Hire an attorney now – the new rules for the article 32

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Within the last year, Congress has created a series of new rules which relate to the uniform code of military justice (UCMJ). These rules are transforming the way the defense attorneys need to defend their soldier clients at courts-martial. One of the things that has been radically changed is the discovery process. Essentially the military has enacted a victims rights act. This victims rights act has created barriers and in some cases tends to infringe on a Soldier’s constitutional rights to defend himself. Congress has set up barriers between the Soldier’s detailed defense counsel and an alleged victim. Statutorily, the defense counsel cannot directly talk to the alleged victim, unless he works through government counsel or victim advocates. There needs to be a chaperone, trial counsel, or special victims advocate alongside the alleged victim whenever the defense counsel is talking to that alleged victim. This is an unprecedented discovery barrier in what has otherwise been an open discovery system under the uniform code of military justice.

The other things being limited for defense counsel is the use of discovery and open discovery at the article 32 hearing. What was once a means of delving into the government’s full and complete case has now been likened to a “preliminary hearing”.. The problem is that in most civilian systems there is a grand jury process where a group of neutral citizens review whether or not a case should go to trial. By using the preliminary hearing system, and continuing to use the referral process with commanders, the military is destroying any controls that would be in place to protect the soldier from frivolous allegations. The Article 32 creates a paper trail that makes it look as though there is a real investigation going on, but by essentially excluding the defense counsel from active participation, the Article 32 is a one way street for prosecutors to present a case. The rubber stamp approach does not give the General Courts-Martial Convening Authority a real understanding of the strengths and weaknesses of the case.

This may not matter.  May Commanders are afraid of dismissing Article 120 cases because they feel this will jeopardize their careers.  Scrutiny from Superior Commanders, DOD and Congress make it virtually impossible for a Commander to dismiss an Article 120 without real harm to their career.  The problem with this is that with the new Article 32 and lack of Command discretion, innocent Soldiers are being forced to go all the way to trial.

These new rules and discovery have placed a burden on the appointed trial defense counsel working for the Government. There seems to be an opening under the rules for civilian defense counsel to be able to act quickly and prior to preferral and referral. Civilian counsel prior to the case being officially picked up are arguably not under government authority. There is an argument that they can talk to the alleged victim.

Essentially, most posts do not detail any trial defense services counsel until after the charges have been preferred. A soldier that have the means to hire civilian defense counsel can do so at any time, even before an investigation. It appears that if a Soldier suspects for any reason that he may be charged in the future with an article 120, sexual assault type case, he needs to seriously consider hiring civilian counsel almost immediately. This would be one way to get around some of the discovery rules, and allows the defense counsel through either a private investigator or by calling any potential witnesses himself to be able to get early discovery.

The counterargument of course is that the problem of sexual assault in the military must be dealt with harshly. The victims must be protected and the perpetrators must go to jail. This doesn’t account for the uniqueness of the military justice system. Our soldiers give their lives and sacrifice everything for this country. When we begin to take away their basic freedoms and rights under the United States Constitution, the very thing that they fight for, we jeopardize all of our freedoms

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.