Lawyers learn about the law by reading old cases and breaking down each facet into separate and distinct elements, or commonly known terms that demonstrate repetition and continuous usage. Military cases are no different, and there is a formula for successfully advocating for those in uniform. The method is rather straight forward and simple, but requires skill, practice, talent and experience in its utilization.
Regardless of the particular facts of a case, each situation or matter can be scientifically and precisely, with military precision, tactically broken down into each category. Military law cases can be drilled down into four separate parts—drama, scandal corruption and redemption. From this narrative, I tell a story of one client’s road to vindication, redemption and ultimate renewal.
Military vs. civilian employment
Every member of the Armed Forces in the U.S. Military voluntarily agrees to commit their life, and restrict their actions, conduct and behavior when they agree to perform duties that each service considers “to fulfill the best needs of the service.” Just replace “service” with Army, Air Force, Navy or Marines, and each branch requires members to live a life much more restricted in daily conduct and behavior than generally accepted in ordinary life.
For example, in the employment context, a rude remark to a supervisor may get you “written up” or, in the worst-case scenario, summarily fired and terminated. In the military, that rude remark could be considered a crime of “disobeying a lawful order,” “insubordination,” “conduct unbecoming” or some other offense not specifically enumerated, but still found to be “service-discrediting.” What this means for a simple rant, in the context of serving the military, is that one could face a parade of horrible facts—court martial, bad conduct discharge and confinement—all for something relatively minor.
Unfortunately, this happens to many who serve on a daily basis. Fortunately, an aggressive defense from a skilled attorney can successfully increase the odds of a reasonable chance at redemption and the ability to move forward with an unblemished military career.
Every member of the Uniformed Services experiences drama in their own life in the form of an uncooperative spouse, anxious parents, unruly children, toxic girlfriend(s) or boyfriend(s) or a combination of all of these. Even loners are aware of those with drama and the daily impact it has on the performance of the duties of their colleagues.
Everyone can relate to home stress drama, but most are able to separate the office from the home, although in the military, you are never “away from work” and are a Soldier, Sailor or Marine or Airman 24/7—expected to conduct yourself in a manner above and beyond reproach regardless of the setting you find yourself in. Obviously, office romances, adulterous spouses, parents suffering from dementia, haphazard slapdash brothers and sisters with trouble with the authorities or any combination of the aforementioned, could result in “drama.” The unforeseen drama one experiences while serving in the military then leads to the tragically predictable “scandal.”
Obviously some scandals are truly abhorrent and deserve public admonishment and a justified disposition, likely resulting in a prison sentence. Other scandals are simply blown out of proportion and what starts as unverified speculation, innuendo, gossip or nasty rumors, turns into a “scandal,” which then takes a life of its own.
For example, Soldier X and Soldier Y, one male, one female, begin to work together and end up in the office late at night after hours handing important matters in the performance of their military occupational specialty. After an exhaustive day that began with 6 a.m. physical fitness training, customary for members of the Armed Forces, fast forward to 8 p.m., and 14 hours later, both are exhausted, fatigued, overwhelmed, overworked and simply tired.
They decide to go to the Chili’s restaurant on base, or some similar food establishment, before going home. They eat their dinner, talk about their day and go home. A couple of weeks pass and they begin to learn of rumors of “an affair” or “a secretive relationship” and speculate not only are they having romantic dinners frequently, but they have been spotted in the local city 60 miles away together, obviously having a sexual affair.
Next comes Soldier Z, who was competitive with Soldier X for a coveted reassignment to Japan. Soldier Z, who had lost out on the opportunity to relocate to his longed-for assignment in Japan, sees an opportunity to “get even” with Solider X. He files an official “report” with the chain of command alleging an “inappropriate relationship” and, the commander upon reading the allegations, becomes unhinged, and in a flash of reckless rage immediately appoints an investigating officer to look into the facts and circumstances of the reported alleged “misconduct” between Soldier X and Soldier Y.
The investigating officer then seeks to interview Soldier X about the facts and circumstances of the case. Solider X, refuses to provide any information knowing after speaking to the local base JAG attorney that saying anything will “be used against you in a court of law” as we have all heard from Miranda, and as codified on the Article 31 rights advisement the Soldier received from the investigating officer when first questioned. As the investigation unfolds, everyone in the unit shuns Soldier X and Soldier Y, completely ostracizing then from all unit functions, activities, events, and actions taken together to increase unit comradery. Before Soldier Y is interviewed, Soldier Y speaks with an attorney, and decides to take a left turn away from the truth to save her career. This is where the predictable “corruption” arises in almost every single military law case—someone scared for their career, afraid of being caught in “misconduct” and worried about the likely repercussions.
The corruption element in a military law case can arise from deliberate vindictive prosecution where the government knows they have no ethical basis to proceed with criminal charges. They know no reasonable panel would convict beyond a reasonable doubt, (very common in the Air Force, which prosecutes everything based on mere probable cause) but decide to do so anyway in order to bend to political pressure, knowing full well no ethics complaint to any State Bar would dare trample on the judgment of senior military leaders.
In the fact pattern we left off from above, the corruption will manifest itself in the following: A deeply embellished story told by Soldier Y to put blame and culpability entirely on Soldier X. Soldier Y, who is aware by now that Soldier X has invoked his right to remain silent and will say nothing realizes instead of a “he said-she said” case, by invoking his right to remain silent and saying nothing it becomes a “she-said versus he-said nothing case” and what could she possibly gain from lying? (A new assignment and fresh reboot to her career, which happens on a continuous daily basis in the military, yet political correctness has stopped most from daring to point out the obvious.) She corruptly lies and says, well yes, she agreed to go to dinner after work, but while eating, alcohol was mutually consumed and all she remembers in the next morning waking up in his bed bewildered as to how she ended up there.
The investigating officer has his “Perry Mason moment” and says to himself “uh ha” and takes her narrative, without questioning any potential logical inconsistencies or factual holes in her story and prepares the report. The commander, upon reception of the report, then refers the case over to the OSI/CID/NCIS (Office of Special Investigations in the Air Force, Criminal Investigation Division in the Army or Navy Crime Investigation Service in the Navy) and the agent assigned to the new case calls Soldier Y, the alleged “victim” in the case, and conducts an interview in accordance with the new “believe the victim” methodology. The commander hears her story of feeling “coerced” into dinner with her colleague, she tells of consuming alcohol and remembering awaking in his bed the next morning unsure how she arrived there, or exactly what had transpired except for a deeply repulsive feeling of being “violated” and “assaulted.”
The agent then writes up a report outlining how this scenario fits the elements of a military sexual assault case and refers the file to the special victims prosecutor, who immediately recommends charges to hold Soldier X accountable. Solider X is notified through official channels to immediately report his commander and he receives a “charge sheet” accusing him of sexual assault, adultery, and conduct unbecoming an officer. Befuddled, confused and shocked, he reads the charges and shouts “How can this be happening to me? All we did was have dinner a couple of times after work.” Soldier X, then retains my legal services and I immediately begin to write his story of redemption.
The standard in the law for sex crimes in the past at one time required proof of one of the following: 1) an injury to the purported victim, 2) an eyewitness who can testify that no express formal consent was provided or 3) evidence that the victim was under duress. Without evidence of “utmost resistance,” rape prosecutions simply did not occur, because the level of proof required for a conviction was unattainable.
Today the pendulum has swung so far left that those who serve in the military are convicted exclusively on accusation alone, without any need for corroboration such as eyewitnesses, physical evidence or motive of the accused. I see innocent uniformed service members sentenced to confinement routinely based exclusively on the rendition of embellished stories.
This is why it is critical for an accused service member to hire an experienced attorney skilled in logical reasoning, one who can expose the holes, half-truths, lies and likely fabrications in the story of the “victim.” An aggressive advocate can point out such facts as, despite numerous other soldiers present at Chili’s that night, nobody came forward as an eyewitness to confirm alcohol was consumed, the receipt only shows the purchase of one alcoholic beverage—obviously not enough to render one incapacitated due to intoxication a purported nine hours later—and that Soldier Y, who recently had a negative performance evaluation, was facing potential involuntary separation for poor performance. But now as a “sex crime victim,” the red carpet has been rolled out and all prior documented deficiencies in her performance have been entirely glossed over.
Presenting these facts to the panel, composed of both male and female officers, they see straight through the charade, they realize the motive to fabricate, they grow disgusted by the abuse of the judicial process and after days and days of a grueling trial, they vote to acquit Soldier X. Soldier X, having suffered the drama of an alleged affair, the scandal of Soldier Z trying to recklessly sabotage his livelihood due to unethical jealous indignation, is now fully redeemed, his day of vindication has arrived, he fought the corruption and won.
After the acquittal, we immediately petition the command for a new assignment, and Soldier X gets to restart his career thousands of miles away from the base where his name was recklessly dragged into the mud. In almost every military sex case I have defended, it turns out we never really know what happened, and with that, under the due process required by the Constitution, we have reasonable doubt. With this reasonable doubt properly articulated through the utilization of the formula of drama, scandal, corruption and redemption, my clients live to fight another day.
Only by hiring a skilled aggressive advocate to tell an accurate story of redemption while exposing corruption, can one possibly overcome the stacked deck of military justice and prevail.