Among the matters you should consider are: [appropriate selections may be made from the following list]
Attached is an NCIS Privacy Act Request form for those looking to obtain NCIS records pertaining to their case.
NCIS requires proof of identity. We recommend including a copy of a drivers license. You can also provide a declaration establishing your identity and indicating "I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct."
The request should be sent to:
Naval Criminal Investigative Service
Attn: Code 00LJF
27130 Telegraph Road
Quantico, VA 22134-2253
Or Fax - (571) 305-9867
We receive questions frequently about how to request records and information from Army CID. Often, Soldiers suspect they have been titled, but are not sure.
This is the current form from the CID website:
Fill the document out. Sign and date the document. Keep a signed copy.
Copy your driver’s license and include the copy with what you send. Sign your name on the copy.
Send by express mail the original signed document to:
Army Crime Records Center
27130 Telegraph Road
Quantico, VA 22184
Keep a copy of the tracking number.
The response from CID should tell you whether documents - if any - are in your CID file.
Army November 2016 Court-Martial results - PANELS in CONTESTED SEXUAL ASSAULT CASES CONTINUE TO VOTE NOT GUILTY
The latest court-martial results reported for the Army are from November 2016.
November is a busy month for the trial judiciary. There is historically a push to clear the docket before the holidays.
Bottom line. I still think that the data supports electing a jury/panel in most cases.
Seventy percent of cases in November were guilty pleas. That is a huge number. Just based on the reporting though, it appears there was sound judgement in accepting plea deals.
The high number probably needs some context. I count 9 cases involving sexual offenses against children. Six were guilty pleas. Two were full acquittals. One was a conviction. If we remove the child sexual assault guilty pleas, the number of deals was a little over 50%. That seems more consistent with past reporting.
It looks like defense counsel exercised good judgement in selecting the cases that resulted in guilty pleas. Most of the guilty pleas involved offenses like AWOL, false statements, and in several cases offenses on children.
Of interest, we watch the numbers in adult sexual assault and sexual contact cases. I count 8 sexual assault related trials. Most of the trials involved many different allegations. We're looking at the results on the sexual assault charges only.
Only 20% of the total cases in November involved adult sexual assault charges. That number is down from past months. There were guilty pleas in 3 of those cases (33%).
Four cases were contested jury trials that resulted in acquittals. In fact, it appears that juries acquitted 100% of the time in November on sexual assault charges. One of those acquittals was a case that I did.
There were two judge alone convictions at Fort Riley involving 66 month and 36 months sentences. I would be cautious about going judge alone at Fort Riley.
The total sexual assault convictions all involved 16 month, 24 month, 36 month, and 66 month sentences. I would say that is the full range of sentences in the Army - with 24 months being closer to average for single victim Article 120 cases.
In terms of total courts, I count the following:
Court-Martial (General and Special): 44
Guilty Pleas: 31 (70%)
Mixed Pleas: 1
Full Contests: 12 (27%)
Jury Trials: 7
First Judicial Circuit: 6 trials
Second Judicial Circuit: 11 trials
Third Judicial Circuit: 10 trials
Fourth Judicial Circuit: 14
Fifth Judicial Circuit: 3
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.
The Army Times is reporting on a new provision of the National Defense Authorization Act that encourages the Discharge Review Boards to liberally consider upgrade applications of service members separated for misconduct related to sexual assault or harassment.
The intent is to bring the same standards to victims as we have in post traumatic stress cases. The law even encourages the boards to waive the 15-year statute of limitations when appropriate.
Our firm has been a leader in defending service members with post-traumatic stress. Though we defend sexual assault cases, we've also been a leader in representing sexual assault victims. We do not judge people that come to us for help.
This blog has written extensively on our experiences at the discharge boards with post traumatic stress cases. I would imagine the standards will be similar for sexual assault and harassment cases.
I expect the boards will be examining the following questions:
1. Was the misconduct leading to separation related to the sexual assault or harassment?
2. Is it documented or reasonable to conclude that there was, in fact, a sexual assault or harassment?
3. Was there any history of misconduct before the assault or harassment?
4. Are there mitigating facts in the case?
5. Was the misconduct premeditated or a momentary lapse in judgment?
A consult with one of our lawyers can be valuable. We are in front the discharge review board frequently and have a sense of who the current members are. We are typically able to we'll prepare clients for the questions they will receive.
14 March 2016 - ABCMR and ADRB Insights in PTSD Discharge Upgrade Cases
In Part I, we discussed some Department of Justice data on false allegations that I stumbled across at Fort Carson. In Part II, I took at a look at deception and some of the verbal cues that we use to analyze accusations. In this blog, I'll briefly look at nonverbal deception. In the last part, we'll talk about false confessions.
The reason we have to discuss nonverbal deception is because most false allegations are the result of prepared lies. In other words, the accuser has had ample opportunity to formulate the lie. Well-prepared lies can be difficult to dissect.
There are, however, often moments in trial when facial expressions tell more of a story than the witness. In December, I represented a major who was accused of abusive sexual contact. The alleged victim attempted to extort him for $18,000. If he didn't pay her, she threatened to make an allegation of sexual assault. We ran some background searches and discovered that she had purchased a new car around the time of the extortion. Imagine the look of surprise on her face when we cross-examined her. She had no idea we knew. We won the case. That micro-expression of surprise may have been the reason why.
One of the leading researchers on nonverbal deception is Paul Ekman. Along with his team, the developed a system for analyzing spontaneous expressions. He has published several books.
Facial expressions can be hard to suppress. When people are lying, they are often trying hardest to regulate their facial expressions rather than their body movements. Some people are good at masking their expressions. Generally, it is very difficult to simulate spontaneous facial expressions.
As a lawyer cross-examining or interviewing witnesses, however, I want to pay careful attention to startle responses. In other words, the element of surprise is powerful as a questioner. I'm watching very closely whether they are trying to voluntarily control their facial expressions.
The muscles around the eyes are particular difficult to control. Brow raises, squinting, lip stretches, neck muscle activity, and eyes closing are all micro-expressions we want to pay attention to. The eyes may very well be most important. The obicularis oculi is the muscle that tightens the muscles around the eyelids and skin. It is particularly difficult to control during a startle response.
In circumstances where the witness may be experiencing embarrassment, amusement, or shame we are looking for gaze aversion, shifty eyes, and speech disturbances. Downward leaning posture generally.
Smiles are particularly important to watch. Ekman did a fairly famous study where they showed nurses two films - a pleasant film and a film showing burn victims and amputees. The nurses were asked questions about the films. They were told to mask their feelings about the disturbing video.
When the nurses were being truthful about the pleasant video, slow-motion cameras noted natural movements of the obicularis oculi. In other words, genuine smiles had symmetrical tightening of the skin around both eyes. When subject attempted to conceal their emotions, you could still detect traces of the natural emotion.
In that regard, throughout a trial or witness interview we want to be hyper vigilant to a witness's micro-expressions.
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.
I was recently at Fort Carson, Colorado. I came across a flyer from the Department of Justice titled "False Allegations of Adult Crimes Reference Guide." The flyer has prompted me to write about false allegations and deception. This Part I will provide the data from the Department of Justice. The data apparently came from the FBI Behavioral Analysis Unit and National Center for the Analysis of Violent Crime.
The primary motivations and indicators section below provides a great resource for closing arguments in military court-martials.
The Department of Justice flyer on false allegations provided the following data on false allegations:
-Most likely white (93%)
-Majority are female (73%) male (27%)
-Average age was 30 and the most frequent age was 41
-At the time of the offense, 27% had documented mental illness (depression most common), all female
-At least 43% had a HS education/GED
Marital status by gender:
-Females, married (18%), never married (50%)
-Males, married (89%), never married 30% first marriage, 10% co-habitating/significant relationship
-Full-time employment (60%), part-time (3.3%), student (3%), unemployed (17%)
-No known substance abuse (63%), alcohol only (10%)
-Most common life problem prior to false allegation:
-Marital problems/conflict 63%
-Financial problems 33%
-Mental health issues 23%
-Unemployment/recent loss of job 13%
-27% have made at least one prior false allegation; rape/sexual assault (10%), stalking (10%), physical assault (7%), threats (7%)
-23% have been arrested at least once including charges such as theft/larceny, drugs/narcotics, trespassing, assault/battery
-In 73% of cases, the offender brought the case to the attention of law enforcement: sexual assault (73%), abduction (27%), threats (20%), stalking (17%), attempted murder (10%), extortion (7%), physical assault (7%), hate crime (3%), other (13%).
-Over half (53%) of the cases involved two types of offenses.
-In 73% of cases, there are indications of pre-planning/preparation
-Half of the offenses involved more than one location
-Evidence of physical trauma is reflected in 30% of the cases to include blunt force trauma, edged weapon, ligature strangulation, gunshot wound, burn (fire or chemical)
-Sexual trauma is rare; however, when observed there is trauma to the vaginal cavity, foreign object insertion or breast/nipple lacerations
-Evidence of staging in more than half the cases (60%) to include ransacking, vandalism, threat letters, burglary, use of explosive device, and car jacking
Primary Motivation for the Offenses
-Interpersonal violent allegations (e.g. sexual assault) were primarily motivated by attention/sympathy (50%), whereas interpersonal offenses (e.g. arson, theft) involved other motivations such as providing an alibi (17%), mental illness/depression (13%), profit (13%), and revenge (7%)
-Conduct 2 prong investigation
-Continue logical investigation to determine if there is, in fact, a legitimate offender
-Conduct discrete, parallel investigation to determine/identify the life problems of the false allegation offender
-The interview strategy is depending on the motivation of the offender. An investigator would approach an offender motivated by internal need for attention/sympathy far differently than one motivated by financial gain or revenue
-Emphasize the life problems of the offender
Possible Indicators of False Allegations
-Inconsistent statements by the offender
-Deception on polygraph
-Witness statements that conflict with the offender
-Lack of plausibility in the deception of the reported offense
-Lack of substantiating forensic, physical, and/or medical evidence"
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.
Over the next few months, we'll be in court defending three sexual assault cases involving the incapacitation of an alleged sexual assault victim. The military typically charges cases where the alleged victim is under the influence of drugs or alcohol as a sexual assault - rather than forcible rape.
For some time, we noticed a trend where prosecutors were charging all sexual assaults as forcible rape. It was difficult to speculate why - though I generally thought it was to make available increased punishment and to avoid having to pay for expert witnesses to testify about intoxicants and incapacitation. This year, we're already seeing prosecutors return to charging alcohol related sexual assaults rather than forcible rape.
Even going back two years ago, alcohol or drug related sex was not a crime unless the victim was substantially incapable of consenting. As you can see below, the word "substantially" was removed from the statute. There certainly was confusion as to what substantial incapacitation meant. There is still confusion as to when a person is no longer able to consent to a sexual act as a result of drugs or alcohol. That's the purpose of this article.
A sexual assault involving intoxicants in the military is defined as:
"Any person subject to this [Article 120, UCMJ] who –
commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to –
-impairment by any drug, intoxicant, or other similar substance, and that condition is known or
reasonably should be known by the person; or,
-a mental disease or defect, or physical disability, and that condition is known or reasonably
should be known by that person;
is guilty of sexual assault and shall be punished as a court-martial shall direct."
Nearly every sexual assault case that I've been involved in over the last 10+ years has centered on questions of blackouts or alcohol amnesia. The recent uptick in alcohol related sexual assaults provides an opportunity to write about the intersection of science and military criminal defense.
The typical military sexual assault fact-pattern includes a victim who claims a lack of memory related to the sexual act. They will nearly always remember the act of penetration. That's an element of the offense. Their memories related to other aspects of offense can be lacking - to put it politely.
The inconsistencies in many sexual assault victims' memories instantly raises a question as to whether enough alcohol or drugs were consumed to cause memory deficiencies. The thought process is that:
1. The alleged victim did not drink enough alcohol to cause memory deficits;
2. The alleged victim is therefore being deceptive about his or her lack of memory; and,
3. Therefore, the alleged victim cannot be trusted.
Reliable evidence as to alcohol consumption is sometimes difficult to obtain. If you are in the military and charged with sexual assault, your lawyer is going to want to try and reconstruct the timeline and history of drinking on the night in question. You can help your lawyer by obtaining evidence like:
1. Bank records that might indicate how much money was spent on alcohol;
2. Photographs or videos from the night in question;
3. Social media posts from the night in question;
4. The identity of witnesses - especially sober witnesses - who can help reconstruct drinking histories;
5. Locations of establishments that may have security footage.
As a lawyer, once we are able to estimate how much alcohol was consumed in a period of time, we'll probably run a simple blood alcohol content calculation. The reason we care about up front BAC estimates, is because experts will often say that blackout events can be expected at BAC concentrations upwards of 0.15. So if the victim's alcohol consumption puts them at lower than 0.15, I'm immediately skeptical as to any memory deficits. That's not to say the person is lying. We're simply going to investigate further.
There are several online BAC calculators. This is just an estimate. Eventually, we'll want to obtain the services of a doctor or expert qualified to testify about the effects of alcohol on memory.
BAC calculations based on breathalyzers or drinking estimates are imperfect. They are based on arithmetic extrapolation. The machine takes a reading. The reading is then converted into a number with a high correlative value to blood samples. The generally accepted conversion factor is 2.1. That factor may not apply to every individual.
To understand how alcohol affects memory, you first need a model of how memory works. There are different models. It's not terribly important to understand. One says that memories are formed in stages ranging from sensory formation, to short term memory, and then long term. There's another model that concludes that the ability to form long term memories depends on how long the information is stored in short term memory.
Regardless of the model, we all seem to agree that alcohol interferes with our ability to form long-term memories. As alcohol consumption increases, so does impairment. Large amounts of alcohol can cause fragmentary or complete memory deficits. Otherwise known as blackouts and alcohol induced amnesia.
The mechanism of how these impairments occur is not completely understood. The basic model says that alcohol disrupts the hippocampus (the part of the brain central in forming memories).
Blackout are really misunderstood. It's important for the lawyer and expert to craft a good direct examination that helps the jury understand the science. A blackout is an event where a person can voluntarily participate in an event, but cannot remember it. Some studies have put intoxicated individuals in driving simulators. They were able to drive, but could not remember aspects of the drive.
This is "anterograde" amnesia. They can't form new memories, but it does not erase previously formed memories. The key, however, is that they can engage in these tasks voluntarily. A typical series of questions for the doctor might include:
"Doctor, can you outline the first effects on people after they begin to consume alcohol? [disninhibition – impairment in judgment, impulsive, not weigh the future consequences of one’s actions]
Disinhibition – would you say that in that state someone would be more prone to do or say things that they would otherwise not do or say if not under the effects of alcohol?
What are some examples of things that people do as a consequence of disinhibition due to the effects of alcohol?
When people do these things – are they doing them voluntarily?
Do they have the capacity to decide whether or not to do those things?
Is it common for people who engage in activities while intoxicated to be embarrassed about those acts later?"
Although blackouts usually are caused by heavy drinking, there are other factors that we want to look at. Common factors that can cause a rapid rise in BAC include:
-History of blackouts;
-Lack of food consumption; and,
-Rate of alcohol consumption.
Scientific studies put blackout thresholds at between .14 and .20 BAC. (See the Goodwin and Ryback studies). I usually go with .15.
If our reconstruction of the alleged victim's drinking history is below that BAC threshold, we're really going to continue examining motivations to lie. I'm always careful to caveat that not all victims are lying. Some are telling the truth. It's important as defense attorneys, however for us to conduct or own investigation and examination of the evidence.
Some common motives to lie include:
-To protect a relationship with a husband, boyfriend, or even girlfriend;
-To protect a reputation;
-To get out of trouble;
-Because law enforcement or a victim's advocate told her she was sexually assaulted, despite her initial belief that she was not sexually assaulted;
-Because of a personality disorder;
-Out of retribution;
-Because the full consequences of making the report are not understood;
-To be reassigned;
-To avoid a deployment;
-To obtain financial benefit;
-To obtain medical retirement for PTSD or some other condition;
-Out of confusion and not knowing what actually happened; or
-To obtain child custody or a divorce.
We have great success when we can show that:
-it's unlikely that the victim was in a blackout because she did not drink enough alcohol,
-that even if she was in a blackout her actions were voluntary,
-and that she has a motive to lie.
More resources on our webpage:
Sexual Assault Defense
Here is a typical direct examination of a doctor:
Doctor, will you please outline the materials that you have reviewed in preparing for this case?
And you have heard all of the testimony presented at trial?
Can you outline the first effects on people after they begin to consume alcohol? [disninhibition – impairment in judgment, impulsive, not weigh the future consequences of one’s actions]
Disinhibition – would you say that in that state someone would be more prone to do or say things that they would otherwise not do or say if not under the effects of alcohol?
What are some examples of things that people do as a consequence of disinhibition due to the effects of alcohol?
When people do these things – are they doing them voluntarily?
Do they have the capacity to decide whether or not to do those things?
Is it common for people who engage in activities while intoxicated to be embarrassed about those acts later?
What happens in terms of thinking and behavior if someone continues to drink alcohol?
How would they appear to others?
If a person continues to drink can it have an effect on level of consciousness?
We have head the term passing out – what is that from your professional perspective?
How does it differ from simply being asleep?
Doctor, what does the term “blacking out” mean?
How commonly does it occur?
How do individuals who are in a black out appear to others?
Could other individuals know whether someone is in a blackout state or not?
So when a person is in a black out state, does it mean that they cannot make decisions about what to do or not to do?
Do they have the capacity to decide to do some things and not others?
What are some examples things people do while in black out states?
Can they subsequently have regrets and remorse?
How would their emotional response appear after realizing what they may have consented to when intoxicated appear compared to the emotional response of someone who experienced a traumatic event to which they had not consented?
When individuals engage in behaviors, but have no memory of major components of such behaviors, how do they make sense of it?
Can individuals who have been in a blackout firmly believe and state with conviction that the circumstances of the evening were different than what they actually were?
When a person clears from being in a blackout and has only partial memories of what actually occurred, does their memory get clearer and more specific with the passage of time?
With the passage of time how do the memories from a truly remembered traumatic event compare with those from a reconstructed memory?
Did you see anything in your review of the case file that indicates that the alleged victim was in a blackout during portions of the evening prior to the alleged charges? Explain
This week we learned that Mr. Pristera successfully represented an Air Force NCO facing suspension of her security clearance for financial considerations.
An anonymous tip was sent to the Central Clearing Facility (CCF) alleging that the SM was living outside of her means. The SM was previously the victim of predatorial lending practices and illegal mishandling of mortgage applications. Those matters were concurrently under dispute within various state courts and credit agencies. Mr. Pristera worked with the SM to compile all of the complicated financial documentation and evidence supporting the SM’s debts, as well as documentation supporting current matters under litigation, and successfully replied to the notice of intent to revoke. Mr. Pristera was able to avoid having to take the matter to a formal hearing (DOHA hearing) on the matter.
If you are facing potential suspension of a security clearance, it is critically important that you respond immediately and completely. Do not assume that it will be resolved for you. The burden is on you to provide documentation supporting your case.
We previously posted general information about Security Clearances here: http://www.mcmilitarylaw.com/security-clearance-appeals.html. Generally, these investigations start with an initial investigation by the CCF or local security personnel. Sometimes the investigation is part of a routine background check and other times it can be based on an anonymous tip or other “red flag.” Once the investigation starts, the SM or civilian with a security clearance will often receive a Request for Information. This is a critical point as the burden is on the individual to respond and fully answer all of the questions posed. Based on the response, the matter will either be closed or the individual will be notified of a Notice of Intent to Revoke clearance. (In some cases, there is no Request for Information and the government will immediately send a Notice Intent to Revoke).
The individual is given 60 days to respond to a Notice Intent to Revoke. This response can include additional evidence as well as legal argument. Based on the response, the CCF will either close the matter and reinstate clearance, or issue a Letter of Denial. If you receive a Letter of Denial, that means that an initial decision has been made to revoke your clearance. You have a right to appeal that decision and request a formal hearing with the Department of Hearings and Appeals (DOHA). You appear in person at a DOHA hearing with legal counsel.
It is critically important to defend yourself vigorously and early when facing a potential security clearance revocation. If you are facing a revocation action at any stage of the process and would like to discuss your case or options, please give us a call.
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.
With the presidential transition of power days away, an interesting report from the President's Counsel of Advisors on Science and Technology caught our attention.
Forensic science in the military is widely accepted as reliable. And it's a reputation the forensic sciences do not always deserve. The counsel released their report in September 2016. The President had concerns about whether there were steps that could be taken to improve the forensic sciences.
The counsel was specifically looking at pattern identification evidence - DNA, bite marks, fingerprints, firearms analysis, etc. They wanted to know whether the science was reproducible and reliable. In other words, foundationally valid.
It's amazing that the report did not garner more attention. The PCAST found only single source DNA analysis to be valid in foundation and in application. DNA mixture evidence - when there is DNA from multiple persons - was only foundationally valid. In other words, the science is trustworthy, but the application of science leaves concerns about potential error.
Firearms identification was potentially valid, but surprisingly not enough studies had been done. Footwear analysis completely lacks research. And bite mark evidence was met with significant skepticism.
In the end, it's our hope that juries and judges start taking a more critical view of forensic evidence.
The National District Attorneys Association was, of course, critical of the report.
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.
Appearing before the Army Clemency and Parole Board in Washington DC can be a stressful event. By the time of the hearing, families are often mentally, emotionally, and financially drained by the court-martial process and consequences. Having a lawyer at the Clemency and Parole Board is usually a luxury.
When that day finally comes, you will find the Board is genuinely interested in learning more about your loved one. This blog provides some insights on presenting your best case at the hearing.
The Army Regulation the Boards members adhere to is AR 15-130. Paragraph 3-2 is important to review. It provides a list of considerations for the board. As a lawyer, we're going to be careful to provide information relevant to those considerations.
The morning of the hearing, staff from the board provide a presentation that includes information to focus on. They place an emphasis for family members on the parole plan - employment, residence, transportation, and treatment.
I have found that Board member questions tend to focus on three areas of questions:
-Attitude / motivation / remorse;
-Aggravating Aspects of the Offense.
The Board may be interested in specific conversations you've had about the member's remorse and attitude. They may look for assurances that the member will be a productive part of society. We generally organize our remarks around paragraph 3-2.
The Board is located at 251 18th Street South, Suite 385 Arlington, VA 22202-3531. This is the Crystal City area of Washington DC, just down the street from Reagan National Airport (DCA). It's easiest to fly into DCA. The metro station is at the airport. Countless hotels are in Crystal City. It's located one subway stop from the airport. Simply take the train towards the Greenbelt and get off one stop away at Crystal City. Baltimore and Dulles airport can be used also.
Check in is usually between 8:15 - 8:30am. The Board will provide a phone number. The building is across the street from the Crystal City Metro station. The Wells Fargo lobby helps to find it. The check in is in the lobby.
After you check in, you will be escorted up to a 4th Floor conference room. There staff will brief you. The hearing will last around 20 minutes. You should be done before noon depending on how many families are present.
We appear regularly before the board and can do so cost-efficiently for families. Feel free to contact us for more info.
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.
Mr. Pristera argues us v. cook at the air force court of criminal appeals - ineffective assistance of counsel and new trials at issue
On November 17, 2016, Mr. Pristera argued the case of United States v. Cook on appeal at the United States Air Force Court of Criminal Appeals.
The unique appeal presented diametrically opposing positions where Mr. Pristera had to concurrently argue for a new trial based on newly discovered evidence under R.C.M. 1210, and also ineffective assistance of counsel for the defense counsel’s failure to locate the evidence. The newly discovered evidence was a witness that was discovered a few days after the trial that could have impeached the alleged victim’s testimony. The Air Force Court was very professional and non-confrontational. They were clearly prepared for the appeal and asked very targeted intelligent questions. We expect a decision in this case in early 2017.
It is so important that counsel properly investigate cases before trial. Below is an introduction to the law of ineffective assistance of counsel.
Ineffective assistance of counsel claims are subject to a de novo standard of review. United States v. Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997), citing S. Childress & M. Davis, Federal Standards of Review, § 12.09 (2d ed. 1982.) United States v. Grigoruk, 56 M.J. 304, 306-307 (C.A.A.F. 2002).
A military accused has a constitutional right to the effective assistance of counsel. United States v. Denedo, 66 M.J. 114, 127 (C.A.A.F. 2008), aff’d, 129 S.Ct. 2213 (2009); United States v. Scott, 24 M.J. 186, 187-88 (C.M.A. 1987) (citing Strickland v. Washington, 466 U.S. 668 (1984)).
The burden of proof lies with the Appellant, and he “must surmount a very high hurdle” and overcome “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689; Denedo, 66 M.J. at 127 (citing United States v. Perez, 64 M.J. 239, 243 (C.A.A.F. 2006)). This presumption of competence cannot be overcome unless the accused demonstrates: first, a deficiency in representation, and second, prejudice. Scott, 24 M.J. 186.
Firstly, the defense counsel’s deficiency must be “so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Denedo, 66 M.J. at 127-28 (citing United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997). Examples of failures that can constitute a deficiency in representation are affirmative misrepresentations of the law, failures to investigate defenses, witnesses, or evidence, or specific errors made which were unreasonable under prevailing professional norms. See United States v. Cronic, 466 U.S. 648 (1984); Denedo, 66 M.J. at 127-28; Scott, 24 M.J. at 188.As a general matter, however, the Court “will not second-guess the strategic or tactical decisions made at trial by defense counsel.” Perez, 64 M.J. at 243 (citing United States v. Anderson, 55 M.J. 198, 202 (C.A.A.F. 2001) (citations omitted)). Additionally, “[t]he reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances.” Scott, 24 M.J. at 188.
Secondly, the defendant must be prejudiced by errors “so serious as to deprive the defendant of a fair trial.” Denedo, 66 M.J. at 127-28 (citing Moulton, 47 M.J. at 229). The test for prejudice is whether, in “consider[ation of] the totality of the evidence before the factfinder,” there is a “reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Scott, 24 M.J. at 189 (citing Strickland, 466 U.S. at 695).
In Scott, the Court of Military Review applied the Strickland test and found that the defense attorney’s performance was both deficient and prejudicial. Scott, 24 M.J. at 192. In that case, the defense was based on alibi. Id. at 189-90. The defense attorney did not timely investigate the defendant's alibi and did not follow up after a volunteer investigator located possible witnesses. Id. at 189-90. At a DuBay hearing, it was determined that one of the witnesses would likely have been able to corroborate the defendant’s alibi defense had the defense attorney timely interviewed her and adequately prepared her for trial. Id. The Court found that in “light of reasonable professional norms … [defense counsel's performance] fell far short of reasonable competence,” and was deficient under Strickland because he did not put forth reasonable effort to investigate the defendant’s alibi. Id. This deficiency was prejudicial, the Court concluded, because had the defense counsel properly investigated and interviewed the witness, he would have been able to corroborate the defendant’s story, thus establishing a complete alibi defense to the charges. Id. at 193. The Court ultimately reversed the lower court and set aside the conviction. Id. at 193.
We always aim to provide feedback on the discharge review boards after a personal appearance. The composition of the board changes regularly and success can sometimes be personality dependent on the membership of the board.
On 7 November, Mr. Pristera represented a former Army National Guard NCO in a request for a discharge upgrade. The NCO was mobilized for deployment to Kuwait. While there, sexual assault allegations were made against him by a female sergeant in his unit. As the case neared trial, he submitted a request for resignation in lieu of court-martial. The request was granted and he was separated with an other than honorable discharge.
Upon returning home, his civilian job with his state government was put in jeopardy because of the allegations, and the State Guard administratively separated him for the same misconduct.
The board was generally friendly and non-confrontational. The members consisted of Dr. (civ) S. (female), LTC K. COL B., COL H. (minority member), and COL L.
Dr. S. started off the questions with medical related questions. She seemed genuinely interested in highlighting helpful aspects of the applicant’s PTSD diagnosis. She asked detailed questions about his treatment progress and acknowledged that his attempt to suppress his condition and other medical problems was a common problem among infantry and special forces.
LTC K. was focused on the facts and allowing the applicant to speak. He did not ask many questions, but acknowledged that hearing from the applicant greatly helped them in making a decision.
COL B. seemed attentive but did not ask many questions at all. His primary concern was understanding exactly how much time the Applicant had spent in a deployed environment.
COL H. had a serious deportment at first but later smiled an joked with Applicant. He had a number of questions about the assault allegations. One of the allegations related to touching the female on the leg – one of the few acts that the Applicant admitted to doing in a friendly, non-sexual manner. COL H. questioned whether Applicant would have done the same gesture with a male Soldier. When Applicant stated that he would have, COL H. commented that “it is a different army.”
COL L., the president of the board, was likewise very calm, friendly, and fact oriented. He asked about the prior relationship between the Applicant and the alleged victim. Despite this being a chapter 10 case, the board did not press Applicant on why they should grant an upgrade when it was a voluntary request for separation. Mr. Pristera engaged in a form of direct examination with Applicant after the board finished their questions to give Applicant a chance to explain his though process in requesting the resignation. The board then allowed Mr. Pristera to offer a brief closing statement.
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.