Before a military prosecutor, court-martial defense attorney, and an accused ever set foot in the courtroom and before any evidence is introduced at trial, the most critical piece to determining whether that accused will be found guilty or not guilty already occurred months before: the charging decision. What do I mean by the “charging decision?” Most people assume that given a particular set of factual circumstances (as alleged by the complainant), there is one and only one way to charge that person. That could not be more wrong, especially in the context of Article 120, UCMJ (offenses pertaining to sexual assault allegations in the military) when there are a multitude of offenses.
Charging theories vary and reasonable attorneys, even specialists, can disagree about the most effective way to charge a particular “fact” pattern. The charging decision is more than looking at the elements of the offense, the legal definitions relating to the offense, and then plugging in words to blanks. Fortunately for the military accused, some military prosecutors only go that far. A charging decision should also anticipate defenses, and though some prosecutors take defenses into consideration at least on a cursory level, what most prosecutors fail to do is conduct case law research when making the charging decision.
Let’s face it, despite advances in modern technology and other advancements in “creative thinking,” there are very few criminal acts that have not already been conducted by many military accused before the one a prosecutor is presented with and needs to charge. And yet, prosecutors seldom look to see if a defense challenge to a certain charging decision has been upheld on appeal. Defense challenges to charges include asserting that the charge itself is so deficient that it fails to state an offense at all. Defense challenges to charges also include whether the facts alleged comport with the elements of the offense charged, and often include attacking whether or not the prosecution can prove certain intent on the part of the accused.
As a prosecutor, I was faced with a certain fact pattern, and I had researched and learned that there were multiple different ways that I could charge the allegation. Upon conducting case law research I found the Court of Appeals for the Armed Forces opinion that upheld the charging decision by the Navy’s trial counsel for the same fact pattern that my case presented. The C.A.A.F. opinion did not list the exact specification, and I wanted to see exactly how it had been charged because then I knew I would be on solid ground. I obtained the prior charge sheet and mimicked it. That accused opted to plead guilty, and his conviction was upheld on appeal.
One of the questions I get most often from potential clients who have committed misconduct is, “the military lawyer is telling me that I should just plead guilty. Should I?” Often this discussion is taking place between military defense counsel and the military suspect BEFORE CHARGING has occurred.
There are a multitude of considerations when deciding whether or not to plead guilty. The first and final consideration is NOT whether or not you are guilty of an offense. A huge consideration is whether or not evidence exists that the government has in its possession that can prove your guilt beyond a reasonable doubt. The next question is are you charged with an offense that the prosecutor can prove beyond a reasonable doubt based on the evidence in that prosecutor’s case file. The question after that is can the prosecutor introduce sufficient evidence at trial to prove guilt beyond a reasonable doubt to the particular offense that has been charged.
In an article that I read recently, its author captured perfectly an imperative distinction between what criminal trials do and what criminal trials do not do. Adam Cohen writes, “Criminal trials are not journalism, which seeks to construct a who-what-when-where-why account. They are set up to answer a narrow question: whether the prosecution has proved a specific charge “beyond a reasonable doubt.” The author’s article discussed the purpose of a criminal trial in the context of the Zimmerman trial in Florida where Mr. Zimmerman was acquitted of murdering Trayvon Martin, an unarmed young black man who was walking in a gated Florida community.
A court-martial does not by its verdict announce that a military accused is innocent; neither does a court-martial conclusively prove that a person is guilty. A court-martial verdict announces whether or not the trial counsel convinced the judge or jury (military panel) during the trial (not with the case file that sat on his desk) a person was guilty of the specific offense with which he was charged (though there are issues about lesser-included offenses, which will be the topic of a future blog).
When deciding to plead guilty or not guilty, I cannot give advice to any person if I have not seen the evidence. Sometimes, more importantly, I cannot give advice to any person if I have not seen the charge sheet. Even then, the question becomes one of risk versus reward.
*** Every case is unique. Before making a decision to plead guilty or not guilty, I strongly urge you to take advantage of a free consultation. A military accused may not under any circumstance plead guilty unless he believes that he is guilty of each and every element of the offense charged. Even if a military accused believes he is guilty of an offense on the charge sheet, he has the legal and moral right to plead not guilty and to place the burden of proving his guilt beyond a reasonable doubt during a trial of the facts. ***
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