We represent clients with all manner of UCMJ allegations. Over the past years our emphasis in court-martial trials and appeals has been with cases and issues involving Sexual Offenses, Computer Related crimes, recruiters, and instructors. We have also had success in administrative law adverse actions. In each instance we have worked hard with the military lawyer or military lawyers to put forward a team effort.
It's done, the first trial of 2017
Client was acquitted of the charged sexual assault, by a military judge.
Two years ago the investigation began into an allegation of sexual assault against another officer. When we went to the Article 32 months later the prosecution had added falsifying flight records and multiple allegations of using foul language to the charges.
After the Article 32 investigation we began trial with the sexual assault and the foul language specifications. At which point the prosecution decided they wanted to add new charges of wearing unauthorized badges,insignia, and patches.
Now months later we really begin trial.
At this point, the client entered guilty pleas to the authorized uniform items charges, and then we proceeded to trial on what was left.
After hearing all the evidence the military judge found the client guilty of one of the foul language specifications and the unauthorized uniform specifications only.
Well, 2016 is over.
As I look back over the last six months of the year, I realize I haven't been in court so much. I wondered--the time has been busy with plenty of needful clients. The answer is fairly simple--I was--actually the client was--lucky enough not to have to face a court-martial prosecution.
Some of the cases were disposed of after the investigation phase where the command was persuaded no sexual assault happened, some were terminated at the Article 32, UCMJ, preliminary hearing stage, and some were terminated with alternate dispositions. Some clients are lingering on my docket because the investigations are taking months, sometimes years to conclude.
The last court-martial for 2016 I consider a success.
18 months before trial the client was investigated for a sexual assault and associated charges. When it came to trial we were able to proceed with a pretrial agreement. The client plead guilty to fraternization with an enlisted person. The agreement disapproved any dismissal adjudged and allowed the client to retire in his current warrant officer grade.
A lieutenant colonel was accused of various ethics and standards of conduct violations in doing business in preparation for retirement. He was alleged to have used government time and resources to work on creating his business, and he was alleged to have sought to influence the military to purchase products of his business. An alleged co-actor was prosecuted by the U. S. Attorney. Client was given an Article 15/NJP.
A colonel was accused of rape, war crimes, and various other offenses while deployed. After 18 months of investigation the allegations were reduced to a number of instances of adultery – for which a letter of reprimand was given.
E-7 client was accused of multiple instances of fraternization and of aggravated sexual assault. In this case we were able to show that the sexual assaults was likely false as a way to get revenge for the complaining witness being counseled. The client was still found guilty of fraternization, which is a lesson learned for all leaders.
Article 32's are still valuable.
I've heard colleagues saying that it's no longer worth doing an Article 32 because of the way Congress has changed to rules to make it easier for a case to go to trial. True, Congress has taken deliberate steps to make prosecutions easier. But a preliminary hearing is still valuable and can still result in dismissed charges--it's just harder to do. But, I have been (perhaps fortunate) to have quite a few cases dismissed at the 32 level. Here's a recent example.
I have an E-8 client who is accused, along with an E-9 client of sexually assaulting an E-8. Pre-32 the charges were assault while incapacitated, while asleep, and by force; in other words all three ways of committing the assault. The complaining witness testifies at a joint UCMJ art. 32 preliminary hearing. At the conclusion, the prosecution asks the hearing officer to find probable cause on the "while asleep" language--which the PHO dutifully does.
I now arrange with the prosecutors to have my client talk to them and tell them what happened from his perspective. There is more to how this is arranged because you just don't walk in and say you are there to talk. Once the proper arrangements are made the client and I meet with the prosecutors and he talks to them and answers their questions.
The prosecutors tell me they are going to recommend dismissal of the charges. But of course they can't dismiss them as in civilian court. There are problems in convincing the commander to dismiss the charges, even though the prosecutors are doing the right thing and explaining why they don't think there's enough evidence. So charges are referred. In the meantime a sleep expert is consulted and advises that it is unlikely the witness would be asleep under the proffered circumstances.
The military judge grants a joint prosecution and defense motion to reopen the UCMJ art. 32 hearing based on new evidence. The hearing is held, the PHO finds no probable cause, charges dismissed.
This is a case where hard work, creative thinking, and an honest prosecutor can result in the right result. So, always, well almost always, do the 32.
- - -
"The [OSI][NCIS][CID] did a
profoundly inadequate investigation"
. . . Is part of my argument in a double rape case.
It is not unusual that by the time the defense is aware of and able to investigate a case, evidence is lost or destroyed and memories fade. However, for this case and client there were two important pieces that were preserved: a cup and a pretext phone call.
Yes, in this case a pretext phonecall helped the client. That's because he admitted to having sex, but denied, in some detail, that it was non-consensual. So he was not lying to the members when he told them what happened from the witness stand -- the pretext phonecall was corroborative support. The "cup" was a cup one of the complaining witnesses claimed the client had served her alcohol in, and which the prosecution argued might have been drugged. Interestingly, even though they had it, the prosecution never produced the cup and kept arguing it was a plastic Solo cup. Actually, the cup in the evidence locker was a smaller black tea cup. Happily, USACIL tested the cup and found no evidence of drugs. So, despite a biased and profoundly inadequate investigation, the client was found not guilty of rape of two different complaining witnesses.
A happier ending than expected
E-6 Client is alleged to go AWOL for about three years, and he is paid during this time. At the Article 32, UCMJ, investigation he is charged with a three year AWOL (not desertion) and stealing $140,000.00+ in pay. At the Article 32 we show that he began his absence six months later than alleged. Yes, the unit had him unaccounted for during that time, even though he was present for duty.
At trial, we have charges dismissed (without prejudice) for a speedy trial violation. So, we start again, and this time the client is ordered to undergo a mental health evaluation. As is typical, the R.C.M. 706 is done quickly and less than thoroughly. So, in steps the defense expert to find that client is currently and was paranoid-schizophrenic. We contest the charges in a judge alone trial. After the prosecution presents its evidence the military judge dismisses the AWOL charge, and we present an affirmative defense of lack of mental responsibility. Result: Guilty of theft of $112,000.00 in pay. Sentence, RIR to E-1, Bad Conduct Discharge, a fine of $11,330.00 (with up to a year confinement if the fine is not paid).
Why do I tell you that story?
Like all lawyers I have many successes to brag about. But not all cases can be an outright full acquittal. Some cases require damage control, perhaps because there is a solid confession and some corroborating evidence. So, unlike almost all lawyers you will find in this field I have given you an example of how a seemingly losing case can be "improved" to get a much better result than expected. This is an example of the practice I began many years ago of litigate-to-mitigate. No two cases are the same, your case will be different.
-- Board finds no abusive sexual contact during a board of inquiry for an O-5.
-- E-5 accused of physical assault on his twin babies. After Article 32, UCMJ, investigation, the convening authority approved an administrative discharge in lieu of court-martial.
--Field grade officer client was directed to show cause for retention based on GOMR for alleged TCS travel fraud - unanimous vote for Retention.
--In a recent court-martial case the client was placed in pretrial confinement for espionage, threatening the President, threatening the local Sherriff, fake purple heart/combat action ribbon/combat commendation medal, fake jump wings, fake EWX pin, lying about his deployment history, and lying to get VA medical benefits. Ultimately charges were referred to trial, except the espionage. We were able to get some charges dismissed during pretrial litigation and get a substantial number of extra confinement credit for errors in the PTC process and discovery violations. After a fully contested trial client was found not guilty of all charges except some related to the false awards and lying to hospital officials about his awards. More credit was received because of further PTC errors.
Lesson here -- don't confess. It is likely that the conviction was based on a confession sufficiently corroborated by forensic evidence of faking documents on a personal computer.
--Executive Officer, USS IOWA (BB61) during the investigation after the turret explosion.
--0-8 initially investigated for very serious sexual assault offenses. Received Secretarial punitive letter, 30 days arrest in quarters, and later was retired at a reduced rank.
--0-7 investigated for Joint Ethics Regulation issues.
--0-6 commanding officer charged with negligent grounding of a vessel.
--Commodore charged with negligence resulting in death and injuries during a Close-In-Weapons System exercise.
Represented/advised several Navy personnel who were Anthrax refusers.
--Army O - 3 - Gen. Off. Article 15. Charge dismissed at hearing.
--Army Nat'l Guard E - 8 - Gen. Off. Article 15. Charge dismissed at hearing.
--Navy O-3E found guilty at NJP of DWI. Then processed for administrative separation based on misconduct. In this case we did what neither the command nor the military defense counsel had done. We consulted with an expert. Based on that expert's review we were able to show that the .BAC, reported as 0.145 should have been reported as 0.0145. Based on that "new" evidence, the Board found NO misconduct, and the LT was returned to duty.
Navy O-6, suspected of communicating threats, email stalking, and orders violations. Non-punitive letter of reprimand, and retirement in grade.
USMC O-5 ordered to appear before a retirement grade determination board based on allegations of spouse abuse. Allowed to retire in his current grade.
United States v. O-6. Case began as a serious sexual assault allegation. Resolved as an Article 15 for conduct unbecoming.
United States v. E-4. Accused of sexual assault on two different complaining witnesses and assault on a third. Resolved through administrative separation in lieu of trial.
United States v. E-5. Recruiter accused of falsifying recruiting documents. Charges referred to Special Court-Martial. Resolved with written counseling and early retirement.
U.S. servicemen arrested for public indecency; client makes formal apology (An apology is considered a virtue in Japan. Apologies show that a person takes responsibility and avoids blaming others. When one apologizes and shows one's remorse, the Japanese are more willing to forgive); Japanese Prosecution suspended for sailor accused of nudity in cafe (and jurisdiction ceded to the U.S. under the SOFA). Case disposed of at Captain's Mast (Article. 15), followed by administrative separation.
United States v. Army E-3. Accused of raping spouse on four occasions, twice with a weapon; raping a girlfriend twice; multiple assaults, aggravated assaults, and threats against spouse; multiple assaults and weapon related threats against a second girlfriend; obstruction of justice. Found guilty of several assaults and threats on spouse and the second girlfriend, not guilty of all rapes, and most of the assaults. Sentenced to 18 months confinement and a bad conduct discharge.
United States v. Army E-4: Accused of assaulting a female Soldier and accused of sexually assaulting another female Soldier. After a contested judge along trial - found not guilty of the charges.
United States v. Marine E-5: Client accused of attempting to steal a total of $2400.00 from his roommate's bank account, misuse of a government travel card while PCSing, false official statements, and wire fraud. After a contested trial found guilty of attempted theft and false official statement, not guilty to misuse of GTCC and wire fraud. Prosecution argued for 18 months confinement, sentenced to six.
United States v. Air Force E-3: Client accused of failing to go to daily formation for about five months, failing to check out and PCS, failing a check-out appointment, false official statement about a PT test, and dereliction in not PCSing. Basically the allegations surround, according to the prosecution, client hiding out on this training base for five months because he didn't want to transfer to a line unit. After a contested trial convicted of "diverse" failures to go and false official statement, not guilty to remainder. Military judge sentenced to four months confinement. However, the judge also granted 91 days credit for unlawful pretrial punishment in violation of Article 13, UCMJ. By the way, this case is one of several examples I have of why it is not good or useful to seek the assistance of the Congressman.
United States v. Army E-1. Client one of 13 accused of mutiny, kidnapping, multiple assaults, and property damage at the Maximum SHU, USDB, Leavenworth. Prosecution took the position that he started the mutiny and was a ringleader. Plead not guilty to all charges. Found not guilty of kidnapping and an assault. Sentenced to five years confinement. Military judge gave nine months Article 13 credit. In addition, judge took into account other practices post mutiny that were not Article 13, but were "almost" UCI, and gave two years confinement less than he would of. Another inmate who helped start the mutiny and assaults plead guilty to all charges. He was sentenced to 15 years confinement, which was reduced to eight years with a PTA.
United States v. Army E-5 (update). Client initially accused of rape and sexual assaults on a military spouse and an indecent act on a Soldier. After Article 32, and shortly before trial the complaining witnesses to the rape came forward to "tell the truth," and confessed they'd lied - there was no rape. Summary court-martial on the unrelated indecent act (sentenced to 15 days restriction). Aspects of this case and another case of mine (Walton) are reported here and here.
United States v. Army E-7. Initially convicted of BAH fraud in excess of $132K and associated charges; sentenced to a BCD and six months confinement. New trial ordered by the appeals court based on newly discovered evidence. At new trial convicted of attempted fraud in excess of $500.00; sentenced to RIR to E-6, $1000.00 forfeiture per month for two months.
United States v. Velez. This case required extensive assistance from a forensic crime scene perspective as well as a forensic pyschologist and a forensic psychiatrist. The R.C.M. 706 board found a "brief psychotic episode" but not major. The defense experts found a major mental defect. However, neither rose to the level of an affirmative defense of insanity on the charges to which Velez plead guilty to. The prosecution dismissed a premeditated murder charge. In this case the defense had made a PTA offer of 20 years in February 2010, and an offer of 25 years in June of 2010 - both of which were rejected. The prosecution came to the defense in early 2011 with a request for an offer of 28 years.
United States v. Air Force E-5: Rape. In this case we were able to mount an aggressive defense at the Article 32, UCMJ, hearing. Subsequently all charges were dismissed.