Court of appeals for the armed forces reverses precedent holding that retired sailors and marines can receive a punitive discharge at a court-martial
On 19 June 2018, in US v. Dinger, the Court of Appeals for the Armed Forces set aside some previous precedent suggesting that retired members could not receive a punitive discharge at a court-martial.
10 U.S.C § 6332 states that when a member in the Naval Service is placed in a retired status, that “transfer is conclusive for all purposes.” For that reason, many lawyers and past precedent had concluded that retired members of the Navy and Marine Corps could not be adjudged punitive discharges in a court-martial.
Retired members are rarely tried by court-martial. However, we are seeing a handful of cases where retired members - especially government contractors overseas - are charged with child exploitation offenses. The military will often seek jurisdiction in those cases.
On the issue of punitive discharges for members of the Naval Service, the Court of Appeals for the Armed Forces reasoned that the UCMJ is a self-contained statute. If Congress wanted to exempt retired members from provisions of the UCMJ pertaining to jurisdiction and mandatory sentences, then they would have specifically done so.
It's hard to argue that retired members of the Naval Service should be treated differently in terms of sentencing. This issue is now conclusively decided, however.
On 22 June 2018, the United States Supreme Court issued their ruling in the Carpenter case.
The case could have some application for military practitioners. The use of digital forensic evidence is becoming increasingly common. Law enforcement often seeks to examine cell phone data, computer hard drives, phone company records, and now GPS data. We've certainly seen military cases in the past where the Army sought to obtain geolocation data from a phone company.
Carpenter asked the question whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user's past movements.
Spoiler alert. The short answer for the Supreme Court was yes. There is a reasonable expectation of privacy in your location information. In Carpenter, ironically, the defendant and his accomplices robbed some Radio Shack stores and T-Mobile stores in Detroit. A magistrate ordered Sprint to provide Cell-Site Location Information (CSLI). Long story short, Carpenter's buddies all rolled on him and claimed he was the ring-leader. The Government obtained the CSLI without a warrant.
Under this ruling, the government must obtain a warrant before obtaining Cell-Site Location Information.
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
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.
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.
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.
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.
We occasionally receive questions about whether communications between a husband and wife are admissible in a court-martial.
The basic rule is in Military Rule of Evidence 504. The rule basically provides that a person has a privilege to refuse to testify against his or her spouse during and after the marriage about communications while they were married.
Like all things in the law, there are exceptions when it does not apply:
-When both spouses are participants in illegal activity;
-When one spouse is charged with a crime against the other spouse or a child;
-When the marriage was a sham marriage;
-When one spouse is being used by the other for human trafficking.
On 8 December 2016, the Federal Register published the 2016 Manual for Courts-Martial with all recent changes.
The Navy has released its courts-martial data for October 2016. Here is our analysis. We count 29 General and Special courts-martial across the Navy.
Once again, the Navy dealed out a lot of cases - 20 (75%). Another case (21) was a mixed plea. The Sailor was found guilty of the remaining offenses.
The 8 remaining cases were fully contested. Sailors who contested their cases faired better. All of the contested cases involved sex related offenses. It's become nearly impossible to plead guilty to a sex offense. Four cases were full acquittals (50%).
Our analysis is that you are almost always better off contesting a sexual assault case with a jury.
In DC, a midshipman was found not guilty of rape.
In Norfolk, a Petty Officer was found guilty by a jury of sexual harassment and wrongful disposition of property. He received a BCD and 2 months confinement.
A petty officer at Mayport got 8 years from a jury for rape, aggravated assault with a loaded firearm, and patronizing a prostitute.
A lieutenant junior grade in Pensacola was found guilty of rape by a judge. He received a 4 year sentence.
In San Diego, a jury found a master chief not guilty of sexual assault.
A petty officer in Hawaii was found not guilty of sexual assault by a jury.
A jury found a petty officer in Naples not guilty of sexual assault.
In Rota, a chief got 3 months confinement from a panel for abusive sexual contact.
Mr. Conway following a full acquittal at Fort Carson.
It's that time of year where we can look back and evaluate our results in trial for the year. On our results page, we've posted short summaries of all of the courts-martial that Mr. Conway appeared in.
We may be the only firm that provides end of year litigation statistics. We do so with the standard caveat. Every case is unique and different. We do not guarantee outcomes. These are simply metrics to help us evaluate our own skills and help you select counsel.
As we look at our results for the year, some cases are ongoing, so we'll only include cases where charges were - in fact - preferred and completely resolved in 2016. We had several cases where we avoided charges altogether. Those are not included. Generally, we want to evaluate cases where Mr. Conway appeared before a fact finder and called witnesses.
Mr. Conway appeared on record in 22 courts-martial that had charges preferred and went to completion in 2016. Of those 22 cases, 16 (72%) went to a full trial. The remaining 28% were dismissed after or just before pretrial hearings for a variety of reasons (e.g. no evidence, reduced to reprimand, reduced to separation board, resignation, separation in lieu of trial).
In a statistic we're extremely proud of, 9 out of 14 trials (64%) were fully contested and resulted in a full acquittal. That's nearly two out of three contested cases. Four cases (28%) were mixed verdicts. Of the mixed verdicts, only one case resulted in confinement and/or a discharge.
One case was a full conviction for cocaine use (no confinement or discharge).
Only 2 cases (9%) involved a guilty plea. Mr. Conway has a strong bias against taking deals. Only 3 cases (13%) received confinement (3 months, 241 days, 30 days - two of those cases were guilty pleas).
Here is a breakdown of the cases we tracked to completion to get these results:
7 Jan: Navy officer drug case out of Virginia. Not guilty.
14 Jan: Coast Guard maltreatment case out of Virginia. Mixed verdict. The Sailor was retained.
16 Jan: Louisiana National Guard officer case involving conduct unbecoming, false official statement, and travel fraud. We were prepared for trial, but the officer's civilian employment made a resignation highly desirable. We were able to negotiate a resignation with a general discharge.
20 Jan: An Army officer overseas was accused of sexual assault. The divorce was toxic enough that we were able to avoid a court-martial. The command did give the officer a reprimand.
29 Jan: An Army Soldier in South Korea was accused of sexual assault. Mr. Conway appeared in the Article 32 Investigation. The alleged victim actually testified. Mr. Conway obtained a recommendation of no probable cause. The Soldier accepted a chapter for personal reasons and flowing from some fraternization allegations.
10 Feb: An Air Force Technical Sergeant at Moody was accused of sexual assault by his ex-wife. She testified at the Article 32 Investigation. We got the charges dismissed after the Article 32.
2 Mar: An Army officer in DC was accused of assaulting his wife. It was an aggravated assault charge. There wee photos of the injuries and she ran across the street to immediately report the injuries. The officer was found guilty of a lesser included offense. Mr. Conway got a conduct unbecoming charge dismissed. The officer was retained.
23 Mar: An Airman at Barksdale was accused of forcible rape. He was found not guilty.
6 Apr: An Air Force Staff Sergeant at Mountain Home faced 27 charges of sexual assault and assault by his ex-wife. We got 4 charges dismissed. He was found not guilty of the remaining 23.
21 Apr: At Davis-Monthan, a Senior Airman was facing a very challenging charge sheet brought by his ex-wife. There were sexual assault and assault charges. There were also highly incriminating text messages. We beat the sexual assault allegations. There was a mixed verdict to the assault charges. The Airman got 3 months confinement and a BCD.
24 May: An Army Sergeant First Class was accused of sexual assault by a staff sergeant in Germany. He was found not guilty.
8 Jun: A Sailor in New Jersey was caught on tape stealing from the post-exchange. Larceny charges were preferred. Mr. Conway negotiated a separation in lieu of trial.
16 Jun: An Army sergeant in Vincenza, was accused of disrespecting an officer and other allegations involving 3 females. We linked the 3 females together in a conspiracy. The sergeant was found not guilty of everything.
19 Jul: A Marine corporal at Miramar testified positive for a really high amount of cocaine. He was found guilty. He got no confinement and no discharge.
5 Aug: A Marine corporal was facing a court-martial for steroids. We got the charges dismissed and the Marine went to an administrative separation and got a recommended suspended general discharge.
15 Sep: An Army Master Sergeant at Fort Bragg was accused of raping his daughter - among other things. He was found not guilty of everything.
6 Oct: An Army sergeant at Fort Hood was accused of child abuse - among other things. He was found not guilty of everything.
13 Oct: A Marine male lance corporal was accused of abusive sexual contact of 3 male Marines in their sleep. We got a few charges dismissed. Ultimately, we negotiated a time served deal. The Marine also received a discharge.
2 Nov: An Army sergeant at Fort Benning was facing failure to report, falsifying PT scores, and a litany of other charges. He was found not guilty of everything.
10 Nov: Negotiated guilty plea for an officer who falsified documents to receive the bronze star and many other awards. 30 days confinement and a dismissal.
17 Nov: A major at Fort Belvoir was accused of abusive sexual contact by a staff sergeant. He also faced communicating a threat and fraternization charges. He was found not guilty of everything but the fraternization. He received a reprimand from the jury.
15 Dec: An Army captain at Fort Carson faced allegations of abusive sexual contact by a sergeant. He was found not guilty of everything.
A CID agent interrogating a Soldier.
Part of the purpose of this blog is to stay abreast of the latest science relevant to military criminal defense.
As trial attorneys, we know that most of the evidence in a criminal trial comes from eye witness testimony. Unfortunately, it's the least reliable form of evidence. New research from The University of Warwick indicates that people will accept that a made-up event from our lives occurred if provided with self-relevant information about the fictitious event.
The study can be found here. A downloadable PDF available for free on the publisher's website is also included below. The full citation is:
Alan Svoboda, Kimberley A. Wade, D. Stephen Lindley, Tanjeem Azad, Deryn Strange, James Ost & Ira E. Hyman (2016): A mega-analysis of memory reports from eight peer-reviewed false memory implantation studies, Memory, DOI: 10.1080/09658211.2016.
In the study, researchers suggested fictitious autobiographical events to over 400 participants. Nearly half believed the events happened. Thirty percent remembered the event and elaborated on it. Over 20 percent accepted it, though they didn't remember it.
Some of the fictitious events included a hot air balloon ride as a kid, playing a prank on a teacher, and spilling a bowl of punch on the mother of a bride at a wedding.
The study has important implications for trial attorneys. The authors identify many ways that false memories can be implanted in a person. At the outset of implanting a false memory, most people deny remembering the event. People will not accept a false memory until it becomes plausible. In a law enforcement setting, there is often a real danger that questioners of an alleged victim will wittingly or unwittingly implant a false memory.
Some examples from the study include:
-Upon demand to remember, some people can create inferences that lead to imagery of events that never occurred. This is especially problematic when they are encouraged to create imagery.
-Self-generated details can lead to more false memories.
-Showing a person photographs can lead to false memories.
-Providing self-relevant information can lead to false memories.
-People are more likely to accept false memories when a coherent narrative is provided.
-People can also remember false emotional states.
According the study, the likelihood of implanting a false memory can often result from the interaction of several of the above tactics.
It's an interesting study for the defense attorney preparing to cross-examine government officials and others who may have tainted an alleged victim's memory.
For the first time on this blog, we take a look at Air Force courts-martial results for September 2016. The Air Force posts results at:
Results are organized by forum and result. The other branches organize the data by circuit. We analyze the data collectively.
The Air Force reported 32 General and Special Courts in September. There were 5 acquittals. (15%). That number is desperate for some context.
The Air Force does not report whether a case was resolved through a guilty plea. It's critical information for policy makers to know the cost and extent of pleas in the military.
There were only 8 jury trials.
Air Force numbers are probably skewed relative to the other services. 16 cases were drug related. (50%). That's just ridiculous. Drug cases in other branches that would likely result in administrative separations are resulting in criminal convictions in the Air Force.
The numbers are really tough to analyze because of the quality of data. But, acquittals in 5 out of 8 jury trials is not bad. (62%).
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.
Navy Results of Trial for September 2016 - 86% of Cases Guilty Pleas and 50% Acquittal Rate in Contested Sexual Assault Cases
I'm making it a point to publish assessments of the results of trial across branches on a monthly basis.
The Navy publishes it's results here:
Our firm did not try any Navy cases in September. Mr. Conway did win an administrative separation board at Naval Air Station Oceana with a 3-0 finding of no misconduct in a drug case. But, we did not have any Navy Courts-martial.
Bottom line, the Navy is dealing as usual. There were 23 courts-martial Navy wide. Three were contested cases (13%). One contested case resulted in a not guilty verdict. The other 20 cases (86%) were guilty pleas.
Of the three contested cases, two involved sexual assault. A chief got 6 years and an E-5 was acquitted. There was also a guilty finding in a sexual abuse of a child case, but the sentence was 8 months. If you take that case out, there was still a 50% acquittal rate in sexual assault jury trials.
My assessment - continually - is that the results tend to be more favorable when you go to trial. Each case stands alone - it's a case-by-case basis. But, the broader system-wide numbers are still favorable for an accused.
In the Navy District of Washington there were two General Courts-martial and one Special Court.
All three cases were guilty pleas. Two involved child pornography and had sentences at 18 months and 6 years. The other was a larceny case with 45 days confinement.
Navy Region Mid-Atlantic is one of the busier Naval jurisdictions. We have a Norfolk office. They had 4 General Courts-martial. There were two plea agreements - an adultery type case with 89 days confinement and an involuntarily manslaughter case with 42 months confinement. A CPO was found guilty of sexual assault and sentenced to 6 years by a panel. A panel gave a CPO 8 months for sexual abuse of a child and indecent exposure.
In the Navy Region Southeast there was one General Court and one Special Court. In a judge alone General Court-martial, a Sailor was found guilty of sexual assault and given an 18 month sentence. A guilty plea at a Special Court for larceny and false official statement resulted in a 6 month sentence.
Navy Region Northwest had 2 General Courts and 5 Special Courts. Both General Courts were guilty pleas. One General Court was a indecent recording and child pornography case with a 48 month cap. Another involved wrongful wearing of insignia with a 2 month sentence.
All 5 Special Courts were guilty pleas.
Navy Region Southwest had 5 guilty pleas at Special Courts.
In Navy Region Europe a Sailor stood trial for sexual assault at a General Court-martial and a panel found him not guilty.
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 recent months, this firm has seen an uptick in the number of marijuana cases in the military. Marijuana is increasingly available as states across the country decriminalize the drug.
The military, however, maintains a zero tolerance attitude towards illegal drugs of any kind. As edible marijuana products become more popular, the risk of a positive urinalysis from consuming edibles at social events increases.
I’ve had several cases this year involving the innocent ingestion of marijuana through edible products. One senior enlisted Sailor even consumed a pot brownie at a church gathering. The threat is real.
I’m also having success presenting a “pot brownie” innocent ingestion defense. Innocent ingestion defenses involving edible products have two components. There is a scientific aspect to the case and a need to present witnesses and evidence of the innocent ingestion. When those two elements are met, we tend to be successful.
Interestingly, marijuana laced brownies and urinalysis tests has not been studied extensively. There is really only one study on the issue. It's the Cone and Buddha study titled "Marijuana-Laced Brownies: Behavioral Effects, Physiologic Effects, and Urinalysis in Humans Following Ingestion." It's a 1988 study that has been admitted as an exhibit in public hearings countless times.
Basically, 5 subjects ingested marijuana-laced brownies in a double-blind crossover study. A double-blind crossover means at some point in the study, all of the participants switch from an active substance to a placebo or vice versa.
The study is a little dated. They used marijuana with a concentration of 2.8% THC. Nowadays, you can purchase marijuana legally with as much as 24% THC. The brownies in the study had 1.6g of marijuana plant material. That is the equivalent of 2 standard 800mg marijuana cigarettes with a 2.8% concentration. They were tested at intervals for over 3 days up to two weeks.
Most subjects felt the effects of the marijuana between 30 minutes to 3.5 hours after ingestion. For the most part, all they really measured was pulse rate standing and sitting, respiration, and pupil dilation. Changes were modest - never more than 20% from baseline readings. Subjects tested positive anywhere from 3 to 14.5 days after ingestion. The two-week period, of course, involved small amounts.
The takeaway for modern innocent ingestion defenses is that people tend to eat more than two brownies and modern concentrations of THC in edible products is exponentially higher than in 1988.
When we're pursuing a "pot brownie" defense we want to look for the following pieces of evidence:
-Witnesses that can testify how much of the edible product was consumed;
-When the edible product was consumed;
-The testimony of the person who prepared the edible products is always helpful;
-A recipe for the products;
-If the THC concentration of the plant material is known;-
-Whether anyone else is known to have consumed the product in the social setting;
-What effects were felt.
-Whether the service member has good military character.
When we can answer these questions in a manner that is consistent with the science - in other words the numbers and nanogram count makes sense - we tend to have success.
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.
Every defense attorney seems to go through evolution in their career. Early on, there tends to be a tremendous fear of the jury. What I mean is that many young defense counsel fear that the jury will be government friendly, harsh, and unforgiving on sentencing. This leads to extremely risk averse decisions like taking deals or selecting judge alone forums.
Make no mistake, sometimes pleading guilty or going judge alone is the best decision. But, the data seems to indicate that lawyers are taking the deal an awful lot of the time.
In the last four weeks, I've litigated two contested trials in front of juries at Fort Bragg and Fort Hood. I've also defended two separation boards at Marine Corps Air Station Miramar and Marine Corps Base Twentynine Palms. We had full acquittals at trial and positive results at the separation boards.
In that time, the Army has also released its court-martial data for the month of August. They don't always release that data monthly. The data showed that 32 out of 42 cases were guilty pleas. Clients took the deal 76% of the time. Half of the contested cases were jury trials and the other half were judge alone trials.
In my contested trials, military lawyers recommended a chapter in one case and a mixed plea in the other case (pleading guilty to some charges and not others). In both cases we got full acquittals.
Over the last few years, the military system has been under attack by civilians over sexual assault cases. The unvarnished reality is that military juries are the best juries in the world. HANDS DOWN. A military jury is always well-educated. Both officer and enlisted members have college degrees, advanced degrees, or equivalent training. The panels are usually a diverse cross-section of race, gender, and professional experience. They are trained to follow orders and be disciplined. I truly believe they follow the law.
The fear of the military jury can often be irrational. Fort Bragg is a perfect example. The perception among the defense community is that 82nd Airborne Soldiers exhibit the most Army pride of any unit of Soldiers. They are likely to be jurors predispositioned to favor Army prosecutors. My experiences have been to the contrary. My last two cases there were full acquittals. Both cases involved jury nullification.
Forum selection is an agonizing decision. But, it shouldn't be made because you're afraid of the jury. With a well-prepared case and strategy, a military jury wants to acquit.
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.
Commanding General of Marine Corps Training and Education Command Completes Review of Investigation into Drill Instructor Abuse at Parris Island (Copy of Public Affairs Guidance Included)
On 8 September 2 2016, the Commanding General of Marine Corps Training and Education Command completed his review of an investigation into drill instructor abuses at Parris Island. The investigation was prompted by the death of Recruit Raheel Siddiqui - who jumped from the ladder well of his platoon's third deck squad bay on 18 March 2016.
This firm is not presently involved in the case, but we have obtained a copy of the internal Public Affairs guidance memo. We have represented many drill instructors in the past. The memo provides new details not presently released to the public.
1. There were three investigations. The first investigation dated back to November 2015 to look into racially motivated hazing, assault, and alcohol use by a drill instructor. The second investigation was into the facts related to the death of Recruit Siddiqui. The third investigation was the result of an anonymous complaint in Third Recruit Battalion back in April.
2. The investigation indicates a lack of adherence to policies and supervision. It indicates that personnel have been identified for disciplinary action.
3. The Commanding Officer of the Recruit Training Regiment, Commanding Officer of Third Recruit Training Battalion, and the Sergeant Major of the Recruit Training Regiment have already been relieved from command.
4. Article 32 Investigations into the drill instructors have apparently already been scheduled.
5. The investigating apparently uncovered the hazing and maltreatment of newer drill instructors by more experienced drill instructors.
6. The Public Affairs office is preparing to change the media focus on the fact that Recruit Siddiqui was Muslim to one that is focused on the positive aspects of recruit training.
This firm has a long history of representing drill instructors and Marines in hazing and maltreatment cases. We will be watching this case closely. Our experiences with the Haditha case and others have demonstrated the Marine Corps willingness to release information to the public in a way that is harmful to the accused Marines. Defense counsel will have to be wary here of unlawful command influence and illegal pretrial publicity.
Over the last few years, the Manual for Courts-Martial has undergone a series of seemingly never-ending changes. This year's installment of changes has been approved.
For the non-lawyers, changes to the Uniform Code of Military Justice occur through Congressional action. The UCMJ is a statute. The President, however, can enact changes to the Manual for Courts-Martial and Rules for Courts-Martial through Executive Order. Usually, changes to the manual include updates to reflect new case law from the appeals courts or changes to the rules to reflect policy goals (e.g. rules for sexual assault cases).
This year's installment has the following major changes that this firm finds important:
Rule for Court-Martial 307 (c) - Requires Article 134 offenses to include specific notice of the alleged terminal element. This is simply a reflection of recent appellate case law. Article 134 offenses are crimes that are prejudicial to good order and discipline or service discrediting. There was a time - not long ago - where prosecutors did not include either of the elements of prejudice to good order and discipline or service discredit in the charge sheet. It was anybody's guess which element they would try and prove. Now they are required to charge the "terminal element."
Rule for Courts-Martial 307 (c)(4) - This rule provides clarification on the distinctions between unreasonable multiplication, multiplicity, and punishment limitations. See our previous discussions on topic here. The short version is that military prosecutors like to charge crimes as many different ways as they can to enhance the possible punishments. It's borderline dishonest, but there are ways to deal with it.
Rule for Courts-Martial 701 and 703 - This rule requires defense lawyers to request victim interviews through the victim's counsel in sexual assault cases. Bottom line - I rarely talk to victims anymore before trial. Here's why: I have a competitive advantage on cross-examination. I've litigated over 100 trials. By the time, we're in court, the alleged victim has never seen me or spoken to me. She has no idea what to expect. It's a philosophy carved out over a decade of experience. In my early days, I would interview an alleged victim before trial and she would know what to expect and modify her story accordingly. I don't need any practice rounds - but she will.
There are a number of other changes. A copy of the Executive Order is below.
I've spent the last week trying a major sexual assault case at Fort Bragg. An Army master sergeant was accused of raping his adult biological daughter. It's a rare type of accusation. Our expert psychiatrist searched over 12 million records in a medical database and could not find any literature on the topic.
If you're going to shoot at the king, you'd better make sure you kill him. This week, attorneys for Sgt Bowe Berghdal will argue a motion to disqualify General Robert Abrams as the General Court-Martial Convening Authority. If they're successful, the case will be referred to trial by a new general equally as hostile to the defense. If they lose the motion, they're stuck with General Abrams.
The defense is arguing - among other things - that General Abrams is conflicted from the case because he was involved as an advisor to the Secretary of Defense during discussions about securing Berghdal's release from the Taliban. It's actually a good argument. General Abrams is potentially a witness in the case. Shame on the Army for thinking General Abrams could act as the Convening Authority.
Recall for a moment, that the original Convening Authority was General Milley - who later became the Army Chief of Staff. He was also accused of Unlawful Command Influence by the defense. This was originally a Fort Sam Houston case. The reward for removing General Milley from the case was a transfer of the trial location and Convening Authority to Fort Bragg.
One of the other arguments has to do with General Abrams burning some letters from members of the public. It just doesn't make any sense why General Abrams would do that. If he did it out of contempt for the case it reflects poorly on his judgement.
But there are some lessons to be learned from this case:
Lesson #1: If you're going to shoot at the king, you better make sure you kill him. It's hard to disqualify a Convening Authority from a case. They may actually have a good argument here.
Lesson #2: In the defense business you have to be careful what you ask for. In this case, they got Fort Bragg. Who knows what other letter burning general is in the queue as the next Convening Authority.
My historical experience with Fort Bragg has left me largely unimpressed with their military justice record for fairness. They have a reputation for harsh judgments at Bragg. Although, I personally have had good success at Fort Bragg. My success is partly attributable to the every day Soldier sitting as a juror.
In the annals of military history, the Berghdal case is fairly uninteresting at its core. A Soldier with a schizotypal personality disorder walked off an outpost in a combat theater. Soldiers have left their posts before.
In preparation for a radio interview earlier this year, I looked at every published military appeals case since the Korean War. I concluded a 24 month sentence would be right down the middle in this case if he was found guilty. In fact, in 2015 a Marine named Cpl Hassoun left his post. He showed up blindfolded on Islamic militant websites. Then he spent some time confined in Lebanon. Long story short, he got 2 years confinement and a discharge. According to my research, the judge's sentence was completely fair.
Early in my career, I got to meet Charlie Jenkins through a friend that represented him. Charlie famously walked away from his outpost in the South Korean DMZ in 1965 to avoid going to Vietnam. As he told 60 Minutes - he made a lot of mistakes in his life and that was a big one.
Charlie was going to walk across Korea, get captured by the Russians, and be sent home in a Cold War prisoner exchange. What really happened is that he got caught by the North Koreans almost immediately after crossing the DMZ.
Charlie spent some 40 years detained. The North Koreans kidnapped a Japanese woman from the mainland and forced her into a marriage with Charlie. They're still married as far as I know. They have children. And in 2002, the Japanese government negotiated their release from North Korea.
That didn't stop the Army from holding a court-martial for the then 64 year old Sgt Charlie Jenkins. He got 30 days confinement and a discharge - which seems like a ridiculous sentence in light of his 40 years of North Korean torture and captivity.
The Berghdal case is interesting mostly in that some people think a steep price was paid for his release. He was traded for 5 Taliban enemy combatants.
I've always said that I would not criticize the US Administration for bringing home an American. But, those within the ranks have been awfully critical of that decision. That outright hostility towards the price paid for his release is a problem if those Soldiers sit on his jury or decide his potential sentence.
The Investigating Officer at the Article 32 Investigation recommended no confinement. I thought it was a legally sound and fair recommendation. Unfortunately, Sgt Berghdal did a podcast. His defense team is well-respected by all accounts. But, that was a bold move allowing a client with a schizotypal personality disorder to go public. It apparently didn't play well in Army circles.
That brings me to lesson number three:
1: If you're going to shoot at the king, you better make sure you kill him.
2: Be careful what you ask for.
3: Never do or say anything that you can't talk your way out of.
Early in my career I was involved in the Marine Corps Haditha case. Some of the best lawyers in the country were involved. We all tried to stay on the same page. Sgt Wuterich was well-prepped for a 60 Minutes interview with Scott Pelley (who had also interviewed Charlie Jenkins). But, Sgt Wuterich made a mistake and told 60 Minutes that he told his men to "shoot first" and "ask questions later." He also said he felt no emotion. Those quotes were obviosuly unpopular with the other Marines facing court-martials.
And that brings us to our last lesson. A defense lawyer's relationship with the media is symbiotic. We don't seek media attention for the sake of media attention. There must be something strategic to gain. The Berghdal team was trying to humanize him with the podcast. Smart play. But, Mark Boal did the podcast. He's an Oscar winning journalist with credits that include The Hurt Locker. Pretty impressive.
Years ago, I was involved in the Stryker 5 case out of Fort Lewis. A number of Soldiers were accused of killing for sport. I defended one Soldier. Mark Boal famously wrote a Rolling Stone piece dubbing them "The Kill Team." I didn't solicit the story. I wasn't really interviewed for it either, other than a short phone call with either him or his assistant (I forget who). Needless to say, that's not the headline I would have gone after.
As much as I respect his work, I don't think I would have tried to humanize Berghdal with a Mark Boal podcast. It's fairly predictable that his work would not be well-received in leadership circles. But it was a defense strategy call. And they're fighting hard for Bowe. For that I applaud them.
Regardless of the outcome, this case is going to end with lots of lessons to be learned for everybody in this business. I'll go on record. I don't think he should be confined if found guilty. At the same time, historically anything around 24 months is fair.