Recently in Military Law Category

January 23, 2013

Army General Facing Court-Martial

Brigadier General Jeffrey Sinclair is facing court-martial charges involving sexual misconduct. Sinclair recently served in Afghanistan, but was reassigned to Fort Bragg, North Carolina to face charges in a military tribunal. Sinclair served five combat tours of duty. Despite his excellent 27 year career service record, the military has decided to pursue charges. It is uncommon for general officers to be charged in the military. In recent times, only two general officers have faced courts-martial charges. Typically, general officers accused of misconduct are relieved from duty and forced to resign in lieu of being charged with a criminal offense. Sinclair's problem is that he was accused of a series of sexual misconduct with multiple parties. That may have been too high a number for the military to overlook.

In the military, accusations of this nature and others are investigated by CID (Criminal Investigative Department). CID agents are very similar to other types of the law enforcement officers such as FBI agents or homicide detectives. However, CID agents do not make the decision to arrest. That decision is solely the responsibility of the chain of command. Each member of the chain of command is supposed to independently recommend whether a soldier should referred to a court-martial and what type of court-martial should be pursued. The most serious type of court-martial in the general. Defendants face the statutory maximum as set forth in the Manual for Courts-Martial. Additionally, a defendant faces a dishonorable discharge either by way of a guilty plea or a conviction at trial.

There are two types of special courts-martial, BCD (bad conduct discharge) and straight special. The maximum amount of punishment under a special court-martial is six months of incarceration. With a BCD, a soldier can be discharged as part of his criminal sentence, whereas, in a straight special a soldier cannot be discharged. However, if a soldier is convicted of crimes charged as a straight special, the chain of command can turn to an administrative discharge. A summary court martial is punishable up to 30 days with no discharge. Like a straight special, a defendant convicted at a summary court-martial can be administratively separated for misconduct. The only type of court-martial that requires a preliminary hearing before charges are preferred is the general. Anyone charged with a general court-marital is entitled to an Article 32 investigation, which is like a mini-trial where evidence is presented to a hearing officer. The findings of the Article 32 investigation are delivered to the chain-of command to help determine whether charges should be preferred or in other words pursued.

The allegations against Sinclair were heard at an Article 32 investigation back in November. Apparently five woman submitted evidence of illegal sexual activity which occurred in such venues as Afghanistan, Iraq, Germany, and two bases in the United States. Some of the woman soldiers involved were officers who are also in jeopardy of losing their military careers and being prosecuted as well. One of the woman officers faces adultery charges. Anyone in the military and is married is forbidden under the UCMJ from engaging in sexual relations with other parties. While adultery is an archaic offense in civilian life, the military takes this offense seriously. More problems arise when higher ranking officers have sexual relations with lower ranking officers in their chain-of command. Soldiers can be charged with fraternization if they engage in this type of conduct. In sum, Sinclair is being charged with sodomy, another crime not usually charged in the civilian world, wrong sexual conduct, violating orders and adultery. His career is over, but will he spend anytime in Ft. Leavenworth is the question.

Army General at Military Hearing on Sex Charges, Miami, January 22, 2012.

December 3, 2010

Senior Non-Commissioned Officer Wins Court-Martial

A senior non-commissioned officer rolled the dice at a summary a court-martial and came away with not guilty verdicts on all charges and specifications. The defendant was charged with disrespect to a commissioned officer, indecent language, and three counts of violating the general article by using inappropriate language toward lower enlisted personnel. After a day long trial, the Miami criminal lawyers representing the accused secured an acquittal on all charges. Four witnesses appeared on behalf of the government. The Miami military lawyers relied on a lack of evidence and the outstanding service record of the defendant.

A summary court-martial is composed of one commissioned officer currently serving on active duty. This type of courts-martial is similar to a bench trial in the civilian world. More serious types of courts-martial are of the general and the special variety which allows for an actual jury or panel to determine the guilt or innocense of a military serviceman. The military rules of evidence apply in all courts-martial. The military rules of evidence are almost similar to the rules of evidence used in state and federal court trials. A service member has the right to refuse to be tried at a summary court-martial and demand that the case be heard in front of a panel.

The downside in declining a summary court-martial is that the potential penalties increase with the other forms of trial. The maximum punishment for a service member found guilty at a summary court-martial is as follows: if a soldier or sailor is an E-4 or below, the punishment can include confinement for 45 days, reduction in rank, restriction for two months and a forfeiture of pay. If the serviceman is an E-5 or above, the defendant cannot be sentenced to confinement, but can have his or her rank reduced, and is subject to restriction and loss of pay. More importantly, a conviction at a summary court-martial will allow the chain of command to administratively separate or kick out a military member.

A summary court-martial is not as complex as a general or special courts-martial and can usually be concluded within a day. Although not as complex, military law, such as motion practice will be applied in this setting. Summary courts-martial apply to all branches of the military service including the army, navy, air force, marines and coast guard. A defendant at a summary court-martial can choose to represent themself, but they have the right to hire private counsel to defend the case as long as it does not unreasonably delay the trial. Anyone facing any type of courts-martial should seek the advice a retain a private qualified military lawyer to defend the charges as a conviction can result in confinement and certainly a discharge from the military.

August 6, 2010

Former Army Sergeant Sentenced on Child Pornography Charges

Child pornography is a criminal offense that state and federal prosecutors take very seriously. At both the state and federal levels, prosecutors' offices have established specialized units that deal with child pornography and child sex abuse. The severity of the charge of transporting child pornography was evident in the case of a former army sergeant who was sentenced last week to 186 months or 15 ½ years in prison. Mark Anthony Garcia was charged with transporting and sharing videos and images of child pornography through the internet. Child pornography is one of the most common and serious internet offenses. Anyone charged with any type of child sex abuse case should contact a Miami criminal lawyer with experience in defending these cases as a conviction carries serious consequences.

Garcia's arrest was the result of an investigation conducted by an undercover detective from the Boynton Beach Police Department attached to the South Florida Internet Crimes against Children Task Force. The detective conducted an undercover sting operation and received an invitation to receive child pornography from the defendant. The defendant offer to transfer images and videos containing child porn to the detective. The detective downloaded the information to his computer. Army investigators called CID investigators in Germany also assisted with the investigation by arresting the army sergeant. The CID agents were able to obtain a confession whereby Garcia admitted to transporting child pornography via the internet.

But for his statement, law enforcement would have had a difficult time proving the charges against Garcia. Without his confession, the criminal attorney representing Garcia could have alleged that an other individual used his computer to download and transmit the information. Under military law, service members have many of the same rights as civilians. Military law enforcement have to advise service members of their Article 31 rights which include the right to remain silent and the right to counsel. Apparently, the military declined to prosecute the case and administratively discharged Garcia. Many times, the military will decline to prosecute, if local, state or federal government agencies elect to conduct the prosecution.

Under Florida law, child pornography is defined as any image depicting a minor involved in sexual conduct. The offense applies to anyone that knowingly sells, lends, gives away, distributes, shows, or transmits images, videos, books magazines or any other form of communication that contains child pornography. The crimes is a third degree felony punishable up to five years in prison. Keep in mind that each image transported is a separate offense. For example, if an individual sends five images of child pornography via the internet, a defendant will be facing up to 25 years in prison.

Former U.S. Army Sergeant Sentenced over 15 Years for Transporting Child Pornography, Wire, July 29, 2010.