Recent Victory- Retention of MSG

At a recent Fort Campbell, Kentucky Courts-Martial, the goal was no kick and no incarceration of a 22 year Army E-8.  The Government brought 25 specifications against my client.  They could only prove up 4 minor offense.  My client remains in the military with and received a rank reduction and no jail time.  To say the least the Government was unhappy.

 

The next step is to get the rank back.

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

 

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.

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.

Let LT Behenna’s Ongoing Defense Help Other Soldiers

My initial blog about LT Behenna’s Court Martial was an after thought. I intended to just write a few words about what I perceived to be a fascinating trial and the serious ethical and political struggle that went along with that trial. My real concern has always been for MY client, SSG Mitch Warner. For me, Mitch is a true American hero that should not be forgotten in all of this. He was and is a dedicated soldiers and served his country well for most of his infantry career.

I have watched as the ground swell of support and dissent has grown over the last year for Lt Behenna. I see many Defend LT Behenna web site’s on Facebook, Myspace and elsewhere. I see legal forums and threads popping up all over the place. The hits on my blog have swelled to almost 2500 a month. I have been overwhelmed with the response and it is growing.

I have attempted to remain somewhat neutral on the LT Behenna case. Not because I have anything against LT Behenna, but my clients interests are best served by my neutrality.  My client is Mitch Warner and LT Behenna has numerous supporters and clearly doesn’t need me.  My hope is that this defense and pride in supporting LT Behenna will pour over to other soldiers that have not been treated with the respect they deserve.

In the next few weeks, I will start to detail the story of another client of mine that has experienced injustice in a detainee abuse case.  This happened in Afghanistan and is an amazingly ridiculous response to a proper interrogation.  This story will be broken by CNN but I am hoping that those that support LT Behenna will be willing to pour that over to other soldiers in need.

Sadly, within the same platoon that was hit with the IED allegedly planted by Ali Mansur’s people, there are soldiers that have serious PTSD and Traumatic Brain Injury (TBI) from that incident.  In addition, one of those soldiers, has struggled to adjust to being home.  These soldiers should not be forgotten either. LT Behenna, SSG Warner, and all the members of their platoon have been casualties of the IED attack on LT Behenna’s platoon.  The effects continue to be far reaching.

Behenna’s Sentence Reduced a Second Time

LT Behenna recently received a second reduction in sentence. Last Thursday, the Army’s Parole Board apparently reduced LT Behenna’s sentence from 20 years of confinement to 15 years of confinement. This is the second reduction that LT Behenna has received. The Convening Authority of the 101st Airborne Division had previously reduced his sentence from 25 to 20 years. This reduction in sentence is unrelated to the ongoing appeal.

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.

Summary Courts- Martial Relook

If you want self help military legal to guide you through a summary courts-martial, go to invisblelawyer.com.

I (www.jamesphillipslaw.com) recently represented a client at Fort Campbell in a Summary Court Martial and upon reflection have decided to follow up on an earlier post about Summary Courts-Martial (https://jaglaw.wordpress.com/2009/02/22/summary-court-martial-a-fair-process/).  The reason for this is that there was a suggestion in my prior post that Summary Courts-Martial are somehow inherently unfair.  That was not what I intended to convey.  I was attempting to portray the feel of a summary courts-martial to the servicemember and also the inherent problem with using summary court officers who are wholly unaware of the legal aspects of the UCMJ and the Rules in the Manual for Courts-Martial (MCM).

Last week, I represented a soldier at Fort Campbell on several drug charges.  In that case there were issues that had to be heard through a Motion to Suppress.  The case in some ways hinged on whether or not Article 31 rights had been given to the soldier and whether or not his statement and all derivative evidence should be suppressed (fruit of the poison tree doctrine).  The Summary Court Officer began the proceeding with an eye towards conviction, but as the Summary Court proceeded he became very thought and began to examine the legality and competency of the evidence.  In his verdict, he took into account the Article 31 rights issue and weighted it against the competent evidence that had been presented.  Some of this thoughtful analysis was brought about by the long discussions and period of education that took place between myself, as the only attorney in the room, the Summary Court Officer and the paralegal assigned to record the record of trial.  In the end, using his own initiative, the Summary Court Officer was able to properly navigate the proceeding and come up with both findings and sentence that were legally justified and consistent with a judgement that would have been found in a higher level Courts-Martial in front of a judge or panel.

Much of this was obviously driven by the personality and training of the Summary Court Officer.  In essence, he was a GOOD one.  That ultimately is the problem with Summary Court Martials.   Judges have been trained to provide consistency in the Court Martial.  They know the rules of evidence.  Hopefully, they are up on their case law.  Most of the military and civilian attorneys that practice before a Judge have an idea of how he rules.  All of these things provide defense attorneys and their clients a basis for good advice and sound decision-making.  This is much harder when you are operating in the realm of the Summary Courts-Martial.

In my Motion to Suppress at the Summary Court Martial last week, although the Motion was a valid legal argument, I did not know how the Summary Court Officer would view the Motion.  Was this defense trickery?  Was this a non-issue because he didn’t care?  Was he already convinced the accused was guilty?  It was hard for me to advise the client on whether or not he should object to the SCM because I didn’t know whether or not there would be an honest and fair assessment of our case by the SCM Officer.  We were lucky that this SCM Officer was very thoughtful and serious about the process.

Some of the arbitrariness of the Summary Court Process could be taken away by giving the SCM Officer more training in this area.  Maybe picking them for a term of duty or sending them through a class on legal justice.  Either way, if some of the arbitrariness is taken away, an SCM can be the best way for a servicemember to go.

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.