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Blogs from September, 2017

  • The concept of a court martial may seem mystifying to some, but it doesn’t have to be. Every military service member should understand the core components of the court martial process. In that spirit, let’s take a look at two essential elements of military court: preferral and referral of charges.

    Forming the Military Court

    When a military service member is suspected of misconduct or criminal activity, the commanding officer will appoint a command investigator or ask a criminal investigative body, such as NCIS, OSI, or Army CID, to cede jurisdiction over the investigation into the allegations. In the military legal system, a commanding officer becomes the “convening authority” when he or she signs an order to convene the military court. The court itself won’t take action until the convening authority refers a specific case, at which point the court process can move forward.

    Indicting a Defendant with a Preferral

    Once the investigation is complete, the convening authority may direct a formal preferral of charges to the court. Like an indictment in civilian criminal courts, the preferral of charges formally charges the defendant with criminal allegations. If you ever find yourself in this situation, make sure you exercise your all-important right to call an attorney.

    Upon preferral, the accused will immediately gain the right to military counsel. The command must also inform the accused about the charges preferred against him or her, as well as the names of certain people involved in the preferral.

    The convening authority can take one of several actions after the preferral of charges:

      • Handle the allegations by administrative means and take no disciplinary action
      • Order non-judicial punishment for the offense; however, this is far more commonly offered prior to the preferral of charges
      • Call for an Article 32 pretrial investigation in order to refer the allegations to a general court martial
    • Convene a summary or special court martial
    Creating the Court with a Referral

    When the convening authority refers the charges, the military court process officially begins. If the case leads to a special or general court martial, an independent military judge will be appointed to preside over the case. The judge will take control unless the convening authority decides to dismiss the charges. The convening authority also maintains the right to offer you a plea bargain, or a negotiated agreement, to dispose of the case at any time. Your attorney can give you more specific advice about whether you should accept a plea bargain.

    Your right to an attorney is critical to the outcome of your case, your military career, and your future. Take the opportunity to contact a highly skilled and experienced military lawyer, like the ones at Military Justice Attorneys. We can provide you with strategic and effective legal services from the preferral stage onward.

    The post Understanding Preferral and Referral of Charges appeared first on Military Justice Attorneys.

    Understanding Preferral and Referral of Charges
  • If you are suspected of a crime in the military, it’s critical that you understand your rights and how to invoke them. These basic rights include the right to remain silent and to have an attorney present during questioning by a law enforcement agent. However, beyond your basic Constitutional Rights, it is equally important to understand what you should and should not do as a suspect of an investigation.

    1. Do not waive your Article 31b Rights. Prior to a law enforcement agent reading a service member their Article 31b Rights, they must notify the service member what he/she is alleged to have done.  In most cases, the investigator will try to get the suspect to complete a “Suspect’s Acknowledgement and Waiver of Rights Statement”, or a “Rights Warning Procedure/Waiver Certificate.” These statements or certificates can be very confusing for a young, scared service member who has just been told they are in “trouble”.  Unfortunately, some suspects do not realize when they are completing this document they are not just acknowledging their rights, they are also waiving them.  Don’t be in a rush to make this mistake; but rather, demand an opportunity to review your rights statement or certificate with a criminal defense counsel prior to you completing the document.
    2. Consult with a criminal defense counsel who specializes in military law. It goes without saying your very first step, after being notified you are a suspect, is to speak with a criminal defense attorney who specializes in military law.  Nearly all large military installations have a defense counsel office on base who should be able to assist you with understanding your rights as a suspect.  Beyond uniformed judge advocates, a suspect can also speak with a civilian defense attorney who practices military law.
    3. Fight the urge to tell your side of the story. Whether you think yourself to be innocent or not, it is never a good idea to talk with friends and colleagues about your case.  You must understand your words can, and will, be used against you if you are a suspect of a crime.  It is very common for law enforcement to “canvas interview” friends and colleagues of a suspect to see if they have been talking about the case in hopes of identifying different stories being told by the suspect, or other discrepancies. Furthermore, prosecutors will want to be able to paint you as a liar, and will put on evidence you made several contradictory statements to people while you were confiding in them.
    4. Do not lie. In the military, making false statements to a law enforcement agent is a violation of Punitive Article 107 of the UCMJ.  Thus, if you are suspected of a crime, and you lie during questioning, you can be charged for the suspected crime and the lie – where there was one, now there is two.  Furthermore, prosecutors love to charge false official statements, because the very charge calls into question the credibility of the accused irrespective of whether they can secure a conviction for the statement.  In short, a suspect should remain silent, and ask for an attorney.
    5. Don’t be fooled by police or interrogative tactics. Understand that law enforcement can, and will, lie to suspects to procure a confession and/or admission.  There is nothing illegal about an investigator lying to you about a piece of evidence that does not exist to make you feel as though you should admit or confess to the crime.  For example, investigators frequently lie to suspects about third party witnesses or DNA being present during the commission of the crime when neither actually existed at the time of the questioning.  Also, you should not be fooled by the investigator’s warm disposition or pleasant conversations.  This sort of behavior by the investigator is meant to build a false sense of comradery in you so you are less defensive and more accommodating.  There are many more interrogative tactics that can be used against you while you are being questioned…thus, remaining silent and asking for an attorney is always advisable.
    6. Shutdown your social media accounts. More and more, law enforcement agents are trolling social media accounts of the suspect in hopes of finding corroborative evidence to the alleged crime.  In a recent Marine case out of South Carolina, the prosecutors tried to admit into evidence a 10 year old photo of the accused drinking a beer with several women in a dorm room.  The prosecutors were able to seize the photo from the Marines Facebook account, and tried to paint him as a heavy drinker to corroborate his DUI charge.
    7. Be aware of pretext calls from alleged victims, or confidential informants. During a criminal investigation, law enforcement will sometimes illicit the help of the alleged victim, or co-conspirator, by having her call or text the suspect while the call is being recorded.  The goal of any pretext call is to get the suspect to admit to the crime.  At MJA, we see pretext calls frequently being used for “he-said-she-said” sexual assault allegations, where the investigators are trying to create additional evidence to corroborate the alleged victim’s story.  It is very common for an alleged sexual assault victim to make a pretext call to her supposed assailant to confront him with a claim of rape in hopes that he either confesses, or simply apologize.  Thus, if you get a call or text from someone after a sexual encounter asking you, “why did you do that to me?”; or, “I can’t believe you did that to me!”; or, “don’t you feel bad?”; or, “you are not even sorry you did this to me, are you?”, then you should be very skeptical of the intent of this person and simply terminate the call.  Your next call should be to a criminal defense attorney who specializes in military law matters.

    If you feel you are a suspect in a crime, please call the Military Justice Attorneys today and let our experience team go to work for you.

    The post What to Do (or Not Do) If You Are a Suspect to a Crime in the Military appeared first on Military Justice Attorneys.

    What to Do (or Not Do) If You Are a Suspect to a Crime in the Military