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.
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.
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.
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, Article 120 and the law of sexual assault in the military has undergone seemingly never-ending revisions.
One of the biggest challenges has been defining the concept of "incapacitation." Articles 120 (b)(3)(A) and 120 (d) prohibit sexual activity with a person incapable of consenting because of impairment from drugs or alcohol.
Several years ago, it was common for prosecutors to charge sexual assault cases involving alcohol under the incapacitation provisions of the law. Over time, we have seen prosecutors start to favor forcible rape charges rather than sexual assault by incapacitation charges. The thinking seems to be that it's easier and cheaper to allege rape than incapacitation. In an incapacitation case, expert testimony is usually required. That costs money.
Nonetheless, the occasional incapacitation case generates appellate case law. Recently, the United States Navy and Marine Corps Court of Criminal Appeals had the opportunity to address the definition of incapacitation. In United States v. Newlan, No. 201400409 (N.M. Ct. Crim. App. Sep. 13, 2016), a three judge panel looked a the jury instructions in that case.
In Newlan, the Military Judge - Lt Col Francis - had borrowed the definition of impairment from Article 111 (drunken or reckless operation of a vehicle). In Article 111, impairment is any intoxication sufficient to impair the rational and full exercise of the mental or physical faculties.
It seems like the task of defining incapacitation should not be difficult. However, in the law, we have all sorts of differing standards for when a person is incapacitated ranging from driving standards, to capacity to form a will, to capacity to engage in sexual behaviors.
With Newlan and other recent cases, we are starting to see the appellate courts take a more pragmatic approach to defining incapacitation. The court wrote that Article 120 does not prohibit engaging in sexual acts with a person drunk or impaired by alcohol. The law prohibits sexual acts when the person's impairment rises to a level rendering them "incapable" of consenting to a sexual act.
This appellate language is probably a backlash to Department Defense training materials that are teaching the absurd. In every recent incapacitation case this firm has done, potential panel members are asked about their views on alcohol and consent during voir dire. They nearly always respond that they are taught that a person cannot consent to sexual acts if they have had any alcohol at all. They also nearly always disagree with that proposition. Department Defense efforts to train service members on consent are clearly not working. And it is probably because they are teaching concepts that are inconsistent with our every day experiences.
Nevertheless, the Newlan opinion is the latest in a number of recent decisions designed to better define the law of consent and impairment.
The Court of Appeals for the Armed Forces recently examined the question of the admissability of human lie detector testimony. Human lie detector testimony happens when a witness is asked whether another witness is telling the truth. The testimony is inadmissible on a number of different levels - (1) it is the job of the jury to determine witness credibility and (2) human's are notoriously bad at telling whether people are telling the truth. United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014).
Despite the inadmissibility of human lie detector testimony, it is still a favorite line of questioning for young trial lawyers. Wouldn't it be great if the one witness that should believe the victim thinks he or she is lying. In this line of business, however, you have to be careful what you ask for. That played out perfectly in a Marine Corps case recently - US v. Martin.
In Martin, the accused was convicted of wrongful sexual contact. He received a BCD for an alleged sexual touching of the sleeping wife of a fellow Marine. The defense theory was that the alleged victim fabricated the story. The prosecutors called the alleged victim's husband to testify that he was sleeping next to his wife at the time of the alleged assault.
The question CAAF was deciding was basically whether defense counsel invited the human lie detector testimony. Here is what happened:
On direct examination, trial counsel asked the husband about the night of the party in question. to
Q. Now, after you fell asleep that night, do you have any recollection of touching your wife in a sexual manner?
A. No, sir.
Q. In your mind, is there any chance that you could’ve digitally penetrated or put your fingers inside your wife’s vagina?
A. No, sir.
Q. Why do you say that?
A. It’s never happened before. I have never woken up and just done something like that with my wife….
Q. And you said it has never happened before that. Has anything like that ever happened since that?
A. No, sir. ….
Q. When you originally talked to NCIS you told NCIS that you thought it possibly could have been you who had touched your wife?
Editorial: This is obviously a critical statement that defense counsel picked up on in the NCIS interview.
Q. Why did you say that?
A. I’m the kind of person that if it’s even remotely an option I think about it like that. I guess I’m, like, a by-the-numbers-type of person. So, I mean, my wife could have thought about, you know, maybe it could have been another night. But just the way she has been since then, then I know it wasn’t me. She wouldn’t be acting the way she does nowadays, like, if it would have been me. Even if it was something that she wasn’t expecting from me she wouldn’t be acting that way.
Editorial: On cross-examination, the defense counsel clearly wanted to elicit the fact that the husband - at one time - thought he could have possibly committed the digital penetration on his sleeping wife. The lawyer starts off the cross-examination well enough, but goes too far in asking the human lie detector question.
Q. When she initially told you, she didn’t give anything in detail, did she?
A. No, sir.
Q. And you initially thought that maybe she imagined it?
A. I just -- I was kind of in disbelief.
Q. You thought maybe she dreamed it?
A. Something like that, sir, yes.
Q. The story didn’t really make too much sense to you?
A. I just figured that if something like that would have happened then …. where was I in this? … [I]f something like that were to happen to me, sir, I would -- I would have stopped it or done something, like, instantly, sir. ….
Q. [A]t no point after [she told you about the assault,] … you never went and reported it to anyone, did you?
A. I honestly … [it’s] not like I didn’t believe her, sir. But it, kind of, it didn’t make too much sense to me….
Q. Okay. So you weren’t entirely convinced that this happened then?
A. No, sir. Q. And you told NCIS that?
A. Yes, sir.
Q. You thought that, hey, maybe … it happened[,] maybe [it] didn’t happen?
A. Yes, sir.
Trial counsel did not object to this questioning.
Editorial: There was probably a better way to conduct this line of questioning to elicit the information that the defense counsel really wanted before the jury:
1) The husband was in the bed at the time of the assault;
2) The husband did not personally see the alleged offense even though he was in the bed;
3) The wife did not make any sounds;
4) The wife did not try and wake her husband up;
5) The husband would have expected her to wake him up if she was being assaulted while he was in the bed with her;
6) The fact that the wife said nothing and did nothing led the husband to believe that he possibly could have committed the act.
STOP at that point. You got what you wanted - reasonable doubt that maybe the husband did it.
On redirecf examination by the prosecutor, the husband was asked:
Q. Now, you just told the defense counsel that you had your doubts?
A. Yes, sir.
Q. You do believe your wife, though, correct?
A. I do, sir.
Q. And she’s telling the truth?
A. She is, sir.
Q. And why do you think that?
A. The way … that it’s affected her, the way that she’s changed, the way that it’s affected our marriage -- the way that it’s negatively impacted us just as a family -- we have two kids, we have three dogs, and she’s just depressed. And I understand that a mother is, obviously, is stressed out from all that, especially with me deploying again. But even on good days, she’ll just snap sometimes. And just the way that it’s affected her, something as big as it had on her wouldn’t have happened over a small situation, sir.
Editorial: Military defense counsel should have conducted a re-cross-examination about the impact.
This was a tough lesson for defense counsel...but it highlights a couple of important points:
1) Never call or examine a witness unless you have to elicit the information to win the case;
2) Never ask a question unless you know the old answer and the current answer. The exception to that rule is when you don't care what the answer is;
3) When you get the information you need, sit down; and,
4) If the prosecutor gets into victim impact testimony during the merits portion of the trial, either object or have a re-cross ready.