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.