Court Martial Appeals

Monday, August 8, 2016

New Sentencing Hearing for Airman on Military Death Row


When was the last military execution?


In 2005, Andrew Paul Witt, an enlisted airman based in Georgia, was sentenced to death for the murder of a married couple in the summer of 2004. The Air Force court overturned the sentence in 2013 due to apparent "shortcomings" of his defense counsel, but four judges who were not on the appeals court at the time of the oral  arguments recused themselves.


In 2014, upon request by the government for reconsideration, the court reversed that ruling and upheld the death sentence, with three of those judges taking part in the decision. In July, the highest military appeals court ordered another sentencing hearing after finding that the lower Air Force Court of Criminal Appeals mishandled Witt's original appeal.


While the decision did not focus on the underlying crime, the ruling raised concerns over whether the technical legal error would damage the military justice system's reputation.

Read more . . .

Sunday, July 31, 2016

A Court Martial Can Be Big Trouble if You Aren’t a Natural Born Citizen

Since the days of the Revolutionary War, serving in the United States military has been a way for non-citizens to gain the right to call themselves Americans. Today, the government is granting record numbers of immigrants who serve in our nation’s military, and their families, citizenship thanks to an Executive Order that was put into place shortly after 9/11.

Contrary to what some people have been lead to believe, serving in the military does not guarantee you will be granted citizenship. You must meet the basic, general requirements all who want to be citizens must meet:

  • Good moral character,
  • Knowledge of the English language,
  • Knowledge of U.S.

Read more . . .

Wednesday, July 13, 2016

Parris Island Drill Instructors Being Investigated in Hazing Death

Will the hazing probe at Parris Island lead to a court martial?

In November 2015, a Muslim recruit died at the Marine Recruit Depot at Parris Island, South Carolina after a 40 foot fall in a barracks stairwell. Now, more than a dozen drill instructors are under investigation. The recruit died only days after arriving at the 3rd Recruit Training Battalion.

 “The allegations, against approximately 15 drill instructors and affiliated leadership, identify potential violations of Marine Corps orders to include hazing, physical abuse, assault and failure of supervision,” officials with Training and Education Command said in a statement.

The Marines being investigated in the boot camp hazing death have all be re-assigned to duties that do not involved interacting with recruits.

Read more . . .

Monday, November 23, 2015

Air Force Academy Rape Case: Defense Attorneys Say Sex Was Consensual

How does a preliminary hearing determine whether there will be a court-martial?

A charge of rape has recently been filed against Mark Czerner, a junior at the Air Force Academy in Boulder, Colorado. The academy has reported that a preliminary hearing has been held to determine whether there is enough evidence for the accused to face a court-martial on two counts of sexual assault and one count of wrongful (abusive) sexual contact. Both the prosecution's case and Czerner's defense have been presented to a hearing judge so that it may determined whether a court-martial will take place.

What is alleged to have occurred on the day in question?

The charge stems from an incident that occurred last Valentine's Day when it is alleged that Czerner, an honor student at the academy, forcibly raped a classmate. According to the testimony given, Czerner went flying with the female classmate in the early morning of February 14th, not an unusual practice at the academy where short air flights for training often take place on the weekend.

The alleged victim, who did not herself give testimony at the hearing, claims that Czerner groped her during the flight, making her extremely uncomfortable, and that later, as he drove her back to her dorm in his car, he drove to an isolated road on the 18,500-acre campus and assaulted her.

The alleged victim says that she was forcibly kissed while fighting Czerner off, but that he eventually stroked her thigh, digitally penetrated and then raped her. Air Force Academy prosecutors contend that there is more than enough evidence, including DNA evidence and text messages between the two parties, for Czerner to be court-martialed.

What defense has been put forth?

The four defense attorneys argued that the sex between the two parties was consensual and attempted to substantiate their view by claiming that the woman could have gotten out of the car to avoid her attacker and that it would have been very difficult for Czerner to remove her flight suit, with its single zipper, while she protested.

The case is complicated by the defendant's peculiar behavior in the courtroom, which included facial tics, twitching and grunting, but it is unknown whether, or how, this will affect the decision. The hearing officer will review all pertinent documents and testimony and issue a written report shortly, determining whether the defendant will be court-martialed.

Friday, November 20, 2015

Marine Challenges Court Martial on Religious Freedom Grounds

Does a military service member have a right to religious freedom?

The Court Martial of Monifa F. Sterling, a North Carolina-based marine, will now be heard by the U.S. Court of Appeals for the Armed Forces. The case raises a number of questions about military discipline and religious freedom.

As has widely been reported, Sterling’s case began in May 2013, when she printed three copies of the biblical quote “no weapon formed against me shall prosper,” taped one on her computer tower, one above the computer monitor and one above her in-box. Sterling refused to remove them after being ordered to do so by a staff sergeant, and then replaced them after the sergeant removed them.

The U.S. Navy-marine Corps Court of Criminal Appeals affirmed her conviction saying here misconduct was not minor and that “to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps.”

The issue before the U.S. Court of Appeals is whether the federal Religious Freedom Restoration Act protects Sterling’s defiance of command on religious freedom grounds. The Act requires that federal laws that “substantially burden” an individual’s exercise of religion must serve a “compelling government interest” and be the “least restrictive” means possible.

In a related case, a federal court recently ruled in favor of a Sikh ROTC student’s right to wear a
beard and turban, despite the Army’s clean-face grooming policy.

In the original proceeding, a military court noted Sterling’s relationship with her superiors was
antagonistic and that there were other disobedience charges. Moreover, Government attorneys argued she failed to show that the Marine Corps had placed a substantial burden on her religious practice.

“She submitted no evidence that she was pressured to change her religious behavior or modify her religious beliefs,” government attorneys said.

The higher military appeals court will now address the issues of whether the staff sergeant’s
order burdened an exercise of religion and if so whether it served a compelling government interest in the least restrictive means possible.

Tuesday, October 20, 2015

Bowe Bergdahl May Face Lesser Charges

What is the status of the Bowe Bergdahl Court Martial?

As has widely been reported, Bowe Bergdahl may not face jail time or a punitive discharge for desertion and misbehavior before the enemy. In fact, the Army officer who presided over last month’s preliminary hearing recommended the case should be moved to a lower level that limits a maximum conviction to one year in prison.

Special Court Martial

Bergdahl’s defense team believes this case will be handled as a Special Court Martial. These cases are similar to misdemeanor cases in the civilian system. The maximum penalties include one year of jail time, a reduction in rank and a bad conduct discharge. If the general court martial standing was in play, Bergdahl could face a maximum life sentence for the misbehavior charge and 5 years in jail or desertion.

In Defense of Bowe Bergdahl

According to these reports, there are mitigating factors in favor of Bergdahl. His capture by the Taliban connected Haqquani network is seen as a kidnapping. Also, during this time witnesses claim that he was subject to 5 years of torment by “psychopathic sadists.”

Bergdahl was captured by within hours after leaving the post. During his captivity, he was beaten with hoses and chains, tied spread-eagled to a bed until his muscles atrophied, starved, humiliated and kept in a cage. If this evidence goes unchallenged Bergdahl may be spared confinement.

This testimony portrays him as a sympathetic figure, contrary to public speculation about the case and some media reports. As for his alleged desertion, there is evidence that he was suffering some form of emotional distress (Bergdahl was discharged from initial Coast Guard training in 2008 for depression and “failure to adapt”).

The Possible Outcome

The presiding officer’s recommendation is only that. The prosecutor could disregard this recommendation and proceed with a general court martial, but the mitigating evidence may make this an “uphill battle” for the prosecutor. Bergdahl’s fate is now at the wide discretion of Army Gen. Robert B. "Abe" Abrams.

Monday, July 6, 2015

Oklahoma Attorney General Offers Opinion on Court Martial Against U.S. Marine for Refusing to Remove Bible Verses

Can a service member face court martial for refusing orders on religious grounds? 

Under U.S. military regulations, members of the armed services are required to abide by the direct orders of their superiors – even if they disagree or take exception to the commanding officer’s instruction. In a recent ongoing battle originating in Camp LeJeune, North Carolina, a former member of the U.S. Marines has launched an appeal of her discharge following First Amendment-infused conflict with her former drill sergeant and immediate superior. The case, which is up for possible consideration on appeal, involves the application of the Religious Freedom Restoration Act, and could serve as a powerful precedent-setting case within the U.S. Military jurisdiction. 

Details of recent court martial

According to the publicized details of the case, Lance Corporal Monifa J. Sterling was employed at Camp LeJeune assisting other Marines experiencing difficulties with their Common Access Cards. During her tenure, Ms. Sterling testified that she had been the victim of repeated and continual bullying by other Marines, and subsequently posted Bible verses on her computer monitor, workstation, and keyboard. Her superior ordered her to remove the signs immediately – and she refused. From there, the superior removed the signs herself and threw them in the trash – which prompted Ms. Sterling to repost the verses the following day. 

As a result of this conflict, Ms. Sterling was convicted of failing to go to her appointed place of duty, disrespect towards a superior commissioned officer, and four specifications of disobeying the lawful order of a noncommissioned officer (NCO). She was placed on a reduced pay grade and released from the military on a bad behavior discharge. 

Ms. Sterling, who has now claimed difficulty finding employment outside the military, has since appealed the case to the Navy-Marine Corps Court of Criminal Appeals – which upheld the court martial. Her counsel has since initiated an appeal in the U.S. Court of Appeals for the Armed Forces. 

If you are facing a court martial, contact an experienced attorney at Aviso Law LLC right away: (719)247-3111. 

Saturday, November 22, 2014

Prosecutorial Misconduct Leads to Dismissed Charges

Prosecutorial misconduct occurs when the trial counsel, “oversteps the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.”  The military judge may dismiss a case if such misconduct is found. Such a dismissal is highly unusual, though in reality such misconduct may happen more often than it should.

This became an issue in a recent Air Force case where the military judge dismissed rape charges because he or she ruled that the trial counsel had committed prosecutorial misconduct.  The dismissal in the case United States v. Bowser was upheld by the Air Force Court of Criminal Appeals in October.  

The issue concerned written notes of witness interviews by prosecutors. The civilian defense counsel wanted to know if there was anything in the notes providing evidence favorable to his client. The military judge ordered the trial counsels to supply him with the notes so the judge (not the defense counsel) could review them to see if there was any such evidence (known as an in camera review) which, if found, could be provided to defense counsel. Trial counsels at first agreed to turn over the notes, and then refused to turn them over to the military judge claiming the notes were privileged and could not be released.

Privilege is an important issue when it comes to attorneys providing their notes over to a judge or opposing counsel. An attorney needs to prepare the case and there are times when that privilege should prevent disclosure. However, what was more important in this case is that trial counsel provide any evidence obtained that could show the accused didn’t commit the crime as charged, which is required by a U.S. Supreme Court decision from 1963. The military judge was within his rights to dismiss the case.  The government appealed but the judge’s dismissal was upheld. 

Whatever the facts of a particular court martial, the ultimate decision may turn on procedural issues. That’s why it’s important that a service member facing a court martial obtain outside defense counsel to review the case and zealously defend the client’s rights. What may appear to be a “slam dunk” case for the prosecution may actually be supported by serious procedural problems that could lead to a lesser charge or a dismissal.

If you or a loved one has been charged or want to appeal a court martial conviction, the military law attorneys of Elkus, Sisson & Rosenstein serving the Denver and Colorado Springs areas are here for you. Call us today at (303)567-7981 for a free consultation.

Saturday, November 15, 2014

Post-Trial Review of a Court Martial: Your Chance to Appeal the Decision

There are many parallels between the civilian and military judicial systems; one of them is the ability to appeal a decision. If you’ve been convicted in a court martial, a post-trial review, or appeal, may be an option you should consider. During this review another judge or higher court reviews the decision for errors or mistakes and whether the sentence is appropriate.

What types of post-trial review are applicable to your case depends on the type of court martial you had and your sentence or punishment.

If you had a special or general court martial and your sentence includes a bad conduct or dishonorable discharge the convening authority (or CA, normally your immediate commander, who referred your case to the court martial) will automatically review your case. The CA can:

• Throw out your conviction,
• Approve the sentence, 
• Suspend all or part of it, or
• Throw out or reduce your sentence.  

You are usually entitled to an automatic appeal to the Court of Criminal Appeals for your branch if the sentence has been approved and it includes:

• One year or more in jail, 
• A bad-conduct or dishonorable discharge, 
• Dismissal if you're a commissioned officer, or
• Death.

If you appeal but the court agrees with your conviction or sentence, you may request the Court of Appeals for the Armed Forces (CAAF) review your case. An appeal to this court is not automatically granted unless:

• You’ve been given the death penalty, or
• The judge advocate general in your branch sends the case to the CAAF for review.

If the CAAF reviews your case but agrees the decision was properly made your last appeal option is the U.S. Supreme Court. This is done by filing a petition for a writ of certiorari which would state why your case should be reviewed and the outcome you’re seeking, such as throwing out your conviction or lessening your sentence. The country’s highest court rarely takes court martial cases, but will do so if the justices feel it’s appropriate.

The attorneys at Elkus, Sisson & Rosenstein are experienced in appealing court martial decisions and defending the rights of their clients.  Our Denver and Colorado Springs attorneys can be reached at (303)567-7981. Call for a free consultation today.

Tuesday, July 15, 2014

Court of Appeals Overturns Conviction in Sexual Assault Court-Martial

When the government called a former sexual assault response coordinator to the stand as an expert witness, it may have thought it was strengthening its case.  The testimony of Fort Carson, Colorado former SARC Sarah Falk did, indeed, help convict Specialist Thomas C. Flesher of sexual assault.  But because it violated evidentiary rules, it became the basis for reversal of the conviction on appeal.

In a general court-martial, Flesher was convicted of furnishing alcohol to a minor and committing aggravated sexual assault.  He had testified that the encounter with the 16-year old girl was consensual, while she had testified otherwise.  Both sides acknowledged that she didn't cry out or alert her brother, who was sleeping twenty feet away.

In making its case in military court, the prosecution called Ms. Falk, who offered her expert opinion that victims rarely fight back, scream, or call for help.  Ms. Falk had not examined the victim, however, and her testimony relied on what the United States Court of Appeals for the Armed Forces later described as "her own anecdotal experience."

The defense objected to Ms. Falk's testimony, claiming that it appeared to "lack any scientific methodology."  They asked for a so-called Daubert-hearing, an evidentiary proceeding to determine whether an expert's testimony should be admitted.  The military judge refused to grant one and allowed her to testify, while refusing to allow testimony from a defense expert witness.

In reviewing the military judge's handling of the expert testimony, the CAAF found violations of military rules of evidence and case law.  It concluded that the judge had abused his discretion and committed reversible error in such areas as "bolstering, expert qualifications, relevance, and the appropriate content and scope of expert testimony."   

Because these mistakes had influenced the court-martial panel's findings, the CAAF set aside Flesher's conviction for sexual assault and seven-year prison sentence, pending a rehearing.  The conviction for furnishing alcohol to a minor was upheld.

Defendants in a military court-martial need vigilant counsel to raise timely objections and ensure that all evidence is presented fairly.  If you or someone you know needs experienced representation in military court, please contact Elkus, Sisson & Rosenstein at (303)567-7981 for a free consultation. 

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