Prior Cases (Continued3)

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 pretty simple--I was--actually, the client was--lucky enough not to have to face a court-martial prosecution after our early advocacy.

Some of the cases were disposed of after the investigation phase, where the command was persuaded no sexual assault happened; some were terminated at 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.

Some more results

Eighteen months before trial, the client was investigated for 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/N.J.P.

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 is 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 in 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 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, and charges are dismissed.

This is a case where hard work, creative thinking, and an honest prosecutor can result in the correct result. So, always, well, almost always, do the 32.

"The [O.S.I.][NCIS][C.I.D.] did a profoundly inadequate investigation". . .

This 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 of the 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.

A Happier Ending Than Expected

E-6 Client is alleged to have gone AWOL for about three years, and he was 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. In Article 32, we show that he began his absence six months later than alleged. The unit had him unaccounted for during that time, even though he was present for duty.

We have charges dismissed (without prejudice) at trial 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 will find that the client is currently paranoid and 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. The sentence, R.I.R. to E-1, Bad Conduct Discharge, is a fine of $11,330.00 (with up to a year of 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 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 differ.

Some Wavetops

-- 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 of the UCMJ investigation, the convening authority approved an administrative discharge instead of a court-martial.

--Field grade officer client was directed to show cause for retention based on GOMR for alleged T.C.S. 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 E.W.X. pin, lying about his deployment history, and lying to get V.A. medical benefits. Ultimately, charges were referred to trial, except for the espionage. We got some charges dismissed during pretrial litigation and a substantial number of extra confinement credits for errors in the P.T.C. process and discovery violations. After a fully contested trial, the 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 P.T.C. errors.

The lesson here is don't confess. The conviction was likely 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 was initially investigated for severe 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 was found guilty at N.J.P. of D.W.I. and 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 B.A.C. reported as 0.145 should have been reported as 0.0145. Based on that "new" evidence, the Board found NO misconduct, and the L.T. was returned to duty.

Navy O-6, suspected of communicating threats, email stalking, and order violations. Non-punitive letter of reprimand and retirement in grade.

USMC O-5 was ordered to appear before a retirement grade determination board based on allegations of spouse abuse. He was allowed to retire in his current grade.

United States v. O-6. The case began as a serious sexual assault allegation. It was resolved as 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. It was resolved through administrative separation instead of trial.

United States v. E-5. Recruiter accused of falsifying recruiting documents. Charges were referred to Special Court-Martial and resolved with written counseling and early retirement.

U.S. service members arrested for public indecency; client formally apologizes (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 a sailor accused of nudity in the cafe (and jurisdiction ceded to the U.S. under the SOFA). The case was 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 their spouse and the second girlfriend but not guilty of all rapes and most of the assaults. She was sentenced to 18 months confinement and a discharge for bad conduct.

United States v. Army E-4: Accused of assaulting a female Soldier and accused of sexually assaulting another female Soldier. After a contested judge trial, the judge was not guilty of the charges.

United States v. Marine E-5: The client was 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: The client was accused of failing to go to daily formation for about five months, failing to check out and P.C.S., failing a check-out appointment, a false official statement about a P.T. test, and dereliction in not PCSing. According to the prosecution, the allegations surround the 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 statements, not guilty to the remainder. The military judge sentenced them to four months of confinement. However, the judge also granted 91 days credit for unlawful pretrial punishment violating Article 13, UCMJ. By the way, this case is one of several examples of why it is not good or valuable 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 assumed he had started the mutiny and was a ringleader. Plead not guilty to all charges. Found not guilty of kidnapping and assault and sentenced to five years of confinement. Military judge gave nine months of Article 13 credit. In addition, the judge considered other post-mutiny practices that were not Article 13 but were "almost" U.C.I. and gave two years of confinement less than he would have had. Another inmate who helped start the mutiny and assaults pleaded guilty to all charges. He was sentenced to 15 years of confinement, which was reduced to eight years with a P.T.A.

United States v. Army E-5 (update). The client was 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 B.A.H. fraud over $132K and associated charges, sentenced to a B.C.D. and six months confinement. The appeals court ordered a new trial based on newly discovered evidence. At a new trial, convicted of more than $500.00 in attempted fraud and sentenced to R.I.R. 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, a forensic psychologist, and a forensic psychiatrist. The R.C.M. 706 board found a "brief psychotic episode" but insignificant. 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 pleaded guilty. The prosecution dismissed a premeditated murder charge. In this case, the defense had made a P.T.A. offer of 20 years in February 2010 and an offer of 25 years in June 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 could mount an aggressive defense at the Article 32, UCMJ hearing. Subsequently, all charges were dismissed.