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.
There is very little research into false allegations of sexual assault. It is a toxic subject area. In most cases, there is very little evidence to corroborate either side of the story. As defense lawyers, we are always trying to stay current on the literature though.
I recently came across an article in the March 2012 publication of the Journal of Forensic Psychology Practice called "Pathways to False Allegations of Sexual Assault." It was written by Jessica Engle and Dr. William O'Donahue from the University of Nevada. The full citation is at the end.
The article - is of course - written by psychologists. So the perspective is from intellectuals considering the mental health aspect of an alleged victim's claim (or defendant's denial). Over the years, lawyers have made it increasingly difficult to obtain the mental health record of an alleged victim. In fact, presently under Military Rule of Evidence 513 it is nearly impossible. The law is crafted in such a way to require defense counsel to know what is in the records before being granted access to the records.
The authors rightly note that in cases involving questions of consent there is rarely any unequivocal evidence, which makes discerning the truth challenging. The authors also rightly observed that sometimes there can be pathways to false allegations that result from mental health issues. We would note - as defense attorneys - that these pathways can be equally as helpful in understanding a potential defendant's denials.
The authors have proposed 11 forensic psychology pathways (processes) to false allegations of sexual assault that are helpful to defense lawyers. I have taken those pathways and added sub-pathways to help build the framework.
(a) core discrepancies;
(b) secondary gain.
2) implied consent (and mistake of fact);
(a) whether the alleged victim engaged in behaviors that can plausibly be interpreted as providing consent.
3) false memories;
(a) were suggestive interviewing techniques used;
(b) did government officials push the alleged victim to try and remember information harder; and,
(c) did family members or friends implant subtle incorrect information;
(a) evidence of voluntary behaviors and choices;
(b) evidence of high levels of cognitive function; and,
(c) confabulation to fill gaps in memory.
5) antisocial personality disorder;
(a) failures to conform to social norms regarding lawful behaviors;
(b) confirmed deceit or fraud;
(c) irritability and aggressiveness; and,
(d) lack of remorse.
6) borderline personality disorder;
(a) quickly switching from idealization to devaluation of relationship; and,
(b) evidence of extreme feelings of abandonment.
7) histrionic personality disorder;
(a) always has to be the center of attention;
(b) frequently inappropriate and provocative;
(c) style of speech that lacks details;
(d) easily influenced; and,
(e) commonly views relationship as more intimate than they really are.
9) psychotic disorders;
10) disassociation; and,
11) intellectual disability
The authors caution against a simplistic reading of their research. Part of the purpose of their research was also to call attention to the fact that there is not enough research on the topic. These are such emotional cases that offending people is always a danger when discussing even science. For instance, simply because a person has borderline personality disorder does not inherently mean that the allegation is untrue. But, the diagnosis could be a marker that explains why a particular person engages in riskier behaviors (and therefore is at increased risk for assault). Mental health conditions can also lead to distortions of perception that may provide markers for false allegations. In the paper, false allegations are knowingly fabricated claims or allegations based on abnormal information processing.
Studying any topic involving sexual assault is a challenge. The research is going to be subjected to intense scrutiny. Definitional issues can cause significant variability from study to study. In the military, an inappropriate touching on the buttocks through clothing is treated as a sexual assault - equal with a forcible rape. How we categorize data can have a significant impact on our understanding of the problem. Military law enforcement officials are often evaluated based on the the number of investigations they have "founded." There is a built in incentive for law enforcement to found cases unless there is clear evidence that the allegation is false. The data is difficult to analyze.
When evaluating any allegation, we are often looking for discrepancies in the story. The authors write that "core discrepancies" are "central details of the case and, thereby, any variations in these details is considered a strong indication of a false account of events."
In an emotional event, individuals are more likely to recall core aspects of the event rather than peripheral aspects. For example, we would expect a person to remember whether the event was inside or outside, but not necessarily what street name it occurred on. Studies show that the emotionality of the event should actually enhance memories of the core features.
We are also typically looking for secondary gain resulting from the lie. In the military, secondary gain can include avoiding trouble, the benefits of victim status (reassignment), excusing behaviors, and even financial gain.
Implied consent may be the most difficult aspect of sexual assault defense to understand. The law is increasingly moving towards a view that only affirmative consent (spoken yes) is permissible. In other words, we are not going to allow a man to infer that a woman is consenting based on her behaviors. It's an idea that is often inconsistent with jurors personal experiences.
There is also the concept of mistake of fact. These are facts that - if true - would relieve the defendant of liability for the offense. If a reasonable sober person would believe that a woman was consenting, then the accused is not guilty of sexual assault.
Implied consent is most thorny when there is a pre-existing sexual history between two people. It can lead to the thought that they did it before, so they can do it again. It is not a legally sound thought process. This can lead to a woman feeling trapped or coerced into having sex. Consent last week is not consent for next week.
Likewise, consent early in a sexual encounter is not necessarily consent for further sexual contact.
The ambiguity in how we are crafting the rules of consent can potentially lead to "the alleged victim engag[ing] in behaviors that can plausibly be interpreted as providing consent, but the victim herself may not understand or realize this."
There is actually research demonstrating successful implanting of false memories. Some people even can have vivid memories of false events. Suggestive interviewing techniques, misinformation, and excessive encouragement to remember can all lead to false memories.
The Loftus study is particularly interesting. In that study, researches showed people clips of a traffic accident. The participants were then asked to assess the rate of speed of the vehicles. The researches modified the verbs in their questions though. If the researcher asked how fast the cars "smashed into each other" the participants would rate the speed higher than if they asked how fast they "bumped" into each other. Loftus has since conducted over 200 studies with 20,000 participants repeating the study.
Obviously, the consumption of alcohol or drugs - voluntarily or involuntarily - can lead to distortions in memory and information processing. Nearly every jurisdiction has laws stating that a person cannot consent while incapacitated from intoxicants. The danger is that a person under the influence of intoxicants may have deficits in forming memories, like blackouts. They can also confabulate events to fill in the gaps.
Antisocial Personality Disorder
When we're assessing APD, we're looking for past evidence where the person failed to conform to social norms regarding lawful behaviors, confirmed deceit, irritability and aggressiveness, and lack of remorse.
Borderline Personality Disorder
The primary diagnostic criteria that we are looking for is "quickly switching from idealization to devaluation of relationship." Also, extreme feelings of abandonment can lead a person to lie. The rapid of shifting from love to hate can lead a person to construe events as abuse.
Histrionic Personality Disorder
For people with this disorder, we want to examine evidence that a person always has to be the center of attention, that they are often inappropriate and provocative, has a style of speech that lacks in detail, that they are suggestible or easily influenced, and views relationships as more intimate than they really are.
Delirium, Psychotic Disorders, Intellectual Disability, and Dissociation
These are disturbances of consciousness and cognition. Dementia is rare in the military realm.
Jessica Engle BA & William O'Donohue PhD (2012) Pathways to False Allegations of Sexual Assault, Journal of Forensic Psychology Practice, 12:2, 97-123, DOI: 10.1080/15228932.2012.650071
Army November 2016 Court-Martial results - PANELS in CONTESTED SEXUAL ASSAULT CASES CONTINUE TO VOTE NOT GUILTY
The latest court-martial results reported for the Army are from November 2016.
November is a busy month for the trial judiciary. There is historically a push to clear the docket before the holidays.
Bottom line. I still think that the data supports electing a jury/panel in most cases.
Seventy percent of cases in November were guilty pleas. That is a huge number. Just based on the reporting though, it appears there was sound judgement in accepting plea deals.
The high number probably needs some context. I count 9 cases involving sexual offenses against children. Six were guilty pleas. Two were full acquittals. One was a conviction. If we remove the child sexual assault guilty pleas, the number of deals was a little over 50%. That seems more consistent with past reporting.
It looks like defense counsel exercised good judgement in selecting the cases that resulted in guilty pleas. Most of the guilty pleas involved offenses like AWOL, false statements, and in several cases offenses on children.
Of interest, we watch the numbers in adult sexual assault and sexual contact cases. I count 8 sexual assault related trials. Most of the trials involved many different allegations. We're looking at the results on the sexual assault charges only.
Only 20% of the total cases in November involved adult sexual assault charges. That number is down from past months. There were guilty pleas in 3 of those cases (33%).
Four cases were contested jury trials that resulted in acquittals. In fact, it appears that juries acquitted 100% of the time in November on sexual assault charges. One of those acquittals was a case that I did.
There were two judge alone convictions at Fort Riley involving 66 month and 36 months sentences. I would be cautious about going judge alone at Fort Riley.
The total sexual assault convictions all involved 16 month, 24 month, 36 month, and 66 month sentences. I would say that is the full range of sentences in the Army - with 24 months being closer to average for single victim Article 120 cases.
In terms of total courts, I count the following:
Court-Martial (General and Special): 44
Guilty Pleas: 31 (70%)
Mixed Pleas: 1
Full Contests: 12 (27%)
Jury Trials: 7
First Judicial Circuit: 6 trials
Second Judicial Circuit: 11 trials
Third Judicial Circuit: 10 trials
Fourth Judicial Circuit: 14
Fifth Judicial Circuit: 3
The Air Force has published their court-martial results for December 2016.
They reported 19 courts-martial service wide. 17 were reported as convictions and 2 as acquittals (10%). That is a number desperate for context.
This firm is interested in cases where a military jury/panel finds the accused not guilty. There were 4 pretrial agreements. (21%). That's positive news for the Air Force defense community. They are not taking deals as frequently as the other branches. This could be because most of their cases are drug cases.
Removing the deals, the acquittal rate was about 13%. That is unusually low for December. The sexual assault acquittal rate was 33%. Two convictions and one acquittal in sexual assault cases. That is a little bit low. We've seen acquittal rates in the other branches trending between 50-60%. The conviction sentences were 5 years and 60 days. There was a pretty wide range. The Air Force tends to prosecute a number of sexual touching through closing cases. Those cases tend to result in lower punishments - but still sex offender registration. They are very serious cases for that reason.
For whatever reason, the Air Force litigates drug trials at a pace that is out of touch with the rest of society. 10 of the 19 courts were drug related. (52%). There is no way to sugar coat it. The Air Force has lost their minds on drug cases when over half of their court-martial docket involves drugs. Most of those are cases that should probably be resolved with the administrative separation process.
The one general court-martial acquittal was in a sexual assault case involving a child at Joint Base Lackland/San Antonio. In a special court-martial, an Airman in Italy was acquitted of wrongful drug use.
The Air Force clearly needs a shift in litigation philosophy. That is evident from the Special Court-Martial results. There were 13 special court convictions. They were all for very minor offenses - mostly drugs. What is most surprising is that military judges imposed confinement every single time in drug cases. The moral of the story is never go judge alone in an Air Force drug case. Air Force panels did impose confinement in a few cases, but were generally lighter.
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.
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.
Earlier this month, a new book was released about the Haditha case called "No Time for the Truth." The book was co-authored by Nat Helms and Haytham Faraj - both well-respected in journalism and defense circles. The book takes the perspective of Haytham as a member of the defense team in the Wuterich case.
Our firm was involved in the Haditha case. We represented LCpl Justin Sharratt. Chapter 3 of the new book is called "Sharratt's War." I'll leave the book reviews to the historians and critics.
Mr. Myers is quoted in the book saying "he never understood why investigators who descended on Haditha in February 2006 didn't 'examine the linkage' between al-Qaeda, the local insurgency, and the events at Haditha..."
This case was a major part of my life for several years - as it was for many attorneys involved in the case. The book marks a nice occasion to dust off a report that I largely prepared for the Investigating Officer in our case. When the investigation first kicked off, the Sharratt family was quick to retain the firm as Mr. Myers had been involved in the My Lai case years before.
I was fresh off active duty as an enlisted Marine. I was sent out to Camp Pendleton to interview the Haditha Marines - in some cases before even NCIS had spoken to them. The case really taught me the importance of investigation early in a case. As defense attorneys we can't always preserve a crime scene, but we can preserve memories. The earlier we get to witnesses, the more favorably the case is usually resolved. My other task, was to track down the prosecutors from the My Lai case to find the record of trial. F. Lee Bailey had really argued for justifiable homicide in My Lai and we wanted the transcripts.
The report below, is a document we prepared for the Investigating Officer. It was admitted into evidence at the hearing.
Hard to believe it's been nearly 10 years since we became involved in that case.