200th DNA Exoneration - Barry Scheck and the Innocence Project
Below is a link to a blog post by Barry Scheck, who is the Co-Director of the Innocence Project. Mr. Scheck has just attended the exoneration of Jerry Miller, who has spent the last 26 years in prison based on a conviction for rape, robbery and kidnapping - crimes that he was innocent of.
Here is an excerpt from Mr. Scheck's blog post:
Jerry is 48 years old now. He has lost virtually his entire adult life to a wrongful conviction. And he is the 200th person in the United States who has been exonerated through DNA evidence…
…Combined, these 200 people have served about 2,500 years in prison - that's roughly a million nights in prison.
People often tell me they can't imagine anything worse than spending years or decades in prison for a crime someone else committed. The only thing worse would be to endure the horror of wrongful conviction and not have it count for something - to have society fail to learn the lessons of injustice and reform the system to prevent it from happening to anyone else.
The 200 DNA exonerations nationwide give us irrefutable scientific proof of the flaws in the criminal justice system. We look at every exoneration to determine what caused the wrongful conviction in the first place, and we see clear patterns. More than 75% of the wrongful convictions involved eyewitness misidentification (often cross-racial misidentification, and often from more than one witness); nearly two-thirds involve forensic science errors (from simple mistakes to outright fraud); 25% were based on false confessions (as the result of coercive interrogations or defendants' limited mental capabilities).
By identifying the causes of wrongful convictions, we can develop reforms that work…
Mr. Scheck's blog post, and his work on the Innocence Project, prove that terrible injustices occur in the American criminal court system. These 200 exonerations are only those that were, thankfully, discovered and righted. How many other erroneous convictions have occurred? How many more will occur in the future? The work of the Innocence Project is critically important, not just to the lives of the individuals saved by the dedicated people who are the Innocence Project, but also to the systems of criminal justice around our country.
In my previous blog post I answered the question "How can you defend them?" The successes of the Innocence Project, and stories like that of Jerry Miller, are just more examples of why we do what we do as defense attorneys. We all owe a debt of gratitude to those who helped expose the Jerry Miller case. By "we all" I don't mean the community of defense lawyers, I mean Americans.
Here is the link to Mr. Scheck's blog post:
http://www.huffingtonpost.com/barry-scheck/on-the-200th-dna-exonerat_b_46551.html
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC
http://www.militaryadvocate.com
Blog postscript: Attorney Frank Spinner and I (attorney Richard 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. 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 & The Law Office of Frank J. Spinner for a free consultation.
Monday, April 23, 2007
Sunday, April 22, 2007
“HOW CAN YOU DEFEND THEM?”
The Duke Lacrosse rape case should have been a wake-up call about many issues. One of those issues should be the role of the criminal defense lawyer.
“How can you defend them?” is a question all criminal defense lawyers have faced – from strangers, associates, friends and even family. The question is usually accompanied either by a look of disgust or a look of incomprehension; sometimes both.
We in the criminal defense community know why we do this. We know how much we care about the rights everyone in our society enjoys. We know that our job gives a voice to those rights and protects all of you from those rights being ignored. We in the criminal defense community know that we are trying to protect all of you from false allegations, false arrests, improper convictions and inappropriate sentences. We are the people who stand between you as an individual and the power and resources of the state/government.
Maybe it takes a highly publicized case like the Duke case to shake you to realize that false claims are made and people can be convicted, jailed, and have their life ruined for something they didn’t do. Criminal defense lawyers are the people who fight to prevent that from happening. We fight to ensure the system stays honest. There seems to be a general acceptance that if an arrest is made, or if a conviction occurs, it must be correct. Maybe now more and more people are realizing that isn’t so. I’m not suggesting you need to completely distrust the police, the prosecutors and the courts. I’m simply saying you shouldn’t so readily rush to accept their version. It is important to ask questions. It is important to presume innocence unless guilt is proven.
Here is a true story:
I (attorney Richard Stevens) had a young military client who was accused of a particularly heinous crime. He was placed into military jail (pretrial confinement) awaiting trial. He sat in his jail cell for nearly seven months waiting on his day in court.
The military investigators were convinced they had their man. He was guilty. The local prosecutors were convinced they had their man. He was guilty. The community was convinced they had their man. He was guilty. The base commander calmed the community’s fears about the crime by proclaiming that my client was behind bars.
I remember, like it was yesterday, visiting my client in jail to tell him the prosecution notified me they were considering making his case a capital case – they were considering asking for the death penalty if he was convicted. I will never forget his father looking me in the eyes and imploring me, as only a father can, “Don’t let them kill my son for something he didn’t do!”
The lead military investigator actually laughed at me when I raised some questions about the case. He saw my questions as ridiculous. They had their man. My defense co-counsel and I investigated this case as we would any case. We don’t prejudge our cases. We don’t choose when to work a case and when to let it slide. We talked to witnesses, we followed leads, we established a timeline. We began to poke holes in the investigation and the evidence. The pretrial hearing lasted for days. Witness after witness testified. The holes in the investigation and the evidence grew wider. As I cross-examined the lead investigator about these problems with the case, his disdain was obvious. The look on his face said, “How could you represent him? How could you try to undermine our investigation?”
After the pretrial hearing was over, the hearing officer addressed the problems with the case, but said there was sufficient evidence to go forward to trial. But, the questions we were raising about the case had the interest of the supervising government attorneys (above the local level). They didn’t jump to the conclusion that the case was solved. They demanded a new investigation – although the lead military investigator protested it.
(I think you all know where this is heading…)
A new investigation was launched. The next door neighbor was questioned. He started to act strange. He was questioned again. The neighbor confessed to committing the crime. The forensic evidence that had been collected matched the neighbor. The military investigators had been wrong! The local prosecutors had been wrong! The community had been wrong! Fast forward…
My client was released from military confinement. The neighbor was charged, convicted and is now serving life in prison. My client has since married and he and his wife have had a child. Just think how different the course of my client’s life would have been if we, as his defense attorneys, had accepted what the military investigator and local prosecutors were telling us? If we had prejudged our client’s guilt and just went through the motions instead of zealously defending him and pointing out the flaws in the case?
We were just doing our jobs. We were doing what we, and defense lawyers around the country, do every day and do in every case. We were zealously defending our client, and it turned out our client was innocent. We zealously defend all our clients – and we are too often maligned for doing this. Remember what I said above. The military investigator laughed at me for asking questions about the case.
Maybe next time you hear about a criminal case you will catch yourself before jumping to conclusions. Think about the story above. Think about the Duke Lacrosse case. Don't prejudge the case and don't pass judgment on the defense attorneys defending it.
Here is an interesting opinion by Jonna Spilbor:
http://writ.lp.findlaw.com/commentary/20070416_spilbor.html?cnn=yes
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC
http://www.militaryadvocate.com
Blog postscript: Attorney Frank Spinner and I (attorney Richard 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. 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 & The Law Office of Frank J. Spinner for a free consultation.
The Duke Lacrosse rape case should have been a wake-up call about many issues. One of those issues should be the role of the criminal defense lawyer.
“How can you defend them?” is a question all criminal defense lawyers have faced – from strangers, associates, friends and even family. The question is usually accompanied either by a look of disgust or a look of incomprehension; sometimes both.
We in the criminal defense community know why we do this. We know how much we care about the rights everyone in our society enjoys. We know that our job gives a voice to those rights and protects all of you from those rights being ignored. We in the criminal defense community know that we are trying to protect all of you from false allegations, false arrests, improper convictions and inappropriate sentences. We are the people who stand between you as an individual and the power and resources of the state/government.
Maybe it takes a highly publicized case like the Duke case to shake you to realize that false claims are made and people can be convicted, jailed, and have their life ruined for something they didn’t do. Criminal defense lawyers are the people who fight to prevent that from happening. We fight to ensure the system stays honest. There seems to be a general acceptance that if an arrest is made, or if a conviction occurs, it must be correct. Maybe now more and more people are realizing that isn’t so. I’m not suggesting you need to completely distrust the police, the prosecutors and the courts. I’m simply saying you shouldn’t so readily rush to accept their version. It is important to ask questions. It is important to presume innocence unless guilt is proven.
Here is a true story:
I (attorney Richard Stevens) had a young military client who was accused of a particularly heinous crime. He was placed into military jail (pretrial confinement) awaiting trial. He sat in his jail cell for nearly seven months waiting on his day in court.
The military investigators were convinced they had their man. He was guilty. The local prosecutors were convinced they had their man. He was guilty. The community was convinced they had their man. He was guilty. The base commander calmed the community’s fears about the crime by proclaiming that my client was behind bars.
I remember, like it was yesterday, visiting my client in jail to tell him the prosecution notified me they were considering making his case a capital case – they were considering asking for the death penalty if he was convicted. I will never forget his father looking me in the eyes and imploring me, as only a father can, “Don’t let them kill my son for something he didn’t do!”
The lead military investigator actually laughed at me when I raised some questions about the case. He saw my questions as ridiculous. They had their man. My defense co-counsel and I investigated this case as we would any case. We don’t prejudge our cases. We don’t choose when to work a case and when to let it slide. We talked to witnesses, we followed leads, we established a timeline. We began to poke holes in the investigation and the evidence. The pretrial hearing lasted for days. Witness after witness testified. The holes in the investigation and the evidence grew wider. As I cross-examined the lead investigator about these problems with the case, his disdain was obvious. The look on his face said, “How could you represent him? How could you try to undermine our investigation?”
After the pretrial hearing was over, the hearing officer addressed the problems with the case, but said there was sufficient evidence to go forward to trial. But, the questions we were raising about the case had the interest of the supervising government attorneys (above the local level). They didn’t jump to the conclusion that the case was solved. They demanded a new investigation – although the lead military investigator protested it.
(I think you all know where this is heading…)
A new investigation was launched. The next door neighbor was questioned. He started to act strange. He was questioned again. The neighbor confessed to committing the crime. The forensic evidence that had been collected matched the neighbor. The military investigators had been wrong! The local prosecutors had been wrong! The community had been wrong! Fast forward…
My client was released from military confinement. The neighbor was charged, convicted and is now serving life in prison. My client has since married and he and his wife have had a child. Just think how different the course of my client’s life would have been if we, as his defense attorneys, had accepted what the military investigator and local prosecutors were telling us? If we had prejudged our client’s guilt and just went through the motions instead of zealously defending him and pointing out the flaws in the case?
We were just doing our jobs. We were doing what we, and defense lawyers around the country, do every day and do in every case. We were zealously defending our client, and it turned out our client was innocent. We zealously defend all our clients – and we are too often maligned for doing this. Remember what I said above. The military investigator laughed at me for asking questions about the case.
Maybe next time you hear about a criminal case you will catch yourself before jumping to conclusions. Think about the story above. Think about the Duke Lacrosse case. Don't prejudge the case and don't pass judgment on the defense attorneys defending it.
Here is an interesting opinion by Jonna Spilbor:
http://writ.lp.findlaw.com/commentary/20070416_spilbor.html?cnn=yes
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC
http://www.militaryadvocate.com
Blog postscript: Attorney Frank Spinner and I (attorney Richard 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. 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 & The Law Office of Frank J. Spinner for a free consultation.
Saturday, April 21, 2007
Air Force Officer Represented by Frank Spinner Found Not Guilty of Rape
An Air Force officer, defended at court-martial by Frank Spinner, was recently found not guilty of the rape charge he faced. The accused officer was charged with raping a female officer stationed at the same base. The maximum authorized punishment for a rape conviction for either “defendant” would have been life in prison without the possibility of parole.
Similarly, none of the three most recent military rape cases defended by Richard Stevens have resulted in a conviction.
One of the cases against a noncommissioned officer was dropped on the eve of the pretrial Article 32 hearing when the defense presented significant information learned during our investigation of the case, one of the cases against another noncommissioned officer was dropped after a litigated (contested) Article 32 hearing, and the third military rape case proceeded to trial by court-martial. In that case, the “defendant,” a military officer accused of rape by a fellow female officer acquaintance, was found not guilty by an officer panel (“jury”). As described above, the maximum authorized punishment for a rape conviction in any of those court-martial cases would have been life in prison without the possibility of parole.
While these rape court-martial cases were 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. For more information on the military justice system, please see our other blog posts.
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC
http://www.militaryadvocate.com
Blog postscript: Attorney Frank Spinner and I (attorney Richard 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. 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 & The Law Office of Frank J. Spinner for a free consultation.
An Air Force officer, defended at court-martial by Frank Spinner, was recently found not guilty of the rape charge he faced. The accused officer was charged with raping a female officer stationed at the same base. The maximum authorized punishment for a rape conviction for either “defendant” would have been life in prison without the possibility of parole.
Similarly, none of the three most recent military rape cases defended by Richard Stevens have resulted in a conviction.
One of the cases against a noncommissioned officer was dropped on the eve of the pretrial Article 32 hearing when the defense presented significant information learned during our investigation of the case, one of the cases against another noncommissioned officer was dropped after a litigated (contested) Article 32 hearing, and the third military rape case proceeded to trial by court-martial. In that case, the “defendant,” a military officer accused of rape by a fellow female officer acquaintance, was found not guilty by an officer panel (“jury”). As described above, the maximum authorized punishment for a rape conviction in any of those court-martial cases would have been life in prison without the possibility of parole.
While these rape court-martial cases were 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. For more information on the military justice system, please see our other blog posts.
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC
http://www.militaryadvocate.com
Blog postscript: Attorney Frank Spinner and I (attorney Richard 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. 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 & The Law Office of Frank J. Spinner for a free consultation.
Monday, April 16, 2007
Tragedy at Virginia Tech
As everyone around the country likely knows by now, there was a tragic mass murder/shooting today at Virginia Tech. Our thoughts and prayers go out to all who were affected by today's events, particularly the victims and the families scarred by the injury or death of their loved ones.
By: Attorney Richard Stevens
www.militaryadvocate.com
As everyone around the country likely knows by now, there was a tragic mass murder/shooting today at Virginia Tech. Our thoughts and prayers go out to all who were affected by today's events, particularly the victims and the families scarred by the injury or death of their loved ones.
By: Attorney Richard Stevens
www.militaryadvocate.com
Unequal Justice: “Military courts are stacked to convict…” – An Article By Edward T. Pound
In 2002, an article about the military justice system, written by Edward T. Pound, was published in U.S. News & World Report. It is a perspective that military lawyers, civilian attorneys who practice in military courts, and others who follow military law and discipline might be interested in. The link follows:
http://www.usnews.com/usnews/news/articles/021216/16justice.htm
Blog Content: Published in U.S. News & World Report
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC
http://www.militaryadvocate.com
Blog postscript: Attorney Frank Spinner and I (attorney Richard 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. 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 & The Law Office of Frank J. Spinner for a free consultation.
In 2002, an article about the military justice system, written by Edward T. Pound, was published in U.S. News & World Report. It is a perspective that military lawyers, civilian attorneys who practice in military courts, and others who follow military law and discipline might be interested in. The link follows:
http://www.usnews.com/usnews/news/articles/021216/16justice.htm
Blog Content: Published in U.S. News & World Report
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC
http://www.militaryadvocate.com
Blog postscript: Attorney Frank Spinner and I (attorney Richard 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. 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 & The Law Office of Frank J. Spinner for a free consultation.
Sunday, April 15, 2007
Rape and Sexual Assault Allegations in the Military, Part 3 – False Rape Claims Do Occur
To ensure that my perspective is fully understood, I will begin this post with the same preface as before:
Nothing in this blog series should be misconstrued as suggesting that I believe all rape or sexual assault allegations in the military are false or that raising the issues I’m about to discuss disrespects women (admittedly women are not the only alleged victims of rape and sexual assault, but they make up the vast majority). Neither interpretation could be farther from the truth. I have female friends and family members who proudly serve in the military and who agree with my views on this topic. I have also advised/represented women in the military who have alleged rape against other military members. Each case is different and the individuals involved in each case are different. It is important not to be quick to judge or vilify someone for raising legitimate concerns about how the military justice system handles these cases.
This blog post also is not meant to suggest that no military commander, staff judge advocate, prosecutor or other member of the military justice system handles rape cases fairly and appropriately. That too would be an erroneous conclusion. Those cases, however, are beginning to fall into the “exception” category, rather than the “rule.”
The issue for this post is that false claims of rape and sexual assault do occur within the military (and civilian communities). To accept the proposition that a rape claim must be true because no one would subject themselves to the difficulties that rape victims might experience is the first step in convicting an innocent person.
There are a wide range of motives to make a false allegation of rape or sexual assault. Guilt and confusion after a night of drinking. Avoiding a boyfriend or husband’s reaction to unfaithfulness. Shielding oneself from the consequences of one’s own misconduct. Protecting one’s reputation from the “promiscuous” label. Anger over a sexual encounter not blossoming into a long term relationship as expected. These are just some of the examples Frank Spinner (of counsel) and I (attorney Richard Stevens) have seen in our travels through the military legal system.
The numbers or percentages of false rape or sexual assault claims are extremely difficult to quantify. Just enter the terms “false and rape” into Google or another search engine and you can read this for yourself. Here are some examples:
http://www.falserape.net/
http://www.falserape.net/false-rape.htm
http://www.falserape.net/falserapeafa.htm
http://www.falserape.net/four_disney_employees_exonerated.html
http://www.falserape.net/research_shows_false.html
http://www.independent.org/newsroom/article.asp?id=1719
http://www.foxnews.com/story/0,2933,153969,00.html
http://archives.cjr.org/year/97/6/rape.asp
I could provide you with so many case examples of false rape and sexual assault allegations that you would eventually scream “I get it already!” and quit reading this blog. So, I will just choose two examples from military cases to prove the point.
A young military man and a young military woman had sex one night. The young woman had been interested in the young man. The young woman made no claim of rape that night. Immediately after that night, the young woman did not say anything, or act, as if she had been assaulted by the young man. The witnesses reported that she was happy and was still interested in the young man. As time progressed, that changed. The young woman became unhappy and angry toward the young man. She accused him of raping her that night. She became an “alleged victim.”
Despite the lack of physical evidence and the statements of the witnesses describing the alleged victim after the night in question, charges were brought and the young man was court-martialed. The young man had no prior history and was ably defended at trial. The defense argued that the alleged victim wanted more than a one night stand, and became angry and disillusioned when the young man did not pursue a relationship with her. The jury returned in less than an hour. An acquittal was expected. Instead, the young man was convicted of rape. In less than an hour a weak case based solely on the word of this alleged victim, who had a motive to lie, resulted in a military rape conviction.
Here’s where fate and extreme good luck stepped in to prevent a tragedy. Normally, after a court-martial conviction the case proceeds immediately to the sentencing phase. In this case, there was a brief break after the conviction. During the break, one of the alleged victim’s closest friends came forward and said the alleged victim had told her the sex was consensual. The alleged victim’s diary had been turned over during the investigation, but entries regarding the night in question were absent. During the post-conviction break, military investigators received authority to search the alleged victim’s car. In her car trunk were the missing pages of her diary. In those pages she details how the sex was consensual and that she became increasingly angry that the young man did not call her or pursue a relationship thereafter. Further, the alleged victim described how she enjoyed the attention she was receiving as a “victim,” particularly when she testified in the pretrial hearing. The government dropped the charges/conviction against the young man. The alleged victim was never charged. How did a weak case against an innocent young military man get charged and tried and result in a conviction in less than an hour??
Here is another example:
A young military woman had sex one night with two young military men. It was a “threesome.” It was also videotaped. The young woman made no claim of rape that night. Eventually, she learned that the young men were spreading the news of the threesome among their group of friends. The young woman claimed rape. She was now an “alleged victim.” The video could not be found. Based on the alleged victim’s word, the two young men were charged with rape. As the case proceeded toward court-martial the investigators recovered the video tape. On the tape was a very obviously consensual sexual encounter between the three parties. Charges were dropped shortly before trial was set to begin. Again, a lucky break on the eve of disaster.
Do false rape and sexual assault claims happen? Yes, of course they do. I’m not sure the numbers or percentages are important. People are being falsely accused of crimes they did not commit and are facing trials, convictions, and sentences. These innocent people are facing a profound change in the course of the rest of their lives. The two examples above illustrate situations in which the false claims were discovered in the nick of time. How many other defendants were not so lucky? How many did not have the truth uncovered?
More to come…
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC
http://www.militaryadvocate.com
Blog postscript: Attorney Frank Spinner and I (attorney Richard 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. 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 & The Law Office of Frank J. Spinner for a free consultation.
To ensure that my perspective is fully understood, I will begin this post with the same preface as before:
Nothing in this blog series should be misconstrued as suggesting that I believe all rape or sexual assault allegations in the military are false or that raising the issues I’m about to discuss disrespects women (admittedly women are not the only alleged victims of rape and sexual assault, but they make up the vast majority). Neither interpretation could be farther from the truth. I have female friends and family members who proudly serve in the military and who agree with my views on this topic. I have also advised/represented women in the military who have alleged rape against other military members. Each case is different and the individuals involved in each case are different. It is important not to be quick to judge or vilify someone for raising legitimate concerns about how the military justice system handles these cases.
This blog post also is not meant to suggest that no military commander, staff judge advocate, prosecutor or other member of the military justice system handles rape cases fairly and appropriately. That too would be an erroneous conclusion. Those cases, however, are beginning to fall into the “exception” category, rather than the “rule.”
The issue for this post is that false claims of rape and sexual assault do occur within the military (and civilian communities). To accept the proposition that a rape claim must be true because no one would subject themselves to the difficulties that rape victims might experience is the first step in convicting an innocent person.
There are a wide range of motives to make a false allegation of rape or sexual assault. Guilt and confusion after a night of drinking. Avoiding a boyfriend or husband’s reaction to unfaithfulness. Shielding oneself from the consequences of one’s own misconduct. Protecting one’s reputation from the “promiscuous” label. Anger over a sexual encounter not blossoming into a long term relationship as expected. These are just some of the examples Frank Spinner (of counsel) and I (attorney Richard Stevens) have seen in our travels through the military legal system.
The numbers or percentages of false rape or sexual assault claims are extremely difficult to quantify. Just enter the terms “false and rape” into Google or another search engine and you can read this for yourself. Here are some examples:
http://www.falserape.net/
http://www.falserape.net/false-rape.htm
http://www.falserape.net/falserapeafa.htm
http://www.falserape.net/four_disney_employees_exonerated.html
http://www.falserape.net/research_shows_false.html
http://www.independent.org/newsroom/article.asp?id=1719
http://www.foxnews.com/story/0,2933,153969,00.html
http://archives.cjr.org/year/97/6/rape.asp
I could provide you with so many case examples of false rape and sexual assault allegations that you would eventually scream “I get it already!” and quit reading this blog. So, I will just choose two examples from military cases to prove the point.
A young military man and a young military woman had sex one night. The young woman had been interested in the young man. The young woman made no claim of rape that night. Immediately after that night, the young woman did not say anything, or act, as if she had been assaulted by the young man. The witnesses reported that she was happy and was still interested in the young man. As time progressed, that changed. The young woman became unhappy and angry toward the young man. She accused him of raping her that night. She became an “alleged victim.”
Despite the lack of physical evidence and the statements of the witnesses describing the alleged victim after the night in question, charges were brought and the young man was court-martialed. The young man had no prior history and was ably defended at trial. The defense argued that the alleged victim wanted more than a one night stand, and became angry and disillusioned when the young man did not pursue a relationship with her. The jury returned in less than an hour. An acquittal was expected. Instead, the young man was convicted of rape. In less than an hour a weak case based solely on the word of this alleged victim, who had a motive to lie, resulted in a military rape conviction.
Here’s where fate and extreme good luck stepped in to prevent a tragedy. Normally, after a court-martial conviction the case proceeds immediately to the sentencing phase. In this case, there was a brief break after the conviction. During the break, one of the alleged victim’s closest friends came forward and said the alleged victim had told her the sex was consensual. The alleged victim’s diary had been turned over during the investigation, but entries regarding the night in question were absent. During the post-conviction break, military investigators received authority to search the alleged victim’s car. In her car trunk were the missing pages of her diary. In those pages she details how the sex was consensual and that she became increasingly angry that the young man did not call her or pursue a relationship thereafter. Further, the alleged victim described how she enjoyed the attention she was receiving as a “victim,” particularly when she testified in the pretrial hearing. The government dropped the charges/conviction against the young man. The alleged victim was never charged. How did a weak case against an innocent young military man get charged and tried and result in a conviction in less than an hour??
Here is another example:
A young military woman had sex one night with two young military men. It was a “threesome.” It was also videotaped. The young woman made no claim of rape that night. Eventually, she learned that the young men were spreading the news of the threesome among their group of friends. The young woman claimed rape. She was now an “alleged victim.” The video could not be found. Based on the alleged victim’s word, the two young men were charged with rape. As the case proceeded toward court-martial the investigators recovered the video tape. On the tape was a very obviously consensual sexual encounter between the three parties. Charges were dropped shortly before trial was set to begin. Again, a lucky break on the eve of disaster.
Do false rape and sexual assault claims happen? Yes, of course they do. I’m not sure the numbers or percentages are important. People are being falsely accused of crimes they did not commit and are facing trials, convictions, and sentences. These innocent people are facing a profound change in the course of the rest of their lives. The two examples above illustrate situations in which the false claims were discovered in the nick of time. How many other defendants were not so lucky? How many did not have the truth uncovered?
More to come…
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC
http://www.militaryadvocate.com
Blog postscript: Attorney Frank Spinner and I (attorney Richard 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. 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 & The Law Office of Frank J. Spinner for a free consultation.
Friday, April 13, 2007
Rape and Sexual Assault Allegations in the Military, Part 2 – The Surrender of Discretion
Nothing in this blog series should be misconstrued as suggesting that I believe all rape or sexual assault allegations in the military are false or that raising the issues I’m about to discuss disrespects women in any way (admittedly women are not the only alleged victims of rape and sexual assault, but they make up the vast majority). Neither interpretation could be farther from the truth. I have female friends and family members who proudly serve in the military and who agree with my views on this topic. I have also advised/represented women in the military who have alleged rape against other military members. Each case is different and the individuals involved in each case are different. It is important not to be quick to judge or vilify someone for raising legitimate concerns about how the military justice system handles these cases. I staunchly support our troops, regardless of gender or service branch.
This blog post also is not meant to suggest that no military commander, staff judge advocate, prosecutor or other member of the military justice system handles rape cases fairly and appropriately. That too would be an erroneous conclusion. Those cases, however, are beginning to fall into the “exception” category, rather than the “rule.” The issue for this post is that the military, generally, continues to struggle with how to handle rape and sexual assault cases.
As seen in the Duke Lacrosse rape case, these cases often involve so much emotion and personal investment by the accuser, the accused, the families and friends of either side, the investigators, the lawyers and the command that “justice” becomes a meaningless legal term rather than the goal or outcome of the criminal case. Winning can take precedence over fairness and objectivity. Avoiding bad press can replace discretion and seeking a just result.
In recent years, the highly publicized Air Force Academy “rape scandal” has had a dramatic impact on how rape cases are handled by all military branches. A couple years ago I wrote the following:
The Air Force Academy, like the rest of the Air Force, and military for that matter, are reactionary when it comes to bad press. As you may know, when a rape allegation is made in the military, it is investigated by the service branch’s criminal investigation agency (AFOSI, CID, NCIS, or CGIS). When that investigation is closed, the case is then forwarded to the legal office where JAGs evaluate the case and often conduct further investigation. Based on the evaluation and investigation by the legal office, the JAGs (Chief of Justice and/or Staff Judge Advocate) recommend to the accused’s commander how to dispose of the case and what charges are raised by the investigation.
If the commander decides to prefer general court-martial charges against the accused individual in a rape case, those charges must first be investigated in an Article 32 hearing where the presiding Investigating Officer makes recommendations about how the case should be disposed of. These recommendations are forwarded to the Convening Authority who can follow the recommendations or not, depending on his/her own discretion. At each step in the process, independent judgments are supposed to be made based on the ultimate interests of justice. There is a lot of discretion at each step, or, at least, there is supposed to be.
It used to be that questionable rape allegations could be stopped before a court-martial because someone in the military justice process, exercising their discretion, determined the allegation was not credible. The landscape changed dramatically after the Air Force Academy “rape scandal.” The Academy, the Air Force and, by implication, the military at large, received extremely bad press regarding how rape allegations were being handled. The press portrayed the Academy as anti-women and claimed that rape allegations were ignored and retaliation taken against women who raised such allegations.
Because of this bad press, the Academy, the Air Force, and the military at large have reacted with new initiatives to try to prevent these allegations and appear to be advocates for alleged rape victims who make these claims. For all intents and purposes, the discretion is now gone. If a woman alleges rape, no matter how much she, or the allegation, lacks credibility, that allegation will end up at trial. If someone in the process were to decide not to take the allegation to trial, the military’s fear is that the alleged victim would end up on news programs and/or the talk show circuit preaching against the uncaring, chauvinistic military. In addition, the military branches are conducting mandatory sexual assault awareness briefings in which the law is being misstated (more on this to follow). This only adds to the problem.
The reactionary change in how rape allegations are dealt with by the military has resulted in allegations which are very suspect going to trial and innocent young men facing the possibility of a rape conviction, jail time and a drastic change in the course of their lives.
The rape allegations at issue are alcohol-related acquaintance rape claims. Briefers at the mandatory sexual assault awareness briefings are telling audiences that intoxicated women are incapable of consenting to sex. The degree of intoxication seems irrelevant and some of the briefings/videos suggest that if a woman takes a drink of alcohol, she can no longer consent to sex. This is simply not true and it’s a dangerous misstatement of the law. Since the audiences at these briefings include those who might make claims of rape in the future, potential court members, convening authorities and legal staff, as well as the commanders and supervisors who make disciplinary decisions, these incorrect briefings affect the entire military justice system by affecting the players in that system. The law regarding lack of consent due to alcohol consumption is that an intoxicated person is only incapable of consenting if that person is so intoxicated that he/she is unconscious or is incapable of understanding the (sexual) act, its motive, and its possible consequences. (See DA PAM 27-9). Simply drinking alcohol or being in some state of intoxication does not amount to inability to consent.
Stated another way, an intoxicated woman can engage in consensual sex, so long as she is able to understand the act, its motive and its consequences. Lack of inhibition or judgment due to alcohol consumption does not equate to lack of ability to consent. A woman who would not have had sex with a particular man if she had been completely sober, and using her sober judgment, has not necessarily been raped if she has sex with that same man when intoxicated. “Morning after regrets” are not tantamount to rape. A woman who doesn’t remember consenting, or who has experienced alcohol-induced memory blackout of portions of a sexual encounter, has not necessarily been raped or assaulted by virtue of her alcohol-induced memory problems. Despite the politically correct messages perpetuated by the press and television talk shows, if a drunk young man and a drunk young woman have sex, the young woman is not automatically a victim and the young man a criminal. The only time that alcohol consumption equates to lack of consent is if the alleged victim is so drunk that he/she meets the definition above; which is an extreme state of intoxication rendering the person incompetent.
By briefing military members that intoxicated women cannot consent to sex, false information is purposely being spread. Since the audiences to these briefings include the players in the military justice system, even if some percentage of the audience members know the law is being misstated, they are receiving a message from the top that this is how such scenarios should be viewed and handled in the military justice system. Consequently, one interpretation of this scenario is that a purposeful effort is being made at the very top echelons of the military hierarchy to stack juries and unlawfully influence disciplinary decisions. It is unclear whether the motivation for this is misdirected good faith or an effort to appease the press and prevent any further bad press alleging the military doesn’t properly handle rape/sexual assault allegations. Regardless of the motivation, the effect remains the same – the fairness of the military justice system is being compromised.
I believe we are fast approaching the time when alcohol-related acquaintance rape allegations cannot fairly be heard in the military justice system, and every such court-martial should include motions to dismiss for court stacking and unlawful command influence. I also believe the numbers of alcohol-related acquaintance rape allegations in the military are heavily influenced by the fact that the military is sending the message to its women members that they bear no personal responsibility for their actions if drinking and that they have been raped or assaulted if they were intoxicated when they engaged in sexual activity. In other words, “the tail may be wagging the dog.”
False rape allegations do not necessarily mean the alleged victim is purposely lying. Guilt and shame are powerful motivators. If young women are being told they have been raped if they had sex when intoxicated and, at the same time, a young woman is suffering from shame and guilt over her sexual behavior when drunk, she may allow herself to believe she is a rape victim, when she is not.
The explanation above should not be interpreted as my belief that all or most rape allegations are false. That is not my intent. Just a few false rape allegations are far too many; they jeopardize innocent lives/futures and they offend true rape allegations and victims. I have attached a story by a young woman who made a false rape allegation. They do occur. I hope this helps.
That 2005 commentary was published on the website:
http://www.falserape.net/stevens_commentary.html
Based on the number and substance of military rape and sexual assault cases Frank Spinner (of counsel) and I (Richard Stevens) continue to be contacted about, the thoughts expressed in that commentary remain a valid concern in 2007.
In Part 1 of this blog series I asked whether the defendants in the Duke case would have fared as well under the Uniform Code of Military Justice (UCMJ) and would the military justice system have handled the Duke case better or worse than it was handled in the civilian world? Based on what I have seen in representing members of all service branches, unless the alleged victim recanted, it is unlikely that the charges would have been dropped in the military. That's because of the fear that the woman would end up on the talk show circuit bad mouthing the military and causing public scandal. In the military, even if a woman (herself serving in the military) does not want to go forward with her allegations, if she has already discussed them with a third party she can be compelled to testify against the accused. The actions taken by Attorney General Roy Cooper in North Carolina were an exercise of discretion - something that has been largely surrendered in handling these cases in the military. Again, this is a "broad brush" treatment that may not apply to all military cases, but it applies in a disturbingly high number of them.
More to come…
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC
http://www.militaryadvocate.com
Blog postscript: Attorney Frank Spinner and I (attorney Richard 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. 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 & The Law Office of Frank J. Spinner for a free consultation.
Nothing in this blog series should be misconstrued as suggesting that I believe all rape or sexual assault allegations in the military are false or that raising the issues I’m about to discuss disrespects women in any way (admittedly women are not the only alleged victims of rape and sexual assault, but they make up the vast majority). Neither interpretation could be farther from the truth. I have female friends and family members who proudly serve in the military and who agree with my views on this topic. I have also advised/represented women in the military who have alleged rape against other military members. Each case is different and the individuals involved in each case are different. It is important not to be quick to judge or vilify someone for raising legitimate concerns about how the military justice system handles these cases. I staunchly support our troops, regardless of gender or service branch.
This blog post also is not meant to suggest that no military commander, staff judge advocate, prosecutor or other member of the military justice system handles rape cases fairly and appropriately. That too would be an erroneous conclusion. Those cases, however, are beginning to fall into the “exception” category, rather than the “rule.” The issue for this post is that the military, generally, continues to struggle with how to handle rape and sexual assault cases.
As seen in the Duke Lacrosse rape case, these cases often involve so much emotion and personal investment by the accuser, the accused, the families and friends of either side, the investigators, the lawyers and the command that “justice” becomes a meaningless legal term rather than the goal or outcome of the criminal case. Winning can take precedence over fairness and objectivity. Avoiding bad press can replace discretion and seeking a just result.
In recent years, the highly publicized Air Force Academy “rape scandal” has had a dramatic impact on how rape cases are handled by all military branches. A couple years ago I wrote the following:
The Air Force Academy, like the rest of the Air Force, and military for that matter, are reactionary when it comes to bad press. As you may know, when a rape allegation is made in the military, it is investigated by the service branch’s criminal investigation agency (AFOSI, CID, NCIS, or CGIS). When that investigation is closed, the case is then forwarded to the legal office where JAGs evaluate the case and often conduct further investigation. Based on the evaluation and investigation by the legal office, the JAGs (Chief of Justice and/or Staff Judge Advocate) recommend to the accused’s commander how to dispose of the case and what charges are raised by the investigation.
If the commander decides to prefer general court-martial charges against the accused individual in a rape case, those charges must first be investigated in an Article 32 hearing where the presiding Investigating Officer makes recommendations about how the case should be disposed of. These recommendations are forwarded to the Convening Authority who can follow the recommendations or not, depending on his/her own discretion. At each step in the process, independent judgments are supposed to be made based on the ultimate interests of justice. There is a lot of discretion at each step, or, at least, there is supposed to be.
It used to be that questionable rape allegations could be stopped before a court-martial because someone in the military justice process, exercising their discretion, determined the allegation was not credible. The landscape changed dramatically after the Air Force Academy “rape scandal.” The Academy, the Air Force and, by implication, the military at large, received extremely bad press regarding how rape allegations were being handled. The press portrayed the Academy as anti-women and claimed that rape allegations were ignored and retaliation taken against women who raised such allegations.
Because of this bad press, the Academy, the Air Force, and the military at large have reacted with new initiatives to try to prevent these allegations and appear to be advocates for alleged rape victims who make these claims. For all intents and purposes, the discretion is now gone. If a woman alleges rape, no matter how much she, or the allegation, lacks credibility, that allegation will end up at trial. If someone in the process were to decide not to take the allegation to trial, the military’s fear is that the alleged victim would end up on news programs and/or the talk show circuit preaching against the uncaring, chauvinistic military. In addition, the military branches are conducting mandatory sexual assault awareness briefings in which the law is being misstated (more on this to follow). This only adds to the problem.
The reactionary change in how rape allegations are dealt with by the military has resulted in allegations which are very suspect going to trial and innocent young men facing the possibility of a rape conviction, jail time and a drastic change in the course of their lives.
The rape allegations at issue are alcohol-related acquaintance rape claims. Briefers at the mandatory sexual assault awareness briefings are telling audiences that intoxicated women are incapable of consenting to sex. The degree of intoxication seems irrelevant and some of the briefings/videos suggest that if a woman takes a drink of alcohol, she can no longer consent to sex. This is simply not true and it’s a dangerous misstatement of the law. Since the audiences at these briefings include those who might make claims of rape in the future, potential court members, convening authorities and legal staff, as well as the commanders and supervisors who make disciplinary decisions, these incorrect briefings affect the entire military justice system by affecting the players in that system. The law regarding lack of consent due to alcohol consumption is that an intoxicated person is only incapable of consenting if that person is so intoxicated that he/she is unconscious or is incapable of understanding the (sexual) act, its motive, and its possible consequences. (See DA PAM 27-9). Simply drinking alcohol or being in some state of intoxication does not amount to inability to consent.
Stated another way, an intoxicated woman can engage in consensual sex, so long as she is able to understand the act, its motive and its consequences. Lack of inhibition or judgment due to alcohol consumption does not equate to lack of ability to consent. A woman who would not have had sex with a particular man if she had been completely sober, and using her sober judgment, has not necessarily been raped if she has sex with that same man when intoxicated. “Morning after regrets” are not tantamount to rape. A woman who doesn’t remember consenting, or who has experienced alcohol-induced memory blackout of portions of a sexual encounter, has not necessarily been raped or assaulted by virtue of her alcohol-induced memory problems. Despite the politically correct messages perpetuated by the press and television talk shows, if a drunk young man and a drunk young woman have sex, the young woman is not automatically a victim and the young man a criminal. The only time that alcohol consumption equates to lack of consent is if the alleged victim is so drunk that he/she meets the definition above; which is an extreme state of intoxication rendering the person incompetent.
By briefing military members that intoxicated women cannot consent to sex, false information is purposely being spread. Since the audiences to these briefings include the players in the military justice system, even if some percentage of the audience members know the law is being misstated, they are receiving a message from the top that this is how such scenarios should be viewed and handled in the military justice system. Consequently, one interpretation of this scenario is that a purposeful effort is being made at the very top echelons of the military hierarchy to stack juries and unlawfully influence disciplinary decisions. It is unclear whether the motivation for this is misdirected good faith or an effort to appease the press and prevent any further bad press alleging the military doesn’t properly handle rape/sexual assault allegations. Regardless of the motivation, the effect remains the same – the fairness of the military justice system is being compromised.
I believe we are fast approaching the time when alcohol-related acquaintance rape allegations cannot fairly be heard in the military justice system, and every such court-martial should include motions to dismiss for court stacking and unlawful command influence. I also believe the numbers of alcohol-related acquaintance rape allegations in the military are heavily influenced by the fact that the military is sending the message to its women members that they bear no personal responsibility for their actions if drinking and that they have been raped or assaulted if they were intoxicated when they engaged in sexual activity. In other words, “the tail may be wagging the dog.”
False rape allegations do not necessarily mean the alleged victim is purposely lying. Guilt and shame are powerful motivators. If young women are being told they have been raped if they had sex when intoxicated and, at the same time, a young woman is suffering from shame and guilt over her sexual behavior when drunk, she may allow herself to believe she is a rape victim, when she is not.
The explanation above should not be interpreted as my belief that all or most rape allegations are false. That is not my intent. Just a few false rape allegations are far too many; they jeopardize innocent lives/futures and they offend true rape allegations and victims. I have attached a story by a young woman who made a false rape allegation. They do occur. I hope this helps.
That 2005 commentary was published on the website:
http://www.falserape.net/stevens_commentary.html
Based on the number and substance of military rape and sexual assault cases Frank Spinner (of counsel) and I (Richard Stevens) continue to be contacted about, the thoughts expressed in that commentary remain a valid concern in 2007.
In Part 1 of this blog series I asked whether the defendants in the Duke case would have fared as well under the Uniform Code of Military Justice (UCMJ) and would the military justice system have handled the Duke case better or worse than it was handled in the civilian world? Based on what I have seen in representing members of all service branches, unless the alleged victim recanted, it is unlikely that the charges would have been dropped in the military. That's because of the fear that the woman would end up on the talk show circuit bad mouthing the military and causing public scandal. In the military, even if a woman (herself serving in the military) does not want to go forward with her allegations, if she has already discussed them with a third party she can be compelled to testify against the accused. The actions taken by Attorney General Roy Cooper in North Carolina were an exercise of discretion - something that has been largely surrendered in handling these cases in the military. Again, this is a "broad brush" treatment that may not apply to all military cases, but it applies in a disturbingly high number of them.
More to come…
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC
http://www.militaryadvocate.com
Blog postscript: Attorney Frank Spinner and I (attorney Richard 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. 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 & The Law Office of Frank J. Spinner for a free consultation.
Thursday, April 12, 2007
District Attorney in Duke University Lacrosse Rape Case Apologizes
Before continuing with the remaining parts of my blog post series on rape cases in the military, another interesting development has occurred today in the Duke University lacrosse rape case. In a statement that was likely received by the young men falsely accused of rape and kidnapping in the case as “a little too late,” embattled Durham District Attorney Mike Nifong has issued a public apology. The full statement can be accessed at:
http://i.a.cnn.net/cnn/2007/images/04/12/0247.001.pdf
Mr. Nifong wrote the following:
“I have every confidence that the decision to dismiss all charges was the correct decision based on that evidence.”
“To the extent that I made judgments that ultimately proved to be incorrect, I apologize to the three students that were wrongly accused.”
“I also understand that whenever someone has been wrongly accused, the harm caused by the accusations might not be immediately undone merely by dismissing them.”
“It is my sincere desire that the actions of Attorney General Cooper will serve to remedy any remaining injury that has resulted from these cases.”
If Mr. Nifong was truly seeking justice in this case, and if his goal was honestly to “see that the guilty are punished and that the innocent are set free” as he states, one wonders why Mr. Nifong made the inflammatory public statements he made, why he had such apparent difficulty in providing proper discovery to the defense, and why he failed to critically analyze the conflicting evidence that formed the basis of the Attorney General’s decision to dismiss the cases – a decision that Mr. Nifong has “every confidence” in. I can’t speak to the sincerity of Mr. Nifong’s statement, I just wish he had put at least as much consideration into his handling of the case as he did to the words contained in his apology.
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC
http://www.militaryadvocate.com
Blog postscript: Attorney Frank Spinner and I (attorney Richard 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. 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 & The Law Office of Frank J. Spinner for a free consultation.
Before continuing with the remaining parts of my blog post series on rape cases in the military, another interesting development has occurred today in the Duke University lacrosse rape case. In a statement that was likely received by the young men falsely accused of rape and kidnapping in the case as “a little too late,” embattled Durham District Attorney Mike Nifong has issued a public apology. The full statement can be accessed at:
http://i.a.cnn.net/cnn/2007/images/04/12/0247.001.pdf
Mr. Nifong wrote the following:
“I have every confidence that the decision to dismiss all charges was the correct decision based on that evidence.”
“To the extent that I made judgments that ultimately proved to be incorrect, I apologize to the three students that were wrongly accused.”
“I also understand that whenever someone has been wrongly accused, the harm caused by the accusations might not be immediately undone merely by dismissing them.”
“It is my sincere desire that the actions of Attorney General Cooper will serve to remedy any remaining injury that has resulted from these cases.”
If Mr. Nifong was truly seeking justice in this case, and if his goal was honestly to “see that the guilty are punished and that the innocent are set free” as he states, one wonders why Mr. Nifong made the inflammatory public statements he made, why he had such apparent difficulty in providing proper discovery to the defense, and why he failed to critically analyze the conflicting evidence that formed the basis of the Attorney General’s decision to dismiss the cases – a decision that Mr. Nifong has “every confidence” in. I can’t speak to the sincerity of Mr. Nifong’s statement, I just wish he had put at least as much consideration into his handling of the case as he did to the words contained in his apology.
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC
http://www.militaryadvocate.com
Blog postscript: Attorney Frank Spinner and I (attorney Richard 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. 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 & The Law Office of Frank J. Spinner for a free consultation.
Wednesday, April 11, 2007
Rape and Sexual Assault Allegations in the Military, Part 1 – All Charges Dropped in Duke Lacrosse Case
After a year of providing “talking heads” on news programs and talk shows with fuel to pontificate about various divisive topics, and a year after providing some (like Nancy Grace) with an opportunity to very publicly cast aside the presumption of innocence and rush to judge individuals in a situation they know nothing about, the “Duke Lacrosse case” is finally and mercifully over. All charges, to include rape and kidnapping, have been dropped after an investigation by the North Carolina Attorney General, Roy Cooper. Different people will have different reactions to the news. Hopefully, a shared reaction is deep concern about how this case was initially handled, and careful consideration as to whether other rape cases around this country (with far less public scrutiny) have been handled in a similar fashion. Are there innocent men sitting in jail cells right now because they didn’t have a Roy Cooper to look critically at the allegations and evidence they faced? I think the obvious answer to that question is “yes.”
Some of the Attorney General’s quotes that should be a disturbing wake-up call to those (“the believers”) who blindly believe in the fairness of the criminal justice system, who believe that all prosecutors are the objective pursuers of justice and who believe that all accusations and convictions in rape cases (and other cases) are justified are as follows:
“There were many points in the case where caution would have served justice better than bravado.”
"This case shows the enormous consequences of overreaching by a prosecutor."
"We believe that these cases were the result of a tragic rush to accuse and a failure to verify serious allegations. Based on the significant inconsistencies between the evidence and the various accounts given by the accusing witness, we believe these three individuals are innocent of these charges."
"Rape and sexual assault victims often have some inconsistencies in their account of a traumatic event," Cooper said. "However, in this case, the inconsistencies were so significant and so contrary to the evidence that we have no credible evidence that an attack occurred in that house on that night."
"I think a lot of people owe a lot of apologies to other people. I think that those people ought to consider doing that."
To “the believers” I sadly say: “No, there is no Santa Claus. That’s what we’ve been trying to tell you.”
A significant percentage of the military trials and court-martial cases Frank Spinner (of counsel) and I (Richard Stevens) handle are rape and sexual assault cases. This Duke case has provided an opportune time to discuss how the military justice system handles rape and sexual assault cases, the difficulties faced by military attorneys and civilian defense lawyers who defend military members accused of rape and/or sexual assault, and the military law that applies to these cases. Would the defendants in the Duke case have fared as well under the Uniform Code of Military Justice (UCMJ)? Would the military justice system have handled this case better or worse than it was handled in the civilian world? I will address these issues in blog posts to follow. Particularly for anyone with a child serving in the military, or our young troops who have just begun to serve, these blog posts could be very important in opening your eyes.
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC
http://www.militaryadvocate.com
Blog postscript: Attorney Frank Spinner and I (attorney Richard 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. 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 & The Law Office of Frank J. Spinner for a free consultation.
After a year of providing “talking heads” on news programs and talk shows with fuel to pontificate about various divisive topics, and a year after providing some (like Nancy Grace) with an opportunity to very publicly cast aside the presumption of innocence and rush to judge individuals in a situation they know nothing about, the “Duke Lacrosse case” is finally and mercifully over. All charges, to include rape and kidnapping, have been dropped after an investigation by the North Carolina Attorney General, Roy Cooper. Different people will have different reactions to the news. Hopefully, a shared reaction is deep concern about how this case was initially handled, and careful consideration as to whether other rape cases around this country (with far less public scrutiny) have been handled in a similar fashion. Are there innocent men sitting in jail cells right now because they didn’t have a Roy Cooper to look critically at the allegations and evidence they faced? I think the obvious answer to that question is “yes.”
Some of the Attorney General’s quotes that should be a disturbing wake-up call to those (“the believers”) who blindly believe in the fairness of the criminal justice system, who believe that all prosecutors are the objective pursuers of justice and who believe that all accusations and convictions in rape cases (and other cases) are justified are as follows:
“There were many points in the case where caution would have served justice better than bravado.”
"This case shows the enormous consequences of overreaching by a prosecutor."
"We believe that these cases were the result of a tragic rush to accuse and a failure to verify serious allegations. Based on the significant inconsistencies between the evidence and the various accounts given by the accusing witness, we believe these three individuals are innocent of these charges."
"Rape and sexual assault victims often have some inconsistencies in their account of a traumatic event," Cooper said. "However, in this case, the inconsistencies were so significant and so contrary to the evidence that we have no credible evidence that an attack occurred in that house on that night."
"I think a lot of people owe a lot of apologies to other people. I think that those people ought to consider doing that."
To “the believers” I sadly say: “No, there is no Santa Claus. That’s what we’ve been trying to tell you.”
A significant percentage of the military trials and court-martial cases Frank Spinner (of counsel) and I (Richard Stevens) handle are rape and sexual assault cases. This Duke case has provided an opportune time to discuss how the military justice system handles rape and sexual assault cases, the difficulties faced by military attorneys and civilian defense lawyers who defend military members accused of rape and/or sexual assault, and the military law that applies to these cases. Would the defendants in the Duke case have fared as well under the Uniform Code of Military Justice (UCMJ)? Would the military justice system have handled this case better or worse than it was handled in the civilian world? I will address these issues in blog posts to follow. Particularly for anyone with a child serving in the military, or our young troops who have just begun to serve, these blog posts could be very important in opening your eyes.
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC
http://www.militaryadvocate.com
Blog postscript: Attorney Frank Spinner and I (attorney Richard 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. 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 & The Law Office of Frank J. Spinner for a free consultation.
Tuesday, April 10, 2007
Former USAF JAG Disabled by Anthrax Vaccine to Appear on The Montel Williams Show
(This TV edisode has been postponed and will not be shown on 20 April as previously scheduled. Please consult the link below to determine when it will air.)
Kelli Donley is a former USAF JAG attorney who was disabled by the anthrax vaccine. Early this past March, Kelli flew to NY to appear on The Montel Williams Show, along with other veterans who believe their health problems were caused by the anthrax vaccine. Kelli has been diagnosed with Sporadic Spinocerebellar Ataxia. She is the first guest on the show that will air on Friday, 20 April 2007, entitled "The Hidden Dangers Facing Our Troops."
To find out what time The Montel Williams Show is broadcast where you live, please check your state here:
http://www.montelshow.com/wheretowatch/
Kelli's hometown is Beloit, KS. She graduated from Fort Hays State University with a BA in Political Science in 1993, Oklahoma State University with a MA in Political Science in 1995 and Washburn University School of Law with a Juris Doctorate in 1998. She is now medically retired from the Air Force under 100% disability. She lives in Oklahoma City.
Blog Content By: Kelli Donley
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC
http://www.militaryadvocate.com
Blog postscript: Attorney Frank Spinner and I (attorney Richard 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. 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 & The Law Office of Frank J. Spinner for a free consultation.
(This TV edisode has been postponed and will not be shown on 20 April as previously scheduled. Please consult the link below to determine when it will air.)
Kelli Donley is a former USAF JAG attorney who was disabled by the anthrax vaccine. Early this past March, Kelli flew to NY to appear on The Montel Williams Show, along with other veterans who believe their health problems were caused by the anthrax vaccine. Kelli has been diagnosed with Sporadic Spinocerebellar Ataxia. She is the first guest on the show that will air on Friday, 20 April 2007, entitled "The Hidden Dangers Facing Our Troops."
To find out what time The Montel Williams Show is broadcast where you live, please check your state here:
http://www.montelshow.com/wheretowatch/
Kelli's hometown is Beloit, KS. She graduated from Fort Hays State University with a BA in Political Science in 1993, Oklahoma State University with a MA in Political Science in 1995 and Washburn University School of Law with a Juris Doctorate in 1998. She is now medically retired from the Air Force under 100% disability. She lives in Oklahoma City.
Blog Content By: Kelli Donley
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC
http://www.militaryadvocate.com
Blog postscript: Attorney Frank Spinner and I (attorney Richard 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. 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 & The Law Office of Frank J. Spinner for a free consultation.
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