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.

Judge Alone for Sexual Assault UCMJ Article 120 allegations

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 Blogs
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