has a lot to do with the case of [client].

Did you know that first public water fountain was unveiled in London in 1859?   And that within 10 years, London had 800 fountains?  And that American cities soon followed ?  By  1920, most cities were providing free, chlorinated water. Reportedly, half  the decline in urban deaths between 1900 in 1940 came from improvements in water quality.  So states the National Bureau of Economic Research.

But now, he looks as if bottled water is putting these fountains and tap water out of business.

You may be wondering what all that has to do with today’s case and [client].  Please be patient with me for 30 seconds more.

Bottled water has become pretty standard  fare for many of us.  It all began about 1970 when the Perrier Corp. in France set its sights on the American market.   In 1977,  Perrier spent $5 million on advertising campaigns in New York selling itself as modern and upscale.  By 1982, U.S. bottled water consumption stood at 3.4 gallons per person per year.

Okay, let’s say you favor bottled water. It’s no big deal, probably.

But are you OPEN TO THE OPPOSING ARGUMENT?

What if I suggest —  with respect —  that you’re wasting your money?  That the Federal government passed the 1974 Safe Drinking Water Act and tap water is safe – with  strict non-contamination standards.

What if I argue that tap water and bottled water are the same ting — your bottled water is simply tap water from someplace else!

And what if I claim that reliance on bottled water actually harms the environment.  The Policy Institute claims it takes 1.5 million barrels of oil to create the 50 billion plastic water bottles Americans use every year.  And that’s enough to fuel 100, 000 cars per year.

And I would argue that only a quarter of those bottles are recycled?

And what if I’d claim that plastic bottles seem to last forever…

Finally, what if I  argue that drinking bottled water on the average costs you anywhere from $1400 to $1900 each year.

.Now, don’t get me wrong.  I really have no interest in whether you drink from the tap or prefer bottled water.   Honestly, I have absolutely no dog in that fight.

Instead, I’m  taking what I hope is a relatively neutral issue—no politics, no religion —  just water. And I respectfully ask one simple question:

What was your reaction to my words?

Specifically:

·         Did you close your mind?

·         Did you turn me off?

·         Was your opinion set and nothing would change it ?

OR: Were you willing to hear what I had to say, measuring it against your personal experience and  common sense?.

In other words: Were you willing to give me a fair hearing?.

So that brings us back to [client].  Look, 99.9% of the time, your job is to  support the mission with unquestioning obedience.   That is the way it should be.

But here, It’s different.  Rank goes out the window in many ways – everybody has ONE vote.   And discussion on findings and sentence is without regard to rank.  It’s not me talking – the military judge says so.

Today the professional life of [client] is on the line.   So  — back to the bottled water:   Can you hear what the defense has to say and consider it carefully?

This is important.  It’s not an academic matter of whether you drink your water from the tap or from a plastic bottle.

Far from it.

The issue here is the professional life of this accused [client].