Court-Martial (Part 2)

So, charges have now been dismissed against a senior enlisted person for allegedly molesting his daughter; charges have been dismissed against a senior enlisted accused of various sexual assaults against other males (we had put a lot of work into identifying a "motive to lie" or what psychologists will refer to as a secondary gain); a child physical assault case against a senior officer has been resolved through counseling. In this case, we had a very solid case of reasonable parental discipline and self-defense; charges of child sexual assault have now been dismissed against a senior officer. It seems that the prosecution could not comply with our pretrial motion for a Bill of Particulars--as we anticipated and had to stop the trial. A lot of sexual offenses are charged with a long time frame--in this case several years--and it's necessary to have specificity for when the alleged happens (for example, an alibi defense), this is where a Bill of Particulars is necessary.

A client's trial completed with a mixed result. The client was accused of sexual and physical assault against a number of complaining witnesses. When it was time to interrogate him he was arrested, handcuffed, and then paraded in front of his battalion. After the police drove off with the client, the commander made various comments that also became the subject of an unlawful command influence (UCI) and Article 13 motion. The military judge found UCI, however, he did not dismiss the charges but gave an alternate remedy of denying cross-examination of our sentencing witnesses and prohibiting any from them. The client was credited with 30 days confinement under Article 13. After a contested trial the client was found guilty of one physical assault and one abusive sexual contact. He was sentenced to a bad conduct discharge, reduction in rank, and 45 days confinement. With the Article 13 credit and good time applied the client should serve no more than 12 days in confinement.

I'm seeing more of these "perp walk" scenarios lately--I'm wondering if this is part of the response to the politics of military sexual offense cases. Commands seem to think that this is good messaging without thinking of the consequences.

• A military accused has the presumption of innocence, despite command and legislative efforts to override that. Public shaming in advance of trial is contrary to some well-founded historical legal principles in a democratic society.
• The possibility exists that defense witnesses will be intimidated, which could be viewed as obstructing justice punishable under Article 134, UCMJ.
• Risks dismissal of charges, or as in our case, limitations on the prosecution.
• Command evidences an unwillingness to accord the suspect a fair trial and due process, something that military members regularly take oaths to support and defend.

Client was accused of obtaining $235,000.00 in unauthorized BAH payments. Eventually the case was tried at a special court-martial where the client was sentenced to 179 days confinement, reduction from E-7 to E-4, and a LOR. This means that it is possible, not guaranteed, that the client may retire from active duty. If retired, he will be paid at the E-4 grade, because 10 U.S.C. 1407(f) makes it so. The statute requires that a person reduced at court-martial or Article 15 be considered a "last paycheck" retiree not a "last three."

About two years ago the client was arrested by civilian police for sexual abuse of several minors and is pending prosecution for those offenses. While this was happening the MCIO began an investigation and the client was charged with offenses against a victim on base in a different state. They interrogated the client and obtained admissions, which we unsuccessfully challenged at trial. The admissions came after the client had passed a polygraph on whether there had been penetration of a victim. The MCIO agent lied to the challenge and did not tell him he was nondeceptive. The agent testified at trial that they always tell a suspect they failed if they did, but that if the pass or inconclusive they don't tell them that and imply a failure as an investigative tool. With that done, a guilty plea was entered to some of the allegations for which the maximum potential sentence was 120 years confinement. The judge imposed 13 years confinement. The client remains confined on the state charges and we are hoping the civilians will now drop them.

Litigate to mitigate; when the government declines an alternate disposition and wants a plea agreement instead, litigating the case may be a better course. I want to emphasize that while this is a good strategy, it's not always the right one. There are some cases where damage control needs to be done through a pretrial agreement (plea bargain).

A senior officer client was charged with physical assault of a child under 16, physical assault and battery, and some false statements. Prior to trial, the charge of false statements was dismissed. We began a jury trial with a theory that the allegations didn't happen or were exaggerated. We cross-examined the witnesses, including several experts. At the close of the prosecution case, the judge granted a motion for a finding of not guilty to three of eight specifications. We then presented a defense case with witnesses and some additional medical records. The judge gave the standard jury instructions, including the affirmative defense of lawful parental discipline. The jury found the client guilty of only one specification. When it came to sentencing the jury sentenced the client to "No Punishment," an odd buy authorized punishment in military cases. Generally, I view this as the lifelong fact of a federal conviction as being enough.

In late summer 2014, the client was accused with another of conspiring to commit sexual assaults on a single complaining witness. The events were alleged to have happened at a party at a local hotel. The investigation lead to six others being implicated.

My client and his alleged co-conspirator had charges preferred in January 2016 and in April they were arraigned at a general court-martial.

As our investigation and preparation progressed we were able to develop a motive to fabricate a false allegation of sexual assault.

Text messages, photos, and video often plays a part in military sexual assault cases. Therefore, it’s important to get all that evidence as soon as possible. Keep in mind that law enforcement and prosecutors often cherry-pick their way through this potential evidence for what helps a prosecution. In our investigation we found documentary evidence, independent witnesses, a few texts not gathered by law enforcement, and video of the relevant times at the hotel (I give law enforcement credit here that they got all the hotel video available). We found video and a couple of text messages that helped support our case.

As time passed, the six other cases were being processed through administrative actions for collateral allegations.

The client ended up pleading guilty to violating a no alcohol order, lying to investigators (when he denied drinking and having sex), having a ménage à trois (sexual conduct by having sex in the presence of another), and an assault and battery.

The client was sentenced to a bad conduct discharge and four months confinement—42 months after the alleged offenses and through most of his enlistment.

More information here.

I have mentioned before how in 2000 I coined the phrase 'litigate to mitigate' for cases where the prosecution is unwilling to negotiate a reasonable pretrial agreement offer or alternative resolution of charges. A litigate-2-mitigate case also has an element of jury nullification at times. BAH/entitlements fraud cases often fall in the litigate-2-mitigate category. So here is what happened recently in a case.

The client was accused of stealing almost $50K in BAH monies along with failing to support the dependents, lying to investigators and various other military-related offenses. The money was paid back. The defense was crafted around the affirmative defense of an Honest Mistake and an Honest and Reasonable Mistake as to some of the other allegations. After the findings were in, the client was found guilty of the BAH fraud and some of the lies to investigators in a military judge alone trial. However, the value of litigating the case became clear in the sentence: 45 days of confinement and a reduction in grade from E-6 to E-4. The benefit to the client is that no punitive discharge was given, thus, there is a chance to retire for this retirement eligible client. (Note, by statute, any retirement grade, and pay will be based on the rank at retirement and the amount of the last pay-check.) We have also recently negotiated a special court-martial for an NCO also accused of BAH fraud and a GOMOR for another NCO. (Note, these results are not always possible in every BAH or travel fraud case, every case has different facts which can mean a different result.)

21 months ago, the client was accused of spousal rape and rape of an ex-spouse. The investigation went on for months, until late last year when charges were preferred. We went to the Article 32 prepared to demonstrate the allegations were false. As expected, the prosecution turned up with statements and the complaining witnesses refused to testify. By this time the client was divorced and the judge had awarded custody of the children to him with a requirement that the ex-spouse provide child support. The hearing officer produced a detailed devastating explanation why the prosecution had failed to show probable cause and why the charges should not be referred to trial. Recently, the convening authority agreed with the hearing officer.

Over a year ago, an O-3E client came to me in a dark mood with allegations of spousal rape, DV assault, and associating with prostitutes.

The command and CID would not accept our civilian polygraph results because they were "irrelevant." So we showed up to the Article 32 preliminary hearing now facing the initial charges plus several others of adultery and fraternization. The PHO did find probable cause existed but noted potential problems with the prosecution case. Despite that, charges were referred to general court-martial.

We did our due diligence and prepared a very detailed challenge to the credibility of the complaining witness supported by witnesses, documentary evidence, and lots of text messages. [Note to DC's. Texts are very important in today's sexual assault cases. Lot's of impeachment.] We prepared the client thoroughly to testify if it felt his testimony would have value added and not devalue the case. Our own mood darkened as we got closer to trial as more and more discovery and MRE 404(b) notices kept coming over the transom, and a witness or two came out of the woodwork. To ensure some pretrial damage control we were able to negotiate a pretrial agreement for mixed pleas and an omnibus sentence cap.

As we closed with trial we spent a lot of time in detail work seeking to do damage control with the MRE 404(b) stuff. And we got a significant boost when we found some specific and explicit texts within thousands of texts scoured through. We developed a parallel but different theory of the case and decided to wait and see how the prosecution presented their first witness. Sure enough, the prosecution sought to bury the client in MRE 404(b) "evidence." We objected and we were able to keep out all of the MRE 404(b) evidence and all but one alleged "prior consistent" statement.

KIS step one. We needed to keep the MRE 404(b) and prior consistent doors closed. With that in mind, we adopted the alternate plan. The cross-examination of the CW took less than 10 minutes for about 15 questions. With the laser questions and suppression of all the "profile" evidence the prosecution was only able to call one of their witnesses to testify to pictures of bruises. The prosecution rested, and we did immediately.

KIS step two. The closing argument on the merits was simple and focused and took a little more than 10 minutes.

Findings: Not guilty of diverse aggravated sexual assault, guilty of an assault and battery, and guilty to one fraternization and one adultery, and associating with prostitutes.

KIS step three. We did not call any of the sentencing witnesses we'd lined up and presented only records and unsworn statements. Again we were in damage control mode. The lesson is to keep doors closed and bad testimony or cross-examination out.

Sentence to dismissal and total forfeitures.

I mentioned below in my end of year comment about the number of my cases being disposed of without action or with administrative actions only.

That trend may continue, which is good for clients.

A field grade officer was accused of having sex and oral sex in a parking lot. There were witnesses. Turns out there was also an accusation of adultery added to the charge sheet for the Article 32. The investigators threatened the "other person" to provide the testimony. The good news in terms of having to face a court-martial is that we were able to negotiate a resignation in lieu of trial. While this is a very sad way to end an otherwise excellent career, it is better than being in confinement with a federal conviction.

A senior enlisted person was convicted at court-martial for violating an MPO and making a false statement to MCIO's. However, he was acquitted of substantial allegations of spousal sexual assaults. This document linked to here give a little background. He was reduced one pay grade. At which point the administrative discharge process began. In addition to the conviction, the government added perjury to the basis for separation (he'd testified in his defense at trial). We prepared and submitted a conditional waiver to the administrative separation board and asked for an "Honorable Discharge" characterization. Surprisingly, this was approved!

An officer was accused by his spouse of sexual assault, drug use, and basically being a bad person. An investigation was completed and the case was put in the hands of the command for a decision.

In the meantime, the spouse was suing for divorce and child custody. This was a benefit. She was able to be deposed about the assault allegation because she'd made it part of the divorce complaint. This was good because there would be no such opportunity to cross-examine her should there be an Article 32 investigation or trial. (Using information from divorce proceedings should always be considered by the military defense lawyer in spousal assault cases where there is a pending divorce or child custody matter.)

Knowing that the officer would decline NJP, the command decided to turn on the board of inquiry administrative elimination sluice. Normally it's not always wise to submit a statement in response to the notice and just wait for the board to happen. But this time we decided to submit a written statement.

Good news. The commander decided to terminate the administrative separation without further action, and the client is in the process of executing orders to a new duty station.

2.5 years ago client, was accused of several sexual assaults. As the investigation was concluding client "popped" positive for cocaine use. Shortly before the first Article 32 preliminary hearing client was involved (with a friend) in a serious assault of a taxi driver. The hearing officer found probable cause and the charges were referred to trial. As we were close to trial, the client's wife came forward to allege a series of assaults (DV), and an AWOL resulting from a civilian arrest for a hate crime. A new Article 32 was convened; as a result of which client received an Article 15 for the AWOL, and charges of spousal assault were referred to trial. Before trial, all but one of the spousal assaults were dismissed.

After a judge alone trial, the client was found not guilty of the sexual assaults and guilty of cocaine use, assault on his spouse, and assault on the taxi driver. (Note. The client had NOT made any statements to OSI.

The client was sentenced to 14 months confinement and a bad conduct discharge.

The 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 the 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 the 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.

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 pleads 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.The 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 were 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.

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, the 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 phone call 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 phone call 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 teacup.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.

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).

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 are 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.

The 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 a 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. The 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 an 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 a 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 the 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 a 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. The 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, a 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 the remainder. The 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. The 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, the judge took into account other practices post-mutiny that were not Article 13, but was "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). The 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 psychologist 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.