"Ei Incumbit Probation Qui Dicit."

Proof lies on him who asserts, not on him who denies. The concept is that one is innocent until proven guilty. Regardless of what the law says about reasonable doubt, there is an unwritten presumption within the ranks of the military that if you are charged with sexual assault, then you are guilty. The stakes are your life! Your military counsel works for the same military that charged you. Consider that as you choose who represents you in your potentially life altering case.

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Joseph L. Jordan, Attorney at Law travels across the globe to assist in military criminal defense matters.

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Is Military Justice Fair on its Face?

Whether in War or in a Criminal trial, you never want the power of the United States Government turning its attention on you. An issue has been percolating in my mind for that last few years: “Is the American Military Justice really interested in fairness?” Recent events have demonstrated to me a stark imbalance: the immense power the government counsel wields versus the complete unfairness a uniformed defendant suffers in the court-martial process.

Several weeks ago I tried a sexual assault case at Fort Hood, Texas. It was apparent at this trial the sheer power and weight that the government has in the court-martial process. The cards truly are stacked against you. First, there were three attorneys sitting at the government table. Second, two of the attorneys had, at least, three paralegals running around doing their bidding over the course of the trial. Third, one of the attorneys was a Special Victim Prosecutor, appointed to oversee, and even try U.S. Army sexual assault cases in the Fort Hood area. Fourth, to add fuel to the fire, each alleged victim had his or her own counsel. Total there were five government/prosecuting attorneys and six government/prosecuting paralegals. At the defense table, I had my client, the appointed military defense attorney and myself. Five attorneys versus two attorneys… does not appear fair does it?

Suffice it to say, we, the team of two not five, were able to achieve victory on the most important of charges in this case. However, the power of the government still looms. The government’s power is staggering. Currently, as of the date of this writing, there are roughly 34 trial counsels assigned to Fort Hood. Trial counsel is the military term for prosecutor. They advise commanders on military justice, and turn around and execute it in the courtroom. Each of those trial counsel has at least three to four paralegals apiece providing them assistance as needed. On the other side of the spectrum is Trial Defense Services at Fort Hood. For a base of roughly 60,000 Soldiers, Fort Hood has only seven trial defense attorneys. Those seven attorneys share only four paralegals. The TDS attorneys don’t even have their own paralegal! They have to share! Add to that the reality of special victim counsel for each alleged victim of a sexual crime. The Army, especially at Fort Hood, is interested in one thing: convictions. In simplest terms, in terms of this article, justice is a fair and impartial trial.

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Now, let’s break that down a bit. The trial itself is every attorney’s 15 minutes of glory. The real work is done prior to trial. The attorney’s and their staff do the real work. At Fort Hood and other bases, justice is thrown out the window as evidenced by the manpower dedicated to the concept. As you can see, at Fort Hood and almost any other military installation, the odds are not in your favor. Once again not really fair, is it?

Another example from a different branch of service is, last week we tried a case at Ramstein Air Force Base; we won. The power and might of the government were still just as evident. For instance, I walked into the Senior Trial Counsel’s office to hand off some documents. I was met by two attorneys, three OSI agents, two experts and a paralegal. Eight folks packed in a room doing nothing but discussing the prospective demise of my client. What a spectacle.

In my mind, it again reinforced the might and power of the government prosecuting its service members in an unfair and non-impartial manner. You might ask yourself why? One, if the defense wants an expert investigator appointed to his team, he has to request it. In all my years of litigating, I have only had that granted by a convening authority once. Normally, as in this case, my client has to foot the expense of hiring a private investigator to dig into the case. The taxpayer funds the government’s investigation; the accused has to fund his investigation on his own. Not fair is it?

What is clear is that the system is not geared for fairness internally within the services. Thankfully, the system does allow service members to have the opportunity to seek private civilian defense counsel. In the face of such power, it is highly advisable to do so. Here are a few reasons why:

One, you want a counsel who is experienced and understands the Uniform Code of Military Justice (UCMJ). They need to be battle-tested in the courtroom; have more than several trials under their belt. They need to be well-versed in military law. They need to know how to use the law to the advantage of their client. You need someone who can think strategically, but who is flexible in their tactics once they are in court. Strategic and tactical proficiency in the courtroom only comes with the kind of experience you will find with specialized civilian defense counsel.

Two, you want someone from the outside. U.S. Army Trial Defense Counsel and U.S Air Force Area Defense Counsel are usually good attorneys; however, they are still part of the military establishment. They are not interested in making too many waves. They have to think about their career in uniform. Additionally, they are usually only in the defense counsel position for two years. By the time they learn what they are doing, they are off to do some other legal job for their prospective service, which is generally in some way or fashion assisting the government to prosecute its service members. Civilian defense counsels, like myself, care nothing for military politics. My duty is to you, the client. That is it.

Three, you want a counsel who has resources and knows how to obtain resources in order to properly defend you. We are accustomed to working with a variety of experts to properly defend our clients who are Soldiers, Sailors, Airmen, Marines and Coast Guardsmen.

Four, you want counsel that thinks outside the box. I am not a conventional thinker. I cannot afford to be. We examine all angles of a case to determine the best way to defend you. Hiring a civilian defense counsel, like myself, evens the playing field. Not in numbers, but by experience, knowledge, and resources. Now this seems more fair, right?

Unfortunately, the military justice system does not appear to be interested in fair administration of justice. Experienced, aggressive, and resourceful civilian defense counsel can and do balance the scales. We make the military justice system as fair as possible for you.

If you are a member of the U.S. armed forces and have been accused of a crime, ensure that your rights and reputation is protected. Call the firm of Joseph L. Jordan, Attorney at Law today to request a free case evaluation.

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