MILITARY CRIMINAL DEFENSE LAWYER (Former JAG
Attorney) NEWS:
In the ongoing debate over alleged rape and
sexual assault allegations, and court-martial cases, in the military, and how to change
to the military justice system, Senator Claire McCaskill’s military sexual
assault bill has unanimously passed the Senate.
See here:
This bill was an alternative to the one
proposed by Senator Kirsten Gillibrand, which did not pass (although she vows
to continue her fight to get her proposed military justice reforms
passed). There has been much debate
about which bill – the McCaskill bill or the Gillibrand bill – is “better.” However, each is seeking to reform the
military justice to prevent military members accused of these offenses from
mounting a defense and prevailing in these cases. I don’t know that anyone during these debates
in Congress has even uttered the term “alleged.” In their pontifications about a military
justice system and cases they really have no true/accurate idea about, they
argue as if every allegation is true and every accused is guilty. As I said in my blog post about Senator
Gillibrand’s proposed bill, these two competing bills are two different
proposed paths aimed at the same outcome – making changes to the military
justice system to try to ensure:
*Every alleged military rape/sexual assault
case is prosecuted
*Every military accused is hopefully
convicted
*Every military accused is hopefully
sentenced harshly
*Every military accused is hopefully denied
clemency
*Every military accused is prevented from
fully defending himself
See my previous blog post here:
http://militaryadvocate.blogspot.com/2014/03/civilian-court-martial-defense-lawyers_7.html
http://militaryadvocate.blogspot.com/2014/03/civilian-court-martial-defense-lawyers_7.html
So, let’s take a look at what Senator Claire
McCaskill said in a TV interview about her bill to reform the military justice
system with regard to court-martial allegations of rape and sexual assault
(UCMJ Article 120):
Let’s begin by identifying her bias/perspective,
so we don’t let her title as a U.S. Senator fool us into believing she is
objective and fair minded. Senator
McCaskill says during her interview that she spent years in the courtroom prosecuting
these cases. There. She is a former prosecutor who now wants to
make changes to the military justice system and, without surprise, those
proposed changes do not bother with concerns about the fairness of the system
for the accused, the Constitutional rights of the accused, the ability for the
accused to defend himself against these allegations. She is a former prosecutor, and she wants
successful prosecutions…period.
Senator McCaskill says her bill makes the
military the most “victim friendly organization.” And, in differentiating her bill from Senator
Gillibrand’s proposed bill, Senator McCaskill cites military court-martial
cases in which the JAG attorneys for the government recommended not going
forward to trial and the commander did anyway…so Senator McCaskill wants to keep
the commanders as the decision makers because she wants to hold commanders “accountable.” What does that mean? Well, my reading is that is a threat (not
even a veiled one) that commanders better refer all rape and sexual assault allegations
to trial by court-martial, or their careers will suffer the fate of Lt Gen
Susan Helms and Lt Gen Craig Franklin, as I mention in this blog post about the
“Death of Fairness in the Military Justice System”:
What Senator McCaskill may not have
explicitly said, but the message I took away from her interview was:
I don’t care about due process, fair trials, or
the rights of the military members accused of rape or sexual assault. I want to change the military justice system,
and manipulate those with authority in the system, to ensure the system is filled
with prosecution pawns and is predetermined to arrive at all cases being
prosecuted, all prosecutions resulting in conviction, all convictions resulting
in harsh sentence, no cases with clemency granted.
This is a former prosecutor, and now Senator’s,
dream system. One which is designed with
prosecution “success” not only as the paramount goal, but the only goal. She seems to want a military justice system
and court-martial trials that are really nothing more than show trials and a “speed
bump” on the way to prison.
Here is the problem with both the Gillibrand
and the McCaskill bills…their oath of office as United States Senators. They aren’t prosecutors. They aren’t victim advocates. They are United States
Senators and their oath is as follows:
I do solemnly swear
(or affirm) that I will support and defend the Constitution of the United
States against all enemies, foreign and domestic; that I will bear true
faith and allegiance to the same; that I take this obligation freely, without
any mental reservation or purpose of evasion; and that I will well and
faithfully discharge the duties of the office on which I am about to enter: So
help me God.
They swore to support, defend, and bear true
faith and allegiance to the United States Constitution. The rights to due process and a fundamentally
fair trial in which an accused has the fight to present a defense and to only
be convicted if there is proof beyond a reasonable doubt – all derive from our
Constitution. Our whole democratic
system of government, and our American criminal justice system, is designed to
protect citizens from the overwhelming power and resources that the government
can bring to bear.
How can either Senator Gillibrand or Senator
McCaskill claim their proposed reforms to the military justice system are
consistent with their oaths to support and defend the Constitution? If you live in New York state (Senator
Gillibrand) or Missouri (Senator McCaskill) and you care about these issues in
the military justice system and you care about ensuring that your senator means
what he or she says when they swear to support and defend the Constitution, you
should seriously consider whether either of them should be re-elected. For me, that answer is clear. Either the oath of office means something,
and the Constitution means something, or we are headed for a criminal “justice”
system (at least in the military) based on “principles” such as those favored
in countries we go to war against…
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. See also:
We offer free initial 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
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.
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