The Mayer Law Blog

Fighting later is harder than fighting now

Posted March 23rd, 2013 in News

Often, I receive calls from individuals seeking to appeal discharges, courts-martial, nonjudicial punishment, and other adverse actions. Let me be perfectly clear. It is always harder to appeal something. The earlier you are in the process, the better your chances of winning.

Here is an example.

Private Claude is caught using his roommate’s ATM card to withdraw money from the PX ATM. The video from the machine is grainy, and the film is extremely poor quality. It is not possible to make a clear identification of the person with the card. The roommate gives a statement saying that he left his ATM card on top of his desk, but locked the door when he left the room for the evening.

Investigators first decide to question Claude, since he shares the room where the ATM card was last seen. The investigators use several interrogation techniques with Claude, including “Mutt and Jeff” and lying about evidence. They make Claude believe that he is clearly seen on the ATM video.

Claude gives a full confession to stealing the ATM card and using it to obtain money from the ATM.

The command brings court-martial charges against Claude, accusing him of larceny by stealing the ATM card and using it to make withdrawals. Claude goes to his government defense counsel who advises pleading guilty at court-martial in exchange for no more than 6 months of confinement.

At court-martial, Claude pleads guilty. At sentencing, the only evidence given at the trial is Claude saying he is sorry and asking the judge to be lienient.

The judge sentences Claude to 6 months in jail and a Bad-Conduct Discharge.

5 years later, Claude feels wronged by the Bad-Conduct Discharge and wants to appeal it to the Discharge Review Board.

Now, let’s look at Claude’s missed opportunities.

First, he did not invoke his right to remain silent (Constitution, 5th Amendment and Article 31, UCMJ). This is absolutely critical, especially if you know you are guilty. Without Claude’s confession, the prosecutors’ only evidence is a bad video and the fact that the card was last seen in Claude’s room.

Claude allowed the investigators to manipulate him with interrogation techniques. Those investigators are trained professionals. They question suspects for a living. Once you allow them to ask questions, you already lost. Claude should have invoked his right to remain silent and demanded to speak to an attorney. At that point, the investigators are legally obligated to stop asking questions.

At trial, Claude pled guilty. While this is occasionally the only appropriate thing to do, this case requires a few other considerations. First, is there a way to keep the confession out of the court-martial. This is called suppression. Your court-martial lawyer can make an argument to show that you were coerced into making a statement. While these arguments by your court-martial lawyer often fail, they occasionally work. In your case, you deserve to have your lawyer at court-martial explore those options–especially since the confession is the only concrete evidence of guilt.

If the confession remains, you must put on a solid sentencing case. Here, the only sentencing case is Claude’s remorse and appeal for the judge to be lienient. Even though Claude pled guilty, he could still call witnesses to talk about his qualities as a soldier, his rehabilitative potential, and prior good acts. A good sentencing case takes almost a full duty day to present to the court.

The judge was fairly harsh by awarding a Bad-Conduct Discharge. It is possible that a jury (panel) would be more lienient, especially after hearing the information. This is something that should be considered by you and your court-martial lawyer. While the judge may be the only safe option, you should also consider the other possibilities. The important thing here is to make an educated decision because you must live with the consequences.

Some clients choose to take the easy out at court-martial or administrative separations. They figure that they can always appeal anything bad. This is not a smart move.

For instance, a court-martial appeal is not a retrial. The appeal looks at the actions of the judge, the prosecutor, and your court-martial attorney to determine if there was anything that was legally harmful to your case. Except in exceptional circumstances, they will not consider the evidence of guilt or innocence. Essentially, they look to ensure that the trial followed the rules for court-martial. Considering that the court-martial process was overseen by a judge, a prosecutor, and your court-martial attorney, the chances of a truly harmful error destroying the fairness of your trial are slim.

The same goes if you are seeking to upgrade your discharge. The Discharge Review Board will ask two questions of Claude:

  1. If you are innocent, why did you plead guilty?
  2. If a judge at court-martial heard all the evidence and thought you deserved a BCD, why should we question that?

Those are very difficult questions to overcome.

What is the lesson to be learned? Fight early, and fight often. Never give up, and make sure your court-martial lawyer or advocate is asking the right questions and educating you on all the issues. You may want to escape. You may feel like quitting. Now is not the time.

Your future depends on it.

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