How a Courts-Martial Works

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Here is a video blog that goes through both the procedural process of a Courts-Martial and also advice on how to best handle certain situation in the process.  I have also provided a PowerPoint slide that breaks down the basic process.

Click this link to download the Courts-Martial PowerPoint. Court Martial PP

 

The Growing Pressure to Prosecute Article 120 Cases

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The recent US v. Sinclair verdict seems to be an anomaly.  As a Civilian Defense Counsel, I have handled an increasing number of Sexual Assault and Maltreatment cases over the past few years. The pressure from the US Congress to prosecute sexual assault cases in the US Military continues to grow and at least in the Fort Campbell Jurisdiction the pressure has grown to prosecute any and all cases.

There is a perception that the military does not prosecute sexual assault cases.  That is not what I have seen.  There are many cases where legitimate allegations of sexual assault are brought against Soldiers in the military.  The problem is that there has also developed what I call the military “sexual assault generation machine.”

The Government’s tools to prosecute sexual assault cases have grown immensely.  With the assignment of Special Victim’s Prosecutors (SVP), who are trained in specific techniques for the prosecution of sexual assault, the US Army has a focused policy of “believe the alleged victim” without question.  Once an allegation is made and charges are preferred the alleged victim is assigned her own Victim Advocate, who is all an attorney.  These Victim attorneys are then asserted in the criminal process to give the alleged victim a voice.  In addition, specially assigned JAG attorneys are appointed to conduct Article 32 hearings.  What this has created is a process by which once an allegation of sexual assault is made, the case is almost inevitably going to end in a trial.

Whether victim’s rights advocates want to hear it or not, false allegations are made.  There are plenty of men and women who are sexually assaulted and bring valid allegations against their perpetrators.  The problem is that people have any number of motivations to tell a lie.  The policy of the US Army and the military at large is to believe the victim- no matter what.  This is in direct conflict with the United States Constitution that has a fundamental and underlying premise that an accused person is innocent until proven guilty.  That presumption seems to have disappeared in the US military.

Defending against these false sexual assault allegations is both complex and time-consuming.  Defense counsel must be prepared with expert witnesses, proper discovery and relentless assault against the presumption the alleged victim must be telling the truth.  At closing argument, the SVP will almost surely be employing an argument that encompasses this presumption.

Non-judicial Punishment

Article 15, Non-Judicial Punishment

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Article 15, also referred to as non-judicial punishment (NJP), is a form of disciplinary action that can be taken upon those service members accused of minor offenses. This will depend upon the nature and gravity of the offense and is under the sole discretion of the commanding officer as to whether non-judicial punishment will be used or a case will go to a court-martial. If you have been accused of a minor offense, you will likely face non-judicial punishment as covered under Article 15. If you have been accused of a crime such as assault, rape, robbery, or murder, you will most likely face a court-martial.

Nashville Military Attorney James Phillips is experienced with Article 15s and successful strategies to ensure they do not go to court-martial or include excessive punishment. As a service member, you have the right to have representation at your Article 15 hearing. You can work with a military attorney who can present evidence and witness testimony to your commanding officer, possibly getting your charges dropped or keeping your penalties to a minimum.

SOF Soldiers under an ever-changing legal fire

I have recently represented several special forces soldiers in tab revocation proceedings. These soldiers were under investigation for misconduct, some real and some perceived.

In the 5th Special Forces group, the commander has a policy letter on tab revocation requirements for misconduct.  As part of the tab revocation, there is a requirement to reclass the soldier out of the 18 series MOS.  So, he loses both the Green Beret and the actual ability to operate in his field.  My response to this is two-fold, (1) I am always saddened to see such highly trained and successful soldiers lose both their MOS and their tab; and (2) I am amazed at the changing landscape of the SOF Community.

Several years ago, I wasn’t hired by many SOF Soldiers.  This has changed radically.  I have represented 18 series Soldiers in many Courts-Martial and Administrative Separation Boards recently.  In the old days, if a Green Beret committed misconduct, the misconduct was swept under the rug and not much was done to the tabbed Soldier.  This developed into an idea of the “big boy” rules, where the tabbed soldiers were expected to be professional, without a lot of supervision.  In the absence of the soldier’s professionalism, many times the command would not know what to do.

Those times have change.  There have been several embarrassing incidents, which have brought unwanted attention to the commands, are causing commanders to reevaluate the “big boy” rules.  Drinking incidents have begun to result in administrative discharges for tabbed soldiers.  Criminal conduct downtown and while deployed the same.

With so much training and expertise, these decisions to end these special careers should be examined carefully by the commands.  We can’t have soldiers who run amuck, but I sure hate to see all that courage and all those tax dollars flow down the drain.

Judge Alone for Sexual Assault UCMJ Article 120 allegations

Sexual Assault allegations brought against soldiers and sailors are very hard to defend against in the military.  One of the problems is that many of these sexual assault type cases are “he said/she said” cases, where the alleged victim and the servicemember are each telling very different stories.  Many times alcohol is involved and the memories of witnesses are blurred or hazy.

The presumptive civilian and military defense tactic is to go with a military panel.  Many times enlisted soldier believe they will get a better shake with a panel than they will a military judge.

I have recently been having phenomanal success in Article 120 cases.  My recent 120 defenses have either resulted in verdicts of not guilty or low level sentences.  One reason for this success is that my clients have trusted me when I have recommended using a Judge Alone.  My experience with Article 120 cases is that they are generally very hard to prove and much of the prosecutions evidence lends itself to attack.

Reasons for going Military Judge Alone:

1.  Judges tend to be more fact based and willing to critically look at the evidence and determine whether the evidence presented by the Government proves the elements of the offense. This can be critical in close cases.

2.Defense attorneys in a 120 case need to by HYPER AGRESSIVE and attack the Government’s case.  This is done by objecting to everything.  A judge will generally not hold objections against the defense and therefore, no harm, no foul.  A military panel many times will believe the the slick defense attorney is hiding something.

3. The defense is probably going to be most effective with a hard cross exam on the very wounded victim.  A panel won’t like or put up with this if she or he is a nice person or if they are a child.

4.  Sentencing is more predictable with a judge.

5.  Motions can be used to present otherwise excluded evidence to a judge.  A panel will never see the motions.

6.  The Accused can get credit for pleading guilty to lower level offenses or lesser includeds.

Military Judge Alone can be a very effective tactic, unless for some reason or other, the defense believes that the victim is so unlikeable that they are likely to turn a panel off.  If this is not the case, think long and hard before doing a sexual assault in front of a panel.Law Blogs
Law

Problems for Deployed Civilian Contractors working for the Military

Recently, I have had several civilian contractors hire me for actions in Afghanistan and Iraq. During their work with the military in these deployed environments they have been the subject to either investigation or suspension.  The interesting thing is that the military officers that have dealt with these contractors seem to be acting without clear guidance from higher headquarters and are very erratic in the way that they treat the civilian contractors.

The Contractors seem to be without much due process in dealing with allegations that are brought against them while being deployed.  A couple of my clients were subject to unwarranted searches and have had personal belongings seized.  Getting these items back has been extremely difficult.

In one of the cases, the FBI is doing the investigation, but has never formally arrested or charged my client.  The investigation seems to have been brought about because of a commander’s suspicions, which at the point are both unwarranted and probably negligent.

In another case, my client brought concerns up to a commander about the safety, both OPSEC concerns and personal safety concerns.  The response was to ignore the problem and send my client home. The commander seemed to believe he had complete discretion.

I would be interested to hear about other experiences like this that contractors may be having in a deployed environment.

Tennessee Relocation Act and the Military

The Tennessee Relocation Statue at TCA 36-6-108 has become a very important statue for many Tennesseans with children that want to move out of the state.  In Montgomery County, we deal with this issue quite frequently due to the high number of military families in our area.  I have represented many soldiers and their families in relocation cases this past year.  Most of the issues were as a result of the soldier coming down on “orders” and being forced to locate to another state or country.  The permanent change of station creates a frequent issue for the judges in our county.

I have also represented several clients in Davidson County with relocation cases.  The two counties are very different in the way that they deal with the move of a family out of state.

The relocation statue has two different provisions that apply differently to parents wanting to relocate with their minor children.  The key is to look at two issues.  How much time the parents are spending with the children by practice.  And, how much time the parents are spending with the children by the parenting plan.

If you are planning to move out of Tennessee, you must understand the Relocation Statute.  Essentially, the idea is this:  If one of the parent desiring to relocate has more time with the child, they will probably be allowed to move, but a new parenting plan will probably be needed.  If both parents have equal time with the child or children, there will be a fight and the court will determine what is in the best interest of the children.  This “best interest test” will determine whether the child can relocate with the moving parent.

The statute reads as follows:

Tennessee Relocation Statute
Tenn. Code Ann. § 36-6-108
§ 36-6-108. Parental relocation
(a) If a parent who is spending intervals of time with a child desires to relocate outside the state or more than one hundred (100) miles from the other parent within the state, the relocating parent shall send a notice to the other parent at the other parent’s last known address by registered or certified mail. Unless excused by the court for exigent circumstances, the notice shall be mailed not later than sixty (60) days prior to the move. The notice shall contain the following:
(1) Statement of intent to move;
(2) Location of proposed new residence;
(3) Reasons for proposed relocation; and
(4) Statement that the other parent may file a petition in opposition to the move within thirty(30) days of receipt of the notice.
(b) Unless the parents can agree on a new visitation schedule, the relocating parent shall file a petition seeking to alter visitation. The court shall consider all relevant factors, including those factors enumerated within subsection (d). The court shall also consider the availability of alternative arrangements to foster and continue the child’s relationship with and access to the other parent. The court shall assess the costs of transporting the child for visitation and determine whether a deviation from the child support guidelines should be considered in light of all factors including, but not limited to, additional costs incurred for transporting the child for visitation.
(c) If the parents are actually spending substantially equal intervals of time with the child and the relocating parent seeks to move with the child, the other parent may, within thirty (30) days of receipt of notice, file a petition in opposition to removal of the child. No presumption in favor of or against the request to relocate with the child shall arise. The court shall determine whether or not to permit relocation of the child based upon the best interests of the child. The court shall consider all relevant factors including the following where applicable:
(1) The extent to which visitation rights have been allowed and exercised;
(2) Whether the primary residential parent, once out of the jurisdiction, is likely to comply
with any new visitation arrangement;
(3) The love, affection and emotional ties existing between the parents and child;
(4) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver;
(5) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
(6) The stability of the family unit of the parents;
(7) The mental and physical health of the parents;
(8) The home, school and community record of the child;
(9) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preferences of older children should normally be given greater weight than those of younger children;
(10) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; and
(11) The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child.
(d) If the parents are not actually spending substantially equal intervals of time with the child and the parent spending the greater amount of time with the child proposes to relocate with the child, the other parent may, within thirty (30) days of receipt of the notice, file a petition in opposition to removal of the child. The other parent may not attempt to relocate with the child unless expressly authorized to do so by the court pursuant to a change of custody or primary custodial responsibility. The parent spending the greater amount of time with the child shall be permitted to relocate with the child unless the court finds:
(1) The relocation does not have a reasonable purpose;
(2) The relocation would pose a threat of specific and serious harm to the child which outweighs the threat of harm to the child of a change of custody; or
(3) The parent’s motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the non-custodial parent or the parent spending less time with the child.
Specific and serious harm to the child includes, but is not limited to, the following:
(1) If a parent wishes to take a child with a serious medical problem to an area where no adequate treatment is readily available;
(2) If a parent wishes to take a child with specific educational requirements to an area with no acceptable education facilities;
(3) If a parent wishes to relocate and take up residence with a person with a history of child or domestic abuse or who is currently abusing alcohol or other drugs;
(4) If the child relies on the parent not relocating who provides emotional support, nurturing and development such that removal would result in severe emotional detriment to the child;
(5) If the custodial parent is emotionally disturbed or dependent such that the custodial parent is not capable of adequately parenting the child in the absence of support systems currently in place
in this state, and such support system is not available at the proposed relocation site; or
(6) If the proposed relocation is to a foreign country whose public policy does not normally
enforce the visitation rights of non-custodial parents, which does not have an adequately functioning
legal system or which otherwise presents a substantial risk of specific and serious harm to the child.
(e) If the court finds one (1) or more of the grounds designated in subsection (d), the court shall
determine whether or not to permit relocation of the child based on the best interest of the child. If
the court finds it is not in the best interests of the child to relocate as defined herein, but the parent
with whom the child resides the majority of the time elects to relocate, the court shall make a
custody determination and shall consider all relevant factors including the following where
applicable:
(1) The extent to which visitation rights have been allowed and exercised;
(2) Whether the primary residential parent, once out of the jurisdiction, is likely to comply
with any new visitation arrangement;
(3) The love, affection and emotional ties existing between the parents and child;
(4) The disposition of the parents to provide the child with food, clothing, medical care,
education and other necessary care and the degree to which a parent has been the primary caregiver;
(5) The importance of continuity in the child’s life and the length of time the child has lived in
a stable, satisfactory environment;
(6) The stability of the family unit of the parents;
(7) The mental and physical health of the parents;
(8) The home, school and community record of the child;
(9) The reasonable preference of the child if twelve (12) years of age or older. The court may
hear the preference of a younger child upon request. The preferences of older children should
normally be given greater weight than those of younger children;
(10) Evidence of physical or emotional abuse to the child, to the other parent or to any other
person; and
(11) The character and behavior of any other person who resides in or frequents the home of a
parent and such person’s interactions with the child.
The court shall consider the availability of alternative arrangements to foster and continue the
child’s relationship with and access to the other parent. The court shall assess the costs of
transporting the child for visitation, and determine whether a deviation from the child support
guidelines should be considered in light of all factors including, but not limited to, additional costs
incurred for transporting the child for visitation.
(f) Nothing in this section shall prohibit either parent from petitioning the court at any time to
address issues, (such as, but not limited to visitation), other than a change of custody related to the
move. In the event no petition in opposition to a proposed relocation is filed within thirty (30) days
of receipt of the notice, the parent proposing to relocate with the child shall be permitted to do so.
(g) It is the legislative intent that the gender of the parent who seeks to relocate for the reason of
career, educational, professional, or job opportunities, or otherwise, shall not be a factor in favor or
against the relocation of such parent with the child.