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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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New Trial Granted to Air Force Member After Favorable Evidence Appears

In Cook v. United States, a panel of three judges representing the Air Force Criminal Court of Appeals (CCA) has chosen to permit a new trial based on the discovery of new evidence that could change everything. Master Sergeant Cook pleaded not guilty to sexual assault but was convicted all the same after trial by court-martial. He was penalized with confinement, rank reduction, forfeitures, and a dishonorable discharge. All of that has been temporarily set aside and could be ultimately reversed in light of the new evidence that questions the credibility of the victim of the alleged sexual assault, an Air Force Technical Sergeant identified only as LT to maintain her privacy.

LT claimed that Cook and his girlfriend – another Technical Sergeant who has been identified only as SB – sexually assaulted her in Cook’s car late one night. Both Cook and SB were charged with the alleged crime of sexual assault, but Cook’s court-martial was scheduled first. Cook requested SB be granted immunity so she could testify in his defense, but it was denied. There were also rumors that LT had had extramarital affairs with another Air Force member but findings could not solidify those claims or identify this potential “other paramour” at that time.

When pressed before and during the court-martial about the potential of fabricating the sexual assault accusations to save her marriage and herself from embarrassment, LT explained that she loved only her husband. She went on to claim that she would never consider and had never had an extramarital affair. This testimony played a large part in convicting Cook.

Three days after Cook’s conviction, the Air Force member – now not currently active in the military – was identified. He claimed he had had consensual sexual encounters with LT in 2006, while LT was married. When this information was brought to the attention of the prosecution, it was passed along to the defense, citing the case law established through Brady v. Maryland, as it could reasonably exonerate Cook. LT then voluntarily declined to pursue the charges against SB for the same alleged sexual assault that had led to Cook’s conviction, resulting in SB’s charges being dropped.

New Evidence, New Trial

When Cook first petitioned for a new trial, a military judge denied the request, citing that the defense did not use due diligence when searching for evidence, and thus could not find LT’s paramour for testimony due to their own shortcomings. When the case was passed to the Air Force CCA, the panel concluded that due diligence had in fact been practiced, and that LT had intentionally taken efforts to counteract the defense’s due diligence by claiming to never have had any affairs during pretrial interviews. Additionally, it was concluded that since the case revolved around whether or not LT was too intoxicated to give consent, the defense used due diligence when researching and defending this most crucial aspect to the case at that time.

Indeed, the CCA found that the prosecution had won the previous trial mainly due to LT’s insistence that she would never practice infidelity, and that she had claimed vaginal intercourse was painful to her. In light of the paramour’s statements, it had become clear that both of these claims were untrue, and the entirety of her credibility must be questioned. With this in mind, it is highly likely that the conclusion of Cook’s trial could have been in his favor had all the information been presented honestly from the beginning.

The CCA has recently set both the findings and the sentencing of Cook aside and a new trial will need to be completed with this new evidence admitted. This case exemplifies the importance of Brady v. Maryland, which found that the prosecution must give the defense any evidence that could be in the defense’s favor, even after a case has concluded.

Joseph L. Jordan, Attorney at Law is widely considered as one of the country’s leading military criminal defense lawyers due to his knowledge, experience, and record of successful case results. Military service members – from the Air Force to the Navy – know that Attorney Jordan can be trusted with sensitive and intricate cases. He is also capable of managing difficult appeals brought to the attention of the CCA. If you would like to retain our firm’s representation for a court-martial or appeal of your own, contact us online or dial 888.616.6177.

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