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Thursday, March 13, 2014

Civilian Court-Martial Defense Lawyers: Military Rape and Sexual Assault Court-Martial Cases (UCMJ Article 120), the Senate, and their Oath of Office (please take note Senators Gillibrand and McCaskill)


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

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.

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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