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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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.

Behenna Mistrial Denied

LT Behenna was convicted and sentenced to 25 years of confinement by a military panel in mid February.  The Defense, through Attorney Jack Zimmerman, made a claim that the trial was inherently unfair because a prosecution expert agreed with the defense experts that the forensic evidence suggested that Ali Mansur was probably standing at the time that he was shot.  This was the central theme of the defense throughout the trial.  That Ali Mansur, although naked, had made a threatening move by standing up before he was shot by LT Behenna.  This, combined with the fact that Ali Mansur was a suspected terrorist, should have lead the military panel to find that LT Behenna was legally justified in killing Ali Mansur.

Judge Dickson during the mistrial motion and the military panel during the finding of fact had to weigh the direct testimony of witnesses against the expert testimony.  In this case, the experts of both the defense and apparently one from the prosecution were in direct conflict with the eyewitnesses, Harry the interpreter and SSG Mitch Warner.  In this case, there may be a reason that there was such a big discrepancy.

When this case was initially investigated, the Iraqi police were not the first on the scene.  Members of Ali Mansur’s family and friends initially arrived to inspect the body.  They tampered with the evidence, moved the body and moved the forensic evidence.  The main police video was taken on a handheld cell phone.  The evidence of the grenade fragments were turned over to the the Army’s Criminal Investigation Division by the Iraqi police after they had retrieved them from Ali Mansur’s family.  There was literally no chain of custody on much of the evidence.  At the Article 32 hearing, the Iraqi Pathologist misidentified Ali Mansur’s body and much of his autopsy seemed questionable.  And, finally, SSG Warner’s testimony was not fully explored until less than a week prior to LT Behenna’s trial.  Most of the experts, who rely on some eyewitness testimony to recreate their crime scenes, had little or not reliable evidence to work with.

This unreliable evidence, couple with conflicting eyewitness testimony, made it extremely difficult for the military panel to use experts as the basis for their final verdict.  Unfortunately for LT Behenna, the military panel was in a position where they had to use their own judgment to determine whether or not to believe the defense’s expert witnesses. 

This is why it may be difficult to determine whether or not the prosecution was out of line in not calling their own expert witnesses to the stand after the defense expert witnesses testified that Ali Mansur was probably standing at the time he was shot.  This evidence was already before the military panel and was in direct contradiction to the eye witness accounts of what happened.  For the purposes of the prosecution, they had a good faith basis to argue that Ali Mansur may not have been standing, unfortunately, this was due to the inept investigation of this case and the crime scene.  The Iraqi’s created much of the problem through their inability to secure the crime scene, create a solid chain of custody on all evidence and to properly label and photograph the crime scene.  This, in and of itself, may have hurt the defense more than anything else.

Judge Dickson’s recommendation that LT Behenna should have a reduced sentence should probably be appreciated by both the defense and the prosecution in this case.  As a Military Judge, Dickson is both experienced and wise.  By compromising the verdict, he has recommended a reasonable sentence, in the face of the military panels verdict, and the difficulties in compromised evidence.

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

Behenna’s Verdict

I (www.jamesphillipslaw.com) was not able to be at Fort Campbell to hear the members read the verdict in US v. Behenna.  My co-counsel in US v. Warner and I had made a few predictions about what we thought the verdict might be.  We both thought since the verdict of guilt had been a compromised verdict and the panel had not convicted LT Behenna of premeditated murder that the panel was looking for a way out of having to sentence LT Behenna to a lot of jail time.  My co-counsel thought the panel would give LT Behenna seven years of confinement.  I thought they would give him twelve years.  We were both wrong. The military panel sentenced LT Behenna to twenty five years of confinement.

I tend to have faith in juries and military panels to make right decisions.  I was surprised that the sentence was so high.  Despite the evidence that Ali Mansur was possibly a member of Al Queada and had involvement in the death of several of LT Behenna’s men, the panel made up of relatively younger officers decided to sentence LT Behenna to a sentence that was appropriate for murder.  They did not back away from the nuances of the case, but instead voted for what they saw.  This sentence shows that they considered the death of Ali Mansur to be a major crime.

In representing SSG Warner, we had considered taking our case to trial.  Since our client was not guilty of premeditated murder or accessory after the fact, this very well could have happened we not be able to come to an agreement with the Government. But, in going to trial, one of our concerns in representing SSG Warner was that the panel may look at the pictures of Ali Mansur’s dead burnt body and not be able to excuse the actions of our client.  We were concerned that looking at the horror of a killing the panel would want to assign blame and we did not want them to mistakenly assign it to our client.  We also didn’t want the panel to sentence our client because they may assign too much culpability.

Jack Zimmerman, Behenna’s lead counsel, was probably concerned about many of the same issues.  In his case, that appears to be what has taken place.  The military panel did not buy the repeated references to Ali Mansur being a “terrorist” and a “bad” man.  There was certainly evidence that this is exactly what he was, but there was also evidence that at the time he was shot, he was naked, in the control of LT Behenna and pleading for his life.

In the end, the panel had to decide whether or not LT Behenna had shot a human being point blank in the forehead or whether or not this was “just an Iraqi.”  The tempation for the defense is to say that this is just an Iraqi.  Who cares?  How many times has an Iraqi been killed in one combat operation or another?

In this case, the Iraqi was under the care and control of the US forces.  As CPT  Poirier, the lead prosecutor in our case, said in her closing argument in US v. Warner, this is the type of crime that requires that “we” send a message to soldiers not to commit these types of battlefield attorcities.  Now, in our case, I believed that she was wrongfully characterizing our client’s conduct, but the point was made nonetheless. Soldiers must follow the rules regardless of their personal vendettas.

In LT Behenna’s case, the panel seemed to send a message that officers cannot decide for themselves how they are going to distribute justice.  If we as a nation are going to occupy and administer justice in Iraq, then we will require our officers to follow the law.  No matter whether you agree with the panel’s decision to heavily sentence LT Behenna or not, there is certainly a requirement that we not lead Iraqi citizens into the desert, strip them naked and then shoot them point blank in the forehead.  The panel has sent that message loud and clear with a twenty five year sentence.

Of course, both US v. Warner and US v. Behenna will continue to play out through the appeal process and to some lesser extent in the media.  Jack Zimmerman and the defense in US v. Behenna have filed a motion for a mistrial, but based on this verdict from this panel, they may want to watch out what they ask for.  This panel looked like the best bet for a jury nullification.  Young officers, with relatively junior rank for a military panel, who were probably fairly independent, and yet in the end, they sentenced Behenna to 25 years.  A more senior officer panel may have given him more time.

Day Three LT Behenna Trial

I (www.jamesphillipslaw.com) had another opportunity to go out to watch today’s trial at Fort Campbell in US v. LT Behenna.  Today was in some ways a clear turning point for both the government case and for the defense. 

The government case concluded today with three very strong witnesses.  “Harry” the interpreter testified this morning and through his own interpreter came across as a fairly strong witness.  “Harry” went through the events which took place on 16 May 2009, describing the how 1LT Behenna shot and killed Ali Mansur in the desert outside of FOB Summerall.

Lead defense counsel Jack Zimmerman had a very good methodical cross on “Harry.”  He got Harry to say that Ali Mansur was a “Bad Man” or a “terrorist” numerous times.  He also was able to create a defense opening in the fact that Harry did not see several critical moments during the shooting.

Next, the Government called SSG Seate.  His testimony established that LT Behenna had spoken about the killing in the DFAC sometime later.  The conversation seemed to acknowledge the illegality of the act.  Zimmerman was able to get SSG Seate to say that LT Behenna was changed after the death of his men in April 09. This will later help establish that LT Behenna was very emotionally effected by the loss of his men in the April IED attack.

Finally, the government closed with SSG Warner.  I don’t want to comment too much on my client and his testimony other than to say that he was problematic for both the government and the defense.  Based on the questions that were asked by the panel of SSG Warner, they definitely considered much of what he said as substantive, despite Jack Zimmerman’s excellent cross, establishing SSG Warner’s potential biases.  Also, Jack Zimmerman cleverly was able to get SSG Warner to talk about the mandatory minimum of Life Imprisonment without parole for the offense of premeditated murder.  For the defense, this was an opportunity to remind the panel of their heavy burden in this case and to remind them that if they convict LT Behenna he will face the same mandatory minimums.

After SSG Warner’s testimony, the government closed.  They have presented a strong case, but left several doors open for the defense.  One of them being that Ali Mansur’s actions at the time of the shots being fired have not clearly been defined.

The defense presented two expert witnesses today.  The first expert witness was a pathologist out of Texas.  Essentially, he tried to establish that Ali Mansur was standing at the time he was hit with the first shot. The second expert witness was a crime scene re-constructionist.  He also attempted to establish that Ali Mansur was standing at the time he was hit with the first shot.  This was important because it would show that the physical evidence contradicts the testimony of  SSG Warner and Harry.

CPT Erwin Roberts crossed examined both expert witnesses effectively.  He was able to call into question their expert opinions by demonstrating that they may not have had enough crime scene date to make a correct opinion that was in direct contravention to the witnesses that testified. 

The panel seemed to pick up on CPT Robert’s cross, because their written questions to the expert witnesses were very much concerned which crime scene data was used for the expert opinions.

The Premeditated Murder Trial of 1LT Michael Behenna

1LT Michael Behenna is scheduled to go to trial for premeditated murder on 23 February 2009.  This trial will take place at Fort Campbell and Judge Theodore E. Dickson will preside. A panel (or jury) of officers will consider the evidence presented by the Government. The first day of the trial will probably consist of panel selection and possibly opening Arguments.  There are good lawyers on both sides of the fence in this case.  Mr. Jack Zimmeran, a civilian defense counse out of Texas, is an extremely competent and experienced attorney, who is  representing 1LT Behenna.  He is being assisted by two appointed Trial Defense Attorneys from Iraq and his civilian co-counsel. On the other side, the Government has a capable team of prosecutors consisting of CPT Megan Poirier, CPT Erwin Roberts and CPT Elbert.  CPT Poirier has lead the charge on this case since the facts began to develop in Iraq in June and July of last year.

1LT Behenna is being tried for the premeditated murder of Ali Mansur.  Ali Mansur was a detainee that was scheduled to be released by 1LT Behenna’s platoon on 16 May 2009.  Subsequently, Ali Mansur’s burnt naked body was found in the desert. 

The trial should take about a week.  Evidence presented will consist of Iraqi witnesses brought from Iraq to testify.  Members of the platoon who were there the night the events took place.  Expert witnesses to testify to the validity and interpetation of the scientific evidence.

The 101st has had several of these kinds of cases over the last few years.  Notable, 2nd Brigade of the 101st had a series of detainee death cases several years ago, but these cases were different in that facts did not immediately come to light and at least one of the soldiers involved had ended his term of service prior to be charged with the offenses.