20 June 2010

Another Great Result!

SYNOPSIS OF CASE: The government charged 1LT G with the following: violation of Article 92 by entering into an inappropriate relationship with an enlisted soldier (SPC V); two specifications of violating Article 120 (rape and aggravated sexual assault) by engaging in a sexual act by using strength and by causing bodily harm; and finally violating Article 90 by violating a lawful order of his company commander.

SPC V, a 26 year old college graduate, entered the Army in order to receive the G.I. Bill. Prior to her deployment, she reached out to 1LT G on an online dating site. The two of them exchanged countless emails and Skype messages in the months that followed. During this time, SPC V learned that her unit was deploying to Iraq. Once in Iraq, she again reached out to 1LT G. Over the course of the next couple of months, they kept in constant contact through Skype. Their relationship progressed from friends to dating. After their relationship turned physical, SPC V wanted assurance that they were in a committed relationship. When confronted by SPC V, 1LT G. did not confirm the status of the relationship. Instead, he accused her of possibility sleeping with other soldiers. SPC V was insulted by his comments and testified at the Article 32 that on a scale of 1 to 10 with 1 being mildly irritated and 10 being out of her mind crazy she was a 7. Shortly after this conversation, she accused him of raping her.

SYNOPSIS OF RESULT: After two days of testimony, the Article 32 Investigating Officer recommended not going forward on the 120 offenses. The defense was able to convince the IO that the relationship between 1LT G and SPC V, while improper, was a consensual one. Through effective cross-examination of SPC V and her friends that testified, the defense exposed the multiple versions of the alleged events by SPC V, her inconsistent behavior, her strong motivations to fabricate, and most importantly that she never told 1LT G “no” despite the fact nothing prevented her from doing so.

The government then tried to force an OTH resignation out of 1LT G by informing him that if he submitted one, they would not go forward with the GCM. When he refused to plea, the government instead went with a CG Article 15 and an OTH Show-Cause Board. 1LT G pled guilty to the consensual relationship at the Article 15 (losing $4,000.00 in pay). After a day long hearing, the show-cause board recommended that he be retained.

BEST GUESS FOR THE RESULT: The Article 120 offenses were the product of a false allegation. The difficult task was proving to the IO, the government, and the unit that this was the case. I started the defense by building a list of all of the facts that could not be overlooked, ignored, or dismissed. Once I had this list, I did my best to turn each of those facts into a positive one or at least a neutral one for the defense.

Perhaps the best piece of evidence turned out to be something that would normally hang a client – his computer. CID pulled all of the IMs and emails between SPC V and 1LT G from his computer. In the end, this gave us a wealth of information to effectively use SPC V’s own words to prove that the events of the alleged rape were actually consensual.

“Sticking it to the Man Since 1980”

05 June 2010

Miranda Rights

In Berghuis v. Thompkins (08-1470), the U.S. Supreme Court upheld the state court decision rejecting the claim of a violation of Thompkins' Miranda rights. While soldiers have Article 31 Rights in the military, if you are questioned by civilian authorities - you will be looking to Miranda rights to save you.

Facts of the Case: Thompkins' silence while being questioned by police did not amount to an invocation of his Miranda right to remain silent. At the beginning of Thompkins' interrogation, one of the detectives presented him with a Miranda "Notification of Constitutional Rights and Statement" form. The detective read four of the five statements on the form aloud, and asked Thompkins to read the fifth aloud. Thompkins declined to sign the form, and there was conflicting evidence regarding whether Thompkins verbally confirmed that he understood the rights listed. Officers then began the interrogation. At no point during the interrogation did Thompkins expressly say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. However, Thompkins was largely silent during the interrogation, which lasted about three hours, occasionally providing a few short responses such as "yeah," "no," or "I don't know." About 2 hours and 45 minutes into the interrogation, one of the detectives asked Thompkins several questions about his belief in God, culminating in, "Do you pray to God to forgive you for shooting that boy down?" Thompkins answered "Yes" and looked away. Thompkins refused to make a written confession, and the interrogation ended about 15 minutes later. Thompkins was charged with first-degree murder and other offenses. He moved to suppress the statements made during the interrogation, arguing that he had invoked his Fifth Amendment right to remain silent, requiring police to end the interrogation at once, that he had not waived his right to remain silent, and that his inculpatory statements were involuntary. The trial court denied the motion.

Appellate Review: The Michigan state courts affirmed the conviction; in habeas proceedings the Sixth Circuit granted Thompkins' petition. In reversing the Sixth Circuit, the Supreme Court first held that a defendant's invocation of the right to remain silent must be "unambiguous." Because Thompkins never actually said that he did not want to talk to the police, the Court concluded that his assertion of the right to silence was ambiguous. The Court next determined that Thompkins had knowingly and voluntarily waived his right to silence. Here, the Court reasoned, a valid waiver could be implied by the circumstances: "Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent." According to the Court, "The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver. Police are not required to rewarn suspects from time to time." Lastly, the Court rejected the argument that the police were required to obtain a waiver of Thompkins's Miranda rights before commencing the interrogation.