The Board for Correction of Naval Records is now updated their webpage to permit online applications.
The latest court-martial results for the Navy are for November 2016. They can be found here: http://www.jag.navy.mil/news/ROT.htm
Even though every case is unique, once again the numbers seem to support choosing a jury over a guilty plea or judge.
The Navy held 21 courts-martial in November 2016. This blog has previously reported that the Navy dealed out about 75% of their cases in October. In November, there were 14 guilty pleas (66%). The number of deals is still high in our view.
Looking at contested cases, there were seven. Four cases were heard by a jury. Three cases were sexual assaults. Only the officer was found guilty by the jury. The other two cases were full acquittals (66%). Even though the sample size is small - 66% acquittal rate seems about right service wide.
The guilty plea cases all had pretrial agreements. Negotiated pleas usually have reasonable terms. We're not going to analyze those cases.
In the Naval District for Washington an officer was found guilty by a jury of sexual assault and sentenced to 30 months and a dismissal.
In Norfolk, an E-2 was found not guilty by a jury of sexual assault.
In Norfolk, a petty officer had a mixed verdict from a jury for indecent acts. He received a reprimand, reduction in rank, 1 year confinement, and no discharge.
In Norfolk, a Sailor was found not guilty of adultery by a judge.
In Pensacola, an E-3 was found not guilty by a jury of sexual assault.
In Mayport, a petty officer was found guilty by a judge of attempted indecent recording. He received 60 days confinement and a bad conduct discharge.
In Yokuska, a military judge found a Sailor not guilty of assault consummated by battery.
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.
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.
On 30 August 2016, Mr. Pristera obtained a full reversal of all charges from the Navy-Marine Corps Court of Criminal Appeals. The Court determined that the military judge improperly instructed the panel with regards to consideration of evidence of one charged offense as proof of a propensity to commit the other charged offense.
Appellant was charged with two specifications of sexual assault, against two alleged victims. The alleged assaults occurred almost a year apart. After the second alleged assault, the alleged victim made a restricted report to the unit sexual assault advocate. Upon hearing the allegations from the alleged victim of the second offense, the sexual assault advocate herself also claimed to have been sexually assaulted by the same person. Both women filed unrestricted reports a month later. Appellant was ultimately convicted of both offenses.
At the trial, the military judge instructed the panel on Military Rule of Evidence 413. That rule, prior to the landmark decision in U.S. v. Hills, allowed for propensity evidence to be considered in similar sexual assault cases. Basically, that means that the government can use evidence of one charged offense to suggest that the accused had a predisposition to commit the other offense. The result is a complicated instruction requiring the panel to distinguish between guilt beyond a reasonable doubt and guilt by a preponderance of the evidence.
While this case was pending appeal, the Court of Appeals for the Armed Forces announced its decision in U.S. v. Hills. In that case, the court held that MRE 413 cannot be applied to a charged sexual offense on the same charge sheet. This landmark decision overturned years of practice in the military justice system.
Based on that decision, Mr. Pristera filed a supplemental brief and assignment of error citing the Hills decision. The Court agreed with Mr. Pristera and overturned the conviction on the basis of an improper instruction and use of MER 413 evidence.
On 8 June, our firm reported that the Secretary of the Navy was issuing new guidelines for processing cases involving medical evaluation boards and misconduct.
"Previously a service member's misconduct took precedence over diagnosed mental health conditions when considering separation, which impacted the veteran's ability to receive benefits. Now, if it contributed to the misconduct, the medical condition will take precedence.
Under the new policy, Sailors and Marines facing involuntary administrative separation may be referred to the Disability Evaluation System if they have a diagnosed mental health condition.
Additionally, if the Sailor or Marine is being administratively processed under provisions that authorize a characterization of service of other than honorable, the case must be referred to the first general officer/flag officer in the chain of command for a final determination. Any service member previously separated under similar circumstances may also petition to have their discharge reviewed through either the discharge review board or Board for Correction of Naval Records (BCNR)."
On 15 July, a new Legal Assistance Practice Advisory was published. That advisory is included here:
A recent article in the Navy Times provides an important reminder of how important it is to seek counsel before accepting or refusing nonjudicial punishment.
The Navy Times reports that in San Diego 31 corpsman were taken to Captain's Mast for allegedly cheating at the Surface Warfare Medical Unit. As noted in the article, they weren't provided legal counsel and had less than 24 hours to decide whether to refuse NJP.
To be blunt, the Navy has historically been the worst abuser of individual rights of all of the services.
We've learned that nearly all of the Sailors have been recommended for administrative separation. Several of the Sailors turned down nonjudicial punishment. The Sailors that refused nonjudicial punishment are facing the administrative separation with the following advantages:
1) They did not plead guilty at NJP; and,
2) They were not punished and retain their rank and pay.
Those are huge advantages at an administrative separation board.
In a case with 31 co-accused, the decision to turn down NJP is actually fairly simple. Often refusing NJP boils down to a gamble. It can be a bet that the command will not refer the case to a Special Court-Martial. You are almost always better off at administrative separation without an NJP than with an NJP.
With 31 co-accused, there are so many conflicts and potential problems with referring the case to a court-martial, that it's a safe bet that the command will not refer the case to a court-martial if you refuse NJP. In that situation, your worst case scenario is probably an administrative separation board.
The difficulty in these decisions occurs when there is indication that if you accept the NJP they will not send you to an admin separation board. But, if you already know that you are going to an administrative separation board, the decision to turn down NJP is much easier.
The bottom line, is that consultations with counsel are extremely valuable in NJP cases.