If you type the above quotation into this blog search bar, you will see that I have addressed this topic - how a defense attorney can defend clients (particularly those accused of heinous crimes) - on several previous occasions. Here is a nice story by a federal judge about defending a client accused of murder back when the judge was a defense lawyer. It goes beyond the systemic and constitutional bases for what we do, and touches more on the human aspect:
http://herculesandtheumpire.com/2013/06/07/the-best-gift-i-ever-got-from-a-convicted-killer/
Friday, June 07, 2013
Tuesday, May 28, 2013
Happy Memorial Day!
We hope you all had a very happy and meaningful Memorial Day (weekend). In the midst of your other activities, we hope you took some time to reflect on the meaning of the holiday and say thanks for those brave Americans who have made the ultimate sacrifice for our great country.
This year, we spent Memorial Day in NYC, at the 9/11 Memorial and the Intrepid. The new skyline of South Manhattan proving the resiliency of the American spirit...
Friday, May 17, 2013
New McClatchy Article by Mike Doyle on Proposed Changes to Military Justice System - And My Comments on the Issue
Here is the latest article on proposed changes to the military justice system, and my comments on the issue.
http://www.mcclatchydc.com/2013/05/16/191456/obama-lawmakers-tackle-military.html#.UZZVbspZ6Hg
I’m the civilian court-martial defense lawyer quoted in the article above. For those of us who care about the fairness of the military justice system and the rights of the military members accused within it…
When lawmakers propose that JAGs make
decisions in these cases instead of commanders, that begs the question “What
end game is being sought by the suggested systemic changes?” Do lawmakers really care who makes the
decisions, or are they really just looking for those who will do what they want
– namely, to ensure prosecutions, convictions, harsh sentences and no clemency
in these cases? The message from
lawmakers vocal on this topic is very clear – the military justice system fails
if cases alleging rape or sexual assault are dropped or result in acquittal (UCMJ Article 120). Due process, systemic fairness and the presumption
of innocence are casualties of this message.
In the military justice system there is unrelenting external and internal
pressure to sacrifice fairness, and the rights of military defendants, for a
system governed by public relations pressure.
The focus seems to be increasing prosecution success at the expense of
the constitutional principles and protections on which the military justice system
was founded.
It
is sad and ironic that military members swear an oath to support and defend the
constitution – which for them may mean taking life or sacrificing their own –
but lawmakers want to chip away at the constitutional protections military
members have within their military justice system.
If the lawmakers are proposing these changes
to increase prosecution statistics, because they believe JAGs will push for
prosecutions and convictions more than commanders already do, then, once again,
Congress is attempting to make the system less fair than it already is for
those military members facing these allegations. Changes shouldn’t
be made to the system to ensure military prosecutors do Congress’ bidding
regardless of the merits, or lack thereof, of individual cases. If
the system is put in the hands of the JAGs instead of commanders, what will
happen if this doesn’t result in more "palatable" statistics?
If
the public could see inside the truth of the military justice system they would
be shocked by the disparity between what actually occurs within the system as
opposed to the messages being spread by those within Congress, the press and
others with an agenda. Why is it that few press outlets other than
McClatchy are even covering the issue of the fairness of the military justice
system for military defendants? Why is
it that in White House, Congressional, and DoD meetings and hearings on the
topic, the voice of the defense is not invited and considered? There are scores of stories and examples we
could tell from the perspective of actually being involved in defending these
military cases and court-martial trials that would present a much more balanced debate on this issue. We could bring more perspective on what the
alleged statistics (which are being so heavily relied upon) may actually mean or
not mean. How can a topic fairly be
debated or addressed in the government or the military when all the invited
participants agree on the basic premise that the system is failing, changes are needed, and those changes need to result in increased prosecution statistics?
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 Colorado Springs, Colorado and Southern New Jersey, but the
military defense representation is worldwide – when necessary, the attorneys
travel to wherever the client is stationed.
Monday, May 13, 2013
Opinion on Changing the Military Justice System (Rape and Sexual Assault Cases, UCMJ Article 120)
The drumbeat gets louder in alleged rape and sexual assault cases in the military justice system (UCMJ Article 120)...
With all the uninformed, agenda driven, and knee-jerk calls to change the military justice system to increase prosecution statistics and decrease the fundamental rights of military members in the system, here is an article from Charles "Cully" Stimson and Steven P. Bucci, PhD of The Heritage Foundation that actually cautions restraint:
http://www.heritage.org/research/reports/2013/05/changing-the-military-justice-system-proceed-with-caution
Sunday, May 12, 2013
News Article By Michael Doyle, McClatchy DC, on Unlawful Command Influence (UCI) in How the Military Justice System Addresses Allegations of Rape and Sexual Assault (UCMJ Article 120)
This link leads to a news article, authored by Michael Doyle, McClatchy DC, regarding unlawful command influence (UCI) in how the military justice system addresses allegations of rape and sexual assault (UCMJ Article 120):
http://www.mcclatchydc.com/2013/05/09/190855/crackdown-on-military-sex-assault.html#.UY-7irDD_m5
Will Anyone in a Position of Civilian or Military Leadership Ever Promote as a Goal the Fairness of the Military Justice in Dealing with Allegations of Rape and Sexual Assault (UCMJ Article 120) Instead of Predetermined Outcomes and Increased Prosecution Statistics??
Military Defense Lawyer (Former JAG Attorney) News:
As I have been writing about over the years, with regard to alleged rape and sexual assault cases (UCMJ Article 120), the broad issue plaguing the military justice system as a whole is the unrelenting external and internal pressure to sacrifice fairness, and the rights of military defendants, for a system governed by misguided public relations pressure. There is a constant stream of ill-informed rhetoric and ill-advised systemic changes that are focused on increasing prosecution success at the expense of the constitutional principles and protections on which the system was founded.
This has been seen, for example, in the confusing re-writes to Article 120, UCMJ, that have resulted in Military Judges having to instruct court members contrary to how the law was (unconstitutionally) written and enacted. It has been seen in the withholding of command disposition authority by SECDEF Panetta, the requested changes to Article 60, UCMJ, by SECDEF Hagel, the new prosecution focused programs being created in the individual military service branches (such as the SVC program in the Air Force) and the messages by members of Congress and military leaders suggesting that the military justice system fails unless sexual assault cases result in complete conviction, harsh sentence and denied clemency.
The latest example of the attempted high jacking of the military justice system, in a seemingly endless stream of examples, is Senator Claire McCaskill putting a hold on the promotion of USAF Lt Gen Susan Helms because Lt Gen Helms exercised her legal authority and set aside a sexual assault conviction based on her review of the case and her personal and professional integrity as a General Court-Martial Convening Authority.
If the public could see inside the truth of the military justice system they would be shocked by the disparity between what actually occurs within the system as opposed to the propaganda being spread by those within Congress and military leadership who have an agenda – and that agenda appears not to be ensuring the fairness of the system, but instead to seek increasingly prosecution friendly statistics regardless of the quality of evidence in these cases.
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, P.C.
http://www.militaryadvocate.com
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 Colorado Springs, Colorado and Southern New Jersey, but the
military defense representation is worldwide – when necessary, the attorneys
travel to wherever the client is stationed.
Sunday, April 14, 2013
Military Sexual Assault Conviction and Sentence Overturned by Convening Authority in U.S. v. Lt Col James Wilkerson – An Officer Acts on his Personal and Professional Integrity and Conscience Instead of Public Opinion Pressures…Such a Welcome Novelty in Today’s Slanted Military Justice System!
A senior Air Force Officer, Lt Col James Wilkerson, who
was represented by attorney Frank J. Spinner, has had his sexual assault conviction
and sentence overturned by the General Court-Martial Convening Authority
(GCMCA) in his case, Lt Gen Craig Franklin.
Some articles appear here:
Because Frank and I advertise together and are close
friends, I initially remained quiet as the uproar involving this case unfolded. However, if you search for “rape” or “sexual
assault” in this blog search bar, you will see that I have been attempting to
expose the truth about how the military justice system (mis)handles rape and
sexual assault cases (UCMJ Article 120) for years. This includes a DoD IG complaint I filed against
all military branches in 2005.
Contrary
to the claims made by members of Congress and the propaganda film “The
Invisible War,” the military justice system “bends over backwards” for any
woman alleging rape and/or sexual assault. There are scores of dubious sexual assault allegations that civilian prosecutors
have refused to prosecute, but the military takes jurisdiction of and presses
forward to trial. There are the legally
erroneous mandatory sexual assault briefings and training required to be
attended by all who wear a uniform. There
are the advocates and counselors assigned to assist the complainants. There are the investigators, legal offices
and commanders who often send ridiculous cases to trial because they fear the public repercussions
of dropping these cases. There are the
special reporting and handling requirements in these cases. The USAF has begun a program where
Air Force attorneys are assigned to represent complainants, in addition to the
role of the Air Force prosecutors. I won’t
even go into all the problems this has already caused, and how this program is contrary to any American vision of a fair
criminal justice system (see AFCCA decision in U.S.
v. Daniels, and read the accounts/cases in the Air Force Trial Defense amicus brief). I could go on
and on.
The message sent by the leaders of our civilian federal government
and the DoD are clear and aggressively circulated – the military justice system
only succeeds if rape and sexual assault allegations result in: conviction,
harsh sentence, and denied clemency. Any other result is characterized by the loud voices of those in power as a failure of the military justice
system. Presumption of innocence, burden
of proof, due process, the rights of the accused…all casualties in this
crusade. All that seems to matter, and
the only scenario deemed a military justice system “success,” is conviction,
harsh sentence, and denied clemency.
Is there a problem in the military justice system? Yes, there absolutely is. But, it isn’t what those in leadership
suggest; the pervasive problem is that the military justice system has
sacrificed the Constitutional principles it was founded on to cater to public
opinion pressure. And public opinion is
driven by the loud voices of those who have no idea what they’re talking
about. The unlawful command influence (UCI)
of the leadership’s messages poisons the entire military justice system. This drumbeat has continued unabated, and
with increased volume, since, at least, the Air Force Academy “scandal” in
2003. The public perception, and the
image portrayed by those members of Congress who love to pontificate on matters
they are ignorant about, is absolutely incorrect. The military justice system caters to
complainants and continues to pursue every possible angle to prevent cases from
resulting in acquittal or dropped charges.
There are a flood of rape and sexual assault allegations
in the military. There is no disputing
that. The reason for that flood of
allegations is not an epidemic of actual rape and sexual assault. Certainly, the military population, like all
of society, experiences actual rape and other actual crimes. However, there are not enough minutes in the
day for me to describe all the false and dubious sexual assault allegations
that are made in the military justice system.
And, the military justice system is largely to blame for this – as they continually
misstate the law of alcohol, sex and consent in mandatory sexual assault
briefings.
In fact, in a recent general court-martial trial I
defended against, a Squadron Commander stated during voir dire that she had
just held a Commander’s Call and informed her entire squadron that consuming
one alcoholic beverage renders a woman incapable of consent – that message is totally
untrue and it is totally unbelievable that a squadron commander would spread it! That is just one example in thousands. That is an entire squadron who is now misinformed
on the law of alcohol and sex, and they will spread this message to others in the ranks. Do you see how this multiplies and spreads,
and how it results in sexual assault claims by complainants who have been
impacted by these erroneous briefings and the systemic push for convictions in
alcohol/sex cases? It’s a cancer on the
system.
So, we turn to the case of U.S. v. Lt Col James Wilkerson. I wasn’t at that trial. I didn’t read the record of trial, or the
clemency submission, nor will I. I have
my own cases/clients to focus on.
However, what I would suggest, that all the voices opposed to the
Convening Authority’s (Lt Gen Franklin) clemency decision refuse to consider,
is that maybe the conviction itself resulted from pervasive UCI and messages
to those who sat on that court panel that the military justice system fails if
they acquit Lt Col Wilkerson.
Remember,
unanimous verdicts are not required in the military. We don’t know how the deliberations or the
voting occurred in this case. We don’t
know how many initially felt an acquittal was appropriate based on the evidence,
but either changed their vote or were impacted by the messages they have been
subjected to within the military justice system.
While politicians rant about Lt Gen Franklin substituting
his opinion for the court’s verdict, maybe the incredible injustice in this case
was the conviction/verdict itself, not the clemency that was approved. Maybe Lt Gen Franklin not only saved Lt Col
Wilkerson from an unjust verdict that would have destroyed his future, it vindicated
a military justice system that is so in need of someone with the intestinal fortitude
to stem the tide.
The fact that a 3-star
General Officer would feel compelled to have to write a 6 page explanatory
letter to the SECAF shows how distorted the military justice system has
become. The new SECDEF has only added to
the problem by his knee-jerk reaction of asking for the UCMJ to be changed. Again, the message is clear…the right to
clemency in the military justice system is fine, so long as clemency is
denied. Approved clemency is
characterized as a failure of the system.
For those of us who care about the military justice system, what we see
happening is sad and disgusting. Regardless
of the intentions, the system has been high jacked by those who value public
opinion (no matter how inaccurate) over systemic fairness.
This statement (blog post) is mine alone. Frank Spinner did not see it, or even know
about it before it was posted. He has
been traveling for his military cases. I
have been traveling for mine. However,
what happened in U.S. v. Wilkerson is affecting all alleged rape/sexual
assault cases in the military justice system, which is what motivated me to
post something about it. The system
needs more commanders like Lt Gen Craig Franklin. The system needs more voices like his. But voices like his are being drowned out,
and have been for years. In his clemency
decision, Lt Gen Franklin was guided by his personal and professional integrity
and his conscience. Sadly, he is in the
overwhelming minority in today’s military justice system.
Regardless of whether SECDEF Hagel’s
requested changes to the UCMJ are passed into law, I doubt we see clemency
granted in cases such as U.S. v. Wilkerson again. That is the final injustice in U.S. v.
Wilkerson. Innocent military men
will be convicted and go to prison, and loud proclamations of “success!” will
echo through the hollow military justice system.
(And, before you read this and chalk it up to another misogynistic
man who can’t understand the circumstances of women in the military, please understand
that I have female family members and many female friends and associates who
wear the uniform.)
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 Colorado Springs, Colorado and Southern New Jersey, but the
military defense representation is worldwide – when necessary, the attorneys
travel to wherever the client is stationed.
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