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

 

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.

LT Behenna’s ongoing defense.

I was on facebook yesterday and strangely enough got a request to be part of a group to defend LT Behenna.  One of my friends sent me the link and I thought it was ironic that he did not know that I represented SSG Warner and had watched the trial of LT Behenna.  I believe part of the request was to sign a petition in order to have LT Behenna pardoned.  With this current administration and their take on the war in Iraq,  I believe that is highly unlikely, but it would be a viable way to mitigate the very heavy sentence in this case.

LT Behenna and SSG Warner were both part of a very tragic story.  Several weeks before the killing of Ali Mansur took place, LT Behenna’s squad had captured Ali Mansur at his home.  They had credible information to believe he was part of Al Qaeda and that he was a terrorist that had been involved in the death of several of LT Behenna’s squad members.  The members of LT Behenna’s squad, along with SSG Warner, showed restrained at that time.  If they had wanted to, they could have easily made up a plausible story that Ali Mansur resisted his capture.  There were illegal weapons at Ali Mansur’s home and it would have been a simple matter to kill him during the armed take down of that home.  But, that is not what happened.

LT Behenna and the members of his squad decided that they would let the “authorities” investigate Ali Mansur.  They dropped him off at a detention facility with all of the information that they knew about his terrorist activities and hoped that justice would prevail.  Instead, within a matter of weeks, LT Behenna and his squad were asked to return Ali Mansur to his home and his village.  Military Intelligence determined that they didn’t have enough to hold Ali Mansur despite the RPGs, weaponry and illegal passports from Iran that were found at his home.  Clearly, Ali Mansur was involved in nefarious activities and LT Behenna believed he had credible evidence to prove that.

LT Behenna’s frustration at the release of Ali Mansur back to his family was understandable.  After witnessing the death of the men in his squad, in what he believed was directly related to the activities of Ali Mansur, was surely a motivating factor in driving Ali Mansur to the desert and stripping him naked.

These events are very much a picture of what is occurring in both Iraq and Afghanistan.  We ask our soldiers to toe the line, and to deal with whatever decision comes from higher, even if they don’t understand the wherefore’s and the why’s.  For many, the resulting death of Ali Mansur, is no tragedy.  For them, the resulting incarceration of LT Behenna for avenging his men, is the true tragedy.

As a former JAG, I understand the need for the laws of war.  I just don’t believe ultimately that the decisions that are made on the battlefield are so easily codified and analyzed as to fit in the Geneva Conventions.  If SSG Warner and LT Behenna had deliberately decided to kill Ali Mansur when they picked him on that first day, would that have gotten LT Behenna 25 years of jail?  Probably not.

The Myth about TDS *maybe*

I (www.jamesphillipslaw.com) spent some time in the Trial Defense Services (TDS) at Fort Campbell, KY.  During my time at TDS, I learned a lot about military defense work. But as a TDS attorney, I was always offended by the perception that being a government attorney, I was simply a government hack doing the will of the chain of command.

To this day, I am always surprised at this perception of TDS.  As a civilian military defense counsel, I frequently get hired by Soldier clients who are concerned that their TDS attorney will not represent them with full vigor because they believe the TDS attorney is an agent of the government.  I never believed this and have always argued that TDS attorneys are very good at what they do.

Yet, I do know where this belief comes from.  I had a client that was extremely difficult to deal with.  She was not able to deal with the Army and probably should have been discharged long before we went to a Court Martial.  Her charges were relatively minor, consisting of FTRs and failures to to properly follow the will of her superiors.  Her TDS attorney, who was on the case before I was, at one point clearly decided that he agreed with the Chain of Command and he began to do things that helped them with their case.  In fact, he was later called as a witness against her at trial, and luckily for him and his license, he was not to be found.

The problem for this TDS attorney was that he had lost perspective.  He was on his way out of TDS.  He had spent almost three years as a defense attorney and had many victories on his mantle.  But, at the point he began to represent my client, he was already reassigned as a brigade trial counsel.  Unable to see the inherent conflict of interest, he was worried about sending the wrong message to the chain of command, so he began helping them with their case against my client.

This is the flaw with TDS.  Although they are insulated against the chain of command for most of their time as TDS attorneys, they are open to undue influence at certain times in their career.  One of those times is when they are moving back and forth between TDS and their regular units. For most of a JAG attorneys career he will be working for the US government.  Most TDS attorneys only spend a relatively short period of time as pure defense attorneys.  Seeing their attorneys as prosecutors later, causes many Soldiers to question the defense that they received at the hands of TDS.

This perception is a problem.  The military system of justice is frequently questioned as being unfair.  The military should do all that they can to destroy this perception.

SSG Warner heads home

I (www.jamesphillipslaw.com) spoke to SSG Mitch Warner’s family on Monday morning.  They solidly stand behind Mitch and are now beginning to gather the evidence required for us to put on an appeal for SSG Warner.  In speaking to them, they spoke of their disappointment with the US Army and the decision-making that lead to the death of detainee Ali Mansur by LT Behenna.

SSG Warner is now headed to Fort Sill, OK, where he will serve the balance of his seventeen month sentence.  He will be close to home and at least he will finally be finished with his combat tours.

One of the questions taht I have never gotten an answer for in this case is Why did LT Behenna’s higher headquarters and unit release Ali Mansur to 5th platoon?  This seemed extremely odd to me.  5th platoon had lost soldiers and had several wounded just a couple weeks prior.  Ali Mansur was a suspect in those killings and that IED attack.  5th platoon had gone out and picked Ali Mansur and took him into the detainee detention facility as a suspect in the death of the soldiers.

So, why in the world, when the higher ups had decided that Ali Mansur had no information and couldn’t be held for the attack, did the chain of command use the same platoon that picked him up as a suspected terrorist to drop him off to the local population?  There are no good answers.  One answer would be that the Chain of Command wanted LT Behenna to have someone kill Ali Mansur.  If there was a deliberate and conscious knowledge of Ali Mansur’s alleged AQI association, the COC may have thought that LT Behenna would find a way to have Ali Mansur killed.  They could have dropped him off with those Iraqis that wanted him dead.  They could have faked an incident or escape.  The expectation may have been that 5th platoon would find a way to get the job done.

But, I am not much of a conspiracy theorist.  The more likely answer is that this was just stupid negligence.  The Chain of Command should have known that there would be an issue with the drop off of this detainee, but they were just too busy or distracted to think of the clear implications of this drop off.

Either way, this was an event that should have been avoided.  The command had a responsibility to know that soldiers that have been under attack and have suspected terrorist in detention for those attacks are not the soldiers that should drop that detainee off to the local populace.  This is a no brainer.

SSG Warner and LT Behenna are now both serving time for a death of a detainee.  The trials of both men were complicated by the fact that they each knew that Ali Mansur was a suspected AQI member.  LT Behenna did have justification for the killing, but it probably wasn’t the justification that the US Army wants to hear.  Regardless, this whole event should have been stopped before it ever got started.  Another platoon should have done the drop off.  The blame for the shots being fired can be laid at LT Behenna’s feet, but the death of Ali Mansur and the conviction of two US Infantrymen can be laid at the feet of the chain of command

Summary Court Martial- A Fair Process? Or Foregone Conclusion?

Yesterday, I represented a soldier in a Summary Court Martial at Fort Campbell.  www.jamesphillipslaw.com or www.ucmjlawyer.com. Or, self help legal (invisiblelawyer.com).

His parents had hired me to represent him in the Summary Court Martial because they were concerned that he might be railroaded by his Chain of Command. His parents had good reason to worry.  Summary Court Martial (SCM) are dangerous business for the soldier.

An SCM begins when charges are preferred against a soldier.  What this means is that the soldier is dragged into the Commander’s office, read the charges, and told he will have 72 hours to get ready.  At the preferral, the soldier may be able to look at the packet of information, the allied papers, which will be considered as evidence against him. At some point within the next day or so, the soldier will be hustled over to the Trial Defense Service (TDS) to go over the SCM rights.  At his appointment with either a TDS attorney or paralegal, the soldier will be given a TDS information packet that will describe the basic rights he has at the SCM.  The TDS attorney will spend a few minutes talking to the attorneysoldier, answering a few basic questions and then he will be sent on his way and back to the command.  Since TDS is normally too busy to represent soldiers at SCMs, the soldier will have to go it alone.  The soldier does have the right to hire civilian defense counsel at his or her own expense.  Normally, this doesn’t happen, so the soldier, who has neither the rank nor authority, will be expected to stand up and defend themselves, without counsel, in front of a SCM Officer at what will essentially be a closed door and hidden proceeding. The SCM Officer, usually a captain, will have little to no legal training and will see this as a glorified Article 15, where the real issue is not guilt or innocence, (the soldier is guilty because he is at a SCM) but how much punishment needs to be inflicted on the soldier.

If the soldier does not hire a civillian defense counsel, at trial, the SCM Officer will read from a script.  They will review a packet of information (the allied papers) given to them by the brigade legal and after quickly running through a script with the accused soldier the SCM Officer will convict the solider and max him out according to whatever is the desire of the command.  Most of the evidence that will have been considered will be hearsay, or inadmissible and not competent for Trial.  The soldier will have been intimidated by the Summary Court Officer, convicted on incompetent evidence and have an overall feeling that the entire process is utterly and completely unfair.  The soldier will be right.

The problem is that this is not what the Army intended an SCM to be.  The SCM was created to take pressure off of the military judges and the military courts by allowing a lower level proceeding, that would still afford the soldier all of his basic rights.  At an SCM, the same rules apply as at a Special Court Martial or a General Court Martial.  The rules of evidence apply.  The ability to call witnesses at the trial on the merits and on sentencing both apply.  The ability to introduce evidence in defense and mitigation apply.  In the face of this evidence, the SCM Officer has e a duty to act neutrally and only weigh competent  and relevant evidence.  Because all of these legal rights apply, this is one reason that hiring a qualified civilian military defense attorney may be the most crucial decision when deciding whether to object to or consent to a Summary Court Martial.

More than any other military proceeding the civilian defense counsel has the biggest overall effect on a Summary Court Martial.  This is because at a Summary Court Martial the person that is most confused and feeling like a fish out of water is the SCM Officer. As military officers, they have probably never been around a trial or administrative hearing. They do not understand the law.  They do not understand the introduction of evidence and they do not understand the proper way to question a witness on the stand.  All of these things lead allow the civilian defense counsel to help guide both the SCM Officer and the outcome.  The civilian defense counsel in subtle ways can both befriend and harrass the SCM Officer into making a favorable decision for the accused soldier.

If the civilian defense attorney acts appropriately, he will quickly guide the presentation of evidence at Trial.  This is a huge advantage.  This will also give the civilian defense attorney credibility with the SCM Officer.

As an example of this, I had a case where my client had originally been accused of Rape.  He was a Sergeant First Class (E-7) and was accused of sexually assaulting on of his soldier.  I was originally hired to represent him at a General Court Martial. After the Article 32 hearing, the Article 32 officer recommended a lesser charge than Rape and that the referral be at the SCM level.

At the SCM, the proceeding was held in a tiny office.  The SCM officer and I were just a few feet from each other and the atmosphere was very relaxed.  I had been in the Army for 10 years, both enlisted and commissioned time, and have been deployed to Iraq twice.  The SCM officer was an infantry officer and so I began to chat with him until we were able to start swapping stories.  I relaxed him by assuring him that I wasn’t there to cause trouble and I would help him through the entire proceeding.  I also told him before we even began that the Government had done him no favors because all of the evidence in his allied papers would not be allowed into evidence.  I assured him that I wouldn’t make it hard, just would explain the problems as we got to them.

After we opened the trial, the SCM tried to introduce several sworn statements of witnesses.  The witnesses were not called, but were actually deployed at the time, so I explained this was hearsay and couldn’t be considered.  We did this with the DNA report, the rape kit, all of the pertinent evidence.  All of it was excluded as hearsay.  Then when the main accuser was called to testify I asked the SCM Officer if I could do the direct to make it go easier.  He agreed.  I then lead the accuser through direct, but did it from the defense prospective and not from a prosecutorial prospective.  Before closing arguments, I engaged the SCM Officer in a long conversation on what were the problems with the case.  At that point, the SCM threw out the script and decided that my client was not guilty.

The problem is that if my client went in alone he would now be an E-6 and would have lost huge amounts of retirement.  The SCM Officer would have looked at the packet given to him by the Government, and without cross examination or analysis would have just figured that my client was guilty.

For these reasons, any soldier that is considering going to a SCM should also consider consulting and/or hiring a qualified military civilian defense counsel.  Now here is the problem, there are very few attorneys that are qualified to represent soldiers at SCMs.  Make sure that the civilian attorney you consult with knows what he is doing and that he has lots of experience with Court Martials.  Most attorneys will be happy to take your money to represent you, but many don’t have a clue how a military proceeding works.  Civilian state court trial time does not translate well to the military.

These are the things you should find out about the civilian attorney: (1) how many SCMs has he done, (2) can he explain how an SCM works (both perils and positives), (3) can he explain why you should or should not object to trial by SCM, (4) how well does he know military law, and (5) finally, does he seem like someone you will trust and like.  If he meets these qualifications and you think he can help you, you should really consider hiring him before you go it alone at an SCM.

More on SSG Mitch Warner and his appeal process

I am the lead counsel in US v. Warner. I am a military lawyer and nothing in this blog is meant to be construed as developing an attorney-client relationship between me and you.  If you want me to be your lawyer, contact either –www.jamesphillipslaw.com and www.ucmjlawyer.com.  Also, this update is written with the permission of my client SSG Mitch Warner.  He has consented to waive any attorney-client privilege to help clear his name.

For anyone who has read my blog on SSG Warner, you will know that I believe in SSG Warner as both a soldier and a citizen.  Over the time I have defended him in this Court-Martial, I have come to respect him as a person and as a combat veteran.  He deserves better than he is getting from the US Army.

Mitch Warner was convicted of several offenses and is currently beginning to serve his 17 month sentence.  He was convicted of the maltreatment of a suspected Al Queada member who may have been linked to the death of several members of SSG Warner’s platoon.  At trial, Ali Mansur, the Iraqi detainee that was ultimately killed, was made out by the government to be a humble citizen of Iraq who was unfairly treated by our US Soldiers.  There is evidence that this is just not true.  One of the reasons that this entire tragic event took place, which resulted in the killing of Ali Mansur by 1LT Behenna, was that Ali Mansur was suspected in participating in the killing of American Soldiers near COB Speicher.  5th Platoon, the platoon the both 1LT Behenna and SSG Warner, were assigned to, took significant casualties just a few weeks prior to the May 16, 2008 death of Ali Mansur.  Mr. Mansur was picked up by 5th Platoon and was detaineed as part of the investigation of those deaths.  For a reason unknown to the defense team, Ali Mansur was order to be released from custody and was to be returned to his home by 5th Platoon.  Now, it doesn’t take a genius to know this was probably not a good decision on the part of the chain of command.

For SSG Warner, these facts do not change the outcome of his trial.  He now must begin to ask for both clemency and to appeal his sentence.  In the Army, the appeals process is two-fold, (1) the convicted Soldier may appeal to the convening authority, and (2) after that, they may appeal to a higher level court.

The first part of the process is termed as 1105 and 1106 matters.  Essentially, this will allow the defense team to submit additional matters in mitigation to the “convening authority.”  In the military, a military judge makes a determination as to the appropriate sentence in every judge alone case.  After the verdict is read, it still must be approved by the convening authority.  In this case, the Commander of the 101st Airborne Division (AASLT) may take action on the case and has the option of lowering the sentence.  It is his discretion based on matters submitted by the defense and a recommendation submitted by the Staff Judge Advocate of the Post. 

In Mitch Warner’s case, we will ask the convening authority to lower the sentence.  SSG Warner has distinguished himself as a soldier and in this case, based on the nature of the offenses, SSG Warner should not serve any additional time in confinement.  SSG Warner has an impeccable service record, to include Air Assault instructor, three tours in Iraq, numerous firefights and heroic actions in combat.  In addition, he has spent the past months defending himself against a charge of premeditated murder that he was not guilty of.

If the sentence, as approved by the convening authority, includes death, a bad-conduct discharge, a dishonorable discharge, dismissal of an officer, or significant confinement, the case is reviewed by the Army Court of Criminal Appeals.  In this case, both the type of discharge and the amount of confinement warrant an appeal.  Although SSG Warner would be afforded a military lawyer for his appellate defense, we would like for him to be represented by a team of civilian lawyers.  If you want to help with this endeavor and participate in the ongoing legal defense of SSG Warner, you may donate money to the Phillips Law, PLLC Trust Account.  Call our office at (931) 552-5679 for instructions on how to get involved in this case.  Get the word out to everyone you know.  This is a soldier that we should not forget and the more the better.

AWOL- A Crime? Or a Soldier Quitting a Job?

Absent Without Leave (AWOL).  www.ucmjlawyer.com and www.jamesphillipslaw.com.

We offer self-help legal for AWOL at invisblelawyer.com.  AWOL is a crime under Article 86 of the Uniform Code of Military Justice.  The crime itself is problematic because the question has to be asked, “is it really a crime?”  Oh, I know, you hard core military folk are going to disown me for this one.  I mean, here I am, a two time war vet, bronze star recipient, saying that AWOL may not be a  crime.

Now, for all my soldiers that are reading this because you are AWOL and looking for advice, you may just want to scroll to the end of the blog now so that you can get helpful tips for getting out of your predicament.

For all others, follow along, when soldiers go AWOL, they are usually  highly disenchanted with their unit.  Many times they have drug problems or family problems that are causing them to think irrationally.

I have found that there are generally two types of soldiers that go AWOL.  (1) The soldier who has been in for several years, is a junior NCO and has been to Iraq.  Many of these guys have just had it with their chain of command and due to PTSD issues or emotional problems just decide to disappear. (2)  The other type of soldier is the relatively new soldier, virtually a trainee, who doesn’t know how to put in for a voluntary administrative discharge, so he just leaves.

Most soldiers who go AWOL are using it as a means to get a discharge.   A civilian job allows the employees to quit.  I mean, it is reasonable for people to tell their boss to “take this job and shove it.”  The military doesn’t allow you to do that, but really, why should the military be different than civilian employment?  The argument of course is that civilians don’t go to war.

But, this difference creates a problem.  Do we really want people, in an all-volunteer military, to be forced to come to work everyday?

As a legal assistance officer at Fort Campbell, I remember when Fort Campbell had a policy that any homosexual soldier would be out of the Army within 72 hours.  This policy was a result of the Winchell incident, when a soldier was beaten to death for being a known homosexual.  But, many soldiers, who didn’t want to be in the Army, would claim that they were gay in order to get out of the Army.  At Fort Campbell, this was a quick and painless ticket home.  They would get an honorable discharge and an annotation on their DD 214 stating they were discharge for Homosexual Conduct. What was a  little stigma between friends?  The reality was that the soldiers that really wanted to get out of the Army would do and say anything to get out.

For me, I think there ought to be some way that soldiers can get administratively discharged based upon several voluntary reasons.  Soldiers that don’t want to be in the Military should not be there.  A soldier with a bad attitude can drive the whole unit into the ground.

Col. Joseph Anderson, now General Anderson, was the Brigade Commander for 2BCT, 101st Airborne Division (Air Assault).  Once we got back from Iraq, he had a policy of quickly removing soldiers that were guilty of doing drugs from his units.  He was less interested in court martialling them than he was getting them out of the unit.  The longer a soldier with a drug problem was in the unit, the more disgruntled he would become.  Eventually, the soldier’s bad attitude, use of drugs and insubordination would eventually become like a cancer and spread to other members of the unit.  Getting them out was a means of keeping the unit disciplined and clean.

AWOL has the same effect on a unit.  A soldier who has been AWOL for any period of time becomes “civilianized.”  He has normally decided that he no longer wants to be in the military and he is a cancer within the unit.  He is generally insubordinate.  Many times he no longer has military clothing.  He doesn’t have money. He lives in the barracks and has limited access to the military post’s amenities.  He will hang out with other soldiers that are disgruntled and they will begin to ferment within the unit.

Generally, the AWOL soldier can also be rehabilitated within society as a whole.  Many times they are smart young guys that need more time to mature.  As they become older and more mature, they will regret their bad choices and begin to try to fix their transgressions from their younger days.  I see this when these guys come back years later, grown up and matured, wanting to fix their military records.  They have to go through the slow agonizing process of submitting an application to a Military Discharge Review Board.

Now, for you AWOL guys.  Here is the best advice I can give you.  TURN YOURSELF BACK IN.  Get back within military control and get this thing over with.

The longer you were gone, the more likely you will need an attorney.  But, each military unit has some discretion on how they deal with each and every AWOL.  This means that some units will discharge the soldier with little to no hassle.  Others will be quite severe.

Once you turn yourself into the unit, do not give a statement.  You have Article 31, which means you have the right to remain silent and you have the right to an attorney.  You should not make any statements to the chain of command because even though it seems pretty simple, if they take you to a Court Martial, they still have to prove the charge and usually it is easier to prove a charge when a guy has admitted it than not.

Also, you will be entitled to a Trial Defense Attorney.  You should take advantage of this.  AWOL punishments vary from post to post, so your local Trial Defense Services attorney will be able to give you the lay of the land and help you decide what your best course of action will be.  Many times the TDS attorney can get you administratively discharged rather than have to go through the pain of a Court Martial.