No. The “120-day” rule applies to the processing of a case after it has already been formally charged. The formal charging under the U.C.M.J. is known as preferral and occurs when an Officer formally swears either a commander or another person in the JAG office to the allegations and those charges appear on DD Form 458 with or without a continuation sheet. On the day of preferral, the 120-day clock starts and signifies that arraignment must occur (the first formal appearance with a military judge) within 120 days of the day of preferral; keep in mind that any requests for delay from the defense do not count against that 120 days. This requirement is the mechanism to ensure the service member’s right to a speedy trial. The “120-day” rule does not start from the date of the alleged incident. There is no recognized right to speedy preferral, though in rare circumstances, a due process violation is lodged if failing to bring charges in a timely manner and evidence is lost as a result of that delay. Also, lengthy delay in bringing some charges can mean that the offenses can no longer be brought to trial at all because of the statute of limitations. A statute of limitations is the deadline within which an offense must be charged or else it can never be brought. For most offenses, the statute of limitations is 5 years; there is no statute of limitations for murder. In changes to the U.C.M.J., the statue of limitations for sexual assault allegations, even if they arise off a military installation, has been extended and for some sexual offenses, there is no time limit when they can be brought.
If an alleged crime occurs off a military base but the person suspected of the offense is a serving on active duty, either the civilians or the military can assert jurisdiction to charge. When there are two agencies that could assert jurisdiction, this is known as “concurrent jurisdiction.” Release of jurisdiction means that the civilians are affirmatively deciding to give up or cede jurisdiction to the military. Ordinarily, release of jurisdiction is accomplished by the signing of a memorandum by the civilians formally giving the military jurisdiction over the matter. Formal release of jurisdiction can take a few weeks or even a few months depending on the complexity of the case, whether or not the military authorities have indicated they intend to charge the incident, and the often slow-moving bureaucracies involved. Even when jurisdiction for charging is pending, the investigation often continues to build the case with military law enforcement taking the “lead” on the investigation to work from the initial efforts of civilian law enforcement. Sexual assault allegations, even if they occur off a military installation, are most often released to the jurisdiction of the military.
It’s very rare to see in the military a court-martial only for the offense of adultery. Generally speaking, if the allegation is only that the member has committed adultery, that’s going to be dealt with with non-judicial punishment or Article 15, captain’s mast.
If on the other hand there is an allegation of sexual assault, if the member is married, or if the person with whom the sexual contact was made is a married person, sometimes prosecutors will make the tactical decision to go ahead and add an offense as part of another allegation of sexual assault. But generally speaking you will not only see a court martial for adultery.
For questions on adultery allegations, contact the Law Office of Jocelyn C. Stewart at 1-888-252-0927.
A motion is a formal request, usually required to be in writing and in a standard form that the particular judicial circuit mandates, for a certain action that helps your case. There are procedural motions, which are motions that raise an error in the process that brought your case to court-martial. There are also substantive motions that ask the court to exclude evidence (like a confession or a physical piece of evidence such as a weapon) or for a preliminary ruling that a certain piece of evidence (whether the testimony of a certain witness or a line of cross-examination) is admissible. Additional motions can ask the court to dismiss an entire case or one or more offenses from your charge sheet for various procedural or substantive reasons. Motions often are a pivotal step in your defense strategy. In many instances, the motions practice will enable the attorney to plan tactics and develop the case theory of your defense. Explore additional information about motions practice.
It depends. Did your alleged conduct occur before 27 December 2014? If your alleged misconduct occurred prior to 27 December 2014 and you waive your Article 32(b), you could be waiving a potential constitutional issue. Effective 27 December 2014, some of the most recent amendments to the UCMJ state that anyone who has an Article 32(b) hearing after 27 December 2014 will have an Article 32(b) hearing with very limited rights. However, because Congress is impacting military accused that have allegations that arose before the effective date of the amendment, there is a possibility that the amendment may be found unconstitutional. If you waive your Article 32(b) and your attorney does not raise the issue, you will waive the issue on appeal (in the event that you are found guilty of any offense).
Before deciding to waive your Article 32(b), get a second opinion from an experienced court-martial defense lawyer.
Waiting to hire a civilian attorney until after the Article 32(b) hearing is potentially a dangerous way to cut costs. The Article 32(b) hearing is a crucial step in strategy for trial. The foundation of the cross-examinations to be made at trial comes from the questions asked during the Article 32(b) hearing. Ms. Stewart has agreed to be hired on cases after the Article 32(b) hearing, but inevitably she is disappointed in questions that were not asked, witnesses who were not called to testify, and by evidence not made available as part of the Article 32(b) hearing. The Article 32(b) sets the stage for the trial, and treating that hearing as unimportant has the potential to damage your case at trial. Additionally, although rare, there are instances when charges can be dismissed after the Article 32(b) hearing. Making poor tactical decisions can actually result in the addition of charges after the Article 32(b) hearing. Hiring an experienced civilian attorney who specializes in military court-martial defense earlier, rather than later, can make an enormous impact on the result of your case.
A Special Victim Prosecutor is a military lawyer who has been assigned to prosecute all “special victim” cases in their area of responsibility. A “special victim” case is one that involves an allegation of sexual assault on an adult or a child, an allegation of domestic violence or physical abuse of a child, or allegations surrounding child exploitation or pornography. The Army created the SVP program in the summer of 2009 with 15 positions designated worldwide. That first summer, only seven positions were filled. In the summer of 2010, with the addition of eight more attorneys, all 15 positions were occupied. By the summer of 2012, The Judge Advocate General of the Army designated an additional eight slots, bringing the number of SVPs to 23. Since that time, the Air Force has created its own system but calls their specially trained attorneys “Senior Trial Counsel” and dispatches its STCs regionally to prosecute cases on the various Air Force bases.
In order to serve as an Army SVP, each is required to go through the Career Prosecutor’s Course, the Military Institute on the Prosecution of Sexual Violence / Effective Strategies for Sexual Assault Prosecution, and a civilian internship with a Special Victim Unit. Army SVPs are selected based on courtroom experience and supervisory recommendations.
Yes. In fact, effective 28 June 2012 the UCMJ amended its sexual assault statute yet again and created even more types of offenses to charge military members and make them registered sex offenders. One of the major expansions of Article 120 is that now if the complaining witness alleges that she or he was touched in a sexual or degrading manner ON ANY PART OF THEIR BODY, and you are convicted, you will have to register as a sexual offender. Formerly, the law stated that only if certain body parts were touched, such as the breast, buttocks, inner thigh, etc., but under these most recent changes, even the arm, back, or ear could technically qualify.
The facts and circumstances of every case are unique. Unfortunately sometimes the opinion one lawyer gives you is based on their own internal biases and insecurities; if a lawyer is inexperienced in trial work, he or she may be afraid to go to court and contest the charges. A less experienced lawyer may be more likely to steer you toward pleading guilty. Like any medical diagnosis, it is always best to get a second opinion. Our firm offers a free initial consultation to help you evaluate the case against you. Before you commit to a course of action that you are unsure about, take advantage and solicit an experienced free opinion.
Free military defense attorneys are often new to the uniform and new to the law. On most military installations, military defense counsel are far out-numbered by the number of military prosecutors. The military defense office, on the other hand, is under-staffed with O-3s, most who have no prior trial experience whatsoever. Even though they are O-3s, many of them have only been in uniform, much less attorneys, for only a few years. The senior attorney who supervises each office often has never been a defense attorney before. The only O-5 in a supervisory role over defense attorneys is a regional defense counsel who is stretched thin over multiple installations. Each military defense office is reliant on the government for its day-to-day budget, office supplies, and even training funds.
With the resources and personnel so skewed against the military trial defense office, it becomes even more important that the service members’ lawyer be more experienced and knowledgeable about the military justice system. Many commentators boast that the military justice system is far more fair than most civilian systems because of alleged greater protections; none of these protections matters if you are represented by an attorney who does not know how to take full advantage of these protections.
You should be up-front and confront the issue head on: ask the military lawyer a series of questions to find out exactly how much experience they have.
Some suggested questions are:
1. How long have you been a licensed attorney?
2. How long have you been a JAG?
3. How long have you practiced criminal law?
4. How long have you practiced criminal law in the military?
5. How many courts-martial have you tried?
6. How many of those courts-martial were contested (where the accused person pleaded not guilty)?
7. How many of your courts-martial were just guilty pleas?
8. How many of your courts-martial were you the lead counsel?
9. How many of your courts-martial were you the second chair?
10. Of the cases that you took to trial, how many did you win?
Military lawyers often boast about their level of experience without any real proof. The Army has created a tracking system to categorize their lawyers by classification. This classification scheme is known as ASI or Additional Skills Identifier for military justice. An attorney’s ASI is a direct reflection of the number of years they have spent in court-martial practice, the number of total cases tried including a distinction between those they tried as the lead counsel versus those they sat second-chair, and how many cases were contested versus guilty pleas in addition to how many trainings they have undergone. There are four possible classifications, ASI1, ASI2, ASI3, and ASI4. For more details about the ASI system, please click here. Ms. Stewart was awarded ASI3 as a captain in December 2009. Please note that Ms. Stewart was not able to achieve ASI4 prior to leaving active duty because there is a requirement to serve in one or more positions, which are all relegated to those who are O-5 and O-6. Proof of Ms. Stewart’s ASI is here. ASI certification is also located on the attorney’s ORB. Don’t be afraid to ask your military attorney for proof of their ASI. Be wary of a military attorney who tells you that they “haven’t bothered to apply.” Military practitioners who are serious about practicing criminal law will have applied, assuming they meet the minimum requirements for at least ASI1.
The Navy has developed a criminal justice tract for its judge advocates, which requires a certain level of experience and acceptance into the continued practice of military justice. Ask your appointed Navy or Marine Corps attorney if they have been accepted to the military justice tract or if they are making plans to apply.
Being a former service member herself and working exclusively on military cases, Ms. Stewart has amassed experience to help in the following areas of the UCMJ:
When faced with the decision of hiring a UCMJ specialist, Ms. Stewart’s former clients explain all that is necessary about her commitment to their case and her expertise in handling the toughest legal battles. Learn more about her unique abilities in the words of her clients, peers, and military judges.