HOMICIDE CASES

If you or a loved one has been charged with homicide while serving in the military, you need to seek immediate legal assistance. As desperate or hopeless as things may seem right now, you have legal rights and options. Still, you cannot delay another day in getting yourself qualified help. Please contact a UCMJ defense specialist who has experience handling military homicide cases today.

Uniform Code of Military Justice (UCMJ): Homicide

Depending on the specific facts of a homicide case, the accused may be charged under any one of the following sections of the UCMJ:

Article 118 (Murder)

Under Article 118, a defendant can either be charged with murder (118(2), 118(3), 118(4)) or premeditated murder (118(1)). In a UCMJ premeditated murder case, the prosecution must prove the following required legal elements: 

• Intent to kill;
• Proof of premeditation; and
• That the accused had soundness of mind.

If intent to kill can be established, but the prosecution cannot prove premeditation, or if they cannot rebut a claim that the defendant lacked soundness of mind, then the charge may be reduced to non premeditated murder. While all Article 118 charges are extremely serious, the specific charge is extremely important. This is because a premeditated murder charge can carry penalties that are substantially more severe. Indeed, premeditated murder opens up the possibility of a death sentence. Military prosecutors have been increasingly willing to put the death penalty on the table in military homicide cases. Currently convicted spree killer Ronald Gray is on death row, and he may soon be the first military execution in over five decades.

In non premeditated cases, specific intent to kill may not always be required to sustain a conviction. You can also be charged with murder under article 118 if you lack specific intent to kill, but you were engaging in inherently dangerous behavior or you were committing a felony when the death occurred. For example, in the 1993 case of United States v. McMonagle, a service member was convicted of murder under Article 118 after he started a sham firefight while deployed in Panama in order to cover up the fact that he had military equipment.

Article 119 (Manslaughter)

UCMJ Article 119 covers both voluntary manslaughter (119(1)) and involuntary manslaughter (119(2)).

Voluntary manslaughter is defined as an unlawful killing that is done with intent, but that occurs in the heat of passion or in response to a provocation. Under the law, ‘provocation’ is supposed to be an ‘objective’ meaning. In other words, in order for an act to qualify as provocation, the act in question must have been an act that would have had a sufficient provocative effect on a reasonable man. For example, a person cutting another person in the lunch line would certainly not qualify as provocation. No reasonable man would not respond violently to such an act. Additionally, taunting or insulting remarks, by themselves, are also inadequate to establish provocation. On the other hand, in the case of United States v. Saulsberry, an Army Court found that sustained taunting combined with simple assault does meet the threshold for provocation under Article 119(1).

Involuntary manslaughter is defined as an unlawful killing that occurs unintentionally, but as a result of criminal recklessness or criminal negligence. To best understand how this applies, consider an example involving a deadly car accident. If your passenger was killed in a car accident, but you were following all of the rules of the road, you would not be legally responsible for the death. However, if your passenger was killed after you crashed your car while drunk driving (criminally reckless behavior), you could be held criminally responsible. Some examples of conduct that has been charged as criminally reckless in Article 119(2) involuntary manslaughter cases includes reckless driving, horseplay with weapons, drug overdoses, child abuse and gross negligence in surgery.

Article 119(a) (Death of an Unborn Child)

Recently, Article 119(a) was added to the Uniform Code of Military Justice. This section covers death of or injury to an unborn child. It stems from a 2007 Executive Order signed by then President George W. Bush. This section applies to an unborn child in any stage of development post-conception but pre-birth. If a defendant is charged with an Article 119(a) offense, they cannot use lack of knowledge of the pregnancy as a legal defense. However, to be clear, this statute does not prohibit legal abortions.

Article 134 (Negligent Homicide)

Under Article 134, service members can be charged with negligent homicide. This type of charge is most similar to an involuntary manslaughter charge, but is reserved for the cases where the alleged negligence is less severe. While an Article 119(2) offense requires criminal negligence, an Article 134 offense only requires simple negligence. For example, causing a death while driving drunk may be charged as an involuntary manslaughter, whereas causing a death because of an inattentive lane change on the highway may only be charged as negligent homicide.

Defenses to Military Homicide Cases

The various defenses available to a military member charged with the legal responsibility of the death of another individual are many and complex. Depending on the nature of the evidence, even when direct evidence indicates guilt, there may be methods to examine if physical evidence was contaminated due to police error.  DNA evidence and blood trace are especially subject to contamination.  Additionally, given the complex issues of an individual’s well-being in an era of repeated and back-to-back deployments, exploring issues of mental responsibility which vary from a plea of not guilty by reason of a mental disease or defect (lac of mental responsibility), to lack of specific intent, and the imperfect defense of self-defense.  Ms. Stewart is one of only a handful of attorneys who have defended a pre-meditated murder case for an active duty service member by entering a plea of not guilty by reason of mental disease or defect.  Ms. Stewart also consulted on the capital murder defense of Army Sergeant John M. Russell in the shootings of five people at a clinic in Iraq.

Another defense to homicide is self-defense.  The law of self-defense is intricate and is not straightforward.  Self-defense involves not only the defense of one’s own person, but also defense of another. It is a defense to a homicide, assault involving deadly force, or battery involving deadly force that the accused:

(A) Apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted wrongfully on the accused; and

(B) Believed that the force the accused used was necessary for protection against death or grievous bodily harm.

R.C.M. 916(e)(1). See United States v. Jackson, 15 U.S.M.C.A. 603, 36 C.M.R. 101 (1966). The test for the first element (reasonable apprehension of death or grievous bodily harm) is objective, viewed through the eyes of a reasonable, prudent person. The test for the second element (honest belief that deadly force is necessary) is subjective, viewed through the eyes of the accused. R.C.M. 916(e)(1) Discussion.

The theory of self-defense is protection. Thus, “generally speaking, a person is not entitled to use a dangerous weapon in self-defense where the attacking party is unarmed and commits a battery by means of his fist.” United States v. Straub, 12 U.S.C.M.A. 156, 160, 30 C.M.R. 156, 160 (1961). Nevertheless, fists and shod feed used by multiple assailants can constitute a means likely to produce death or grievous bodily harm and entitle the person being attacked to use deadly force. See United States v. Vigil, 3 U.S.M.C.A. 5, 28 C.M.R. 30 (1953) (fists constituted means likely to produce grievous bodily harm); United States v. Thompson, 27 C.M.R. 662, 667 (A.B.R.) (fists and shod feed used by multiple assailants were means likely to produce death or grievous bodily harm), aff’d, 11 U.S.C.M.A. 5, 28 C.M.R. 229 (1959). Cf. United States v. Cardwell, 15 M.J. 124 (C.M.A. 1983) (use of beer bottle may be permissible against attempt by unarmed assailant to strangle accused).

Panel Instructions in Homicide Cases

Understanding the intricacies of the instructions that best assist a service member is a critical piece in defense of any homicide case.  The military judge has an obligation to instruct on any “special defense,” including self-defense, when it is raised by the evidence. R.C.M. 920(e)(3).  The military judge has a duty to tailor his instructions to fit the facts of the case. United States v. Martinez, 40 M.J. 426, 431 (C.A.A.F. 1994), citing R.C.M. 920(a) Discussion; United States v. Groce, 3 M.J. 369, 371 (C.M.A. 1977).

In United States v. Martinez, the C.A.A.F. set aside findings and sentence when the trial judge failed to tailor his instructions to the panel to articulate clearly that given the particular facts that included a group of assailants that the appellant may have had a right of self-defense that included the right to use a knife in a manner likely to inflict grievous bodily harm. Instead, the military judge’s instruction related that the appellant only had the right to brandish the knife in self-defense, rather than actually using it. 40 M.J. 426, 430 (1994). The C.A.A.F. held that “[b]y eviscerating appellant’s case based on self-defense, the military judge committed plain error.” Id at 431 (1994), citing United States v. Curry, 38 M.J. 77, 79 (C.M.A. 1993) (erroneous instruction precluding defense of accident is plain error); United States v. Eckhoff, 27 M.J. 142 (C.M.A. 1988) (erroneous instruction foreclosing entrapment defense is plain error).

We Have the Experience Needed to Handle Military Homicide Cases

When military service members are charged with a crime, they are typically provided access to a military defense counsel. However, these assigned representative are almost always overworked. Rarely will this assigned counsel have the time needed to focus on your case. Additionally, most military provided counsel will have had no previous experience handling homicide cases. With so much at stake, you need to be represented by someone who actually knows who to protect your legal rights. You should work with a private defense attorney who has the skills and experience necessary to provide you with the best possible legal defense. Experience matters. Jocelyn C. Stewart has prior experience handling:

• Premeditated murder cases;
• Attempted murder cases;
• Manslaughter cases; and
• Negligent homicide cases.

Contact Our Team Today

To set up your initial legal consultation, please do not hesitate to contact our firm today. At the Law Office of Jocelyn C. Stewart, we are prepared to defend active military members in the United States, and at military bases all over the world, including in Honduras, South Korea, Japan, Germany and Italy.