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.

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.

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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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.

You can get divorced while deployed

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

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.

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.