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 crimes, recruiters and instructors, allowances fraud, and medical provider complaints. 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.
Please note our constant disclaimer for every case that past results do not guarantee the same result in your case--no two cases are the same. Each case has different facts and different legal rules, as well as having to deal with different prosecutors, convening authority, and judge.
And, almost a century and a half ago, Macaulay observed that the guilt of Titus Oates could not justify his conviction by improper methods: "That Oates was a bad man is not a sufficient excuse; for the guilty are almost always to suffer those hardships which are afterwards used as precedents against the innocent."Moran v. Burbine, 475 U.S. 412, 437 (1986) (citing T. Macaulay, The History of England 482 (1968 ed.)).
In 2020 I began working with Nathan Freeburg to expand the resources, expertise, and experience available to clients. Here are some of our results, and you can find more about the combined experiences at this link: CF.
A difficult second case
March 2021, U.S. v. E-1 (U.S. Navy)--a full acquittal at Naval Station Norfolk, VA.
Some background. The client in 2018 was an E-7 stationed overseas. He was accused of three specifications of having sex with a prostitute overseas and three specifications of anally raping them. In March 2019 he was found guilty of the prostitution charges only and the alleged rapes were dismissed. This case is on appeal.
In February 2019, the civilian police in Virginia were also investigating allegations of oral and vaginal rape of a local woman, as well as attempted anal rape, assault with intent to rape, and robbery. The civilian authorities decided not to prosecute so the client was prosecuted at court-martial for these additional offenses.
After an 8-day vigorously contested trial, the client was was found not guilty of all charges and specifications by a panel (jury) of officer and enlisted members. The prosecution called one of the prostitutes from overseas to present "propensity" evidence under Military Rule of Evidence 413.
The client is also represented by us for the appeal related to the first conviction and sentence.
As was this client, medical providers are increasingly being accused of sexual offenses during an office visit and examination. The team worked hard to examine the evidence, engage in discovery, and talk to witnesses. From that work we were able to develop a very credible defense that the complaining witnesses were lying, had little credibility; and may have been discussing the allegations together. In any sexual assault case it is critical to determine if there is a reason for a complaining witness to lie--people do lie about sexual assault. Psychologists sometimes refer to this process as them seeking a "secondary gain," it might be for revenge, protecting a relationship, avoiding punishment, or as here, getting benefits. Keep in mind that prosecutors and investigators are now trained (some might say indoctrinated) to presume guilt and do not always challenge the facts and circumstances during the investigation (we generally think of this as acting from confirmation bias). Anyway, with our information we had several discussions with the prosecution about the viability of the prosecution. I can't say the prosecutor hadn't had his own concerns and problems with the case, but I do think our input helped push him over the edge--result, case dismissed. This case presented one of many examples where the defense should never proceed on the theory the MCIO investigation is true, accurate, complete, or thorough.
. . . worth it to take a chance and meet with the military investigator's.The standard advice from any military defense lawyer it not to talk to military investigators and to invoke the rights to silence and counsel. This is the best advice. However, once you've talked to a lawyer should you then meet with the investigators. 99.99% of the time the advice remains the same. But in a recent case we made the decision to recommend an interview. A lot went into preparing for the interview so when we got there there was no question that had not been anticipated. The ultimate result was dismissal of the case without any adverse actions. AGAIN, I CAUTION, don't talk to investigators until you've talked to a lawyer.
- Client was placed in pretrial confinement for sexual assault, drug involvement, and a number of "military" offenses. The court-martial charges were dismissed. For reasons which I'm not going to discuss here-sorry, the client is being separated with a SILT and an OTH.
- A Staff Sergeant is accused of multiple specifications of sexual assault and fraternization by a junior Soldier with a motiven to get even with him. A robust challenge to the evidence and the Article 32 hearing resulted in a recommendation against a court-martial., the Preliminary Hearing Officer (PHO) recommends not proceeding with a general court-martial. Ultimately, the prosecution was dismissed.
- Accused of attempted sexual assault, indecent exposure and soliciting the unauthorized access of a government computer system. Charges are referred to a Special Court-Martial but five days before trial, the charges are dismissed.
- Air Force Senior Airman (E-4) is accused of receipt and possession of child pornography, solicitation of child pornography and attempted receipt of child pornography for having intimate pictures of his sixteen year-old girlfriend. Another robust package prepared for the Article 32 hearing which leads the command to dismiss the charges.
- An officer client at Norfolk Naval Base was accused of raping a female co-worker, a situation where he was the real victim. We reported this to the MCIO, met with the MCIO, and provided some corroboration of the allegation that he was the victim. As a result of a (strangely) thorough investigation with the client’s cooperation he was cleared and returned to full duty. This is an example of when it is helpful to hire civilian counsel early. Mr. Cave’s work here forestalled even the preferral of charges which otherwise were likely to come.
- Sergeant is accused of illicit drug use under Article 112a, UCMJ, and charges are referred to a Special Court-Martial even though the accused Marine was adamant that the urinalysis had resulted in a false positive and was awaiting a medical discharge. After preparing a detailed well investigated case, including challenges the to the urinalysis tests reliability, the command dismissed the charges and the client received a medical discharge.
- Army Staff Sergeant is accused of the sexual assault of his ex-wife and of indecent recording and broadcast, all allegations leading to sex-offender registration. An attack plan is developed and prepared. A week before trial, the prosecution offers a Chapter 10 discharge in lieu of trial, meaning no conviction, no registration, which the Accused accepts.
- Sergeant is accused of violating 12 specifications of Article 132, UCMJ (making a false claim), 10 specifications of Article 124, UCMJ (also making a false claim), 10 specifications of Article 107, UCMJ (false official statement), and 10 specifications of Article 121, UCMJ (larceny), for a total of 42 specifications! Mr. Nathan Freeburg was retained early in the process and developed an extensive game plan for an acquittal. After rejecting an absurd government proposal for a deal, Mr. Freeburg conducted an aggressive motions practice, setting the stage for trial. At trial, Mr. Freeburg developed the client’s defense through the prosecution’s own witnesses. Despite the five-page charge sheet the panel took just over an hour to deliver a Not Guilty verdict!
Client was convicted as SPCM for larceny and fraud in obtaining over $5000.00 in TAD/TDY funds. He was sentenced to RIR one pay grade from E-6 to E-5. I wish he'd not talked to people about the allegations. Unfortunately these people were not required to give Article 31(b), UCMJ, warnings so their testimony was admissible. People are told all the time not to talk with law enforcement and exercise their rights. I tell clients all the time not to talk with ANYONE be it friend, family, or co-worker about any allegations.Justice came slow but was served hot
The client, in December 2017 was accused of rape and sexual assault of two complaining witnesses on the same night. A few months later the client was involuntarily extended on active duty. It wasn't until April 2019 that the charges were preferred. After the Article 32, preliminary hearing we were able to get the rape allegations involving CW-A dismissed. It was clear, and we think became clear to the prosecution, that CW-A was lying about the assault and lying during trial preparations. (No, it is unlikely there will be any adverse consequences for CW-A as a result of making any alleged false statements.)
Because of the delay and involuntary extension we filed a speedy trial motion including the creative idea the military had lost personal jurisdiction because of the delay. While the judge denied the motion he expressed that,
The lack of diligence and priority given to this investigation is staggering, likely bringing hardship on the alleged victims, as well as the Accused.
Here, the Accused demonstrated that the Government’s delay was egregious and seemed without end. While the Government enjoys a reasonable time to investigate and bring an accused to trial after the accused’s EAOS lapses, there must be some rational containment. By the extended delays and lack of diligence, the Accused suffered prejudice losing a proven employment opportunity with greater pay and advancement opportunities than his military service. The Accused’s command modified his work assignment such that a reasonable person would find the conditions – although not intentionally punitive – to be unreasonable and unfair in light of the delay. Nonetheless, under the current law, the Accused’s anxiety as one factor in considering prejudice does not rise to the level to justify fashioning the requested remedy of dismissal.
In December 2019--732 days after the alleged events a panel (jury) of enlisted and officer members found the client not guilty of the sexual assaults for CW-B.
The client was accused of violating federal anti-sex trafficking laws while stationed overseas--and most seriously, adultery by having sex with a prostitute. These offenses were alleged to have happened between June and September 2017 and trial eventually happened in August 2019. The reasons for the delay are many--but let me suggest that it was not just the common problems of lawyer and judge scheduling conflicts that had to be considered. I have said in general for example, that discovery games by the prosecution do not contribute to a speedy or fair resolution of a trial. One takeaway is that the joke sometimes heard that NCIS stands for No Crime Investigated Sufficiently, may be--well--you complete the sentence. They never bothered to do a basic investigation which would have established the likelihood of a defense to the charges.
After the prosecution presented their case to the members the defense motion to dismiss everything but the adultery allegation was dismissed under R.C.M. 917. After that the members found the client not guilty of the adultery.
A senior enlisted was accused of multiple rapes as well as associating with prostitutes. As the result of a pretrial agreement he pleaded guilty to sex with prostitutes and the rapes were dismissed. He was sentenced to 30 months confinement and a bad conduct discharge. The case will be appealed because almost all of the prosecution sentencing case was about the alleged rapes coupled with multiple objected to improper argument. On appeal, we will be arguing the judge abused his discretion in allowing evidence of the alleged rapes under R.C.M. 1001(b)(4).
An NCO was accused of an investigated for several "minor" sexual contacts in violation of Article 120, UCMJ--result, nonpunitive letter of reprimand.
Client was a Reserve officer who was recalled to active duty for disciplinary actions. He was accused of sexual abuse of his adopted daughter over a period of years. At the Article 32, UCMJ, preliminary hearing we were able to convince the PHO that there were serious questions of jurisdiction based on the alleged dates and places of the alleged misconduct. Ultimately, the PHO recommended only one set of acts which were alleged during a time when the client was proven to be on extended active duty orders, and that the remainder be dismissed. Regardless, all charges were referred to trial (an example of the normal process where a PHO recommendations are ignored). The client was arraigned, and then strangely, the charges were dismissed two weeks later. So at this point the Commonwealth of Virginia had declined to prosecute and the Service had dismissed the charges. As was anticipated, the allegations were referred for disposition at a Board of Inquiry. Despite evidence of untruths and motives to lie the Board found misconduct and recommended an involuntary retirement in the next inferior grade. While not a registered sex offender who will get an O-4 retirement check, the stain remains. A difficult reminder of the very low standard of proof at a BOI, the limitations on discovery and access to experts, and the 'no rules' of evidence effect.
There are a number of factors to consider when a Service decides what to do with a person returned from UA/AWOL or Deserter status. We are often contacted and can help with the transition from an illegal status to back to duty and the consequences. In a recent case of a potential UCMJ Article 85 (desertion) and Article 86 (absence without leave / unauthorized absence). Mr. Kornacki took the lead and was able to quickly identify critical facts to mitigate and extenuate the alleged misconduct and advise the Client during the entire process. We were happy to receive a call from the Client telling us she was being discharged from the Service in less than one week after return without a court-martial action.
An Army officer pending a court-martial reached out for help--and what was ultimately determined to have a need for damage control. Mr. Kornacki, co-counsel, took the lead and along with the military defense counsel worked out a favorable pretrial agreement dealing with a case of overwhelming evidence and confessions. But, always trying to secure the best possible results for Clients, a post-trial packages of extensive evidence in mitigation and extenuation was submitted and a resignation in-lieu of a conviction was approved. The end result was that the client received a general discharge--not a dismissal and not an other than honorable discharge.
A Servicemember in Afghanistan was investigated for fraternization and related misconduct. Co-counsel Mr. Kornacki took the lead in identifying and developing key facts and evidence to show that there was no fraternization and that the allegations were not credible. The investigation was terminated with no adverse finding. Early intervention can at times help terminate or mitigate an investigation; and if not, begin early the process in identifying a defense strategy.
In June 2013 to the client called because he was in trouble with accusations of assaulting patients. He called us before he'd been called into the MCIO interrogation, so he remained silent. As the investigation developed into accusations by seven different patients, the client ended up, in January 2014 arraigned for alleged sexual assaults of five. Shortly before trial one allegation was dismissed and a second dismissed the day of trial. In September 2014, after trial the client was convicted of one sexual assault, not guilty of two others, and sentenced to a punitive discharge.
After trial the judge dismissed the charge and the prosecution appealed. The appeal went to the Army Court of Criminal Appeals and then to the Court of Appeals for the Armed Forces. The military courts ruled in the prosecution's favor and said the judge was wrong to dismiss the charge. We petitioned the U. S. Supreme Court but they denied our petition.
Now we were back to the regular--normal--appeal process for anyone convicted and sentenced to a year in jail and/or a punitive discharge. We alleged the client had not received a fair trial because the jury had convicted him based on not wanting the Army to look bad in a sexual assault case if they found him not guilty. The Army Court of Criminal Appeals ordered a Dubay fact-finding hearing. In 2017 we went to Fort Leavenworth with a new judge for the hearing. Based on the findings of fact and conclusions of the military judge, the Army Court of Criminal Appeals, in February 2018, agreed there was not a fair trial and reversed the findings of guilt and the sentence.
In October 2018 we went to Fort Sill, OK, for the retrial by, again, a panel of members (a jury). The jury found the client Not Guilty.
The odyssey is not over--on the criminal front, yes--but now we must follow the administrative trail and deal with the collateral consequences. One piece of very good news on that front is that he will be permanently removed from the sex offender registry. Now he can get a job and his wife and daughter don't have to deal with neighbors who know they live with a sex offender.
I have two questions for you at various times throughout any case, I have two big-picture questions to be answered by the client:
- What is Your Tolerance for Risk?
- What is Your Tolerance for Pain?
Are you willing to risk a conviction and its collateral consequences, and if so, are you willing to accept the greater punishment (the not guilty plea enhancement) if convicted. In each case, these are difficult questions. Often the answer is going to trial and litigate to win or to mitigate. That said, an alternate disposition may fit the case and client. For example, recently, a client was accused of being very drunk and while drunk making sexually suggestive comments or doing some minor sexual acts involving several people. Here the client wanted a 'second opinion' from a more experienced counsel. There were a number of factors which lead to asking the convening authority to approve a separation in lieu of trial (which includes an OTH discharge), and the CA agreed. While not completely in the clear, this non-U. S. citizen avoided an almost certain conviction and may have enhanced his chances of staying in the U.S., rather than be deported, because he was not convicted. He still has hurdles to face and nothing in life is guaranteed.
Retrial cases come to mind because of a new result in a pending retrial I had: the client has an approved separation in lieu of trial. This means he is no longer a sex offender registrant and is no longer subject to trial by the military. And an update.
After a lengthy but successful appeal, I get this message from a client.
As of this morning I am officially off the Sex Offender registration list (which is great cause I need a job). My family and I just wanted to again send you both a big thank you for all the hard work and great advice you put in over the past few years.