On 25 September, the Army released data on the 42 courts-martial held in the month of August.
There are a number of lessons to be learned.
-32 out of 42 cases in August were guilty pleas;
-In 10 contested cases, only four Soldiers were found guilty. A 60% acquittal rate in contested trials is pretty good odds;
-21 out of 42 cases involved sexual assault or child pornography. That's roughly half;
-Sentences in sexual assault cases stayed within historical ranges that we see. In sexual assault cases involving disputes as to consent, the going rate appears to be around 24 months confinement. In wrongful sexual contact cases, sentences were generally 12 months or less. In child molestation cases, 15-20 years can be expected;
-Rank can play a role in severity of sentence. A major got 13 years for two specifications of sexual assault. Without knowing more about the case, the sentence seems high at first impression;
-Child pornography cases still fall within a wide range. They can be highly fact dependent on the quantity of pornography and level of violence depicted in the videos.
The results seem to confirm my general belief that you are almost always better off electing a jury in a contested case than judge alone.
Here is a breakdown of the data by circuit:
The First Judicial Circuit includes the Northeast and Mid-Atlantic bases - Fort Drum, Fort Campbell, Fort McNair, Fort Knox, etc.
There were six trials in the First Circuit. Five out of six cases were judge alone. Four cases were guilty pleas. One contested case was judge alone and the other was in front of members.
At Fort Drum, in a judge alone trial, a private was found not guilty of sexual assault, but guilty of attempted sexual assault. The judge gave him 24 months confinement and a dishonorable discharge. Judge alone guilty findings for attempted sexual assault can be odd results. I don't know anything about the case. But, obviously the victim alleged penetration, because the Soldier was charged with sexual assault. And obviously the judge did not believe that the government proved there was penetration. So the Soldier was found guilty of attempted sexual assault. Again, without knowing anything about the case, it looks odd on paper that the judge did not believe the victim when they claimed there was penetration.
I'm not going to Monday morning quarterback the defense too much, because this is a tough job. The thing about attempted rape is that I don't often see cases where a man tries to forcibly have sex with a woman and fails. In this case, it appears the attempted rape was the lesser included offense. If that's true, the Soldier may have been better off with a jury. Because if the jury did not believe there was penetration, then they probably would not have found the Soldier guilty of the attempt. I'm sure going judge alone was a tough call.
The contested jury case was an assault case. The jury found the Soldier guilty and imposed 30 days confinement. No discharge.
The Second Judicial Circuit includes Fort Bragg, Fort Benning, and Fort Stewart. Mr. Conway had a full acquittal at Fort Bragg in September. There were 11 trials in that circuit. It appears that 10 out of 11 cases were judge alone. Again, it's breathtaking that military defense lawyers are so willing to go judge alone.
It appears that 9 out of 11 cases were guilty pleas. There was a judge alone acquittal to a marijuana charge. In the jury trial, there was a mixed verdict in a maltreatment and indecent exposure case. The jury imposed 90 days confinement and a dishonorable discharge.
The Third Judicial Circuit was busy - Fort Sam Houston, Fort Hood, Fort Polk, Fort Leonard Wood, Fort Sill, Fort Riley. I, historically, have had great success in this circuit. And it appears that juries continue to be friendly.
There were 14 case in the Third Circuit. It appears that 11 out of 14 were guilty pleas. The contested cases were interesting. In San Antonio, a judge found a sergeant first class not guilty of rape. A sergeant in San Antonio was also found not guilty of sexual assault as was a private. A jury in San Antonio found a specialist not guilty of sexual assault. All of the contested cases were in San Antonio and were acquittals.
The Fourth Circuit includes Fort Carson, Fort Lewis, Fort Richardson, and Hawaii. In August there were 7 cases in that circuit - 6 out of 7 were guilty pleas. The one contested case was at Fort Lewis. It involved a staff sergeant accused of maltreatment and abusive sexual contact. He was sentenced to 6 months confinement and a bad conduct discharge.
The Fifth Judicial Circuit is Europe. I've had two full acquittals in Germany and Italy this year. The Fifth Circuit also presently has one of the most government friendly judges - by reputation. Juries are also perceived to be unreasonable in Europe - though I personally have had acquittals. Forum selection in Europe requires much analysis. There were four trials in August. Three were guilty pleas. The one contested case involved fraternization. The jury basically gave the Soldier a reprimand. That seems to indicate that prosecutors in Germany will take pretty much anything to trial. The old saying that a prosecutor could indict a ham sandwich is still true.
We'll continue to monitor the data as it is released.