Pre-Trial Publicity

Members of the military who have been accused of a crime have a constitutional right to a trial uninfluenced by unfair and prejudicial pretrial publicity. Due to recent trends, this right has become increasingly jeopardized by media attention and public opinion. A current example of this phenomenon is illustrated by the pervasive media coverage of the case involving Sergeant Bowe Bergdahl, as the matter has been reported with a level of intensity that could lead to negative speculation, misinformation, and prejudice. Military law lawyer Philip D. Cave defends service members facing charges throughout the U.S. and in military bases around the world. As an experienced court-martial attorney, he has the poise required to handle a highly publicized case and mitigate any adverse exposure that may affect his client’s right to a fair trial.

The Due Process Clause of the U.S. Constitution requires all courts-martial panel members (the jury) to be fair and impartial in listening to the evidence, having free and open deliberations, and coming to an honest verdict. Media coverage can have an adverse affect depending on the client, the case, and the extent of the publicity. The Mai Lay Massacre, the Calley case was one with a lot of publicity and over the last 15 years or so we have seen many others. U.S. v. Calley, can be read.

Although adverse pretrial publicity may not necessarily result in an unfair trial, pretrial publicity may be unfair if they can show that there was prejudice from the media attention which caused the members to deviate from their oath. U.S. v. Parker, was one such case. "Actual prejudice exists when members of the court-martial panel have such fixed opinions that they cannot impartially judge the guilt of the defendant.

There are several legal procedures that may be available to neutralize the effect of widespread publicity on panel members. 

• Voir dire. This is where questions can be asked about pretrial publicity. There are some common questions developed over the last years because of all the media and Congressional attention to military sexual assault cases. As your civilian military defense lawyer we are familiar and experienced in dealing with this.
• A military judge can sequester the members of the panel. This is so rare I don't recollect hearing of it happening.
• Limitations can be placed on the media being in the court-room.
• The military judge can place a gag-order on the trial participants..

If you are facing a military court-martial or another type of adverse action, a military law attorney who can represent you with dedication and skill may be essential in receiving a fair trial. Attorney Philip D. Cave and Nathan Freeburg have served on active duty and gained substantial legal experience while working as a military prosecutor and defense counsel. Using the combined extensive knowledge of this complex area of the law, we have represented military personnel stationed on bases throughout the U.S., such as Norfolk, Jacksonville, Fort Bragg, Fort Hood, San Antonio, and San Diego. Philip D. Cave also can assist service members stationed internationally, including in Italy, Germany, Spain, Great Britain, Korea, and Japan (Okinawa). To schedule a free initial consultation regarding your legal matter, call us by phone at 703-298-9562 or toll-free at 800-401-1583, or contact us online.