Here are some key things you need to know when accused of a crime in the military. Things are different than in the civilian world and you can take steps to protect yourself.
Should you stick with a military lawyer only or do you need civilian counsel?
Why would you need a civilian lawyer when facing criminal charges under the UCMJ?
Are there influences involved in the military court system that civilian courts don’t experience.
What do you do if you are accused?
First and foremost; do not talk to anyone about the details leading up to, during or after this event. Go directly to your legal services and obtain counsel. Tell anyone that wants to discuss the matter that you have been advised not to talk to them under advice of legal counsel.
Things you need to consider when charged or under investigation:
- There are key things you need to know when accused of a crime, particularly if you are accused of a sex-related crime. Remember these cases are political. There is a great deal of media attention, congressional attention, and attention from special interest groups and so commanders are scared of appearing soft on sexual assault. That means that in almost every case you are going to be prosecuted at court-martial. This does happen even in situations where a UCMJ Article 32, investigation hearing officer does not find reasonable cause or recommends a disposition other than court-martial because the case is weak or non-existent. Congress and DOD have required and set up special resources and prosecution teams, while at the same time failing to provide similar adequate resources to staff and train the defense. I assure you that the defense attorneys do not receive the same amount of attention and training as does the prosecution.
- The events of most military sexual assault cases are typically a he-said/she-said situation. Rarely is there any type of validating or corroborating evidence such as a video or audio recording of events, Rarely are there any direct witnesses even though there might be some validation of circumstantial evidence.
- Alcohol is involved which can affect behavior and memory, of BOTH parties.
- As I mentioned in previous articles (Accused Of A Crime? (part 1) and Accused Of A Crime? (part 2) you are going to be criticized, isolated and ostracized.
- Law enforcement will use their training and various techniques to get you to make a statement.
- Law enforcement will get the complaining witness to phone you or contact you to talk about what happened. This is known as a pretext phone call. The law says this is legal, the law says that even though it is law enforcement you do not have to be advised of your rights, and the law says such statements you make in one of these “innocent” calls can be used to convict you.
NOTE: If you are accused of a sexual assault do not, repeat do not, have any contact with the complaining witness. As a side note, you will probably be served with a Military Protective Order (MPO) and this call could be considered evidence that you were in violation of this order. I personally think this is pretty weak tactic but it has happened so just don’t answer calls, text messages or email messages from the complaining witness.
- Law enforcement will tell you that they are only there to get the truth. That’s not accurate. They are there to get you to confess or say something that can be twisted into a confession or admission of guilt. They will hunt down and search out evidence they think will convict you. They will not hunt down something that helps you or that hurts their case. While they are not supposed to they will ignore information that might be helpful to you, even going to the extent of leaving that helpful information out of their reports. The prosecutors who frequently fail to independently verify the case will then proceed based on an incomplete and biased law enforcement report of investigation.
Do you need a military lawyer only or do you need civilian counsel?
Here is where I get in a degree of conflict with my friends who are military defense lawyers. I don’t mean to minimize their role, but many military lawyers are at a disadvantage when dealing with significant criminal cases.
First of all, most of them don’t have the experience needed to defend against these type allegations. The military JAG system is a training ground for new attorneys. Many have been law students up to their entry into the service. Some are directly commissioned and others go through a reduced time training program. BUT, they are mostly new and inexperienced attorneys. A lot of times what the military attorney is very inexperienced, new lawyers being given rape or even murder cases.
Secondly, military lawyers are (unfortunately) a part of a system where they can’t/don’t have the independence that’s necessary to aggressively defend the accused.
You need a lawyer who will fight for you without worrying about his or her next set of orders, promotion, or performance evaluation.
Think about it. The military structure is based on authority and experience that is associated with rank. I can’t find any figures that memorialize the rank of active military judges but based on my experience and the times I’ve been in a courts-martial it’s uncommon for a judge to be of rank lesser than an 0-5 (Lieutenant Colonel in the Army, Marine, Air Force or Commander in the Navy or Coast Guard). Just by virtue of the normal rank progression this means someone who has been in the military for a significant amount of time. On the other and, most military defense attorneys are 0-3’s (Captain in the Army, Marine Corps or Air Force or Lieutenant in the Navy or USCG).
There’s a great deal of gap between the ranks and roles of the judge and the defense attorney. That presents situations when a military judge directs an attorney to no longer address a particular issue. In the civilian court system, a defense attorney may or may not take that directive as a ‘command’ and may not alter his line of questioning based on an order by a judge. Yes, there are risks involved in doing this but it’s definitely an issue in a military trial when a judge commands not only by his position but by his rank authority. Military lawyers will tell you that rank has no role in a courts-martial but when you hear a military judge dressing down an attorney by saying “Captain, you will refrain…”. This is clear that it’s associated with rank and that’s problematic to your defense. Command influence is improper but it’s a reality and it happens. Recent court cases have demonstrated this reality.
Conversely, I have seen civilian defense attorneys who are representing a military member in a courts-martial totally disregard this ‘admonishment’ by a presiding judge and do so with impunity. Sure, it might affect the flow of the trial but the attorney knows his responsibility is to represent the client. A military lawyer, who is honest with you, will tell you they are and have been influenced by the rank of the judge. Regardless of what they say the fact that a judge is military and generally holds a higher rank than the other players in a military court and he is looked at as an arm of military command.
It’s for this reason that I highly recommend that anyone charged with a serious or criminal offense retain the services of a civilian lawyer to represent him. The ideal situation is to have both military and civilian representation. Take advantage of the benefit each brings to your defense.
Yes, there will be a cost associated with the civilian lawyer. You are responsible for payment for their services. I know there are issues involving the cost but this is not the time to gamble with your freedom and your future. Even for a seemingly simple offense, there can be everlasting negative repercussions. It’s still a federal offense and it will affect your future, no doubt about it.
This isn’t particular to the military itself and we have all seen the impact on meritless allegations. Look at the fiasco involving Justice Kavanaugh. Look at other political issues. You don’t have to be a newsworthy person to be falsely accused. You can be “Joe Average” and have your life ruined forever.
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