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Wednesday, September 21, 2016

REQUIEM FOR THE MILITARY “JUSTICE” SYSTEM – Lessons from U.S. v. Lt Josh Seefried


As published in the Huffington Post: 
http://www.huffingtonpost.com/entry/57e1ed32e4b09f67131e3825?timestamp=1474424685209


The court-martial acquittal of Air Force Lieutenant Josh Seefried for alleged sexual assault has been widely reported on in the Washington Blade and Huffington Post. I was Josh’s lead trial defense attorney and I remain incredibly gratified that justice was finally achieved in his case. Justice in Josh’s case was his trial acquittal. Yes, justice can include acquittals and cases dropped before trial - despite what misguided politicians and advocacy groups seem to argue.

I am a former active duty JAG attorney, and my civilian law practice is exclusively focused on defending military members in the military justice system. I have devoted more than 20 years to this system, and I am a huge supporter of our military and the rights of those who volunteer to serve our country and accept the considerable risks and sacrifices inherent in that service.

But when military members face criminal accusations in the military justice system, particularly rape or sexual assault, they now enter a legal system in which politicians are attempting to rig the outcome to ensure their conviction and harsh sentence. Despite the historic position that Democrats concern themselves with due process and equal protection of defendants in criminal justice systems, the leaders in this movement to destroy the military legal system as a system of “justice” are Democrats. One of the ways they have attempted to rig the system is by changing the nature of Article 32 hearings, and not providing any due process protections to fill the void.

Before a military case can proceed to a general court-martial trial (akin to a “felony” trial), the case must first be considered in a pretrial Article 32 hearing. The officer presiding over this hearing provides a non-binding recommendation to the Convening Authority (a senior level commander) about what should happen with the allegations, which could include proceeding to general court-martial trial, being heard in a lesser judicial or administrative forum instead, or being dropped altogether. The Convening Authority then takes action on the case, and decides how it will proceed, if at all. The Convening Authority does not have to follow the recommendation of the officer presiding over the Article 32 hearing.

In Josh’s case, the Article 32 hearings were conducted under the old rules. Those old rules defined one of the purposes of Article 32 hearings as an opportunity for the defense to gather discovery for case preparation, and the rules allowed witnesses to be called and questioned under oath for that purpose. Witness questioning during the Article 32 hearings also provided critical information for Convening Authorities about the strength or weakness of the case, which informed their exercise of “prosecutorial discretion.” These hearings were actually called, and conducted as, “investigative hearings.”

After both Article 32 investigative hearings in Josh’s case under the old rules, the presiding O-6 Investigating Officer recommended Josh’s case be dropped. However, these hearings occurred when the military justice system was under intense political scrutiny. Because of the political climate and the adverse career consequences for commanders and Convening Authorities, such as Lt Gen Craig Franklin and Lt Gen Susan Helms, who dared to exercise their prosecutorial discretion in a manner that was not politically palatable, commanders now serving as Convening Authorities have learned their careers depend on them appearing to be unwavering in their support of complainants to the exclusion of any other interest – such as the fairness of the system, due process, the state of credible evidence, prosecutorial discretion, the rights of the accused, etc. So, despite the recommendations that Josh’s case be dropped, made by an experienced and respected Article 32 officer, Josh’s case continued to trial.

The Seefried case was likely the last case in the Air Force in which both Article 32 hearings were conducted under the old rules – whereby the hearing was conducted as an investigation and the complainant and key witnesses were called to the stand and questioned under oath in the hearing. This witness questioning revealed additional evidence that was necessary for our defense. The Article 32 questioning also resulting in transcripts that we used in case preparation and trial. Those Article 32 transcripts proved to be crucial in confronting and refreshing the recollections of witnesses at Josh’s trial, to include the complainant and the former co-accused. The outcome of Josh’s case was due, in large part, to the information we were able to discover and develop through questioning witnesses in his Article 32 hearings.

When the President and Congress changed the law and rules governing Article 32 hearings, ending the practice of conducting them as investigations and reducing them to largely meaningless paper-shuffles to only establish probable cause, they “justified” the change with the argument that civilian criminal justice systems don’t have pretrial investigations as broad in purpose as the military’s Article 32 hearings. While that may have been true, what the politicians conveniently left out of their argument were all of the due process protections that do exist within civilian criminal justice systems that do not exist within the military. So, when Article 32 hearings as investigative hearings were done away with, politicians did not fill that void with any of the due process protections that exist in civilian criminal justice systems. Their agenda to try to rig the system was obvious to those of us who practice within it.

For example, consider the differences between the federal criminal justice system and the military criminal justice system (which is also a federal system). Here are some of the resources and protections federal defenders have in their cases that military defenders do not have:

- A binding initial appearance before a federal judge;

- A binding preliminary hearing before a federal judge;

- A grand jury;

- Law enforcement agents who are not prohibited or discouraged from fully investigating both sides of a case;

- Real prosecutorial discretion which allows cases to be dropped if not supported by credible evidence;

- Federal defenders do not have to ask permission to interview complaining witnesses;

- The “State” in federal cases does not appoint an attorney to represent complaining witnesses separate from the federal prosecutors;

- Federal defenders have their own investigators, experts, and financial resources for more professional assistance; 

- Federal defenders have the ability to subpoena witnesses;

- Convictions in federal court require unanimous verdicts; and,

- The President and Congress are not constantly tinkering with the federal system to try to improve case outcome statistics.

With regard to each point above, the defense in military cases does not have this protection or resource. The virtual loss of Convening Authority (prosecutorial) discretion and traditional Article 32 investigative hearings are only a couple of the dramatic changes to the military justice system in the recent years which have been marked by a political maelstrom that continues to result in systemic changes to the detriment of military defendants. As a result, it is exceedingly more difficult for the defense in military criminal cases to investigate and present relevant evidence. That appears to be precisely what the politicians intend. If trials are truly searches for the truth and justice, and aren’t simply a meaningless exercise meant to achieve a predetermined conviction, the idea that rules are being changed to limit the ability of the defense to investigate and present information on behalf of our clients is not only unjustifiable, it is un-American. 

Josh’s case was a stark reminder of, and requiem for, the due process protections that used to exist within the military justice system, which were casualties of the recklessly false political narrative that branded the military as full of sexual predators who benefited in the past from a “broken” justice system. That system has now been deeply damaged by changes pushed by political agendas. This is America - where we, as a society, rightly concern ourselves with the fairness of our justice systems which should have procedural rules predicated on the fear that an innocent person could be convicted of something he or she did not do. With regard to the military justice system, what we see instead are politicians constantly instituting new changes in an effort to make it increasingly difficult to defend military members who face criminal allegations. 

Josh Seefried was innocent. If he had gone through this case under the new rules in the military justice system, he might very well be sitting in a prison cell right now. Is that really the “justice” politicians are seeking for our military members?

Monday, August 29, 2016

CIVILIAN COURT-MARTIAL DEFENSE LAWYERS: Military Officer Found Not Guilty of All Charges and Specifications in Sexual Assault Court-Martial Trial (UCMJ Article 120 and Article 125)


Military Criminal Defense Lawyer (Former JAG Attorney) News:

Recently, a military officer who faced a general court-martial (GCM) in which he was accused of the sexual assault of an intoxicated acquaintance was found not guilty of all charges and specifications by the military judge at his court-martial trial.  The accused military member was defended by military law attorney Richard V. Stevens (Military Defense Law Offices of Richard V. Stevens, P.C.), and the trial was litigated over 4 days in front of a military judge alone.

The case is described in these news articles and online publications:


The military officer was accused by an acquaintance he had been drinking with in a group of acquaintances.  No one forced any drinks on the complainant, and no one perceived that the complainant was highly intoxicated or not in control of his mental faculties or physical abilities.  The complainant claimed he was too drunk to consent because he supposedly could not remember various events that evening, even though the complainant’s friends, to include a JAG attorney, all witnessed him engage in sexual behavior with the accused that they believed to be completely willing and consensual, which occurred during the claimed blackout.   

As most of these cases do, this case involved numerous motions, experts in forensic psychology, DNA/forensic chemistry, forensic data extraction and analysis, and sexual assault examinations (sexual assault nurse examiner [SANE]), and a complainant who initially refused to interview with the defense.  The case also involved vital information entered into evidence from the complainant's phone, which had to be compelled for defense forensic analysis because investigators did not take it during the investigation and the government initially opposed defense access to the phone.   

During the course of the trial, the defense exposed what we believed to be motives to fabricate or inaccurately remember and significant inconsistencies in the complainant’s story.  This included using the words of the complainant during investigative interviews and a real Article 32 hearing, in which he questioned whether he actually did consent, and he accused another individual of some of the offenses he later attributed to the accused.  The government’s DNA/serology/chemistry expert and SANE expert did not find evidence that was truly consistent with the claim, at most they couldn’t rule it out.  

As with many cases these days, this case involved memory issues due to alcohol consumption, and incorrect factual and legal assumptions based on those memory issues.  Moreover, it included addressing the impact of the military/political environment and sexual assault briefings which lead people to believe they are victims instead of taking responsibility for their own behavior and decisions. 

Ultimately, the defense argued that the case came down to the complainant’s motives and lack of credibility and reliability, to include multiple real possibilities raised by the evidence other than the guilt of the accused.  The judge then returned a verdict of not guilty of all charges and specifications (full acquittal).    

Had there been a conviction in the case, the military accused could have been sentenced to a dismissal (equivalent of dishonorable discharge), decades in prison, forfeitures of all pay and allowances and, in addition, he would have been required to register as a sex offender.  Thankfully, that did not happen and he can hopefully move on from this with a clean slate.

More will follow on this case.  In the meantime, however, while this military court-martial case was successfully defended, it is important to understand that every case has different facts, and success in previous cases does not guarantee success in any particular future case.  No military lawyer or civilian defense lawyer, including those who specialize in military law, can guarantee the outcome of any military trial or case.

For more information about the military justice system, particularly cases alleging rape and/or sexual assault in violation of UCMJ Article 120, type “rape” or “sexual assault” into the search bar above the blog posts.  Also, see:


We offer free consultations for a case you may be involved in.  Just call us.

Thank you.    

By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, P.C.
http://www.militaryadvocate.com

Blog postscript: Attorney Frank J. Spinner and I (attorney Richard V. Stevens) are former active duty military lawyers (JAG). Our perspectives and advice, therefore, are based upon our experience as military defense lawyers and as civilian criminal defense lawyers practicing exclusively in the area of military law and military justice. This blog addresses issues in military law, military justice, military discipline, military defense, court-martial practice, the Uniform Code of Military Justice (UCMJ) and other military and/or legal topics. Nothing posted in this blog should be substituted for legal advice in any particular case. If you seek legal advice for a particular case, please contact The Law Offices of Richard V. Stevens and The Law Office of Frank J. Spinner for a free consultation. These military defense law offices are located in Southern Georgia (Robins AFB, Moody AFB, Macon, Warner Robins areas), Northern/Middle Florida (Pensacola, Ft Walton, Destin, Eglin AFB, Hurlburt Field, Duke Field, Panama City, Tyndall AFB areas) and Colorado Springs, Colorado (FT Carson, Peterson AFB, Air Force Academy, Schriever AFB, Cheyenne Mountain Air Force Station, Buckley AFB areas), but our military defense law practices are worldwide – we travel to wherever our clients are stationed or serving and need us.

Wednesday, August 03, 2016

New Georgia Military Defense Law Office - Military Defense Law Offices of Richard V. Stevens, PC




WARNER ROBINS, GEORGIA -- Civilian court-martial defense lawyer and military law attorney Richard V. Stevens is now opening a military defense law office in Georgia (the Warner Robins/Macon area), which can locally and regionally service:

GEORGIA

- Moody AFB
- Robins AFB
- Dobbins AFB
- Fort Stewart
- Fort Benning
- Fort Gordon
- Fort McPherson
- Kings Bay Naval Submarine Base

In addition, we can regionally service and easily travel to:

FLORIDA

- Eglin AFB
- Hurlburt Field AFB
- Pensacola, Fort Walton Beach, Destin, Panama City, Florida areas
- Tyndall AFB - Panama City, Florida area
- Patrick AFB - Cocoa Beach, Florida area
- MacDill AFB - Tampa, Florida area
- Pensacola Naval Air Station
- Jacksonville Naval Air Station
- Key West Naval Air Station

ALABAMA

- Redstone Arsenal
- Fort Rucker
- Anniston Army Depot
- Maxwell AFB
- Maxwell AFB, Gunter Annex
- Montgomery, Alabama area
- USCG Aviation Training Center, Mobile

MISSISSIPPI

- Columbus AFB
- Meridian Naval Air Station
- Keesler AFB
- Pascagoula Naval Station

Mr. Stevens is a former active duty JAG lawyer [prosecution (1995-1997), base defense attorney (1997-1999), and regional military defense lawyer (1999-2001)], a former state and federal trial attorney, a civilian criminal defense lawyer and he is a military law specialist who has handled military cases and military law issues for the past 20+ years. 

His military law practice, The Military Defense Law Offices of Richard V. Stevens, PC, is exclusively devoted to representing and defending military members facing military adverse actions, including court-martial trials [general court-martial, special court-martial, and summary court-martial], court-martial clemency (RCM 1105), court-martial appeal, Article 32 hearings, and all types of military disciplinary actions and investigations. This includes UCMJ actions, administrative board hearings, administrative discharge/separation ("ADSEP"), show cause hearings, nonjudicial punishment (NJP, Article 15, Captain's Mast), MEB/PEB cases, FEB hearings, BCMR appeals, performance report appeals, investigations by CID, OSI, NCIS, CGIS, IG, AR 15-6, CDI and command.

Attorney Michael Coco is associated with Mr. Stevens’ law office in an “of counsel” capacity.  He is a retired military trial judge, and previously served as a military prosecutor and as a base level and regional military defense lawyer as well.  Mr. Coco’s military law office is in Florida.  The attorneys’ respective biographies can be found at:


Regardless of the location of his office, Mr. Stevens travels to the locations of his military clients, around the world, to defend them in military trials and before military board hearings.  For example, he currently has military clients serving in Korea, Colorado, Washington DC, Arkansas, South Carolina, Illinois, Texas, Florida, and Georgia.  This is exclusively a military criminal/disciplinary law practice, Mr. Stevens does not represent military members in civilian courts, or in family law matters, nor does he represent any clients who are not military members or former military members dealing with adverse military actions.  

Whether serving in Georgia or elsewhere around the globe, we provide military defense legal services.  Initial case consultations are free. Please contact us at:

Toll Free Phone: 800-988-0602
Direct Phone: 703-798-3064
Direct E-mail: militarylawfirm@gmail.com
Website: militaryadvocate.com
Blog: militaryadvocate.blogspot.com