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.)).
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.
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.AWOL, or as sea Services say Unauthorized Absence (UA)
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.It Never Ends--the Effort to get the Best
An Army officer pending a court-martial reached out for help--and what was ultimately determined to be 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 was approved. The end result was that the client received a general discharge--not a dismissal and not an other than honorable discharge.Sometimes the Early Bird Gets Something Good
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.A final Result for a Medical Provider--not Guilty
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
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.
A Good Week or so
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.
I am often retained early--just before or just after an investigation begins. Sometimes there is much to be done that can help with the case as it develops. Along the way it is possible that charges get dismissed. During that period the client is stressed, doesn't now what to do, or how to do it. We are there to provide a helping hand, help understand the process, and where we can interfere on behalf of the client. 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."Sometimes a PTA is the Best Resolution
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.A Meaningful Mixed Result
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.A Group Sexual Assault Case Fizzles-42 Months After the Alleged Misconduct
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.Nullification and 'Litigate-2-Mitigate'
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. (
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.The KIS Principle at Work
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.No Further Action
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.Not Guilty of Sexual Assault
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.It's Done, the First Trial of 2017
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.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 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.Earlier Results
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.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.