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.
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.
Our law firm, Phillips Law, PLLC, has many clients who are either in the military or who are spouses to military members. For our new self-help legal service, go to invisblelawyer.com
. Most of our clients have some affiliation with the 101st Airborne Division (AASLT). Since 911, the military has been operating at a very high OPTEMPO. This means almost all of our military clients will experience a deployment to Southeast Asia at some point in their careers. This also means that many of our clients who have deployed repeatedly will go through at least one divorce.There is a myth among many military lawyers and military members that soldiers cannot get divorced while they are deployed. In many states, this is not true and in Tennessee this is definitely not true. We frequently get our clients divorced when one of the parties is deployed.
For our Tennessee clients, in order to get the divorce while deployed, a couple of things must happen. One, the divorce will have to be uncontested. This means that the two sides will have to agree on a Marital Dissolution Agreement that splits all of the marital property. Two, if they have kids, they will have to have a parenting plan completed, with the appropriate child support under the Tennessee Child Support Guidelines. If the two parties agree to all of this, a civilian lawyer can file the paperwork as an irreconcilable divorce and have the couple divorced in about 90 days.
Although some Tennessee Counties require testimony for an uncontested divorce, where the parties come in and testify that they will be unable to reconcile, this testimony can normally be accomplished by the servicemember through the use of interrogatories. Interrogatories are a series of sworn written question and answers that are presented to the court. The judge has the ability to accept this interrogatories instead of using live testimony.
The one issue that can develop is that getting the paperwork back and forth to the deployed soldier can add additional time to the entire process. With the use of email, this can keep things going at a quick clip. Generally, the mail from Iraq takes seven to ten days to get here if our clients need to mail us sworn originals.
Lawyers and servicemembers do need to be careful about the timing of filing for divorce. The Servicemember is protected from many aspects of divorce under the Servicemembers Civil Relief Act. The SCRA protects soldiers from final judgement while they are deployed, although many temporary hearings are authorized despite their deployment. This is why the soldier must be careful not to “make an appearance” before the court. This can be done by filing the original complaint for divorce or by filing a response or counter-complaint. Once the soldier is in front of the judge, he may have to pay child support or spousal support despite being deployed.
For contested divorces, where there must be a trial, much of the work of divorce, the discovery aspects can be completed while the soldier is in Iraq. Many of my special forces clients go and come back throughout the pendency of the divorce. But, for soldiers who are not able to participate in a contested divorce, they will probably be forced to sit and wait for redeployment.
Filed under: Alimony, Attorney, Children, Contested divorce, Custodial Parent, Custody, Default Judgment, Deployment, Depositions, Divorce, Divorce Attorney, Divorce Lawyer, Divorce Transcript, Divorce Trial, Divorce packets online, Final Decree, Iraq, Lawyer, MDA, Marital Dissolution Agreement, Mediation, Motion for Support, Online divorce service, Parenting Plan, Primary Residential Parent, SCRA, Servicemembers civil relief act, Tennessee Child Support Guidelines, Tennessee