28 September 2009

Information is Power

A soldier that has been wearing the uniform for 23 years is being forced to retire due to not passing a tape test. He recently posted a comment on this blog after reading the Chapter 18 fact sheet. I am sadden to hear that he would have fought his separation if he had known what his rights were - such as the right to request an administrative separation board or the right to be enrolled in the Army body composition/weight control program and given adequate time to lose weight.

The Army needs to retain senior NCOs and not separate them based upon the screening process (height and weight tables) and the questionable accuracy of the body composition worksheets ( DA Form 5500). These body composition tests have a high margin of error. These errors are due to the soldiers conducting the tests. Many have been given limited if any training. They are then asked to apply this test with their tape measure (highly subjective). The results of their efforts often result in the end of an honorable soldier's career.

The body-weight standards really don't take into account men who are built like an NFL linebacker. Most tape tests would say that these men are overweight and unhealthy. Really? If I am on a battlefield and need someone to carry me to safety, I will take a soldier built like a linebacker over one built like a long distance runner any day of the week and twice on Sunday.

With the known inaccuracy of tape tests, a soldier should not only be given the opportunity to have a physician determine if there are underlying causes to their “weight problem” but also to have a professional, not a E-5 with a tape measure, conduct the test. The Army needs take a look at the cost of its inaccurate testing methods. Experienced and valuable NCOs should not be flagged from promotion, reenlistment, or other favorable actions based off this standard alone.

I hope that the soldier with 23 years in service pulls his retirement paperwork and pushes to be allowed to continue to serve. If he is truly overweight, well then a good PT program should resolve the problem. If he just happens to be a big man - then I think we need to rethink if this is a bad thing for the Army. I say it's not.

23 September 2009

SPC Beyshee O. Velez

SPC Beyshee O. Velez, 31, was charged on Monday with two counts of murder, three counts of assault, and one count of fleeing apprehension. He is accused of killing a civilian contractor on September 13th at the Contingency Operating Base Speicher near Tikrit in Iraq. The Associated Press reported that the civilian contractor was shot three times after offering a ride to an American soldier who flagged down his vehicle on the base. An Article 32 investigation will now convene to review all evidence, and make recommendations on the disposition of the charges.

Rights Advisement

MEMORANDUM FOR Client
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.




DAVID EDWARD COOMBS
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.




______________________________
NAME
RANK, U.S. Army

21 September 2009

Post-Trial and Appellate Rights

1. General. If you are convicted of any charges at court-martial, you still have important post-trial and appellate rights:

a. You can Seek Deferral of the Adjudged Sentence and Waiver of Forfeitures. Any confinement adjudged at your court-martial normally begins immediately. Under the rules, however, your defense counsel can ask the commander who ordered your court-martial (known as the convening authority) to defer your confinement. This means your confinement is delayed, typically pending the commander's action on your sentence. You can also seek deferral of any adjudged forfeiture of pay and a reduction in rank. Forfeitures of pay and reduction in rank normally take effect 14 days after sentence is announced at your court-martial. It is also possible in some cases to ask the convening authority to waive (forgive) your forfeitures of pay and allowances for a period of six months. Waived forfeitures go directly to your dependents for their use. Ask your defense counsel for details on these rules.

b. You have the Right to Present Matters to the Convening Authority. Your defense counsel will help you with this task. The matters you present can point out errors that occurred in the trial or they can explain why the sentence adjudged in court should be reduced. Your best opportunity for relief (either disapproval of some or all of the findings of guilty or for a reduction in the sentence) is from your convening authority.

c. You also have "Appellate Rights." These are your rights to continued legal review of your case by a disinterested military lawyer (Judge Advocate) or senior appellate judges after the convening authority acts on your case. If an appellate court reviews your case, your appellate rights include the right to representation by a detailed military appellate counsel at no cost to you. You may also retain a civilian counsel to represent you on appeal at no expense to the government.

2. Your Right To Submit Matters To The Convening Authority (CA). You have the right to submit any matters you wish the CA to consider in deciding what action to take in your case. Before the CA takes action, the Staff Judge Advocate (SJA) may submit a recommendation to the CA (required for all general courts-martial and special courts-martial with an adjudged bad-conduct discharge). This recommendation will be sent to you and/or your defense counsel before the CA takes action. If you have matters that you wish the CA to consider, or matters in response to the SJA's recommendation, such matters must be submitted within ten days after you or your counsel receive a copy of the record of trial or you and/or your counsel receive the recommendation of the SJA, whichever occurs later. Upon request, the CA may extend this period, for good cause, for not more than an additional 20 days. Talk to your defense counsel regarding what matters to submit to the CA.

3. What are My Post-Trial Appellate Rights and Who Explains Them? Your defense counsel has the duty to explain these rights and advise you concerning the exercise of these rights. The type of appeal or review depends on the level of court-martial and the sentence approved by the convening authority.

4. Will an Appellate Court Automatically Review My Case? If the approved sentence includes death, a punitive discharge (a bad-conduct or dishonorable discharge for enlisted soldiers and a dismissal for officers), or confinement for at least one year, your case will be automatically reviewed by the Army Court of Criminal Appeals (ACCA). If your case was a general court-martial, but did not include one of these approved punishments, then your case will be reviewed by the Office of The Judge Advocate General (OTJAG). If your case was a summary court-martial or a special court-martial with no bad-conduct discharge approved by the CA, then a Judge Advocate not involved with the prosecution of your case will review the case.

5. Tell Me More about Appellate Review by ACCA. If the CA approves a sentence including death, a punitive discharge, or confinement for at least one year, your case will be reviewed by ACCA. You are entitled to representation by counsel before such court. If you so request, military counsel will be appointed to represent you at no cost to you. If you so choose, a civilian counsel may also represent you at no expense to the government. ACCA does a complete review of your case. They review the findings of guilty to make sure they are correct in law and fact based on the entire record. ACCA can uphold or overturn some or all of the findings of guilty. They can also lower the sentence approved by the convening authority. They can never make the sentence more severe. If your case is being reviewed by ACCA, your detailed appellate attorney will keep you informed of the status of the case.

6. What About Appellate Review After Action by ACCA?

a. Review by the Court of Appeals for the Armed Forces. After the ACCA completes its review, you may request that your case be reviewed by the United States Court of Appeals for the Armed Forces (CAAF). The Court must review the record in all cases in which the sentence, as affirmed by ACCA, extends to death. You have the same rights to counsel before CAAF as you have before the ACCA.

b. Review by the Supreme Court. If your case is reviewed by CAAF, you may request review by the Supreme Court of the United States. You have the same rights to counsel before the Supreme Court that you have before the ACCA and CAAF. Less than a dozen military courts-martial have been reviewed by the Supreme Court in the last ten years.

7. Review by OTJAG. If your case was a General Court-Martial and your approved sentence did not require a review by ACCA (e.g. no punitive discharge and confinement for less than one year), your case will be reviewed by the Office of The Judge Advocate General (OTJAG), in the Pentagon. You will not be represented by counsel, nor can you request a hearing or personal appearance. You will, however, have your case completely reviewed by an experienced military attorney for errors at trial prejudicial to your substantial rights. Your sentence will also be reviewed to determine whether it is too severe for the offenses committed.

8. Review by a Judge Advocate. If you were convicted at a Summary Court-Martial or if your Special Court-Martial sentence did not include an approved bad-conduct discharge, then a Judge Advocate will review your court-martial. The Judge Advocate who conducts the review will not be a prosecutor.

9. Can I get a New Trial based on Newly Discovered Evidence or Fraud at My Original Trial? Yes. A new trial may be granted under Article 73, UCMJ on the grounds of newly discovered evidence or fraud on the court. You must petition The Judge Advocate General of the Army within two years of the CA's approval of your court-martial sentence. Specific rules are contained in AR 27-10, Chapter 14. Consult with TDS counsel or a civilian counsel experienced in military matters immediately if you discover new evidence or learn of a fraud committed at your court-martial.

10. What are the Consequences if I Waive My Rights to Appellate Review? Your defense counsel must explain to you the consequences of waiver of appellate review. You may waive or withdraw review by the appellate courts at any time before completion of review. If you do so you must understand that:

a. Your decision is final and you cannot change your mind.

b. If you waive or withdraw your appellate rights, your case will be reviewed by a military lawyer for legal error. It will also be sent to the general court-martial convening authority for final action.

c. Within two (2) years after the sentence is approved, you may request The Judge Advocate General (TJAG) to take corrective action on the basis of newly discovered evidence, fraud on the court-martial, lack of jurisdiction over you or the offense, error prejudicial to your substantial rights, or the appropriateness of the sentence. You may submit any appropriate matters for consideration by the military lawyer conducting the legal review.

If you elect to waive appellate review, defense counsel will assist in preparing the waiver. Waiver of appellate review is rarely appropriate.

10. What if I have Questions About my Post-Trial and Appellate Rights? Ask your defense counsel or feel free to contact Mr. Coombs at (401) 744-3007.

17 September 2009

Strategic Sexual Assault Litigation Skills

The Naval Justice School conducted a Strategic Sexual Assault Litigation Skills Course this week in Newport, Rhode Island. The course was designed to teach the responsibilities of senior counsel in mentoring junior counsel. The course primarily concentrated on advanced litigation skills. I was invited to speak on how the rules of evidence can most effectively be used by defense counsel when representing a client faced with either a sexual assault or child molestation charge.

When preparing to litigate the admissibility of evidence in sexual assault or child molestation cases, it is important to understand the policy purpose behind the rules. There are three rules under the Military Rules of Evidence (MRE) that your defense should be very familiar with if you are facing either a sexual assult or child molestation charge. The three MREs are 412, 413 and 414.

The policy purpose behind MRE 412 is to protect victims of sexual misconduct from harassment, embarrassment, and invasions of privacy, while encouraging victims to report crimes and testify against offenders. The rule is commonly called the “rape shield” rule. MRE 412 applies at all stages of a case, including Article 32s. This rule effectively keeps out otherwise relevant evidence in order to protect the privacy interests of victims of sexual misconduct. The authority given to an accused under MRE 404(a)(2) to prove a relevant character trait of a victim is withdrawn by MRE 412 in cases involving sexual misconduct.

A 2007 amendment to Rule 412 clarifies that it applies in all cases involving a sexual offense wherein the person against whom the evidence is offered can reasonably be characterized as a “victim of the alleges sexual offense.” Additionally, operation of the rule does not require an actual charge of a sexual offense, so long as the charge involves sexual misconduct. Thus, if an accused were to kidnap a person for the purpose of a sexual attack, the rule would apply even though the accused is only charged with kidnapping.

MRE 413 and 414 are designed to trump the bar against using propensity evidence to prove the accused committed the crime charged. MRE 404(a) is clear, with few exceptions, that evidence of an accused’s character, when offered to prove he acted in conformity with that character on a particular occasion, is not allowed. MRE 413 and 414 are intended to provide for more liberal admissibility of character evidence in criminal cases of sexual assault and child molestation where the accused has committed a prior act of sexual assault or child molestation.

What your Defense Counsel Should Understand

A. Understanding what MRE 412 prohibits. The exclusions of MRE 412 go beyond actual physical sexual conduct. They include an alleged victim’s use of contraceptives, the fact she has an illegitimate child, or that she once had a venereal disease. The exclusion also applies to the way the alleged victim dresses, speaks, or carries herself if offered as sexual predisposition evidence.

B. Understand the exceptions to MRE 412. As a defense counsel, it is vitally important to understand the exceptions. Subsection (b)(1) of the rule contains three exceptions to the general rule of inadmissibility of specific instances of sexual behavior by the alleged victim. The exceptions are (1) to prove someone other that the accused was the source of semen, injury, or other physical evidence; (2) sexual conduct with the accused to prove consent to the acts charged; and (3) instances in which the exclusion would violate the constitutional rights of the accused. The first two exceptions are straightforward in their application. It is the third exception that gives counsel the greatest difficulty. It is important to understand that the “constitutional rights” referred to in subsection (b)(1)(C) concern the accused’s Sixth Amendment right to confront witnesses and his due process right to present a defense. For example, an accused charged with rape has the constitutional right to prove the complainant was living with another man to show she had a motive to falsely accuse him of the rape. Olden v. Kentucky, 488 U.S. 227 (1988).

C. Effectively arguing “constitutionally required” evidence – the defense counsel must show that the evidence is relevant, material, and favorable to the defense. The defense counsel must also survive the heightened balancing test under MRE 412 to show that the probative value of the evidence offered outweighs the danger of unfair prejudice to the alleged victim’s privacy. In order to accomplish this task, the mantra, Relevant, Material, Favorable to the Defense, must be driving home to your counsel. The defense must independently establish each and every one of these elements in order to establish that evidence is constitutionally required. There are, in general, 3 types of constitutional evidence that are considered fundamental: Confrontation, Compulsory process, and Due Process. A criminal defendant has a right to a meaningful opportunity to present a complete defense. Any argument your counsel make should tie their need for the information to one of these fundamental rights and then argue why that evidence affects their ability to present a defense.

1. Relevance: The key to understanding what is relevant and admissible is being able to articulate a theory of the case. Why? What happens if you cannot articulate a theory of the case? Then you probably are trying simply to smear the victim, something that is not permitted. On the other hand, if you can articulate a theory and convince a military judge that you will not be able to present a defense without the evidence, you might gain admission of the evidence.

2. Material: The key to understanding what is material, is understanding that the military judge will look at the importance of the issue for which the evidence is being offered in relation to the other issues in the case; the extent to which that issue is in dispute; and the nature of the other evidence available in the case pertaining to that issue. In other words, if the issue is collateral or if there is non-412 evidence available to prove it, then you will not be able to meet the requirement of materiality. However, if it is an important issue, if there is no other way of proving it but by using the 412 evidence, then you stand a much better chance of success.

3. Favorable to the defense: all evidence being offered by the defense should be favorable. This analysis under 412 is more concerned with whether the probative value of the evidence outweighs the danger of unfair prejudice to the alleged victim’s privacy. This standard is different from Rule 403 which would state the evidence is admissible unless the danger of unfair prejudice substantially outweighs its probative value. Rule 403 is written to favor admissibility when the balance is close, while Rule 412’s balancing test is written to disfavor admissibility.

D. Understand what MRE 413-414 allows - The rules are designed to trump the bar against using propensity evidence to prove the accused committed the crime charged, however, prior to admitting 413 or 414 evidence, the military judge must make certain threshold findings.

1. That the accused is charged with a sexual offense under Rule 413/414;
2. the evidence that the government is attempting to admit under 413/414 involves the accused’s commission of another offense; AND
3. the evidence is relevant under Rules 401 and 402.

The first and second threshold requirement is usually met by simply looking at the charge sheet and the proffer of the government regarding the uncharged offense. The third threshold requirement is a relevancy one. A military judge must determine that information is relevant, and that a panel could reasonably find that the accused committed the uncharged offenses (note that there is no requirement that the accused was convicted or even charged with the other uncharged conduct).

Lastly, although the rule states “is admissible” the military judge is required to conduct a MRE 403 balancing test prior to admitting evidence of similar crimes under 413 or 414. The 403 test is not altered when considering evidence under 413 or 414. As with 404(b) evidence, the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice. To effectively argue “unfair prejudice” counsel need to understand that unfair prejudice to the accused means that the panel will use the evidence for an impermissible purpose. The panel will respond to the evidence, usually in an emotionally way, that will cause them to ignore other admissible and more relevant evidence on the issue and decide the case on an improper basis.

12 September 2009

Chapter 11 - Entry Level Separation

1. WHAT IS THE BASIS FOR A CHAPTER 11? The inability, lack of reasonable effort, or failure to adapt to the military environment. The soldier will have completed no more than 180 days of active military service.

Action will be taken to separate a member when it is clearly established that:

a. Soldier cannot adapt socially or emotionally to military life.

b. Cannot meet the minimum standards prescribed for successful completion of training (i.e. PT or Weight standards) because of lack of aptitude, ability, motivation or self-discipline.

c. Soldier has demonstrated character and behavior characteristics not compatible with satisfactory continued service.

d. Have failed to respond to counseling.

e. Females who become pregnant and cannot satisfactory complete their training.

f. A soldier convicted of a courts-martial not given a punitive discharge.


2. WHAT MUST THE COMMAND DO BEFORE THEY CAN INITIATE AN ENTRY LEVEL SEPARATION? The following must take place:

a. The soldier must be formally counseled in writing (preferably on DA Form 4856) and this counseling must include:

1. The reason for counseling.

2. The fact that separation action may be initiated if the behavior continues.

3. The type of discharge that could result from the possible separation action and the effect of each type.

4. The soldier should be given a reasonable time to correct the deficiencies (Para 1-18b, AR 635-200). (Soldier should not be separated when the reason is that military service is different then civilian occupation.)


3. PROCEDURE. The unit commander notifies the individual that he is pending separation action in writing. After a reasonable amount of time, the unit commander forwards the packet, with his recommendation, to the approving authority, Battalion size element commander, for final action. The approving authority can either approve or disapprove the separation action.


4. WHAT ARE YOUR RIGHTS?

a. You have the right to consult with consulting counsel within a reasonable time, or civilian counsel at your own expense.

b. You have a right to submit statements on your own behalf.

c. You have a right to obtain copies of documents which your commander will forward in support of his separation recommendation.

d. You have a right to waive the above rights in writing. Failure to respond within seven (7) days (that means not signing the form) means you give up all your rights.

e. You have a right to a separation medical examination upon approval by the separation authority. (You may also waive this)


5. TYPE OF DISCHARGE. Members separated under this chapter will be given an uncharacterized discharge.


6. EFFECT OF DISCHARGE. Members should receive little or no prejudice in the civilian community from this type of discharge they will receive no benefits from the military or VA. This includes the GI Bill (no return of money put in) and accrued leave.


7. TIMING OF SEPARATION: You will be separated as soon as possible. Separation takes approximately ten (10) working days from the time the chapter is approved by the separation authority.

Note: Any misconduct committed after discharge is approved, but before separation, can still be prosecuted.

10 September 2009

Chapter 18 - Separation for Failure to Meet Army Weight Control

I. WHAT IS THE BASIS FOR A CHAPTER 18?  Soldiers who fail to meet the body fat composition/weight control standards set forth in AR.600-9.  Separation action may not be initiated under this chapter until the soldier has been given a reasonable opportunity to comply with reduction goals set for him by health care personnel.

Action will be taken to separate a member when it is clearly established that:  1) Despite attempts to reduce weight or body fat composition the soldier has failed to meet the goals AND 2) The soldier has NOT been diagnosed by health care personnel as having a medical condition which precludes them from participating in the Army body fat composition/weight control program. NOTE: If it has been determined that a soldier is over weight due to a medical problem, the soldier will not be separated under Chapter 18.


II. WHAT MUST THE COMMAND DO BEFORE THEY CAN INITIATE A CHAPTER 18 FOR FAILURE TO MEET ARMY BODY FAT COMPOSITION/WEIGHT CONTROL STANDARDS?

The following must take place, unless waived:

a. You must be weighed and shown to exceed the screening table weight.  If so, you must be taped in order to determine if you exceed the body fat standard.

b.  If you fail the tape test, your commander will then initiate a flag.  After initiating the flag, your commander must enroll you into an overweight program.  Your commander informs you of this fact by memorandum.  Once you acknowledge receipt of this memorandum, the clock starts for the purposes of the possible chapter action.

c.  Your commander must refer you to a nutritionist for nutritional counseling and proper weight-loss counseling.  This is also done by memorandum and must take place as soon as you are enrolled into the program.

d.  Your commander must also refer you to the TMC for medical screening to ensure that you do not have a medical condition which would precluded you from losing weight.  This is also done by memorandum and also must take place when you are enrolled into the program.

e.  After being enrolled in the program, you will be tracked on a monthly basis.  The command will conduct monthly weigh-ins.  If you fail to show improvement in any two consecutive monthly weigh-ins, the command will initiate separation.  If after six months, the commander determines that you have not shown adequate improvement, the commander can either impose a bar to reenlistment or can initiate separation action.

f.  If you meet the body fat standard or the screening weight table as prescribed in AR 600-9, you will be removed from the overweight program.  This removal is done by memorandum and will be kept on file in the unit for the following 36 months. 


III. WHAT ARE YOUR RIGHTS?

a. You have the right to consult with counsel within a reasonable time.
b. You have a right to submit statements on your own behalf.
c. You have a right to obtain copies of documents which your commander will forward in support of his separation recommendation.
d. If you have six or more years in the active service, you have a right to an Administrative separation Board.
e. You have a right to waive the above rights in writing. Failure to respond in seven days (not signing the form) means you give up all your rights.

IV. TYPE OF DISCHARGE. Members separated under this program will be given an Honorable Discharge Certificate.

V. EFFECT OF DISCHARGE ON EDUCATIONAL BENEFITS.  As long as you completed your first term of service, the fact that you are discharged under this Chapter will not impact your educational benefits. 

VII. HOW TO FIGHT BACK IF YOU DID NOT WANT THE DISCHARGE.  The main way of opposing the discharge is to ensure that all of the proper steps have been taken.  If the unit has followed all of the correct steps, you may also try requesting a personal interview with the separation authority, but he does not have to grant you one. Statements from supervisors and co-workers are also very important. Hopefully, your supervisors will recommend that you be retained on active duty.  When you meet with the separation authority, tell him or her that you understand the Army is downsizing, however, you want to remain in the service.  Explain what you have to offer the service and why retaining you, despite being slightly overweight, is the right outcome.

VIII.  OBTAIN A PEACE OF MIND LEGAL REVIEW.  Our office can conduct a thorough review of your chapter paperwork and assist you with your submissions to the the command.  You can look here for more on the peace of mind legal review.

02 September 2009

Chapter 13 - Separation for Unsatisfactory Performance

1. WHAT IS THE BASIS FOR A CHAPTER 13? A soldier may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance (i.e. PT Test Failure, Weapon Qualification Failure, Poor job performance, and etc.)

Action will be taken to separate a member when it is clearly established that.

a. Despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed.

b. The retention of the soldier could have adverse actions towards the military.

c. Potential for advancement or leadership is unlikely.

d. It is likely that the circumstances forming the basis for separation will continue.

2. WHAT MUST THE COMMAND DO BEFORE THEY CAN INITIATE A CHAPTER 13 FOR UNSATISFACTORY PERFORMANCE? The following must take place, unless waived under special circumstances.

a. The soldier must be formally counseled in writing at least once prior to initiation of the chapter action, and this counseling must include:

1. The reason for the chapter action.

2. The fact that separation action may be initiated if the behavior continues.

3. The type of discharge that could result from the possible separation action and the effect of each type.

4. The soldier should be given a reasonable time to correct the deficiencies) Para. 1-18b, AR 635-200).

3. PROCEDURES. The unit commander forwards the packet to the intermediate commander, who can either disapprove the unit commander's discharge request and direct reassignment, or forward the packet recommending approval. If a soldier has six or more years in the service, the approving authority can convene a board of officers and enlisted to hear the case and make recommendations on retention and type of discharge.  The approval authority has the discretion to suspend the discharge for up to six months to give the soldier a chance to rehabilitate himself/herself. Accrued leave at time of discharge is governed by AR 630-5. 

4. WHAT ARE YOUR RIGHTS?

a. You have the right to consult with consulting counsel within a reasonable time, or civilian counsel at your own expense.

b. You have a right to submit statements on your own behalf.

c. You have a right to obtain copies of documents which your commander will forward in support of his separation recommendation.

d. If you have six or more years in the active service you have a right to an Administrative separation Board.

e. You have a right to waive the above rights in writing. Failure to respond in seven days (not signing the form) means you give up all your rights.

5. TYPE OF DISCHARGE. Members separated under this program will normally be given either an Honorable or a General Under Honorable Conditions Discharge Certificate (Para 13-10, AR 635-200)

a. Honorable: An honorable discharge will be given for proper military behavior and proficient performance of duty. If the soldier has served faithfully and performed to the best of his ability, and there is no derogatory information in his military record, he should receive an honorable discharge. If there are infractions of discipline, the seriousness and frequency will be evaluated. When there is a doubt, it should be resolved in favor of the honorable discharge. It is the pattern of behavior, not the isolated incident, that is important.

b. General: This is a discharge of separation under honorable conditions. A general discharge is given to a soldier whose record and performance is satisfactory. This is usually given to someone who had frequent non-judicial punishments but not for serious infractions. when this type of discharge is issued, the commander must state the specific basis for it.

6. EFFECT OF DIFFERENT KINDS OF DISCHARGES. At the present time, the only people eligible for educational benefits are those that are issued an Honorable Discharge Certificate and that serve on Active duty for a specified amount of time. For other veteran's benefits and programs, the military gives the same entitlements for both an honorable discharge and a general discharge under honorable conditions. With either discharge, veteran's benefits depend on the length of service and other factors.  The eligibility for all other benefits are to be determined by the agency assigned to oversee such prejudice in the civilian world benefits. There may be some psychological prejudice in the civilian world against people with anything other than an honorable discharge certificate; no definite statement can be made about this factor.

7. UPGRADING THE DISCHARGE: The discharge is NOT automatically upgraded. You may apply to the Army Discharge Review Board in an attempt to upgrade your separation. The process for this will be covered in a separate posting.

8. TIMING OF SEPARATION: You will be separated as soon as possible. Note: Any misconduct committed after discharge is approved, but before separation (approximately 10 working days after approval by the separation authority), can still be prosecuted.

9. HOW TO FIGHT BACK IF YOU DID NOT WANT THE DISCHARGE OR IF YOU WANT AN HONORABLE INSTEAD OF A GENERAL DISCHARGE; The main way of opposing the discharge is with statements. You may also request a personal interview with the separation authority, but he does not have to grant you one. You can submit a statement that you write yourself, stating your side of the negative information that your commander has compiled, and respectfully stating why you want to stay in the Army or why you believe you should be given an honorable discharge. If you have requested a reassignment and been denied it, you should mention this too. You should include a positive statement about the Army.

Statements from supervisors and co-workers are also vary important. If you are opposing the discharge, statements should address the negative items in your packet, and address the areas covered in paragraph 1, the basis for the action. The statements should specifically and directly comment on whether these factors are true of you. Hopefully, the supervisors will also recommend that you be retained on active duty or that you receive an honorable discharge if you are separated from the service. You should keep copies of all such letters you get because you can use them in an attempt to have your discharge ungraded, if necessary

If you are seeking an honorable discharge, the statements should specifically and directly comment on the factors listed in paragraph 5 regarding “types of discharges.” Also include copies of any good certificates, letters or awards. If your discharge is approved and you still wish to stay in the Army, you should write a letter to the Separation Authority requesting that the execution of the discharge be suspended for six (6) months so that you can prove your ability and commitment to soldier back into the Army.

Summary Court-Martial Information

This post describes your rights if you are facing a Summary Court-Martial for charges of violating the Uniform Code of Military Justice (UCMJ). You should become familiar with the guidance below so you know what to expect and how to respond to the charges you are facing.


WHAT IS A SUMMARY COURT-MARTIAL?

The military justice system has three levels of court-martial: General, Special, and Summary. A summary court-martial is the lowest level of court-martial available. It is designed to promptly resolve minor offenses under a simple procedure. While it has lower maximum punishments than the other two types of court-martial, it also has fewer rights for the accused (that is, the person facing the charges).


WHO DECIDES MY CASE SHOULD BE A SUMMARY COURT-MARTIAL?

Commanders at certain levels are also called Court-Martial Convening Authorities (CMCA), meaning they have the power to send a case to a court-martial. The lowest level CMCA is the Summary Court-Martial Convening Authority (SCMCA), usually the battalion commander. He has the power to create (convene) a summary court-martial.


WHO IS IN CHARGE OF THE SUMMARY COURT-MARTIAL?

When the SCMCA sends a case to a summary court-martial, he or she also appoints a summary court-martial officer. The summary court-martial is composed of one active-duty commissioned officer, usually the rank of captain or higher. The summary court-martial officer is the person who makes the decision on guilt, and if found guilty, on the sentence. The SCMCA cannot appoint himself as the summary court-martial officer unless he is the only office in the command.


WHAT IS THE MAXIMUM PUNISHMENT THAT I COULD FACE AT A SUMMARY COURT-MARTIAL?

E5 AND ABOVE: Restriction for two months or less, Forfeiture of 2/3 pay per month for one month or less, and a one grade reduction.

E4 AND BELOW: Confinement for 1 month or less, Hard labor without confinement for 45 days or less, Restriction for two months or less, Forfeiture of 2/3 pay per month for one month or less, and Reduction to the lowest enlisted grade.


BEFORE THE TRIAL, WHAT ARE MY RIGHTS UNDER A SUMMARY COURT-MARTIAL?

You, as the accused, have the following rights before the summary court-martial:

a. The right to consult with counsel. While you do not have the right to be represented at the summary court-martial by a military attorney, you may, however, hire a civilian attorney to represent you at no cost to the government. While you do not have the right to be represented by a military lawyer, you can consult with a military attorney (at no cost to yourself) who works for the Trial Defense Services (TDS), prior to making any election of rights under the summary court-martial. This TDS counsel will explain your rights to you and document that explanation on DA Form 5111-R.

b. The right to object to trial by summary court-martial. Because the rights provided to an accused are somewhat less than those provided under the other levels of courts-martial, an accused can object to trial by summary court-martial. If you object to trial by summary court-martial, the decision on how to proceed rests with your command. The command could send the case to a higher court-martial, refer it to non-judicial punishment, dispose of the case administratively or dismiss it entirely. The normal response is to send the case to a higher level of court-martial. NOTE: Before objecting to trial by summary court-martial, Mr. Coombs strongly encourages you to consult with a TDS attorney or contact him.

c. The right to inspect all the documents and physical evidence in the case.

d. The right to know the charges, the name of the accuser, the name of the SCMCA and the date of referral (all stated on the charge sheet).

e. The right to know who will appear as Government witnesses.

f. The right to call witnesses and present evidence in your own behalf with the assistance of the summary court-martial officer. If you have witnesses that you believe are important to your case, either in the findings phase or the sentencing phase, tell the summary court-martial officer before the trial so that he can assist you in making sure those witnesses are present for the summary court-martial.

g. The right to present motions. If you believe that you are entitled to have some of the charges dismissed for legal reasons, you can request that the summary court-martial officer do so.

h. The right to know the maximum sentence possible in the case. This is NOT the sentence the summary court-martial officer would give if he were to find you guilty; it is the maximum sentence that the summary court-martial officer COULD give you if he found you guilty. You do NOT have the right to have the summary court-martial officer tell you in advance what your particular punishment would be.


AT THE TRIAL, WHAT ARE MY RIGHTS UNDER A SUMMARY COURT-MARTIAL?

You, as the accused, have the following rights at the summary court-martial:

a. The right to plead guilty or not guilty.

b. The right to cross-examine Government witnesses.

c. The right to testify on your own behalf, or remain silent, with the assurance that no adverse inference will be drawn by the summary court-martial officer from such silence.

d. If found guilty, the right to present matters in extenuation and mitigation at the summary court-martial, to include the right to remain silent or to make a sworn or unsworn statement (orally, written, or both). If you are found guilty at the summary court-martial, you can present evidence or witnesses to show that the offense(s) are either not as serious as they would otherwise appear, or are out of character for you as a soldier. If you make an unsworn statement, you cannot be cross-examined on that statement.


AFTER THE TRIAL, WHAT ARE MY RIGHTS UNDER A SUMMARY COURT-MARTIAL?

You, as the accused, have the following rights after the summary court-martial:

a. The right to apply for deferment of confinement, should the summary court-martial officer find you guilty and impose confinement. Should the summary court-martial officer give confinement as part of the sentence, you can request that the SCMCA order the confinement to start at some later time (“defer” the confinement).

b. The right to submit written matters in extenuation and mitigation to the SCMCA, prior to his final decision on the case. The SCMCA makes the final decision to approve or disapprove the findings and sentence handed out by the summary court-martial officer. Just as you have the right to present matters to the summary court-martial officer to show that the offense(s) are either not as serious as they would otherwise appear, or are out of character for you as a soldier, you can present like matters to the SCMCA before he makes his final decision. You must submit these matters to the SCMCA within seven days after the summary court-martial officer announces the sentence. If you make a written request to extend that time, the SCMCA can grant you up to an additional twenty days.

c. The right to appeal your summary court-martial conviction, but only in very limited circumstances. There is normally no appeal from a summary court-martial conviction. However, if within two years of the date the SCMCA approves the summary court-martial, there is newly discovered evidence, or a question regarding: a. fraud on the court-martial; b. lack of jurisdiction over the soldier or the offense; c. other error prejudicial to a substantial right of the accused, or; d. appropriateness of the sentence, you can request review by The Judge Advocate General of the Army.


WHAT ARE SOME OF THE EFFECTS OF A SUMMARY COURT-MARTIAL?

The summary court-martial conviction cannot be used against you at a later court-martial unless a lawyer at the summary court-martial either represented you or you affirmatively waived the right to representation at the summary court-martial.

Generally, a summary court-martial is not considered a conviction and does not carry the same loss of benefits that a conviction by a general or special court-martial would carry.