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
Kandu Military Law 
I stumbled onto this blog post from James Phillips and felt that the subject matter – and his position – is important enough to warrant a reply. In short, I applaud the approach he suggests in his blog post.
I have to state up front that I am a military attorney presently assigned to the U.S. Army Legal Services Agency as the outgoing Special Victim Prosecutor for Fort Hood and Fort Sam Houston. I am a career prosecutor specializing in cases involving domestic violence, sexual assault, child abuse and exploitation. It is important to note that my comments are my own, based on first-hand trial experience.
The views expressed in this blog reply are mine alone and do not reflect the official policy or position of the Department of the Army, Department of Defense, or the U.S. Government. Although I know Mr. Phillips personally from his time in the JAG Corps, this entry does not constitute endorsement of him or his law firm by the U.S. Army.
With all of the disclaimers out of the way, let me just say that I appreciate the fact that Mr. Phillips carefully considers his selection of fact-finder. I have often seen inexperienced defense counsel, both military and civilian, reflexively choose to try sexual assault cases before a panel (jury). The assumption seems to be that, particularly in adult-on-adult sexual assault cases, the panel will either judge the victim’s behavior harshly or forgive a young, red-blooded soldier his aggressive pursuit of sexual activity. This is precisely all it is – an assumption.
As a result, more sexual assault cases seem to be tried before a panel than any other type of case; my personal experience is that most of my contested trials involving adults have been heard by a panel. In contrast, child cases seem to go before a judge, likely from a fear of emotional decision-making by the panel. I believe that more defense attorneys should take Mr. Phillips’ advice and at least consider choosing a judge-alone forum. I agree, more or less, with his reasons (except number five, which strikes me as improper). It is certainly a case-specific determination and may not always be the best call, but it should not be dismissed out of hand.
I will not attempt to put myself in the defense attorney’s role and suggest more advantages conveyed by a judge-alone forum (I AM a prosecutor after all), but I always appreciate it when the defense counsel is proficient in his or her practice and carefully considers all of the tactical decisions made at trial. Our Soldiers deserve the best representation, just as those victimized by our comrades deserve professional prosecutorial efforts from us.