23 September 2009

Rights Advisement

SUBJECT: Rights Advisement

1. This memorandum has two purposes. First, it explains to you the nature of the attorney-client relationship and how it will affect you and me as long as I am your attorney in your upcoming court-martial. Secondly, it explains to you the various rights that you have in your upcoming court-martial.

2. ATTORNEY-CLIENT RELATIONSHIP: I am your lawyer. I have been licensed by the State of California, Massachusetts, and the District of Columbia to practice law and I have been certified by the Judge Advocate General to act as defense counsel in courts-martial. As your lawyer, you have, and you can expect to receive from me, my undivided loyalty, confidence, and utmost efforts to represent you and your best interest in the upcoming court-martial.

3. There are, however, some things that I, as your counsel, expect in return. There is absolutely no way that I or any other lawyer can competently and adequately represent you if you lie to me, withhold facts, or distort the truth. Information or evidence that may seem damaging and harmful to you may provide me with a legal defense to the charges you stand accused of, or may provide me with the ammunition I need to suppress certain evidence the government may have.

4. You need not fear anything by revealing to me the absolute truth about everything that happened. The law recognizes that it is necessary for an accused to be completely honest with his defense counsel. Therefore, there exists what is called an attorney-client privilege. What this means is that any information you provide me during my counseling sessions with you is absolutely privileged. I am under an ethical obligation not to reveal anything you say to me, except as may be necessary in your defense. Nothing you say to me can be used against you at your trial. And anything you tell me will remain strictly confidential.

5. I cannot overemphasize the importance of being honest and truthful with me. It is not my purpose to sit in judgment of you. Personally, it makes no difference to me whether you are guilty or innocent of the charges. I will represent you just as vigorously either way. If at any time during my representation of you I find out that you have lied to me or misled me, it may be necessary for me to ask permission of the court to withdraw as your counsel.

6. RIGHT TO COUNSEL: You have three options with respect to who will represent you in your court-martial. First, you may employ civilian counsel at your own expense. The cost thus incurred would be yours and yours alone and the military would not in any way pay for your civilian counsel. Secondly, you may request individual military counsel of your own choice from any branch of the service and that attorney will be provided for you if the attorney’s superiors decide that he or she is reasonably available. Third, you will automatically receive a detailed defense counsel. If you exercise your first option and retain a civilian attorney, the military counsel would normally remain on your case as the assistant defense counsel, unless you decide to excuse that counsel. If you are provided your requested individual military counsel, your detailed counsel may remain on the case only if allowed by their superiors. You normally do not have the right to more than one military counsel.

7. COMPOSITION OF COURT: Basically, you have three options with respect to the make-up of the court-martial that will try you. You may be tried by a military court-martial “panel” (similar to a civilian jury) consisting entirely of officers. If your case is a special court-martial, there must be at least three members of the panel and if it is a general court-martial, there must be at least five members of the panel. Your second option is to request in writing that enlisted persons sit on the court. If you exercise this option, at least one-third of the panel must be made up of enlisted persons, selected from a unit other than your own. If your case is tried before a military panel, either consisting of officers alone or both officers and enlisted members, then at least two of every three members would have to vote for a finding of guilty before you could be found guilty of any offense. In the event of a conviction, then at least the same number would have to agree on a punishment before you could be sentenced to serve it. If the sentence that the agreed upon was in excess of ten years, then at least three out of four would have to agree. Finally, you have the right to waive, which means to give up, your right to a trial by a court-martial panel and instead be tried by a Military Judge alone. If you exercise this option, there would be no court-martial panel, and the Military Judge would decide your guilt or innocence and the Military Judge would also sentence you if he found you guilty. [If you decide to plead guilty to any charges, the Military Judge sitting alone decides your guilt on those charges to which you pled guilty, but you retain the above options for the sentencing phase of the trial, and for any charges to which you plead not guilty.] Regardless of which option you choose, you have the right to challenge the Military Judge and any member of the military panel for cause if it can be demonstrated that the judge or court member is prejudiced or biased against you, cannot impartially decide the case, or is otherwise ineligible to sit as Military Judge or a court member.

8. THE RIGHT TO ASSERT DEFENSES AND OBJECTIONS: In any criminal prosecution there may be a number of various defenses to the charges or objections to evidence that the prosecution may offer. The defenses or objections that are available differ from case to case depending upon the facts and circumstance of each case. You can be assured that I will assert on your behalf any appropriate defenses to the charges or objections to the evidence. For the most part, when and how to assert such defenses or objections is a matter of trial tactics and is therefore a matter of my discretion.

9. RIGHTS CONCERNING PLEAS AND BURDEN OF PROOF: As a defendant, you have an absolute right to plead not guilty. If you do, this would require the prosecution to prove your guilt beyond a reasonable doubt. You are presumed innocent and that presumption remains in your favor unless it is overcome by evidence which establishes your guilt beyond a reasonable doubt. You may, however, after we discuss the case, seek to have me negotiate with the Convening Authority for a possible pretrial agreement. There basically are three types of pretrial agreements. The first is where you agree to plead guilty if the Convening Authority agrees to lessen the severity of the charge against you. Secondly, you may agree to plead guilty in return for the Convening Authority’s promise not to approve a sentence in excess of that which you and the Convening Authority agree upon. Third, you may offer to plead guilty to certain specifications with the Convening Authority agreeing to withdraw or dismiss other specifications. The pretrial agreement might include aspects of each of these three approaches. If you decide to enter into a pretrial agreement and plead guilty, you need to understand that you give up your right against self incrimination, your right to a trial on the facts, and your right to confront and cross examine the witnesses against you. However, you still have the above rights as to any offense which you enter a plea of not guilty. Obviously, an intelligent choice as to what plea to make, whether or not to pursue a pretrial agreement, and whether to plead guilty to any offense can only be made after you and I fully discuss the case.

10. RIGHTS OF THE ACCUSED AS A WITNESS: As the accused, you have an absolute right not to testify or respond to the charges against you. The judge or military court members (panel) are required not to draw any adverse or bad inference against you if you fail to testify. On the other hand, you have an absolute right to testify in your own defense. This right is an absolute one and I may not prevent you from testifying if that is your decision. However, you must be aware that I am under ethical consideration not to offer to the court perjured or false testimony. While it is your right to testify in your own defense, if I know that you are offering false testimony I am bound by the disciplinary rules of my profession not to ask you any questions while you are testifying and not to affirmatively argue your testimony to the judge or jury. The right to testify is personal unto yourself; only you can make the final decision. You should also be aware that normal witnesses do not have a right to testify or not in your case. That is, a friend of yours or another person who is not a defendant does not have the absolute right to testify. I will evaluate the testimony of all possible witnesses, and call as witnesses those I believe will be helpful. However, if there is another person who wants to offer testimony on your behalf, I am not bound to call that person. One time I would actually be precluded from calling a witness is if I were convinced that the witness would offer false testimony.

11. MOTION TO SUPPRESS A CONFESSION OR ADMISSION: If it is necessary, you may testify for the limited purpose of denying that you made a particular statement or that you made the statement voluntarily. If notice is given to the military judge of your intent to testify for the limited purpose of the motion, you may be cross-examined only as to matter which you testify. Nothing said by you on either direct or cross-examination may be used against you for any purpose other than in a prosecution for perjury, false swearing, or making a false official statement. If you choose to testify for the limited purpose of a motion, you still have the right to not testify during the merits portion of the court-martial.

12. MAXIMUM PUNISHMENT AND YOUR RIGHT TO APPLY FOR DEFERMENT: The maximum possible punishment if convicted on the charge(s) of which you stand accused is: ______________________________________________________________________________

If you are convicted and if the sentence includes confinement, you have the right to apply to the Convening Authority to defer, that means to put off, serving the confinement time until your record of trial is reviewed by appropriate authorities and until the sentence is ordered into execution. You must understand that this is a limited right. You do not have a right to deferment, but only to apply for deferment. The Convening Authority has discretion whether or not to allow the deferment. You also have the right to apply to the Convening Authority to defer forfeitures of pay and reduction in rank for a period of time in order to benefit a dependant or for some other reason. As with confinement, the Convening Authority has the discretion whether or not to allow the deferment.

13. RIGHTS DURING ANY SENTENCING HEARING: If you are found guilty of any offense, you will have a sentencing hearing. This hearing will often begin immediately following any findings of guilt. During any sentencing hearing, you have the right to present matters in extenuation and mitigation, that is, matters about the offenses(s) or yourself, which you want the trier of fact to consider in deciding your sentence. In addition to testimony of witnesses and the offering of documentary evidence, you may, yourself, testify under oath as to these matters, or you may remain silent. If you choose to remain silent, the trier of fact may not draw any adverse inference from your silence. On the other hand, if you desire, you may make an unsworn statement. Because the statement is unsworn, you cannot be cross-examined on it. However, the government may offer evidence to rebut any statement of fact contained in an unsworn statement. An unsworn statement may be made orally, in writing, or both. It may be made by you, by your counsel on your behalf, or by both.

14. RIGHTS OF THE ACCUSED TO SUBMIT A CHAPTER 10 REQUEST: Under Army Regulation 635-200, Chapter 10, you have a right to request discharge in lieu of trial by courts-martial. You are entitled to make such a request due to charge(s) being preferred against you under the Uniform Code of Military Justice which authorize the imposition of a bad conduct or dishonorable discharge. You must understand that this, like the rights to apply for deferment of sentence or forfeitures, this is a limited right. You do not have a right to discharge in lieu of trial by courts-martial, but only to apply for it. The Convening Authority has discretion whether or not to approve your request. You are not obligated to make such a request, and have an absolute right to insist upon having your case heard by a court-martial. If you choose to submit a request for discharge, you will be required to acknowledge that you understand the elements of the offense(s) charged and admit your guilt to either the charge(s) against you or to any lesser included offense(s) which also authorize(s) the imposition of a bad conduct or dishonorable discharge. If your request for discharge is approved, you will likely receive an Other-Than-Honorable Discharge. You must understand that an Other-Than-Honorable Discharge will place limitations on employment opportunities and will deny you other advantages which are enjoyed by one whose discharge characterization indicated that he or she has served honorably. You may request the convening authority approve a General Discharge, but such a request would not have to be granted. You may, however, submit a request that is conditioned upon you receiving a discharge no less favorable than a General Discharge. If you make such a request, the Convening Authority would either have to approve the request and grant you a discharge no less favorable than a General Discharge, or disapprove your request and proceed with trial by courts-martial.

15. GENERAL CONSIDERATIONS: Most of the rights which I have explained - the composition of the court, who you wish to have represent you, how to plead, whether to testify – are your absolute rights and you must make the decision whether or not to exercise them after I have fully counseled you on all of the relevant factors and considerations that you should think about. Trial tactics and trail strategy, however, are the province of the defense counsel and it will be for me to decide, after fully consulting with you, as to who will testify, how to examine witnesses, how and when to raise objections, and various other matters of trial tactics and strategy.

16. This covers all of the essential areas on which you must formally be advised. Certainly, in our discussion about your case and in preparation for it, there will be many other matters that we will discuss. As mentioned earlier, it is important that you not discuss your case with anyone without obtaining prior approval from me. Likewise, it is important that you keep me and your chain of command apprised of your whereabouts at all times between now and the trial date. You do not want to do anything that may give your command cause to prefer additional charges against you or restrict your liberty rights.

Civilian Defense Counsel

I certify that I have read the foregoing advisement given to me by my Defense Counsel, David Edward Coombs, and that he has answered all of my questions concerning its provisions.

RANK, U.S. Army

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