Air Force Military Training instructor sexual assault conviction at Lackland afb set aside by appellate court - US v. hills and us v. silva
Attorney Daniel Conway is a partner in the firm. He has published a Handbook of Military Crimes and Offenses. He has also been featured by nearly every major national news organization. Mr. Conway lives in San Antonio.
In 2015, an Air Force Military Training Instructor was convicted of sexually assaulting a trainee. Dozens of Airmen were involved in the investigation and court-martial. Full disclosure, this firm has a San Antonio office and had involvement in the case (not US v. Silva).
The case - US v. MSgt Silva - made national news. He received a heavy 20 year sentence. Now the Air Force Court of Criminal Appeals has set aside the convictions. The appellate court action is largely based on United States v. Hills. Our firm has had several successful appeals based on Hills. Mr. Conway has already successfully retried a court-martial following an appellate reversal.
Here is the basic idea. The Hills case applies in situations where the accused is charged with sexually assaulting more than one victim. There used to be a jury instruction that informed the panel that evidence of one victim can be relevant to show the accused's propensity to assault the other victim. (For more information see our page on Military Rule of Evidence 413). This is referred to as propensity evidence.
Military Rule of Evidence 413 permits propensity evidence when it involves uncharged misconduct. In Hills, the Court of Appeals for the Armed Forces ruled that you cannot use evidence of one charged offense to prove another charged offense. The government has to prove all of the elements of each charged offense. It's informally referred to as "boot-strapping" the evidence.
The appellate courts are concerned that an improper jury instruction could lead the jury to apply the wrong standard of proof. The Hills case has had profound implications for sexual assault convictions that occurred before June 2016 - or immediately after. This firm has successfully handled several Hills related appeals similar to the Silva case.
Across services, there have been multiple sexual assault convictions set aside. Many of the cases are remanded for a new trial. Sometimes, the alleged victims choose not to participate in the retrial. Bottom line, the outcomes in the retrials is often more favorable than the first time around. Feel free to contact this firm if you think you have a case involving US v. Hills.
Here is our analysis of the June 2017 Army Court-Martial results.
In June total number of court-martials was down. We count 36. We typically expect to see between 40-50+. The summer months are often PCS season and can result in lower volume.
There are some obvious trends that we need more observation of to explain.
1: More accused Soldiers are electing to contest there case Judge Alone. Half of the contested cases were judge alone. That is becoming a trend. It is unclear why. I've always preferred a panel.
The data still supports electing a jury; however, sexual assault sentences are becoming increasingly disparate. The low end average of sentences is probably moving towards 3 years. The high end of sexual assault sentences is also escalating. That probably explains the uptick in judge alone trials.
2. Half of cases in June were deals. That number is not surprising and is fairly consistent.
3. The contested panel acquittal rate is down. There was only one full jury acquittal. It was a sexual assault case. Most of the jury verdicts were mixed. I had a mixed verdict in June. The client received a reprimand. We'll definitely keep our eye on this trend.
Contested Panel: 9
Contested Judge Alone: 9
Full Jury Acquittal: 1
Mixed Jury Verdict: 5
Mixed Judge Alone Verdict: 4
Full Jury Conviction: 3
Full Judge Alone Conviction: 2
Full Acquittal Judge Alone: 3
Guilty Plea: 18
Here are some of the sentences. I'm not convinced they are getting fully reported. Some sentences carry a mandatory discharge, but it is not always listed. For our purposes, I've listed the primary offense and the confinement and discharge type.
Abusive Sexual Contact - 30 days confinement, BCD
Adultery (acquitted of rape) - Reprimand
Assault Consummated by Battery - Reduction to E-4, 60 days confinement | 90 days confinement | 14 months confinement, BCD | 5 months confinement
Assault / Larceny - 2 years confinement
Aggravated Sexual Contact - 8 months confinement, BCD
AWOL - 90 days confinement, BCD | 98 days confinement
Child Sexual Assault - 35 year deal | 5 year deal | 8 months, DD | 18 months, DD | 10 years, DD
Child Battery - Reprimand
Child Pornography (Possession) - 1 year confinement, BCD | 40 days confinement, BCD
Communicating a Threat - Reprimand
Desertion - 23 months confinement
Drugs - 13 months
False Official Statement - 8 days confinement
Indecent Recording - 12 months confinement
Larceny - 11 months confinement, BCD | Reduction to E-6
Orders Violation - Reprimand | 6 month deal, BCD | 5 month deal
Sexual Assault - 3 years, Dishonorable discharge | 25 years, DD
Incest / Sexual Assault - 16 years, Dishonorable discharge
The Board for Correction of Naval Records is now updated their webpage to permit online applications.
The Air Force has published their court-martial results for February 2017. The Air Force arranges it's data broken down by general courts-martial and special courts-martial. The data is interesting and makes me question it's accuracy. In 33 cases, according to the reporting there was not a single mixed verdict (guilty and not guilty findings).
Categorizing mixed verdicts is challenging. Should this blog count them as guilty findings or acquittals - or both. In terms of Air Force reporting, they are either leaving out details OR Air Force judges and juries are fully convicting or fully acquitting in all cases. If either is true, that would certainly warrant further inquiry. I'll be keeping my eye on the Air Force data monthly.
February was a rough month for Air Force Area Defense Counsels. Both convictions and sentences trended higher for the month. It's difficult to say why the data as a whole was trending higher. The general court-martial case reports all appear to reflect very serious cases.
The special court-martial data was fairly consistent with past months. Air Force special courts consist primarily of drug cases. It is a mystery to me why Area Defense Counsel - consistently - go judge alone in contested drug cases. It's fairly consistent across months.
In February, the one acquittal in a drug case came from a panel. It appears that 9 out of 10 cases were judge alone. The only panel case was an acquittal. Having said that, several of the cases were distribution cases. Drug distribution cases can - depending on the level of distribution - have aggravating facts.
The only real merit in going judge alone is predictability of sentence. Judges appear to find people guilty in the Air Force 100% of the time in drug cases. The value is that the sentences were predictable. The single use cases trended around 30 days confinement. There were a few that trended upwards of 45 days.
The breakdown is as follows:
Total Trials: 33
General Courts: 16 (48%)
GCM Judge Alone Trials: 9 (56%)
GCM Jury Trials: 7 (43%)
GCM Guilty Pleas: 8 (50%)
GCM Convictions: 14 (87%)
GCM Acquittals: 2 (13%)
GCM Acquittals in Contested Jury Trials: (28%)
GCM Acquittals in Judge Alone Trial: 0
GCM Adult Sexual Assault Cases: 7 (43%)
GCM Adult Sexual Assault Pleas: 2 (15%)
GCM Adult Sexual Assault Acquittals: 2 (15%)
GCM Adult Sexual Assault Contested Case Convictions: 3 (60%)
Special Courts: 17 (52%)
SPCM Convictions: 13 (76%)
SPCM Acquittals: 4 (24%)
Drug Cases: 10
Drug Acquittals: 1 (10%)
General Court-Martial Convictions
1. At Whiteman AFB, MO, Airman First Class Joshua I. Benfield was found guilty by military judge alone of sexual assault and assault consummated by battery. He was sentenced to a dishonorable discharge, confinement for 12 years, reduction to Airman Basic (E-1), and total forfeitures. Pursuant to a pretrial agreement, the convening authority will not approve confinement in excess of 10 years.
2. At Eglin AFB, FL, Master Sergeant Richard D. Collins was found guilty by officer and enlisted members of rape. He was sentenced to a dishonorable discharge, confinement for 16 years and six months, reduction to Airman Basic (E-1), and total forfeitures.
3. At Whiteman AFB, MO, Staff Sergeant Hollie K. Darling was found guilty by officer members of wrongful use and possession of controlled substances, failure to go, failure to obey lawful orders, and negligent dereliction of duty. She was sentenced to confinement for 179 days, reduction to Airman (E-2), forfeiture of $800 pay per month for five months, and a reprimand.
4. At Travis AFB, CA, Senior Airman Veda E. Hart was found guilty by military judge alone of wrongful use of controlled substances and larceny of military property valued under $500. He was sentenced by officer members to confinement for one year, reduction to Airman Basic (E-1), forfeiture of $500 pay, and a reprimand. The pretrial agreement had no effect on the adjudged sentence.
5. At JB Elmendorf-Richardson, AK, Senior Airman Nicholas K. Hess was found guilty by military judge alone of wrongfully importing controlled substances into the United States and attempting to wrongfully possess with intent to distribute controlled substances. He was sentenced to a bad conduct discharge, confinement for two months, hard labor without confinement for 60 days, reduction to Airman Basic (E-1), and a reprimand. The pretrial agreement had no effect on the adjudged sentence.
6. At Fairchild AFB, WA, Technical Sergeant Nicholas E. Hollingsworth was found guilty by military judge alone of conspiracy to commit larceny of property valued over $500, attempt to commit larceny of property valued over $500, and false official statement. He was sentenced to a bad conduct discharge, confinement for seven months, reduction to Airman Basic (E-1), and a reprimand. The pretrial agreement had no effect on the adjudged sentence.
7. At JB San Antonio-Lackland, TX, Technical Sergeant Anthony R. Lizana was found guilty by officer and enlisted members of sexual assault, assault consummated by battery, willful and negligent dereliction of duty, adultery, and providing alcohol to underage persons. He was sentenced to a dishonorable discharge, confinement for three months, hard labor without confinement for 30 days, reduction to Airman First Class (E-3), and forfeiture of $450 pay.
8. At Keesler AFB, MS, Staff Sergeant James A. McGriff II was found guilty by military judge alone of sodomy of a child, sexual abuse of a child, and enticing a child to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct. He was sentenced to a dishonorable discharge, confinement for 12 years, and reduction to Airman Basic (E-1). The pretrial agreement had no effect on the adjudged sentence.
9. At JB Lewis-McChord, WA, Staff Sergeant Brandon N. Myers was found guilty by military judge alone of attempted sexual abuse of a child. He was sentenced to a dishonorable discharge, confinement for eight months, reduction to Airman Basic (E-1), and total forfeitures. The pretrial agreement had no effect on the adjudged sentence.
10. At Edwards AFB, CA, Airman First Class Joshua A. Nabarrette was found guilty by military judge alone of possessing child pornography and larceny of property valued under $500. He was sentenced to a bad conduct discharge, confinement for 25 months, reduction to Airman Basic (E-1), total forfeitures, and a reprimand. Pursuant to a pretrial agreement, the convening authority will not approve confinement in excess of 15 months.
11. At Hurlburt AFB, FL, Senior Airman Jarek P. Paulett was found guilty by officer and enlisted members of sexual assault. He was sentenced to a dishonorable discharge, confinement for three years and six months, and reduction to Airman Basic (E-1).
12. At Buckley AFB, CO, Airman First Class William T. Slaunwhite was found guilty by military judge alone of assault consummated by battery and communicating a threat. He was sentenced to a bad conduct discharge, confinement for 18 months, reduction to Airman Basic (E-1), and total forfeitures.
13. At Osan AB, Korea, Senior Airman Gabriel C. Villanueva was found guilty by military judge alone of abusive sexual contact, assault consummated by battery, and attempted sexual assault. He was sentenced to a dishonorable discharge, confinement for 10 years, reduction to Airman Basic (E-1), and total forfeitures. Pursuant to a pretrial agreement, the convening authority will not approve confinement in excess of six years.
14. At Robins AFB, GA, Airman First Class Charles A. Wilson III was found guilty by officer and enlisted members of premeditated murder and death of an unborn child. He was sentenced to a dishonorable discharge, confinement for life without eligibility of parole, reduction to
Airman Basic (E-1), total forfeitures, and a reprimand.
General Court-Martial Acquittals
15. At Kunsan AB, Korea, an enlisted Airman was acquitted by officer and enlisted members of abusive sexual contact.
16. At Ramstein AB, Germany, an enlisted Airman was acquitted by officer and enlisted members of sexual assault.
Special Court-Martial Convictions
17. At Andersen AFB, Guam, Staff Sergeant Marko Angelo G. Antonio was found guilty by military judge of wrongful use of a controlled substance and wrongful possession of drug paraphernalia. He was sentenced by officer members to hard labor without confinement for two months, reduction to Airman First Class (E-3), and forfeiture of $500 pay per month for four months.
18. At Holloman AFB, NM, Senior Airman Sean T. Arcadi was found guilty by military judge alone of wrongful manufacture and use of controlled substances. He was sentenced to confinement for six months and reduction to Airman Basic (E-1). Pursuant to a pretrial agreement, the convening authority will not approve confinement in excess of three months.
19. At McConnell AFB, KS, Staff Sergeant John L. Gaters was found guilty by military judge alone of larceny of military property valued over $500 and false official statement. He was sentenced to a bad conduct discharge, confinement for 30 days, and reduction to
Airman First Class (E-3).
20. At Yokota AB, Japan, Airman First Class Connor J. Harrington was found guilty by military judge alone of larceny of property valued over $500. He was sentenced to confinement for
30 days, hard labor without confinement for three months, restriction to base for two months, and reduction to Airman (E-2).
21. At Yokota AB, Japan, Staff Sergeant Adrian T. King was found guilty by military judge alone of obstruction of justice, violating a lawful regulation, attempting to violate a lawful regulation, and soliciting another to violate a lawful regulation. He was sentenced to confinement for one month, reduction to Airman First Class (E-3), forfeiture of $500 pay, and a reprimand. Pursuant to a pretrial agreement, the convening authority will not approve any period of confinement.
22. At Scott AFB, IL, Senior Airman David M. Machalek was found guilty by military judge alone of wrongful use of a controlled substance. He was sentenced to hard labor without confinement for 30 days, reduction to Airman Basic (E-1), and forfeiture of $400 pay per month for three months. The pretrial agreement had no effect on the adjudged sentence.
23. At JB San Antonio-Lackland, TX, Senior Airman James B. McKinney was found guilty by military judge of wrongful use of a controlled substance, failure to obey a lawful order, and failure to go. He was sentenced by officer members to confinement for nine months.
24. At Aviano AB, Italy, Airman First Class Candre L. Meekins was found guilty by military judge alone of wrongful use of a controlled substance. He was sentenced to confinement for 45 days, reduction to Airman Basic (E-1), and forfeiture of $1,066 pay per month for
25. At Davis-Monthan AFB, AZ, Senior Airman Jamain T. Miller was found guilty by military judge alone of wrongful possession and use of controlled substances. He was sentenced to confinement for 10 days, hard labor without confinement for 30 days, reduction to
Airman First Class (E-3), and a reprimand.
26. At Travis AFB, CA, Airman First Class Harley K. Pinhotamburi was found guilty by military judge alone of wrongful distribution and use of a controlled substance. He was sentenced to a bad conduct discharge, confinement for 60 days, hard labor without confinement for 90 days, and reduction to Airman Basic (E-1). The pretrial agreement had no effect on the adjudged sentence.
27. At JB Langley-Eustis, VA, Senior Airman Andrew C. Quintero was found guilty by military judge alone of wrongful use of controlled substances. He was sentenced to confinement for
45 days, hard labor without confinement for 60 days, reduction to Airman Basic (E-1), forfeiture of $1,066 pay per month for two months, and a reprimand. The pretrial agreement had no effect on the adjudged sentence.
28. At Scott AFB, IL, Airman Ronald A. Solis was found guilty by military judge alone of wrongful distribution, use, and possession of a controlled substance. He was sentenced to confinement for three months, hard labor without confinement for one month, reduction to Airman Basic (E-1), and forfeiture of $1,066 pay per month for four months. Pursuant to a pretrial agreement, the convening authority will not approve confinement in excess of two months.
29. At Holloman AFB, NM, Airman Bryce J. Spelts was found guilty by military judge alone of wrongful use of controlled substances. He was sentenced to a bad conduct discharge, confinement for two months, hard labor without confinement for two months, reduction to Airman Basic (E-1), and a reprimand. Pursuant to a pretrial agreement, the convening authority will not approve confinement in excess of 30 days.
Special Court-Martial Acquittals
30. At JB McGuire-Dix-Lakehurst, an enlisted Airman was acquitted by officer members of larceny of property valued under $500.
31. At Barksdale AFB, LA, an enlisted Airman was acquitted by officer members of larceny of property valued over $500.
32. At RAF Lakenheath, United Kingdom, an enlisted Airman was acquitted by officer members of false official statement and willful dereliction of duty.
33. At Ft Meade, MD, an enlisted Airman was acquitted by officer members of wrongful use of a controlled substance.
Every now and again a truly impactful law review article is published that lends data driven insights into the most difficult decisions that we make as defense attorneys. That is the case with the new law review article titled "The Silence Penalty".
By far, the toughest decision is whether or not the client will testify. In military courts-martial, I discuss this decision early in the case with the client. I use the following talking points:
1) We are going to plan for the client to testify. I believe military juries want to hear from the client. I explain to the client up-front that I am aggressive about having my clients testify.
2) We are going to prepare the client regularly to testify. This includes prepping him for cross-examination. I want them ready if we decide to call them.
3) The actual decision will be made at trial after seeing the government's case.
4) The decision will be based on a cost-benefit analysis incorporating the following time-tested factors for me -
a - I never call a witness - including the client - unless I have to call them to win. Is there some fact that I can only present to the jury through my client?
b - Has my client given any previous statements that are demonstrably false that will be exploited by the government? This is a major reason why it is better to remain silent with law enforcement.
c - Can I get my client's story out through other witnesses?
d - How did the alleged victim perform at trial?
e - Do I sense that the jury has an expectation that the client will testify? This is often the case in he said - she said cases, cases involving kids, sexual assault cases, and cases with high-ranking clients.
f - Does the client want to testify?
g - How well is the client prepared? Does the client have any anxiety or other performance issues that affect their ability to appear credible in front of the jury?
h - Are there any additional allegations that could be exposed to the jury through cross-examination that outweigh the value of the client's testimony?
i - Does the client have a prior criminal record that the jury might learn about? This factor is outweighed if there are parts of my client's story that only he can testify to.
I have historically had great success calling my clients to testify. There is bias in the defense community against calling defendants. One result of that bias is that military prosecutors don't always get real world experience cross-examining defendants. In other words, sometimes the prosecutors are not that good.
"The Silence Penalty", by Jeffrey Bellin, looks at raw data comparing cases where defendants did and did not testify. Professor Bellin - of The William and Mary Law School - analyzes the results.
The data is absolutely fascinating to me - as a trial attorney:
1) Approximately half of criminal defendants testify.
2) Only 40% of defendants later exonerated by DNA evidence testified.
3) Many defendants chose not to testify out of fear that the jury would learn about prior records.
4) Concerns about juries learning of prior convictions are legitimate. Juries statistically tend to convict in cases with prior convictions.
5) Over 90% of cases are resolved with guilty pleas. In the military, I would say the number is closer to 70%.
6) In cases with no prior record, the conviction rate was about 41% when the defendant testified. The rate was about 70% when they did not testify.
My belief is that the conviction rate is lower in the military when the defendant testifies. Most military clients are screened for good character when they join the service. Military clients generally make for good witnesses.
The article suggests that even disclosure of a prior record can outweigh the penalty of silence. According to a public poll in 2002, 50% of respondents believed that a person who invokes their right not to testify are probably guilty.
People simply don't understand why we have a right to remain silent.
Sometimes when I believe the jury expects the client to testify, I explain to them in my opening statement why there is a right to remain silent. Part of my opening statement goes something like this:
"Members of the panel, some of you may expect the accused to testify. We haven't decided whether he will yet. It's an agonizing decision. You must understand why you have the right to remain silent. The government has all the power and resources. We have none. Some of you might expect an innocent man to want to testify. You would expect him to shout his innocence from the mountain tops. Others might suspect that a person would say anything to save their life, to include lying. There is no way for me to know what you're thinking. For that reason, we place the burden of proof squarely on the government to prove their case beyond a reasonable doubt."
My hope is usually that the civics lesson will help prepare the jury for the possibility that my client might not testify.
The law review ultimately seems to conclude that defendants should testify more often. It's good to know that the data supports a belief that I have formed over time through experience.
The Army Reserve and National Guard "Enlisted Administrative Separations" regulation has an important feature that is important to remember in misconduct cases.
Army Regulation 135-178 paragraph 2-5 permits the separation authority to suspend separation actions for highly deserving Soldiers. The suspension / probationary period is for 12 months. If the Soldier stays out of further trouble, the separation is remitted.
Suspension of Separation
a. In order to afford a highly deserving Soldier a probationary period to demonstrate successful rehabilitation prior to expiration of the Soldier’s service obligation, the separation authority or a higher authority may suspend execution of an approved separation for a period not to exceed 12 months. However:
(1) Suspension of a discharge is not authorized in a case where there is an approved finding that one or more of the circumstances authorizing discharge for homosexual conduct under paragraph 10-3 has occurred, or when the sole reason for separation is fraudulent entry; or
(2) When there are approved reasons for separation in addition to fraudulent entry, suspension may be authorized only when the additional reason is not homosexual conduct, a waiver of the fraudulent entry is obtained, and the suspension pertains to reasons for separation other than the fraudulent entry.
b. During the period of suspension, the Soldier will be afforded an opportunity to demonstrate the capability of behaving properly and performing assigned duties efficiently under varying conditions.
c. On satisfactory completion of the probationary period, or earlier, if rehabilitation has been achieved, or at the end of the Soldier’s period of obligated service, the authority that suspended the separation will remit execution of the approved separation.
This morning we received a phone call with a question about Article 31, UCMJ rights. The more you know, the better you can make informed decisions. Generally, we take the view that it is almost never a good decision to make a statement without consulting with counsel. There are several reasons for that:
1) You don't know what evidence they have;
2) There is a chance that the government will not believe you no matter what you say. In other words, no matter what you say, they could charge you with false official statement;
3) If there is a way to mischaracterize your words, they will find it;
4) They don't always ask for written statements. If you make an oral statement, your statement is whatever they say it is.
The United States Constitution and Article 31 (b) of the UCMJ require rights advisements before interrogations or requests for statements. The Court of Appeals for the Armed Forces (C.A.A.F.) has repeatedly recognized that rights advisements have a particular significance in the military because the effect of “superior rank or official position upon one subject to military law, [is such that] the mere asking of a question under [certain] circumstances is the equivalent of a command.” United States v. Harvey, 37 M.J. 143 (C.M.A. 1993).
Under Article 31(b) “No person . . . may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation . . . . “
Rule 305(c) of the Military Rules of Evidence, further clarifies, “A person subject to the code who is required to give warnings under Article 31 may not interrogate or request any statement from an accused or a person suspected of an offense without first: (1) [i]nforming the accused or suspect of the nature of the accusation . . . .” The case law reiterates, “The accused must be made aware, however, of the general nature of the allegation. The warning must include the area of suspicion and sufficiently orient the accused toward the circumstances surrounding the event.” United States v. Huelsman, 27 M.J. 511, 513 (A.C.M.R. 1988) (citing United States v. Schultz, 19 U.S.C.M.A. 31, 41 C.M.R. 31 (C.M.A. 1970); United States v. Reynolds, 16 U.S.C.M.A. 403, 37 C.M.R. 23 (C.M.A. 1966)). See also United States v. Pipkin, 58 M.J. 358, 360 (C.A.A.F. 2003) (quoting United States v. Simpson, 54 M.J. 281, 284 (C.A.A.F. 2000)) (holding that the suspect has a right to know the general nature of the allegation).
Often, when the government violates your Article 31 rights, they will attempt to elicit a second statement with a cleansing warning. They want you to say the same thing again after being advised of your rights. Where an earlier statement was involuntary because the accused was not properly warned of his Article 31 (b) rights, the voluntariness of the second statement is determined by the totality of the circumstances. United States v. Brisbane, 63 M.J. 106, 114 (C.A.A.F. 2006). Further, Congress has enacted the exclusionary provision of Article 31 (d) as a strict enforcement mechanism to protect a service member’s Article 31 (b) rights. United States v. Swift, 53 M.J. 439, 448 (C.A.A.F. 2000).
In Huelsman, the court held the individual’s statements made in regards to possession and distribution of marijuana was inadmissible because even though he was advised of his rights in regards to the larceny charge, he was not informed that he was suspected of possession and distribution. United States v. Redd, 67 M.J. 581, 588 (A.C.C.A. 2008) (citing Huelsman, 27 M.J. at 513). If the nature of the charge is not explicit, confessions are voluntary if the individual has constructive notice of the charge. That is not the case here. United States v. Annis, 5 M.J. 351, 352-53 (C.M.A. 1978). In Reynolds the airman’s statements were involuntary because although he knew he was suspected of wrongful leave, he was not aware of the wrongful appropriation charge. United States v. Piazza, No. 200301263, 2005 CCA LEXIS 370, at *7 (N-M.C.C.A. Nov. 22, 2005) (citing United States v. Reynolds, 16 C.M.A. 403, 405 (C.M.A. 1966)).
The Article 31(b) warning requirements can apply to civilian investigators working with the military. Mil. R. Evid. 305(c) applies to civilians (1) “[w]hen the scope and character of the cooperative efforts demonstrate that the two investigations merged into an invisible entity” and (2) “when the civilian investigator acts in furtherance of any military investigation, or in any sense as an instrument of the military[.]” United States v. Payne, 47 M.J. 37, 42 (C.A.A.F. 1997) (citing United States v. Quillen, 27 M.J. 312, 314 (C.M.A. 1988).
Remember, you always have the following rights:
1. You have the right to remain silent. (BEWARE OF PRETEXT PHONE CALLS)
This is critical. Your command may exert extreme influence to coerce you into making a statement. Investigators will tell you anything to get you to talk. They will tell you that they are simply trying to close the book on the investigation. They will tell you it’s no big deal, they just need a statement. They will appeal to your emotions. They will tell you that you have to give a statement.
Sometimes a helpful script for invoking your rights might go as follows:
"Sir, I do want to cooperate, but under the circumstances I am invoking my 5th Amendment and Article 31 Rights to remain silent and to speak to a lawyer. I would like to speak to a lawyer at this time."
You can reiterate the above as needed to ensure that your right to remain silent is protected.
Also, if you are accused of sexual assault, be extremely wary of phone calls or conversations from individuals - especially alleged victims - who want to talk about the events in question. Pretext and recorded conversations are a favorite tool of law enforcement. Very rarely has a client regretted not saying anything.
2. You have the right to speak to an attorney, whether or not you committed a crime.
You should always consult an attorney before discussing with anyone. You can contact this firm for a free initial consultation at email@example.com or 1-800-355-1095 24 hours a day.
3. You have the right to have an attorney by your side when you talk to any investigator or anyone in your chain of command.
NCIS, CID, and OSI often type your statement for you. Your words get twisted. They frequently paraphrase and use incriminating language. They will often rush you through the process of signing your statement so that you do not have an opportunity to fully read the statement.
Army publishes February 2017 court-martial results - 72% Acquittal rate in contested sexual assault trials
On 15 March, the Army published the service wide court-martial results for February 2017. Here is our analysis.
We saw a couple of trends continue. Of the 40 trials, 27 were guilty pleas (67%). That statistic is relatively consistent from month to month. It seems that defense counsel are exercising good judgement (based on our limited information). Most of the guilty pleas tend to involve absence without leave, child rape offenses, and other historically difficult cases.
We're mostly interested in how judges and juries are disposing of adult sexual assault cases. We counted 11 contested sexual assault cases (27%). Sexual assault charges may be trending down. It's difficult to say, but we'll be watching volume closely.
Of the 11 contested cases, there were 8 acquittals (72%). That number is high. The numbers continue to support contested sexual assault cases. There is an increasing trend in recent memory for judge alone sexual assault trials. We still think that's a bold move. Judges did fully acquit in two cases.
The sentences in the 4 contested sexual assault cases were 9 months, 13 months, 2 years, and 14 years. Sentencing is still highly fact dependent. Over the last few years, we've expected single specification sexual assault cases to trend at about 2 years confinement for guilty findings. That number may be trending down with the 9 month and 13 month sentences.
There 40 total trials. It looks like there was one bifurcated trial at Fort Knox with a judge alone and panel acquittal. We'll count that as a military judge and jury acquittal.
There is very little research into false allegations of sexual assault. It is a toxic subject area. In most cases, there is very little evidence to corroborate either side of the story. As defense lawyers, we are always trying to stay current on the literature though.
I recently came across an article in the March 2012 publication of the Journal of Forensic Psychology Practice called "Pathways to False Allegations of Sexual Assault." It was written by Jessica Engle and Dr. William O'Donahue from the University of Nevada. The full citation is at the end.
The article - is of course - written by psychologists. So the perspective is from intellectuals considering the mental health aspect of an alleged victim's claim (or defendant's denial). Over the years, lawyers have made it increasingly difficult to obtain the mental health record of an alleged victim. In fact, presently under Military Rule of Evidence 513 it is nearly impossible. The law is crafted in such a way to require defense counsel to know what is in the records before being granted access to the records.
The authors rightly note that in cases involving questions of consent there is rarely any unequivocal evidence, which makes discerning the truth challenging. The authors also rightly observed that sometimes there can be pathways to false allegations that result from mental health issues. We would note - as defense attorneys - that these pathways can be equally as helpful in understanding a potential defendant's denials.
The authors have proposed 11 forensic psychology pathways (processes) to false allegations of sexual assault that are helpful to defense lawyers. I have taken those pathways and added sub-pathways to help build the framework.
(a) core discrepancies;
(b) secondary gain.
2) implied consent (and mistake of fact);
(a) whether the alleged victim engaged in behaviors that can plausibly be interpreted as providing consent.
3) false memories;
(a) were suggestive interviewing techniques used;
(b) did government officials push the alleged victim to try and remember information harder; and,
(c) did family members or friends implant subtle incorrect information;
(a) evidence of voluntary behaviors and choices;
(b) evidence of high levels of cognitive function; and,
(c) confabulation to fill gaps in memory.
5) antisocial personality disorder;
(a) failures to conform to social norms regarding lawful behaviors;
(b) confirmed deceit or fraud;
(c) irritability and aggressiveness; and,
(d) lack of remorse.
6) borderline personality disorder;
(a) quickly switching from idealization to devaluation of relationship; and,
(b) evidence of extreme feelings of abandonment.
7) histrionic personality disorder;
(a) always has to be the center of attention;
(b) frequently inappropriate and provocative;
(c) style of speech that lacks details;
(d) easily influenced; and,
(e) commonly views relationship as more intimate than they really are.
9) psychotic disorders;
10) disassociation; and,
11) intellectual disability
The authors caution against a simplistic reading of their research. Part of the purpose of their research was also to call attention to the fact that there is not enough research on the topic. These are such emotional cases that offending people is always a danger when discussing even science. For instance, simply because a person has borderline personality disorder does not inherently mean that the allegation is untrue. But, the diagnosis could be a marker that explains why a particular person engages in riskier behaviors (and therefore is at increased risk for assault). Mental health conditions can also lead to distortions of perception that may provide markers for false allegations. In the paper, false allegations are knowingly fabricated claims or allegations based on abnormal information processing.
Studying any topic involving sexual assault is a challenge. The research is going to be subjected to intense scrutiny. Definitional issues can cause significant variability from study to study. In the military, an inappropriate touching on the buttocks through clothing is treated as a sexual assault - equal with a forcible rape. How we categorize data can have a significant impact on our understanding of the problem. Military law enforcement officials are often evaluated based on the the number of investigations they have "founded." There is a built in incentive for law enforcement to found cases unless there is clear evidence that the allegation is false. The data is difficult to analyze.
When evaluating any allegation, we are often looking for discrepancies in the story. The authors write that "core discrepancies" are "central details of the case and, thereby, any variations in these details is considered a strong indication of a false account of events."
In an emotional event, individuals are more likely to recall core aspects of the event rather than peripheral aspects. For example, we would expect a person to remember whether the event was inside or outside, but not necessarily what street name it occurred on. Studies show that the emotionality of the event should actually enhance memories of the core features.
We are also typically looking for secondary gain resulting from the lie. In the military, secondary gain can include avoiding trouble, the benefits of victim status (reassignment), excusing behaviors, and even financial gain.
Implied consent may be the most difficult aspect of sexual assault defense to understand. The law is increasingly moving towards a view that only affirmative consent (spoken yes) is permissible. In other words, we are not going to allow a man to infer that a woman is consenting based on her behaviors. It's an idea that is often inconsistent with jurors personal experiences.
There is also the concept of mistake of fact. These are facts that - if true - would relieve the defendant of liability for the offense. If a reasonable sober person would believe that a woman was consenting, then the accused is not guilty of sexual assault.
Implied consent is most thorny when there is a pre-existing sexual history between two people. It can lead to the thought that they did it before, so they can do it again. It is not a legally sound thought process. This can lead to a woman feeling trapped or coerced into having sex. Consent last week is not consent for next week.
Likewise, consent early in a sexual encounter is not necessarily consent for further sexual contact.
The ambiguity in how we are crafting the rules of consent can potentially lead to "the alleged victim engag[ing] in behaviors that can plausibly be interpreted as providing consent, but the victim herself may not understand or realize this."
There is actually research demonstrating successful implanting of false memories. Some people even can have vivid memories of false events. Suggestive interviewing techniques, misinformation, and excessive encouragement to remember can all lead to false memories.
The Loftus study is particularly interesting. In that study, researches showed people clips of a traffic accident. The participants were then asked to assess the rate of speed of the vehicles. The researches modified the verbs in their questions though. If the researcher asked how fast the cars "smashed into each other" the participants would rate the speed higher than if they asked how fast they "bumped" into each other. Loftus has since conducted over 200 studies with 20,000 participants repeating the study.
Obviously, the consumption of alcohol or drugs - voluntarily or involuntarily - can lead to distortions in memory and information processing. Nearly every jurisdiction has laws stating that a person cannot consent while incapacitated from intoxicants. The danger is that a person under the influence of intoxicants may have deficits in forming memories, like blackouts. They can also confabulate events to fill in the gaps.
Antisocial Personality Disorder
When we're assessing APD, we're looking for past evidence where the person failed to conform to social norms regarding lawful behaviors, confirmed deceit, irritability and aggressiveness, and lack of remorse.
Borderline Personality Disorder
The primary diagnostic criteria that we are looking for is "quickly switching from idealization to devaluation of relationship." Also, extreme feelings of abandonment can lead a person to lie. The rapid of shifting from love to hate can lead a person to construe events as abuse.
Histrionic Personality Disorder
For people with this disorder, we want to examine evidence that a person always has to be the center of attention, that they are often inappropriate and provocative, has a style of speech that lacks in detail, that they are suggestible or easily influenced, and views relationships as more intimate than they really are.
Delirium, Psychotic Disorders, Intellectual Disability, and Dissociation
These are disturbances of consciousness and cognition. Dementia is rare in the military realm.
Jessica Engle BA & William O'Donohue PhD (2012) Pathways to False Allegations of Sexual Assault, Journal of Forensic Psychology Practice, 12:2, 97-123, DOI: 10.1080/15228932.2012.650071
Panel/jury selection is often a hot topic in military defense circles. As defense attorneys, we are entitled to unlimited challenges for cause of potential members. We get one peremptory challenge that we can use for any reason.
We have written about jury selection before. Military Jury Selection
The Convening Authority (the general) gets to pick the pool of potential panel members. In effect, the general and government lawyers get unlimited challenges. There are number of ways in which the Convening Authority can abuse the system.
-They can stack the panel with all senior members that are presumptively more likely to vote for guilt to support the Convening Authority;
-They can systematically exclude potential members of lower rank;
-They can stack the panel with members that all work together within the same office or section and are presumed to be more likely to vote together;
-They can stack the panel with officers that the Convening Authority personally knows;
-They can stack the panel with members that the prosecutor knows or advises.
United States v. Lance Corporal Bartee
A recent case in the Court of Appeals for the Armed Forces reminds us of the potential for abuse in the system. United States v Bartee, is a Marine Corps case decided on 15 March 2017. The Court ruled that the Convening Authority did not systematically pack the panel with panel members above the rank of master sergeant and major.
The facts are interesting though. The trial judge did find that the jury was improperly packed with senior members of the command. The Staff Judge Advocate and Convening Authority then went back and created a new jury pool using the same names from before.
Article 25, UCMJ requires a Convening Authority to select members based on experience and temperament to serve as a panel member. Rank is not a criteria. Lance Corporal Bartee objected to having all members above the rank of E-8 and O-4. Bartee objected and the judge agreed that members below a certain rank were systematically excluded from the pool of potential members.
After the judge ruled, the Staff Judge Advocate provided the general with a new list of potential members. It was the same list the judge ruled systematically excluded Marines based on rank. The SJA also gave him the full roster of 8,000 Marines in the command and told the general anyone could be susbstituted. The general did not substitute any panel members. The General added a letter stating that he personally new all of the members and felt they were qualified to serve on the case.
LCpl Bartee renewed his objection. The judge overruled the objection this time, finding that the general's letter cured any concerns under Article 25, UCMJ. That ruling prompted Bartee to change forum and elect a military judge alone trial. That was a bold call.
We won't Monday Morning quarterback the forum change. But, the military judge found him guilty of larceny, false official statement, and other charges. Bartee was accused of a conspiracy to steal credit cards to purchase gift cards at the post exchange. We've written about conspiracy defense in the past. We've also been involved in similar cases.
The judge sentenced Bartee to 20 months confinement and a dishonorable discharge.
United States v. Dowty and Case Law
In Bartee, the appellate courts agreed with the trial judge that Article 25 was not violated. The classic case is United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004). Dowty looks at whether there was:
(1) Improper motive to “pack” the member pool;
(2) Systemic exclusion of otherwise qualified members based on an impermissible variable like rank; and
(3) Good faith efforts to be inclusive so courts-martial are open to all segments of the military community.
In the Greene the court said, "We start by recognizing that an accused has an absolute right to trial before a properly constituted court with members.” United States v. Greene, 20 U.S.C.M.A. 232, 239 (C.M.A. 1970).
Article 25, Uniform Code of Military Justice and Rule for Courts-Martial 912
The convening authority has the responsibility to properly select court members. Art. 25(d)(2), UCMJ, 10 USC §825(d)(2). “The convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” R.C.M. 912(b)(1). However, the UCMJ prohibits the convening authority from attempting “to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, In reaching the findings or sentence in any case.” Art. 37(a), UCMJ, 10 USC § 837(a).
Case law makes clear that the intent or purpose of the convening authority in executing this procedure is an essential factor in determining compliance with Article 25. In courts-martial, an accused is not entitled to a panel that represents a cross-section of the eligible military population. However, deliberate and systematic exclusion of lower grades and ranks from court-martial panels is not permissible. United States v. Bertie, 50 M.J. 489, 492 (C.M.A. 1998). Moreover, a convening authority may not, in an individual case, purposefully stack a panel with members of senior grades or ranks to achieve a desired result. Id. A statistical showing may support an argument that the make-up of a particular panel was intended to produce a desired result.
Burden of Proof and Standards in Showing the Panel is Stacked
A party is entitled to present evidence to the court through an offer of proof, including any
written materials considered by the convening authority in selecting the members, which,
if true, would constitute improper selection of the members. R.C.M. 912(b)(2). If the
military judge determines that the members have been selected improperly, the military
judge shall stay any proceedings requiring the presence of members until members are
properly selected. Id.
The defense shoulders the burden of establishing the improper exclusion of
qualified personnel from the selection process. United States v. Kirkland, 53 M.J. 22, 24
(C.A.A.F. 2000) (citing to United States v. Roland, 50 M.J. 66, 69 (1999)). Once the
defense establishes such exclusion, the Government must show by competent evidence that no impropriety occurred when selecting appellant's court-martial members. Kirkland, 53 M.J. at 24.
Military courts have recognized that exclusion of persons below certain ranks
from consideration for being panel members by the convening authority is improper.
United States v. McClain, 22 M.J. 124 (C.M.A. 1986). In McLain, the appellant
challenged his rape conviction on the grounds that the convening authority had
improperly selected the member panel at his court martial. Id. at 124-125. The convening
authority, based on suggestions from his Staff Judge Advocate, selected enlisted panel
members from a list only containing soldiers of the E-7, E-8, and E-9 ranks. Id. at 125.
The court ruled that “the appointment to the court-martial only of persons in the upper
three grades was not proper.” Id. at 130. The court further ruled that the convening
authority had acted inconsistently with the “spirit of impartiality” embodied in Article 25 and Article 37 of the UCMJ by excluding soldiers E-6 and below from consideration for
court martial detail. Id. at 132.
The court stated:
"Discrimination in the selection of court members on the basis of improper criteria
threatens the integrity of the military justice system and violates the Uniform
Code. Except for the statutory preference for exclusion of persons in a rank lower
than the accused, all ranks are eligible to serve on a court-martial. When rank is
used as a device for deliberate and systematic exclusion of qualified persons, it
becomes an irrelevant and impermissible basis for selection. Id. at 129-130
(quoting United States v. Daigle, 1 M.J. 139, 140-141 (C.M.A. 1975))."
Military courts have also ruled that advisory nominations provided to a convening
authority may not improperly exclude service members based on rank. Roland, 50 M.J. at
69. In Roland, the court stated that presenting nominations to a convening authority is a
reasonable means of assisting the convening authority, provided it does not improperly
exclude eligible service members. Id. (citing to United States v. Kemp, 22 U.S.C.M.A.
152 (1973)). The court ruled that the, “nomination process may not systematically
exclude or include a certain category of service members. When the request for
nominations does improperly include or exclude certain members, this Court will ensure that those actions do not taint the selection by the convening authority.” Roland, 50 M.J. at 69. “Blanket exclusion of qualified officers or enlisted members in the lower grades is at odds with congressional intent and cannot be sustained.” Id. (quoting United States v. Nixon, 33 M.J. 433, 434 (C.M.A. 1991)).
Similarly, in Kirkland, the court set aside a service member’s sentence because
panel member nomination documents appeared to exclude service members from certain ranks. Kirkland, 53 M.J. at 24-25. In that case, a base legal office sent out a quarterly
letter, signed by the Base Commander, to the numerous unit commanders at the
installation. Id. at 23. The letter included a chart-form for the commanders to use to nominate Non-commissioned officers (“NCOs”) for court martial panels. Id. The chart
had columns for nominating E-7, E-8, and E-9s, but no areas for nominating E-6s or
below. Id. Subsequently, no soldiers E-6 or below were nominated. Id. at 25. The court
found that while the commanders knew that they had the ability to nominate soldiers
from any rank, it was likely that soldiers under E-7 would not be nominated due to the
improper structure of the form. Id. at 24. As a result, the selection process was improper
because it excluded certain groups of soldiers from consideration solely based on their
rank. Id. at 25. The court ruled that the military judge erred by denying the defense
request to seat a new panel. Id. The court further ruled that, “where an unresolved
appearance that potentially qualified court members below the grade of E-7 were
excluded, reversal of the sentence is appropriate to uphold the essential fairness and
integrity of the military justice system." Id. (quoting McClain, 22 M.J. at 133).
Challenges in Showing and Improper Motive that the Panel was Stacked
The first criteria under Dowty to show an improper motive for stacking the panel is tricky. As a defense lawyer, it would be almost impossible to get a general to admit an improper motive. You don't become a general without knowing what to say. In this case, there was evidence that the SJA attempted a top-down process looking for members from high rank to low rank until enough were selected.
A Caution Against Waiving the Issue
Other judges on the Bartee Court found that Bartee waived the issue when he chose a judge alone trial. It's a fair point. Forum selection is often an agonizing decision. It is certainly interesting the defense counsel in Bartee chose to go judge alone rather than question the prospective panel members.
The problem with the Bartee case, as the dissenting opinion points out, is that we've created a precedent where commands can stack a jury. All they have to do is provide a list of everyone's name in the unit and a letter.
Other Ways Panel Selection can be Manipulated by the Convening Authority
Unfortunately, stacking a panel/jury with senior members is not the only way a pool can be manipulated. I'm not picking on 82d Airborne, because I've won three cases in a row with full acquittals on over 40 charges. But, years ago that command was in the habit of loading up panels with brigade commanders and their staff officers. You would regularly have a senior member who was a brigade commander, maybe two or three of his battalion commanders, his sergeant major, and a few first sergeants all on the jury. And, of course, they knew each other. The assumption was that they would form a voting block. I don't see that problem at Bragg anymore, but it's another way juries can be manipulated in the military.
Another problem that can arise is when the prosecutor is the legal advisor to members of the panel/jury. It's as though the prosecutor has clients on the panel. Of course, it's an unfair advantage.
The courts, however have reasoned that the military community is small. Routine professional relationships are not per se disqualifying. The question is whether or not a court member is free from actual or implied bias. United States v. Bannwarth, 36 M.J. 265 (C.M.A. 1993); United States v. Porter, 17 M.J. 377 (C.M.A. 1984); United States v. Warden, 51 M.J. 78 (1999); United States v. Ai, 49 M.J. 1 (1998); United States v. Velez, 48 M.J. 220 (1998).
Using Challenges for Cause to Exclude Panel Members
A military judge's ruling on a challenge for cause is reviewed for an abuse of discretion. United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000). Military judges are afforded a high degree of deference on rulings involving actual bias. See Wiesen, 56 M.J. at 174.
By contrast, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo. United States v. Strand, 59 M.J. 455 (C.A.A.F. 2004). Implied bias is reviewed under an objective standard, viewed through the eyes of the public, United States v. Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997), and it is intended to address the perception or appearance of fairness of the military justice system. Wiesen, 56 M.J. at 174. Actual bias, on the other hand, tests the expressed views of members.
In Richardson, four panel members were identified as having a professional relationship with the trial counsel. United States v. Richardson, 61 M.J. 113 (C.A.A.F. 2005). In response to questioning by the military judge, each member advised that their relationship with the trial counsel would not affect their ability to equally evaluate each side of the case. The military judge denied individual voir dire for three of the four members. The defense challenged for cause all four members for both actual and implied bias. The military judge granted only one of the challenges.
The Court of Appeals for the Armed Forces expressed concern that “whatever the qualitative nature of trial counsel’s professional relationships with these members, we do know that much of the advice rendered was in the area of criminal law.” Id. The Court was sensitive to the “possibility that trial counsel may have already established a rapport with three of the six members on criminal matters or sentencing issues...” Id.
The Court further stated that the “military judge had a responsibility to further examine the nature of the relationships in the context of implied bias review...” Id. The Court concluded that “in this case the appearance of a panel biased in favor of the trial counsel was heightened...” In that case, the Court declined to adopt a per se ground for challenge, but emphasized the importance of thorough voir dire. In that case, C.A.A.F. was concerned that trial counsel had “already established a rapport with three of the six members on criminal matters or sentencing issues...”
Using Voir Dire to Win the Case
I still subscribe to the belief that most members of the military are honest and want to do the right thing. They may have command biases, but those biases can be overcome. In most cases, the number of members on the panel/jury will likely be between 6-8 members. That means that to win the case (2/3 vote to convict) defense counsel will need about 3 votes for not guilty.
The opportunity to question (voir dire) potential members is extremely valuable. During jury selection we are searching for at least 3 votes. In the military, our ability to question panel members can be limited. So we have to use the few questions we have to our benefit.
Early in the case, we want to identify a theme of the case. A theme is merely a critical element of a story. It include any number of ideas:
-The victim had a motive to lie;
-Law enforcement did not fully investigate the case;
-Somebody else committed the offense.
These are just a few examples. In voir dire, we want to ask questions that give us insights into how potential jurors feel about the theme. For instance, in a sexual assault case where the accused is wrongfully charged, we want to explore whether panel members have ever been wrongfully accused. We'll want to ask members about their feelings towards particular issues important to the case. Examples in a sexual assault case might include questions like:
-Do any members know of an anyone - including themselves - that has been wrongfully accused of misconduct?
-Does anyone believe that because a case is investigated, the accused must be guilty?
-Have any members served as a SAPR?
-Have any members provided counseling services to victims? Medical services? Victim advocate?
-Do any members have any experience investigating sexual assault allegations?
-Does anyone have a family member or friend that has been a victim?
-Does anyone believe that if someone has even one drink of alcohol, they cannot consent to sexual activity?
-Do any members believe in not drinking alcohol?
-Do any members believe that the military has not done enough to address sexual assault issues?
-Do any members believe the military does not prosecute enough sexual assault cases?
-Do any members think the commander wants you to vote a particular way in this case?
Thes are just a few examples. We craft specific questions for each case. But, we want to use voir dire to help identify those - at least - 3 members that will vote for not guilty. With a properly prepared case and theme, handling a stacked jury is much more manageable.
Referral to a command directed mental health evaluation can be an extremely unsettling experience. In our experience, it's not unusual for commands to abuse the command directed mental health process. In that regard, it's important for you to know your rights.
What is the regulation for command directed mental health evaluations? Department of Defense Instruction 6490.04, March 4, 2013 governs "Mental Health Evaluations of Members of the Military Services."
Who can refer a member to a command directed evaluation? "Any commissioned officer who exercises command authority over a Service Member.
What powers does it give to commanders? It empowers "commanders and supervisors who in good faith believe a subordinate Service member may require a mental health evaluation" to "direct an evaluation under this instruction or take other actions consistent" with the regulation.
It authorizes the commander to direct a CDE when:
(1) A member, by actions or words, such as actual, attempted, or threatened violence, intends or is likely to cause serious injury to him or herself or others;
(2) When facts and circumstances indicate that the Service member's intent to cause such injury is likely.
(3) When the commanding officer believes that the Service member may be suffering from a severe mental disorder.
The third situation is where commander's can abuse the regulation.
What is the good faith standard? Good faith means a sincere belief without improper purpose.
Can Command Directed Evaluations be used as reprisal? No. Paragraph 3 (e) of the DoD Instruction states that "no one may refer a Service member" for an evaluation as a reprisal for making a lawful communication described in the instruction.
Can a member be involuntarily hospitalized? The intent of the instruction is to have a psychiatrist or provider with admitting privileges conduct the evaluation. The evaluation issues supposed to be conducted in the least restrictive manner. The doctor could admit the member to the hospital.
What rights does the member have? The member should be notified in writing of the evaluation at least two days before the appointment. The member has the right to contact an attorney and communicate with the IG. After admission to the hospital, the member has the right to contact a friend, chaplain, attorney, or any office of the Inspector General.
Should the member cooperate with the CDE? That is a question that requires a consultation. Within 24 hours, the doctor will provide the commander with a diagnosis, prognosis, treatment plan, and suitability for service recommendation. When the CDE coincides with other legal trouble, a legal consultation is absolutely recommended.
The Army has published the January 2017 court-martial results.
As always, here is our analysis.
We count 51 court-martials. I count 35 guilty pleas (68%). I would say total plea bargains were trending slightly above average for January.
We're starting to see - over the last few months - more judge alone trials. I still think the data supports jury trials in most cases. That is true most of the time in sexual assault cases. The sexual assault data for January was a mixed bag. There were 11 cases. Five were mixed verdicts. A mixed verdict in a sexual assault case is usually a not guilty to the sexual assault and guilty to an assault consummated by battery. It's usually when the jury has reservations about the credibility of the alleged victim.
There were two judge alone acquittals and two jury full acquittals. The sentences were all very low except for a 5 year sentence from a judge. But, once again, nearly half of the contested sexual assault cases were acquittals. That number is down a little, but still high.
Total - 51
Guilty pleas - 35 (68%)
Contested Cases - 16 (32%)
Mixed Pleas - 2
Jury Trials - 9 (17%)
Judge Alone Contest - 6
Mixed Verdict - 8
Full Acquittals -4 (two judge alone, one enlisted panel
January Results of Trial
Marine Special Operations Command Marines are back in the news.
On 4 March 2007, Marine Corps Special Operations Command members came under attack during a deployment to Afghanistan. After engaging the threat, the Afghanistan Independent Human Rights Counsel later alleged that upwards of 19 civilians were killed and 50 were injured.
The commander of the unit, Major Galvin, is asking Congress to require the Commandant to officially vindicate the Marines. See story. I would say it is about time.
I represented one of the Marines involved in engaging the enemy. Through aggressive representation and case investigation, the Marine was never charged. It was a highly political case that followed on the heels of allegations involving Haditha. But, these were Special Operations Command Marines. NCIS was able to mistreat and bully the young Marines in Haditha. The MARSOC Marines were more disciplined.
They all learned the lessons of Haditha and only minimally cooperated with NCIS to provide the information necessary to show that they acted in accordance with the rules of engagement.
Basically, a suicide bomber had wedged himself between the first and second vehicles in a 6 vehicle convoy. Here is a graphic I created back in 2007 while investigating the case.
The suicide bomber detonated the explosion nearly straight up in the air. It was a miracle that no Marines were killed or seriously injured. There was literally minimal damage to the vehicles. The Human Rights report was misleading in nearly every respect about the engagement.
This blog certainly supports efforts to vindicate the Marines. They were well-trained, disciplined, and performed their job honorably.
Among the matters you should consider are: [appropriate selections may be made from the following list]
Attached is an NCIS Privacy Act Request form for those looking to obtain NCIS records pertaining to their case.
NCIS requires proof of identity. We recommend including a copy of a drivers license. You can also provide a declaration establishing your identity and indicating "I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct."
The request should be sent to:
Naval Criminal Investigative Service
Attn: Code 00LJF
27130 Telegraph Road
Quantico, VA 22134-2253
Or Fax - (571) 305-9867
We receive questions frequently about how to request records and information from Army CID. Often, Soldiers suspect they have been titled, but are not sure.
This is the current form from the CID website:
Fill the document out. Sign and date the document. Keep a signed copy.
Copy your driver’s license and include the copy with what you send. Sign your name on the copy.
Send by express mail the original signed document to:
Army Crime Records Center
27130 Telegraph Road
Quantico, VA 22184
Keep a copy of the tracking number.
The response from CID should tell you whether documents - if any - are in your CID file.
Army November 2016 Court-Martial results - PANELS in CONTESTED SEXUAL ASSAULT CASES CONTINUE TO VOTE NOT GUILTY
The latest court-martial results reported for the Army are from November 2016.
November is a busy month for the trial judiciary. There is historically a push to clear the docket before the holidays.
Bottom line. I still think that the data supports electing a jury/panel in most cases.
Seventy percent of cases in November were guilty pleas. That is a huge number. Just based on the reporting though, it appears there was sound judgement in accepting plea deals.
The high number probably needs some context. I count 9 cases involving sexual offenses against children. Six were guilty pleas. Two were full acquittals. One was a conviction. If we remove the child sexual assault guilty pleas, the number of deals was a little over 50%. That seems more consistent with past reporting.
It looks like defense counsel exercised good judgement in selecting the cases that resulted in guilty pleas. Most of the guilty pleas involved offenses like AWOL, false statements, and in several cases offenses on children.
Of interest, we watch the numbers in adult sexual assault and sexual contact cases. I count 8 sexual assault related trials. Most of the trials involved many different allegations. We're looking at the results on the sexual assault charges only.
Only 20% of the total cases in November involved adult sexual assault charges. That number is down from past months. There were guilty pleas in 3 of those cases (33%).
Four cases were contested jury trials that resulted in acquittals. In fact, it appears that juries acquitted 100% of the time in November on sexual assault charges. One of those acquittals was a case that I did.
There were two judge alone convictions at Fort Riley involving 66 month and 36 months sentences. I would be cautious about going judge alone at Fort Riley.
The total sexual assault convictions all involved 16 month, 24 month, 36 month, and 66 month sentences. I would say that is the full range of sentences in the Army - with 24 months being closer to average for single victim Article 120 cases.
In terms of total courts, I count the following:
Court-Martial (General and Special): 44
Guilty Pleas: 31 (70%)
Mixed Pleas: 1
Full Contests: 12 (27%)
Jury Trials: 7
First Judicial Circuit: 6 trials
Second Judicial Circuit: 11 trials
Third Judicial Circuit: 10 trials
Fourth Judicial Circuit: 14
Fifth Judicial Circuit: 3
The Air Force has published their court-martial results for December 2016.
They reported 19 courts-martial service wide. 17 were reported as convictions and 2 as acquittals (10%). That is a number desperate for context.
This firm is interested in cases where a military jury/panel finds the accused not guilty. There were 4 pretrial agreements. (21%). That's positive news for the Air Force defense community. They are not taking deals as frequently as the other branches. This could be because most of their cases are drug cases.
Removing the deals, the acquittal rate was about 13%. That is unusually low for December. The sexual assault acquittal rate was 33%. Two convictions and one acquittal in sexual assault cases. That is a little bit low. We've seen acquittal rates in the other branches trending between 50-60%. The conviction sentences were 5 years and 60 days. There was a pretty wide range. The Air Force tends to prosecute a number of sexual touching through closing cases. Those cases tend to result in lower punishments - but still sex offender registration. They are very serious cases for that reason.
For whatever reason, the Air Force litigates drug trials at a pace that is out of touch with the rest of society. 10 of the 19 courts were drug related. (52%). There is no way to sugar coat it. The Air Force has lost their minds on drug cases when over half of their court-martial docket involves drugs. Most of those are cases that should probably be resolved with the administrative separation process.
The one general court-martial acquittal was in a sexual assault case involving a child at Joint Base Lackland/San Antonio. In a special court-martial, an Airman in Italy was acquitted of wrongful drug use.
The Air Force clearly needs a shift in litigation philosophy. That is evident from the Special Court-Martial results. There were 13 special court convictions. They were all for very minor offenses - mostly drugs. What is most surprising is that military judges imposed confinement every single time in drug cases. The moral of the story is never go judge alone in an Air Force drug case. Air Force panels did impose confinement in a few cases, but were generally lighter.
The Army Times is reporting on a new provision of the National Defense Authorization Act that encourages the Discharge Review Boards to liberally consider upgrade applications of service members separated for misconduct related to sexual assault or harassment.
The intent is to bring the same standards to victims as we have in post traumatic stress cases. The law even encourages the boards to waive the 15-year statute of limitations when appropriate.
Our firm has been a leader in defending service members with post-traumatic stress. Though we defend sexual assault cases, we've also been a leader in representing sexual assault victims. We do not judge people that come to us for help.
This blog has written extensively on our experiences at the discharge boards with post traumatic stress cases. I would imagine the standards will be similar for sexual assault and harassment cases.
I expect the boards will be examining the following questions:
1. Was the misconduct leading to separation related to the sexual assault or harassment?
2. Is it documented or reasonable to conclude that there was, in fact, a sexual assault or harassment?
3. Was there any history of misconduct before the assault or harassment?
4. Are there mitigating facts in the case?
5. Was the misconduct premeditated or a momentary lapse in judgment?
A consult with one of our lawyers can be valuable. We are in front the discharge review board frequently and have a sense of who the current members are. We are typically able to we'll prepare clients for the questions they will receive.
14 March 2016 - ABCMR and ADRB Insights in PTSD Discharge Upgrade Cases
In Part I, we discussed some Department of Justice data on false allegations that I stumbled across at Fort Carson. In Part II, I took at a look at deception and some of the verbal cues that we use to analyze accusations. In this blog, I'll briefly look at nonverbal deception. In the last part, we'll talk about false confessions.
The reason we have to discuss nonverbal deception is because most false allegations are the result of prepared lies. In other words, the accuser has had ample opportunity to formulate the lie. Well-prepared lies can be difficult to dissect.
There are, however, often moments in trial when facial expressions tell more of a story than the witness. In December, I represented a major who was accused of abusive sexual contact. The alleged victim attempted to extort him for $18,000. If he didn't pay her, she threatened to make an allegation of sexual assault. We ran some background searches and discovered that she had purchased a new car around the time of the extortion. Imagine the look of surprise on her face when we cross-examined her. She had no idea we knew. We won the case. That micro-expression of surprise may have been the reason why.
One of the leading researchers on nonverbal deception is Paul Ekman. Along with his team, the developed a system for analyzing spontaneous expressions. He has published several books.
Facial expressions can be hard to suppress. When people are lying, they are often trying hardest to regulate their facial expressions rather than their body movements. Some people are good at masking their expressions. Generally, it is very difficult to simulate spontaneous facial expressions.
As a lawyer cross-examining or interviewing witnesses, however, I want to pay careful attention to startle responses. In other words, the element of surprise is powerful as a questioner. I'm watching very closely whether they are trying to voluntarily control their facial expressions.
The muscles around the eyes are particular difficult to control. Brow raises, squinting, lip stretches, neck muscle activity, and eyes closing are all micro-expressions we want to pay attention to. The eyes may very well be most important. The obicularis oculi is the muscle that tightens the muscles around the eyelids and skin. It is particularly difficult to control during a startle response.
In circumstances where the witness may be experiencing embarrassment, amusement, or shame we are looking for gaze aversion, shifty eyes, and speech disturbances. Downward leaning posture generally.
Smiles are particularly important to watch. Ekman did a fairly famous study where they showed nurses two films - a pleasant film and a film showing burn victims and amputees. The nurses were asked questions about the films. They were told to mask their feelings about the disturbing video.
When the nurses were being truthful about the pleasant video, slow-motion cameras noted natural movements of the obicularis oculi. In other words, genuine smiles had symmetrical tightening of the skin around both eyes. When subject attempted to conceal their emotions, you could still detect traces of the natural emotion.
In that regard, throughout a trial or witness interview we want to be hyper vigilant to a witness's micro-expressions.
In Part I of this blog series, I posted some data from the Department of Justice on false allegations. In Part II, I'll discuss the literature on detecting lies. In Part III, we talk about nonverbal deception and facial expressions. In Part IV, I'll talk about false confessions.
I've spent the better part of the past decade studying deception. It is a critical area of study for the lawyer who makes their living cross-examining witnesses. There is extensive literature on both verbal and non-verbal deception. For a service member accused of crimes, you want a lawyer skillful at detecting deception.
One of the most influential books for me is "Detecting Lies and Deceit - the Psychology of Lying and the Implications for Professional Practice" by Aldert Vrij. The lessons from that book have served me well as a trial lawyer. Here are some of my take aways from that book.
In terms of detecting deception, you need to understand a couple of key principles:
1: Human beings are poor at detecting deception. This is a key point, because military members on juries tend to believe that they are good at detecting deception. They have a high level of confidence in their ability to detect deceit. They can be prone to making quick judgements.
The truth and data shows they are not good at detecting deceit. For that reason, we have to be very skillful at explaining deception and motives to lie. Studies of police officers shows that they detect lies about 57% of the time. Even professionals are poor at detecting deceit.
2: Human beings are good at lying. And they lie frequently. It is estimated that people lie once in every 10 social interactions. Those lies are detected about 18% of the time.
3: Lying is an intentional act.
4: There are three ways to detect a lie. (A) Observing verbal behavior (B) Analyzing speech content and (C) Measuring physiological responses (blood pressure, heart rate, etc).
5: People lie for several broad reasons:
A: To protect themselves from embarrassment or disapproval;
B: To gain an advantage;
C: To avoid punishment (This is an important one for cases involving children. They tend to tell lies to avoid punishment);
D: For another person's benefit; and,
E: For the sake of social relationships.
6: When cross-examining and interviewing witnesses, we're looking for outright lies, exaggerations, and subtle lies. We want to be able to point out these distinctions to panel members.
7: A lie is easier to tell when the speaker has an opportunity to prepare the lie. This is another key lesson for court-martial practice. We want to illustrate to the jury - every opportunity that we get - that the government's witnesses had an opportunity to prepare their lie.
8: We want to observe the liar's personality traits as best we can. Some liars have manipulative personality traits. They do not lie if they are likely to get caught. They can be dominating in their conversation patterns. They may seem relaxed and confident. Some people are sociable or good actors. They are talented at regulating their physical appearance when lying. Other people are adapters. They have a way of trying to make a positive impression on others.
9: We want to pay careful attention to nonverbal behaviors and micro-expressions. This is difficult to do in a trial setting. However, it is immensely valuable when we can point witness micro-expressions out to the jury. There are automatic links between emotions and lying. People sometimes contort their faces in particular ways that we will discuss in Part IV.
10: We want to be aware of the mental processes that the liar is experiencing during the deception. They may be feeling guilt, fear, or excitement.
11: When the lie is complex or the liar is taken by surprise, there may be slower or faster rate of speech, speech errors, changes in pitch, sentence repetition, delays in answering, and gaze aversion to avoid distraction. They may also be very self-conscious about their behaviors and over-regulate their posture and nonverbal presentation. We're looking for shifting movements.
12: Liars in the military are not always taken by surprise. The lie is prepared. In those cases, we may be looking for a faster speech pattern and fewer speech errors.
13: In a court-martial setting, one of the best approaches - in my opinion - is in analyzing the content of the speech. This is a skill that I have really practiced over time. Here are some of the aspects of speech that I am paying close attention to:
A. Negative speech indicating aversion towards people. Things like disparaging statements;
B. Plausible answers. The truth usually makes sense.
C. Irrelevant content. We pay careful attention to people who provide irrelevant information.
D. Overgeneralized statements. Words like always and never. Military members have a tendency to abuse generalized statements.
F. Unusually direct answers.
G. Response length.
These are not all indicators of deception. These are simply aspects of speech that we are paying careful attention to.
14: The details of the offense are critical to analyze. If the details of the offense seem implausible, we want to understand why. People who lie often do not have enough information available to present a coherent story. Sometimes they want to avoid details so they do not later forget them. Often a chronological account is easier to tell than an unstructured account.
15: When I read a victim or client statement from law enforcement, I have a validity checklist:
-Inappropriate language or knowledge
-Susceptibility to suggestion - discussed more in our upcoming blog on false confessions
-Overall thoroughness of the interview
-Motives to lie
-Context of the original report
-Pressure to report
-Inconsistencies with other witnesses and evidence
Often, it is helpful to analyze other aspects of speech. An older book titled "Mannerisms of Speech and Gestures in Everyday Life" by Dr. Sandor Feldman takes a more Freudian approach to analyzing speech. Some of this analysis is helpful to the trial lawyer. Dr. Feldman analyzed common expressions.
For instance, when a person says "by the way", Dr. Feldman theorizes that the speaker is attempting to make the information appear unimportant. Or they are trying to appear as though the remembered the information incidentally.
"Needless to say" can signify ambivalence. A sentence that begins with "honestly" suggests the person is not always honest.
There is rarely a good reason for a person to say "I don't care." It's a common answer when a victim is asked about their opinion on the outcome of a case.
The phrase "of course" can be a clue to possible deception. Imagine a woman who asks her husband if he still loves her. He says, "of course." A simple yes would be more appropriate. The "of course" tells the truth in a veiled way. He loves her, but not like before. When a court-martial witness uses the phrase "of course", I usually want to delve deeper into why they said that.
Words like "only" and "just" can sometimes mask guilt or responsibility.
Those are just a few examples.
The bottom line is that it takes years of experience interviewing hundreds - maybe thousands - of people to become skilled at cross-examination. It requires us to be present in the moment, to know the evidence better than the witness, and to have good judgement in knowing what to ask and what not to ask.
In the next section, we'll discuss non-verbal cues and micro-expressions.
I was recently at Fort Carson, Colorado. I came across a flyer from the Department of Justice titled "False Allegations of Adult Crimes Reference Guide." The flyer has prompted me to write about false allegations and deception. This Part I will provide the data from the Department of Justice. The data apparently came from the FBI Behavioral Analysis Unit and National Center for the Analysis of Violent Crime.
The primary motivations and indicators section below provides a great resource for closing arguments in military court-martials.
The Department of Justice flyer on false allegations provided the following data on false allegations:
-Most likely white (93%)
-Majority are female (73%) male (27%)
-Average age was 30 and the most frequent age was 41
-At the time of the offense, 27% had documented mental illness (depression most common), all female
-At least 43% had a HS education/GED
Marital status by gender:
-Females, married (18%), never married (50%)
-Males, married (89%), never married 30% first marriage, 10% co-habitating/significant relationship
-Full-time employment (60%), part-time (3.3%), student (3%), unemployed (17%)
-No known substance abuse (63%), alcohol only (10%)
-Most common life problem prior to false allegation:
-Marital problems/conflict 63%
-Financial problems 33%
-Mental health issues 23%
-Unemployment/recent loss of job 13%
-27% have made at least one prior false allegation; rape/sexual assault (10%), stalking (10%), physical assault (7%), threats (7%)
-23% have been arrested at least once including charges such as theft/larceny, drugs/narcotics, trespassing, assault/battery
-In 73% of cases, the offender brought the case to the attention of law enforcement: sexual assault (73%), abduction (27%), threats (20%), stalking (17%), attempted murder (10%), extortion (7%), physical assault (7%), hate crime (3%), other (13%).
-Over half (53%) of the cases involved two types of offenses.
-In 73% of cases, there are indications of pre-planning/preparation
-Half of the offenses involved more than one location
-Evidence of physical trauma is reflected in 30% of the cases to include blunt force trauma, edged weapon, ligature strangulation, gunshot wound, burn (fire or chemical)
-Sexual trauma is rare; however, when observed there is trauma to the vaginal cavity, foreign object insertion or breast/nipple lacerations
-Evidence of staging in more than half the cases (60%) to include ransacking, vandalism, threat letters, burglary, use of explosive device, and car jacking
Primary Motivation for the Offenses
-Interpersonal violent allegations (e.g. sexual assault) were primarily motivated by attention/sympathy (50%), whereas interpersonal offenses (e.g. arson, theft) involved other motivations such as providing an alibi (17%), mental illness/depression (13%), profit (13%), and revenge (7%)
-Conduct 2 prong investigation
-Continue logical investigation to determine if there is, in fact, a legitimate offender
-Conduct discrete, parallel investigation to determine/identify the life problems of the false allegation offender
-The interview strategy is depending on the motivation of the offender. An investigator would approach an offender motivated by internal need for attention/sympathy far differently than one motivated by financial gain or revenue
-Emphasize the life problems of the offender
Possible Indicators of False Allegations
-Inconsistent statements by the offender
-Deception on polygraph
-Witness statements that conflict with the offender
-Lack of plausibility in the deception of the reported offense
-Lack of substantiating forensic, physical, and/or medical evidence"
We occasionally get asked whether military members can revoke a consent to search. The answer is yes. The sooner you revoke the consent to search the better.
In a case last year, a service member had a conviction reversed because he revoked consent to search.
The court gave a very nice summary of scope of consent. They wrote:
"The scope of a consent search or seizure is limited to the authority granted in the consent and may be withdrawn at any time. M.R.E. 314(e)(3), 316(c)(3); see United States v. Dease, 71 M.J. 116, 120 (C.A.A.F. 2012)."
We usually advise revoking consent in writing. It's a simple memo stating that you "hereby revoke previously providing consent to search [location] on [consent date]." They key is to make the revocation clear and unambiguous.
We previously wrote in detail on the subject here.
Digital forensic evidence is increasingly becoming a part of military criminal defense. The use of digital evidence is now present in nearly every case that we are involved in. It is also one area where potential clients may have the most questions.
In the military, when you are first suspected of a crime the command will often order you to go to Army CID, NCIS, or OSI. This initial interview usually catches people by surprise. Nearly everyone carries their cell-phone on their person just about 100% of the time.
Law enforcement will often use the initial interview as an opportunity to pressure the suspect into consenting to a search. Or, law enforcement will keep the phone. Individuals who do not have their phone at the initial interview are at an advantage.
In the military, digital forensic evidence from the alleged victim and suspect is often treated differently. With the alleged victim, she (almost always) is given the option of providing her cell-phone data. Sometimes alleged victims will consent to a full digital extraction, sometimes they allow law enforcement to take photos of the phone and text messages, sometimes they refuse and provide screenshots of the evidence they want to provide. Regardless, law enforcement is going to cherry pick the data they want from the alleged victim.
With suspects, the situation is the opposite. Expect law enforcement to attempt a full extraction of any data on any topic they can obtain. Here are some frequently asked questions:
1. Do I have to provide my cell-phone to military law enforcement? The short answer is that we would not recommend ever consenting to a search of your digital world - computers, phones, cameras. If law enforcement wants to seize a phone, the 4th Amendment, US Constitution requires them to obtain a warrant. The process of getting a warrant is really not that difficult. However, most current digital products have very robust encryption packages. It is becoming increasingly difficult for law enforcement to access the data without permission.
The purpose of refusing consent - from a defense lawyers perspective - is to help us retain as much control as possible over how the data is being used.
2. What happens to my phone or computer after law enforcement seizes it? CID, NCIS, and OSI all have special agents trained in data extraction. Most offices locally have software systems that allows them to extract data when they have the password. Most of the offices use company called Cellbrite. If you provide the password, they simply plug the device in and extract the data.
If they do not have the passcode, they may have to send the device off for further testing. There is a tremendous backlog right now. We presently have a case pending where the phone and computer was sent for extraction in September 2016. It took approximately 5 months for law enforcement to start work on extracting the data. The queue is that long.
3. Do I have to provide my passcode? This is a question that is becoming increasingly important. At the moment, the answer is no. Law enforcement will be desperate for your passcode. It makes their job significantly easier. It is a question that is becoming the subject of appellate litigation. We have seen civilian cases where people have been ordered to provide fingerprints. There seems to be some body of law that says that you can be ordered to provide a fingerprint. Military courts have not really provided much guidance yet on the intersection of the 4th Amendment and digital forensics.
There is a powerful argument - from a security standpoint - for turning off biometrics. That is probably the best way to protect your data from all possible sources of capture. It is also probably smart to set your phone to wipe data after a certain number of attempts. This is just common sense prudence to protect you from identify theft and other sources of data theft.
4. How long will they keep my phone? If you give your phone or computer to law enforcement, they will keep it at least until the end of the case. Sometimes that can drag out for over a year if the case goes to trial. If the case is resolved, there is a process for requesting a return of the evidence.
5. How will law enforcement use the data? Prosecutors are looking for the following types of evidence:
- Direct evidence of the suspected offense - text messages, photos, videos, etc.
- Geo-location data. We have seen cases where they attempted to track the location of the phone at particular times.
- Data from applications. Facebook, Snapchat, Instagram, etc.
- Viewing contacts and contact history.
- Email data.
- Web search history.
6. Is the defense able to access the phone? This is the most difficult part of handling digital forensic evidence. Often, the client has personal knowledge of helpful evidence that is contained a digital device. Accessing that helpful information can be a challenge. It usually requires us to request that the government pay for a digital forensic expert. If the client has the ability afford their own, that helps. A simple data extraction is usually a few hundred dollars. Our firm typically uses Atlantic Digital Forensics. Then there is a process for having an image of the phone or the phone itself to the digital forensic company for extraction.
Sometimes, the client may have data located in the cloud. Early in the case we want to examine all sources of data history.
7. Can military law enforcement access iPhone data without the passcode? When a client calls us with this question, we usually want to know the make and model of the phone. We can then talk to an expert on digital forensics and determine the level of difficulty law enforcement will have.
Last year, very famously, the FBI had difficulty hacking into an Apple iPhone 5c, model A1532, running IOS 9. A court nearly ordered Apple to assist the FBI. It made national news until a civilian firm was able to hack into the phone.
Bottom line. If you have a case involving digital forensic information, the smart play is to consult an expert.
Over the next few months, we'll be in court defending three sexual assault cases involving the incapacitation of an alleged sexual assault victim. The military typically charges cases where the alleged victim is under the influence of drugs or alcohol as a sexual assault - rather than forcible rape.
For some time, we noticed a trend where prosecutors were charging all sexual assaults as forcible rape. It was difficult to speculate why - though I generally thought it was to make available increased punishment and to avoid having to pay for expert witnesses to testify about intoxicants and incapacitation. This year, we're already seeing prosecutors return to charging alcohol related sexual assaults rather than forcible rape.
Even going back two years ago, alcohol or drug related sex was not a crime unless the victim was substantially incapable of consenting. As you can see below, the word "substantially" was removed from the statute. There certainly was confusion as to what substantial incapacitation meant. There is still confusion as to when a person is no longer able to consent to a sexual act as a result of drugs or alcohol. That's the purpose of this article.
A sexual assault involving intoxicants in the military is defined as:
"Any person subject to this [Article 120, UCMJ] who –
commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to –
-impairment by any drug, intoxicant, or other similar substance, and that condition is known or
reasonably should be known by the person; or,
-a mental disease or defect, or physical disability, and that condition is known or reasonably
should be known by that person;
is guilty of sexual assault and shall be punished as a court-martial shall direct."
Nearly every sexual assault case that I've been involved in over the last 10+ years has centered on questions of blackouts or alcohol amnesia. The recent uptick in alcohol related sexual assaults provides an opportunity to write about the intersection of science and military criminal defense.
The typical military sexual assault fact-pattern includes a victim who claims a lack of memory related to the sexual act. They will nearly always remember the act of penetration. That's an element of the offense. Their memories related to other aspects of offense can be lacking - to put it politely.
The inconsistencies in many sexual assault victims' memories instantly raises a question as to whether enough alcohol or drugs were consumed to cause memory deficiencies. The thought process is that:
1. The alleged victim did not drink enough alcohol to cause memory deficits;
2. The alleged victim is therefore being deceptive about his or her lack of memory; and,
3. Therefore, the alleged victim cannot be trusted.
Reliable evidence as to alcohol consumption is sometimes difficult to obtain. If you are in the military and charged with sexual assault, your lawyer is going to want to try and reconstruct the timeline and history of drinking on the night in question. You can help your lawyer by obtaining evidence like:
1. Bank records that might indicate how much money was spent on alcohol;
2. Photographs or videos from the night in question;
3. Social media posts from the night in question;
4. The identity of witnesses - especially sober witnesses - who can help reconstruct drinking histories;
5. Locations of establishments that may have security footage.
As a lawyer, once we are able to estimate how much alcohol was consumed in a period of time, we'll probably run a simple blood alcohol content calculation. The reason we care about up front BAC estimates, is because experts will often say that blackout events can be expected at BAC concentrations upwards of 0.15. So if the victim's alcohol consumption puts them at lower than 0.15, I'm immediately skeptical as to any memory deficits. That's not to say the person is lying. We're simply going to investigate further.
There are several online BAC calculators. This is just an estimate. Eventually, we'll want to obtain the services of a doctor or expert qualified to testify about the effects of alcohol on memory.
BAC calculations based on breathalyzers or drinking estimates are imperfect. They are based on arithmetic extrapolation. The machine takes a reading. The reading is then converted into a number with a high correlative value to blood samples. The generally accepted conversion factor is 2.1. That factor may not apply to every individual.
To understand how alcohol affects memory, you first need a model of how memory works. There are different models. It's not terribly important to understand. One says that memories are formed in stages ranging from sensory formation, to short term memory, and then long term. There's another model that concludes that the ability to form long term memories depends on how long the information is stored in short term memory.
Regardless of the model, we all seem to agree that alcohol interferes with our ability to form long-term memories. As alcohol consumption increases, so does impairment. Large amounts of alcohol can cause fragmentary or complete memory deficits. Otherwise known as blackouts and alcohol induced amnesia.
The mechanism of how these impairments occur is not completely understood. The basic model says that alcohol disrupts the hippocampus (the part of the brain central in forming memories).
Blackout are really misunderstood. It's important for the lawyer and expert to craft a good direct examination that helps the jury understand the science. A blackout is an event where a person can voluntarily participate in an event, but cannot remember it. Some studies have put intoxicated individuals in driving simulators. They were able to drive, but could not remember aspects of the drive.
This is "anterograde" amnesia. They can't form new memories, but it does not erase previously formed memories. The key, however, is that they can engage in these tasks voluntarily. A typical series of questions for the doctor might include:
"Doctor, can you outline the first effects on people after they begin to consume alcohol? [disninhibition – impairment in judgment, impulsive, not weigh the future consequences of one’s actions]
Disinhibition – would you say that in that state someone would be more prone to do or say things that they would otherwise not do or say if not under the effects of alcohol?
What are some examples of things that people do as a consequence of disinhibition due to the effects of alcohol?
When people do these things – are they doing them voluntarily?
Do they have the capacity to decide whether or not to do those things?
Is it common for people who engage in activities while intoxicated to be embarrassed about those acts later?"
Although blackouts usually are caused by heavy drinking, there are other factors that we want to look at. Common factors that can cause a rapid rise in BAC include:
-History of blackouts;
-Lack of food consumption; and,
-Rate of alcohol consumption.
Scientific studies put blackout thresholds at between .14 and .20 BAC. (See the Goodwin and Ryback studies). I usually go with .15.
If our reconstruction of the alleged victim's drinking history is below that BAC threshold, we're really going to continue examining motivations to lie. I'm always careful to caveat that not all victims are lying. Some are telling the truth. It's important as defense attorneys, however for us to conduct or own investigation and examination of the evidence.
Some common motives to lie include:
-To protect a relationship with a husband, boyfriend, or even girlfriend;
-To protect a reputation;
-To get out of trouble;
-Because law enforcement or a victim's advocate told her she was sexually assaulted, despite her initial belief that she was not sexually assaulted;
-Because of a personality disorder;
-Out of retribution;
-Because the full consequences of making the report are not understood;
-To be reassigned;
-To avoid a deployment;
-To obtain financial benefit;
-To obtain medical retirement for PTSD or some other condition;
-Out of confusion and not knowing what actually happened; or
-To obtain child custody or a divorce.
We have great success when we can show that:
-it's unlikely that the victim was in a blackout because she did not drink enough alcohol,
-that even if she was in a blackout her actions were voluntary,
-and that she has a motive to lie.
More resources on our webpage:
Sexual Assault Defense
Here is a typical direct examination of a doctor:
Doctor, will you please outline the materials that you have reviewed in preparing for this case?
And you have heard all of the testimony presented at trial?
Can you outline the first effects on people after they begin to consume alcohol? [disninhibition – impairment in judgment, impulsive, not weigh the future consequences of one’s actions]
Disinhibition – would you say that in that state someone would be more prone to do or say things that they would otherwise not do or say if not under the effects of alcohol?
What are some examples of things that people do as a consequence of disinhibition due to the effects of alcohol?
When people do these things – are they doing them voluntarily?
Do they have the capacity to decide whether or not to do those things?
Is it common for people who engage in activities while intoxicated to be embarrassed about those acts later?
What happens in terms of thinking and behavior if someone continues to drink alcohol?
How would they appear to others?
If a person continues to drink can it have an effect on level of consciousness?
We have head the term passing out – what is that from your professional perspective?
How does it differ from simply being asleep?
Doctor, what does the term “blacking out” mean?
How commonly does it occur?
How do individuals who are in a black out appear to others?
Could other individuals know whether someone is in a blackout state or not?
So when a person is in a black out state, does it mean that they cannot make decisions about what to do or not to do?
Do they have the capacity to decide to do some things and not others?
What are some examples things people do while in black out states?
Can they subsequently have regrets and remorse?
How would their emotional response appear after realizing what they may have consented to when intoxicated appear compared to the emotional response of someone who experienced a traumatic event to which they had not consented?
When individuals engage in behaviors, but have no memory of major components of such behaviors, how do they make sense of it?
Can individuals who have been in a blackout firmly believe and state with conviction that the circumstances of the evening were different than what they actually were?
When a person clears from being in a blackout and has only partial memories of what actually occurred, does their memory get clearer and more specific with the passage of time?
With the passage of time how do the memories from a truly remembered traumatic event compare with those from a reconstructed memory?
Did you see anything in your review of the case file that indicates that the alleged victim was in a blackout during portions of the evening prior to the alleged charges? Explain