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Friday, March 06, 2015

Wow! - More Outrageous Prosecutorial Misconduct


Here is a story reported on Observer.com about truly outrageous misconduct by a state prosecutor and the State of California trying to save the case despite it being based on a fraud on the court:

http://observer.com/2015/03/california-prosecutor-falsifies-transcript-of-confession/

According to the article, the following unbelievable actions took place...

A California state prosecutor falsified the transcript of the defendant's interrogation to make it seem that he had confessed to a much more serious crime than had been charged.  Then, the prosecutor used this falsified evidence, and the legal jeopardy this false admission put the defendant in, to impact the defense attorney's advice to the defendant (since the defense attorney was reading a transcript that made it seem his client had confessed).  This resulted in a fraudulently forced plea deal.  After the deal was entered into, the prosecutor apparently admitted the falsification of the transcript!

According to the article, the defense filed a motion to dismiss the indictment based on this series of events.  The defense attorney was disqualified because he had been duped into providing advice for his client to plead guilty based on false evidence. Much more harsh criticism was directed at the prosecutor.  The judge found that the prosecutor fabricated evidence and his actions were "egregious, outrageous, and...shocked the conscience."

But wait, the story doesn't end...  The State of California (unsuccessfully) appealed the dismissal of the indictment!  And, according to the article, this isn't the first recent questionable appeal of trial (mis)conduct by the State of California.  

As with some of my previous blog posts, beyond just general information about criminal justice matters, why is this relevant to the military justice system?...  

The military justice system is under attack by politicians, lawmakers, advocacy groups, and others who seek to limit the ability of military defendants to investigate the allegations against  them and to present their defense at trial.  Cautionary tales like this case show why it is so important that there be checks and balances to ensure the State (the government, the prosecution - military or civilian) does not have unfair advantage and free reign to convict and jail American citizens.  

Particularly in military rape and sexual assault cases and courts-martial, we are hearing those on the government side (for example, certain departing prosecutors) who seem to claim that they know and have determined what happened behind closed doors - as if they are human lie detectors and are omniscient. And, this type of false confidence that the prosecutor "knows what happened and knows the truth" can cause individuals in positions of authority - such as prosecutors, legal advisers, etc. - to act in questionable ways because they believe they wear the "white hats" and the "ends justify the means." That is not, nor can it ever be, the case.  

Is anyone in Congress (most of whom are attorneys) tracking on this issue as they push the misguided narrative that military defendants (the accused) are presumed to be guilty and the military justice system needs to be changed so that conviction and harsh sentence statistics are increased?  

As I have argued in previous blog posts:


No one knows when this crusade to “fix” the military justice system will end, but the goal of the crusaders certainly is not justice, nor is it fairness, nor is it supporting and defending the Constitution of the United States.  The goal of the crusaders is prosecution victory.  Period.  That is a very dangerous perspective, as seen in this California 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 Northern 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.



Monday, February 09, 2015

Conviction Set Aside due to Prosecutorial Misconduct


According to articles appearing in the press, Johnny Baca was convicted in 1995 of being a hired killer.  The conviction was apparently based primarily on the testimony of a jailhouse informant or "snitch."  As I have commented in previous blog posts, the testimony of snitches is inherently unreliable as information is "currency" for them, and they are often willing to lie in support of the prosecution's case in exchange for some benefit - such as favorable treatment in their own case or in their conditions of confinement.  

During the trial, the snitch testified under oath that he had not cut a deal with the prosecutors in exchange for his testimony (which is what the conviction was based on).  Of course, the prosecutor was in the courtroom when the snitch testified in this manner, and never disclosed that this was not true.  The snitch was committing perjury, and the prosecutor apparently was doing nothing to expose the lie.  It appears the prosecutor wanted to win the case above any other interest - such as truth, justice, ethical obligations, court rules, the Constitution, etc.

The jailhouse informant had, in fact, cut a deal with the prosecution in exchange for his testimony.  The perjury was ultimately uncovered years after the conviction - years during which the defendant was sitting behind bars.  On appeal, the government (the State) initially opposed setting aside the conviction despite the perjured testimony and prosecutorial misconduct.  When an appellate judge voiced his concerns, the State finally saw the error of their ways (or the political fallout that was coming) and set aside the conviction.  

An article about this case appears here:

http://www.allgov.com/usa/ca/news/california-and-the-nation/kamala-harris-flips-on-murder-case-after-federal-court-rips-prosecutorial-misconduct-150204?news=855570

What does this have to do with the military justice system?  The military justice system is under attack by lawmakers, advocacy groups, and others who seek to limit the ability of military defendants to investigate the allegations against  them and to present their defense at trial.  Cautionary tales like the Baca case show why it is so important that there be checks and balances to ensure the State (the government, the prosecution) does not have unfair advantage and free reign to convict and jail American citizens.  Is anyone in Congress (most of whom are attorneys) tracking on this issue?  

As I have argued in previous blog posts:

No one knows when this crusade to “fix” the military justice system will end, but the goal of the crusaders certainly is not justice, nor is it fairness, nor is it supporting and defending the Constitution of the United States.  The goal of the crusaders is prosecution victory.  Period.  That is a very dangerous perspective, and it is one often espoused by enemies of the United States in totalitarian regimes.  It also appears to have been the position of the prosecutor(s) in the Baca 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 Northern 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.

Sunday, February 08, 2015

The Passing of Dean Smith


A great man.  A great teacher.  A great example.  The coach.

R.I.P. Dean Smith.

Tuesday, February 03, 2015

CIVILIAN COURT-MARTIAL DEFENSE LAWYERS: Forcible Sodomy/Sexual Assault Court-Martial Case against Military Officer Dropped by Government Prior to Trial (UCMJ Article 125)


Military Criminal Defense Lawyer (Former JAG Attorney) News:

Recently, a military officer who was facing a general court-martial in which he was accused of forcible sodomy/sexual assault (UCMJ Article 125) and conduct unbecoming an officer and gentleman (UCMJ Article 133) had his court-martial charges withdrawn and dismissed (dropped) as trial approached, in favor of an administrative disposition.  The accused military member was defended by military law attorney Richard V. Stevens (Military Defense Law Offices of Richard V. Stevens, P.C.). 

The military officer was accused of assaulting a civilian acquaintance during a night of drinking alcohol.  The case had already been through an Article 32 hearing and witness depositions.  Trial was set and was quickly approaching.  As trial approached, the credibility problems of the complainant and her motives to fabricate her story became increasingly clear and when the defense requested production of additional evidence regarding the complainant, she objected vigorously.  The defense believes this evidence would have further eroded her credibility.  At that point, the defense was notified of the government’s decision to drop the court-martial case in favor of an administrative disposition. 

In light of the changes to the military justice system, in which lawmakers are desperate to limit the defense ability to investigate the case and obtain sufficient discovery to defend the accused, one wonders why American lawmakers would favor a system that, for example, may not have uncovered the evidence described above under the newest military justice rules.  Once again, it is clear that lawmakers aren’t interested in the rights of the accused, fairness in the system, or justice – they are just interested in prosecution success.  I wish this message had more traction in the public narrative, and I wish more pressure would be put on lawmakers to honor the Constitution, the rights of an accused, the presumption of innocence, etc. 

Had this case gone to a general court-martial trial as originally intended by the government, the maximum authorized punishment for a court-martial conviction on the allegations in this case would have included significant time in prison, dismissal (a punitive discharge equivalent to dishonorable discharge), total forfeitures of pay and allowances, and sex offender registration would have been required. 

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 Northern 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.