MILITARY CRIMINAL DEFENSE ATTORNEY JOSEPH JORDAN ANSWERS FREQUENTLY ASKED QUESTIONS
March 17, 2014
I AM CURIOUS IF YOU HAVE NOTICED ANY CHANGE IN HOW THE MILITARY CONDUCTS COURTS-MARTIAL REGARDING SEXUAL ASSAULTS?
A: Yes. There are many codified changes to how the military conducts court martials. Some are in effect now, others will be in effect very soon. First, it will soon be required that a Judge Advocate sit as the an Investigating Officer (IO) for all investigations conducted pursuant to Article 32, Uniform Code of Military Justice (UCMJ). This applies to r all five services. The Army did not previously have this rule in place. Second, Alleged Victims are not required to testify at the Article 32 hearing. Third, alleged victims have their own attorneys who now, according to recent CAAF opinions have standing to appear in a Court-Martial and speak on behalf of their alleged victim client. I have experienced all of these occurrences in recent months. Lastly, in a few months, if a service member is convicted of an Article 120 offense, a mandatory minimum sentence of a dishonorable discharge automatically attaches to any sentence that is adjudged. Now, in recent news, I just learned that Congress is working on taking the good soldier defense off the table stating that it is not relevant to an alleged sexual assault crime.
ARE THEY MORE ZEALOUS?
A: Yes, the military prosecution is more aggressive. It appears they are zealous in what they advise convening authorities to bring to trial. Cases that would not ordinarily be brought to trial in other jurisdictions are brought to trial in the military. In some cases, a case will go to trial in the face of a recommendation against trial by the Article 32 investigating officer. Even when an IO makes a recommendation against prosecution of a service member based on the shortcomings of an investigation, the convening authority will sometimes refer a case to trial anyway. Usually, if a case is dropped by the military, it is at the request of an alleged victim. Otherwise, if the alleged victim agrees to voluntarily participate in the prosecution, the government will stick to their guns and prosecute the case no matter how weak their evidence.
ARE DEFENDANTS GETTING FAIR TRIALS IN THESE CASES?
A: In all but the rarest of cases, the accused, or defendant, is provided with defense services that meet or exceed constitutional standards for a fair trial; however, in many cases the level of resources defendants have available to them pale in comparison to the resources available to the complaining witness and the prosecution team. Because there are so many sexual assault cases now, military defense counsel wearing the uniform are spread extremely thin. They are worn down in a number of ways. First, some military prosecutors may be tempted to use this disparity in resources as a tool to increase their conviction rate. They may pressure inexperienced and/or overworked defense counsel into corners. Keep in mind, the uniformed military defense counsel is only a defense counsel for two maybe three years. Then they have to go back to work in another capacity as a Judge Advocate. They still have to play nice and be politically correct.
SO WHERE DO YOU STRIKE THE BALANCE IN ZEALOUSLY DEFENDING YOUR CLIENT, AND PROTECTING YOUR MILITARY CAREER?
That is a paradox that no attorney should have to deal with, but it is the reality of being a Judge Advocate in the military. Prosecutors can weigh young defense Judge Advocates down with a litany of requests and may force them to litigate issues that are not seemingly important. If the prosecutor gets a response they don't like, or a response they deem unprofessional (not zealous advocacy) they often times call the defense counsel's immediate supervising attorney in his / her chain of command in order to rectify a "problem". How is this fair to military defendant? The men and women that wear the uniform who are accused of a crime deserve the best defense possible. They deserve a fair trial. With the logistic and strategic advantages prosecutors have, e.g., the new codified rules, prosecutors' insulation from claims of malicious prosecution, and the ever increasing disparity in resources favoring the prosecution, it is difficult for a Judge Advocate in the role of defense counsel to give their clients the best possible defense.
HAVE YOU NOTICED ANYTHING ELSE?
A: Unfortunately the politics in Washington, DC is forcing senior leaders in the military to react in a way that is consistent with the decisions on the Hill. This pressure is causing a lemming like effect in how sexual assault is being handled in the military. First it starts with the training that service members get on sexual assault. For example, service members are being taught that if you have sex with a person who has been drinking, then you have committed sexual assault, because you cannot have consensual sex with a drunk person. This is not the law, but this is the preconceived notion that potential military jurors walk into a court martial with. Military training is all about muscle memory. Muscle memory is taught by drilling. They are drilling sexual assault training into the minds of potential jurors. Then these jurors walk into a court martial, and it is up to the defense counsel to break these preconceived notions as you defend your client. SHARP is teaching that if you have just one drink, you cannot consent to sexual contact. That is ridiculous. It is not the law, but that is what the jury pool for courts-martial is being taught on a monthly basis.