We receive a number of inquiries every month about maximum punishments under the Manual for Courts-Martial. Here is the maximum punishment chart for 2019.
Part I, Preamble
Part II, Rules for Courts-Martial
Part III, Military Rules of Evidence
Part IV, Punitive Articles
Part V, Nonjudicial Punishment
Changes to Jury Selection in 2019
Here are the major changes to military practice for 2019. This is a very simplified guide to give potential accused members a general idea of the changes coming for 2019.
In 2019, court-martials will have a fixed composition. A General Court-Martial will have 8 members. It could be reduced to 6 or 7 after challenges or excusals. In capital cases, the jury will have 12 members.
In a Special Court-Martial, the jury will consist of 4 members. There is a new type of Special Court-Martial that is military judge alone.
How Does Voting Work
Under the new system, a conviction will require a 3/4thvote (75%). A General Court-Martial with 8 members will require 6 votes to convict – 3 votes to acquit. A Special Court-Martial with members will require 3 votes to convict – 2 votes to acquit.
How Will Military Judge Alone Special Court-Martials Work
Under the new system, a military judge alone special court-martial will have certain sentence limitations. The judge will not be able to impose a punitive discharge, confinement for more than 6 months, or forfeitures of pay for more than 6 months.
Enlisted Members from the Same Unit as the Accused
Article 25, UCMJ was updated. Previously, enlisted members from the same unit as the accused were prohibited from serving on a jury. Now, any enlisted member is eligible to serve – including from the same unit.
The new Rule for Courts-Martial 502 (a)(2)(B) and 912 allows the Convening Authority to detail alternate members to a court-martial. They are present and hear evidence, but do not participate in deliberations.
Are there new Sentencing Rules
Under the new system, a military judge will conduct all sentencing. In a members case, the accused can elect sentencing by members.
With members sentencing, the jury will adjudge a single sentence for all offenses. With military judge sentencing, the judge will determine appropriate terms of confinement and/or fines for each specification. The judge then determines whether the sentences are concurrent or consecutive. Terms of confinement for two or more specifications will run concurrently when they involve the same victim.
Yesterday we received a Brady notice regarding the military drug labs. Brady, of course, is a landmark Supreme Court case holding that in a criminal case the Government must turn over to the defense all information that tends to exonerate the accused.
Basically, an employee of the military drug labs expressed concern that discrepancy codes at the lab did not accurately account for the possibility that leakage or spillage during shipping of samples can cross-contaminate urine bottles.
In response, the drug lab ran an experiment to determine whether samples can leak during shipping and contaminate other samples. Sure enough, the experiment showed that you can have leakage during the shipping process that can cross-contaminate pure samples. The notices and copies of the experiment are attached.
Army December 2017 Court-Martial Results Analysis - Favorable Results in Contested Sexual Assault Trials
In December 2017, the Army published results for 35 courts-martial. Given the holiday month, 35 is ten to fifteen trials below average.
As a military defense firm, we're largely tracking how defendants are faring in contested trials. In other words, are juries returning not guilty verdicts. Overall, results in contested sexual assault trials were overwhelmingly favorable to the accused.
Of the 35 trials, twelve were contested in whole or in part (34%). Seven of those contested cases involved sexual assault as the most serious offense. A jury or judge acquitted all seven times in December. In 3 cases the judge or jury convicted on a lesser offense of assault or adultery.
There were two manslaughter cases. Mr. Conway handled one of them. We contested the case and the was a conviction with a 6 month sentence. In the other case, the accused pleaded guilty and received a 7 year sentence. Again, a panel was far more favorable.
The take away for an accused facing charges is that military panels will return acquittals when presented with reaps able doubt.
Contests General Court-Martials
-Sexual assault acquittal
-Negligent homicide acquittal - wrongful use and manslaughter conviction
-Abusive sexual contact acquittal - assault consummated by battery conviction
-Aggravated assault acquittal
-Mixed verdict to assault and other charges
-Rape acquittal - mixed plea to adultery
-Matratment acquittal - mixed plea to failure to obey an order
-Sexual assault acquittal, mixed verdict to assault consummated by battery
-Sexual assault acquittal
Judge Contested General Court-Martials
-Sexual abuse of a child acquittal
-Sexual assault acquittal
General Court-Martial Guilty Pleas
Larceny / AWOL
Assault consummated by battery
Sexual abuse of a child
Sexual abuse of a child
Sexual assault of a child
AWOL and Drug distribution
Sexual assault of a child
Sexual assault of a child
Special Court-Martial Guilty Pleas
Assault consummated by battery
AWOL and Drugs
Dereliction of Duty
Assault consummated by battery
AWOL and Larceny
On 7 September 2017, Senator Gillibrand - citing data from 2015 involving 4 installations alleged that fewer sexual assault cases are going to trial resulting in fewer convictions. I'm not convinced her data is current. In July 2017, military juries convicted in 100% of the contested sexual assault trials. The lone acquittal was from a judge.
Military justice prosecutorial strategies and defense strategies have varied over the last two years. Currently, juries are trending towards convicting. Perhaps, there is better case selection by prosecutors. It is unclear because the data and trends change every few months.
As for the July 2017 published Army court-martial results, here is our analysis. July is often Permanent Change of Station season. So the volume of trials is often smaller. That was the case this year.
I'm still seeing a trend involving a high percentage of guilty pleas. The percentage was slightly high in July, but that is probably attributable to more AWOL cases. Defense lawyers were definetly dealing in July. Senator Gillibrand's suggestion, however, that there were fewer convictions does not seem supported in the month of July. Juries and judges convicted at a high rate.
It is clear from the past that military defense counsel in the Army are trending towards electing judge alone trials in sexual assault cases. In July, the data reverted back to panel trials for 5 out of 6 sexual assault trials. The lone sexual assault acquittal was from a military judge.
One interesting note, an officer in Hawaii was convicted of false official statement and received no punishment. It's a rare occasion when a judge imposes no punishment.
Total Cases: 34
Sexual Assault - 5 (14%)
Child Sexual Offenses - 5 (14%)
Drug Offenses - 4 (11%)
Murder - 1
Guilty Plea - 26 (76%)
Judge Alone Trial - 2
Judge Alone Conviction - 1
Judge Alone Acquittal - 2
Jury Trial - 6
Jury Conviction - 5
Jury Acquittals - 1
GCM - 24
SCM - 10
1st Circuit - Northeastern and Middle Atlantic Army Bases
-Total Courts-Martial: 6
-GCMS: 5 (83%)
-Guilty Pleas: 5 (83%)
-Contested Cases: 1 (17%)
-Contested Bench Trial: 1 (100%)
-Jury Trials: 0
-Sexual Assault Cases: 1 (17%)
-Child Sexual Assault Cases: 1
6 Jul 17 - Ft Lee - GCM. Guilty plea to assault consummated by battery. It appears that the original charge involved two specifications of Article 120 - sexual assault. The cap was 6 months.
12 Jul 17 - Ft Campbell - GCM. Judge alone contested trial. The judge convicted him of rape, sexual assault, and abusive sexual contact. He received a 12 month sentence.
18 Jul 17 - Ft Campbell - GCM. Guilty plea to AWOL and disobedience charges. The Soldier had a 8 month cap and also received a Bad Conduct Discharge.
19 Jul 17 - Ft Campbell - GCM. Guilty plea to child pornography charges and sexual abuse of a child. The Soldier had a 6 month cap with a Dishonorable discharge.
21 Jul 17 - Ft Campbell - GCM. Guilty plea to AWOL, drug charges, larceny, assault, and other charges. The Soldier had a 9 month cap and received a Dishonorable discharge.
31 Jul 17 - Ft Eustis - SCM. Guilty plea to drug and larceny charges. The Soldier had a 3 month cap and received a Bad Conduct Discharge.
2nd Circuit - Southeastern Army Bases
-Total Courts-Martial: 2
-Guilty Pleas: 1 (50%)
-Contested Cases: 1 (50%)
-Contested Bench Trial: 0
-Jury Trials: 1
-Sexual Assault Cases: 1 (50%)
14 Jul 17 - Ft Rucker - GCM. Enlisted jury trial. Jury convicted of sexual assault and confined the Soldier for 6 months with a Dishonorable Discharge.
27 Jul 17 - Ft Jackson - GCM. Guilty plea to wire fraud. He was sentenced to 1 year confinement and a Bad Conduct Discharge.
3rd Circuit - Midwestern Army Bases
-Total Courts-Martial: 9
-Guilty Pleas: 7 (77%)
-Contested Cases: 2 (22%)
-Contested Bench Trial: 0
-Jury Trials: 2
-Jury Convictions: 2
-Sexual Assault Cases: 2 (22%)
-Child Sexual Assault Cases: 3 (33%)
5 Jul 17 - Ft Hood - GCM. Guilty plea to assault consummated by battery under Article 128. The judge imposed 45 days confinement and reduction to E-1 with a forfeiture of pay.
11 Jul 17 - Ft Hood - GCM. Officer jury trial for a staff sergeant. He was convicted of sexual assault of a child charges. He received a 51 year sentence and Dishonorable Discharge.
18 Jul 17 - Joint Base San Antonio - GCM. Guilty plea to attempted sexual abuse of a child. The judge imposed a 19 month sentence, but the cap was for 4 months.
20 Jul 17 - Ft Hood - GCM. Guilty plea to assault consummated by battery. It's unclear what the cap was. The Soldier received 6 months confinement and a Bad Conduct Discharge.
21 Jul 17 - Ft Hood - SCM. Guilty plea to false official statement and larceny. The Soldier was reduced to E-1 and received a Bad Conduct Discharge.
21 Jul 17 - Ft Hood - GCM. Guilty plea to AWOL, drug, and larceny charges. Mixed verdict. The judge imposed 38 months confinement and a Dishonorable Discharge.
24 Jul 17 - Ft Hood - SCM. Guilty plea to AWOL. 45 days confinement and a Bad Conduct Discharge.
27 Jul 17 - Ft Hood - GCM. Enlisted jury trial involving sexual assault and sexual abuse of a child charges. The jury convicted and imposed 5 years confinement and a Dishonorable Discharge.
27 Jul 17 - Ft Hood - SCM. Guilty plea to disobeying an officer. 75 days confinement and a reduction to E-1 imposed.
4th Circuit - Far West and Far East Army Bases
-Total Courts-Martial: 16
-Guilty Pleas: 13
-Contested Cases: 2
-Contested Bench Trial: 1
-Judge Alone Acquittals: 1
-Jury Trials: 2
-Jury Convictions: 2
-Sexual Assault Cases: 2
-Child Sexual Assault Cases: 1
-Drug Cases: 2
7 Jul 17 - Ft Carson - GCM. Judge alone contested rape case. The judge acquitted the accused.
10 Jul 17 - Wheeler Army Airfield - GCM. Guilty plea to attempted to sexual abuse of a child. The Soldier had a 16 month cap and received a Dishonorable Discharge.
10 Jul 17 - Ft Lewis - GCM. Guilty plea to assault charges. The judge imposed 185 days confinement and a Bad Conduct Discharge.
12 Jul 17 - Ft Bliss - SCM. Guilty plea to false official statement and orders violations. The Soldier had a 60 day cap.
12 Jul 17 - Ft Wainwright - SCM. Officer panel convicted enlisted Soldier of a drug charge. Judge alone sentencing included a reprimand and reduction to E-1.
14 Jul 17 - Ft Carson - SCM. Guilty plea to desertion and AWOL. Soldier had a 90 day cap.
17 Jul 17 - Ft Carson - GCM. Guilty plea to orders violations. Judge imposed 30 days confinement and a reduction to E-1.
18 Jul 17 - Wheeler Army Air Field - GCM. An officer pleaded guilty to false official statements. The judge sentenced him to no punishment.
19 Jul 17 - Ft Irwin - SCM. Guilty plea to obstruction of justice. 3 months confinement and a Bad Conduct Discharge.
19 Jul 17 - Ft Carson - SCM. Guilty plea to conspiracy to commit desertion and other AWOL and drug charges. The cap was limited to 120 days and a Bad Conduct Discharge.
20 Jul 17 - Ft Lewis - GCM. An enlisted panel convicted a Soldier of sexual assault with a mixed verdict. They imposed 33 months confinement and a Dishonorable Discharge.
21 Jul 17 - Ft Bliss - SCM. Guilty plea to AWOL. Time served deal.
24 Jul 17 - Wheeler Army Airfield - GCM. Guilty plea to adultery and orders violations. Judge imposed a reprimand and reduction to E-6.
25 Jul 17 - Ft Wainwright - GCM. Guilty plea to adultery and false official statement. Cap was 90 days and a Bad Conduct Discharge.
27 Jul 17 - Ft Lewis - GCM. Guilty plea to aggravated assault. Judge imposed 27 months confinement and a Bad Conduct Discharge.
28 Jul 17 - Camp Foster - GCM. Guilty plea to orders violations and other charges. Judge imposed 30 days confinement and a Bad Conduct Discharge.
5th Circuit - Europe
-Total Courts-Martial: 1
-Contested Cases: 1
-Jury Trials: 1
-Jury Acquittal: 1
27 Jul 17 - Ansbach - GCM. A Soldier was acquitted of murder in a shaken baby case.
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.
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
Among the matters you should consider are: [appropriate selections may be made from the following list]
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
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"
On 1 November, the Army released courts-martial data for September. Numbers across jurisdictions seem fairly consistent from month to month since we started monitoring the numbers a few months ago. This blog continues to monitor court-martial volume, forum selection, acquittal rates, and sentence ranges.
September is often a busy month in the Army as courts catch up their dockets after the summer and before the holidays start. There were 44 courts-martial Army wide. Only 19 were contested cases. 56% were guilty pleas. That is a good number to see. More Soldiers took their cases to trial in September.
There were 9 cases that we consider full acquittals - mostly sexual assault. That's a 47% acquittal rate. It's a little below average since we started monitoring the numbers. I suspect it's because 7 of the 19 cases were judge alone. If one or two of those judge alone cases had gone to a jury the numbers may have edged closer to the 60% acquittal rate that we're accustomed to seeing.
Sentences stayed relatively stable within a range. We still expect sexual assault cases to range from 2-4 years per victim. There were a couple of cases that had sentences above market.
Our bottom line analysis continues to be that contested jury trials are often the smart choice. Soldiers in jury trials seemed to fare better - though every case is unique.
First Judicial Circuit includes Fort Campbell, Fort Knox, Fort Drum, and Fort McNair.
The First Circuit reported 10 courts-martial. Six out of 10 were contested cases. Three were judge alone.
Three were contested sexual assault cases in front of juries. The panels acquitted in two cases. At Fort Drum, in an abusive sexual contact case with multiple specifications, a Soldier was found guilty of one of the specs. It was probably a sexual touching. He was sentenced to 3 months restriction and 60 days hard labor without confinement and no discharge.
The Second Judicial Circuit includes Fort Bragg, Fort Stewart, Fort Gordon, and Fort Benning.
There were 8 courts-martial in the circuit. Five cases were guilty pleas. One was a trial by judge alone. The Soldier was convicted by a judge.
One of the two contested jury trials was Mr. Conway's case at Fort Bragg. A Master Sergeant was acquitted by a jury of rape, disrespect, and fraternization.
A Soldier at Fort Stewart had a mixed verdict in a jury trial.
The Third Judicial Circuit includes Fort Riley, Fort Hood, and Fort Sill. There were 10 reported cases in the circuit. This is always a troubling circuit. We don't know what the problem is. Of the 10 cases, 8 were guilty pleas. The two contested trials were judge alone and involved convictions. One was a judge alone sexual assault trial with a 4 year sentence for two specifications of Article 120. It's not an unreasonable sentence, but perhaps a little above market.
Lawyers in the Third Circuit - particularly Fort Hood - tend to be highly risk averse. They seem to favor guilty pleas and judge alone trials. We had one contested case as Fort Hood in October. The jury gave us a full acquittal.
The Fourth Circuit includes Fort Lewis, Fort Richardson, Fort Carson, Fort Wainwright, Camp Casey, and Fort Bliss. There were 13 reported courts-martial. Of those, 8 were guilty pleas.
In the 5 contested cases, only one was military judge alone. That case involved 5 specifications of sexual assault. The judge gave him a 9 year sentence.
In the 4 contested jury trials, the Soldiers fared well. At Fort Lewis a jury acquitted a sergeant of sexual assault. A Fort Lewis jury also acquitted a major of sexual assault. A Camp Casey jury acquitted a sergeant first class of maltreatment.
A Fort Lewis jury convicted a Soldier of raping a child and gave him a 32 year sentence.
The Fifth Judicial Circuit is Germany. There were 3 reported cases. All three should be considered acquittals in our book. A judge acquitted a Soldier of false official statement. A jury acquitted a Soldier of wrongful drug use. In a mixed plea, a Soldier plead guilty to failing to obey an order, but was acquitted by a panel of sexual assault. We're going to tally that case as an acquittal.
One purpose of this blog is to comment on trends in military justice. One of the trends I've seen lately is military defense counsel advising clients to waive their right to the Article 32 Investigation - particularly in sexual assault cases.
As a civilian lawyer practicing exclusively military law, I have a unique perspective. I'm doing cases across the world involving every branch of service. I'm interacting - at one point or another - with judge advocates at most installations. I'm seeing the value or the Article 32 Investigation play out against a wider range of situations and decision-makers.
Over the course of the year, I have repeatedly seen risk-averse military counsel advise clients to waive their right to the 32 because they anticipated a guilty plea and/or couldn't find the value in the Article 32 Investigation. Their thought process often accounts for recent changes to the Article 32 Investigation rules. A recent law review article explains those changes. The important changes includes rules that do not require the alleged victim's to testify. Also there has been a shift in philosophy such that the investigation is no longer a discovery tool of the defense. In other words, the defense cannot use the investigation to learn more about the case. Congress wanted to make the hearing simply a probable cause determination.
Regardless of the motivations of Congress, our success post-rule-changes has been very positive. Contesting court-martial charges often works out more favorably than taking a deal. Each case - of course - is different. But, I like the numbers.
Many defense counsel fail to recognize that there is still value in the Article 32 Investigation for the following reasons:
1 - Sometimes alleged victims change their minds last minute and decide to testify. I saw that happen in January of this year. We were able to cross-examine her;
2 - What happens behind the scenes is often more valuable than what is on the record. I have a dedicated period of time to talk to witnesses off-the-record without prostecutors around;
3 - I can often get non-victim witnesses to testify on the record at the hearing. When that happens, their testimony is locked in. If something happens to them and they are unavailable for trial, we have a transcript of their testimony;
4 - We are often able to convince Investigating Officers to recommend dismissing charges or reducing charges; and,
5 - Our track record in cases where Investigating Officers recommend dismissing charges is overwhelmingly favorable.
As a trial attorney, I almost never want to waive a client's rights. To that end, I've come up with guidelines over time to help in that decision - especially when prospective clients call having already received advice to waive the hearing. We don't waive an Article 32 Investigation until answering the following considerations:
1 - Is there legitimate exposure to additional charges at the Article 32 Investigation?
2 - Are there any witnesses at all that we can call that can be locked in for trial?
3 - Are there preexisting good faith negotiations for a favorable deal?
4 - is there a cost-benefit analysis that is unfavorable?
5 - Is there investigation that can be accomplished off-the-record?
Before waiving rights at an Article 32 Investigation, we always example those issues.
In August, we wrote about independent testing of positive drug test samples. Once again we have another example showing that independent testing of urinalysis samples is often a smart play.
Yesterday, the Seattle Times ran a story about the case of an Army doctor that tested positive for cocaine. The Stars and Stripes picked up the story here.
The positive drug test caused the doctor to face licensing issues and a court-martial. He was convicted. The jury gave him a stunning 2 year sentence. The Army Court of Criminal Appeals reversed the conviction last year. The doctor is still fighting the case.
The facts are quite surprising. After the doctor's urine tested positive, he requested a hair follicle test. The sample was sent to Quest Diagnostics - an approved private testing company that this firm has worked with in the past. The hair follicle test came back negative.
The military judge did not allow the defense to present the negative test, though he allowed the defense to ask questions on cross-examination about the test. Long story short - the defense lawyer never obtained the hair-follicle test report. The court reversed the conviction.
In the past year, this is the second high profile example we've seen of military drug labs using contaminated samples. We've seen other cases where independent DNA testing showed the sample was not from the accused.
Our August blog is still on point. Military juries need to learn that drug testing labs are not perfect.
One of the problems with the drug labs, is that their mistakes do not get caught unless they make a mistake on a control sample. Military members rarely have their samples retested by an independent lab.
There are a few ways that drug labs can make mistakes in the testing process.
The labs can:
-Mishandle samples during the collection process;
-There can be rack jams during automated preliminary screening;
-Samples can be diluted by the drug lab with "certified" clean urine that can result in potential errors in the dilution process and the mathematics of calculating the results;
-Contaminated tubes and equipment are possible at the lab; and,
-Paperwork can be incorrectly processed at the drug lab.
The military services have policies for obtaining independent testing. One strategy - if you are confident that you did not have drugs in your system - is to have the sample independently tested. The testing has to be done by an approved. We have experience in having samples independently tested. Contact us if you need more info on independent testing.
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.