The Carpenter Law Firm P.C.  

Seattle Court-Martial Lawyer Available for Worldwide Defense

Proven and Experienced Military Defense

If you are currently facing military criminal charges or administrative separation, you need the assistance of an experienced military lawyer with a a proven track record who is familiar with the UCMJ and the military justice system. Your hard earned military career now deserves the best Information and professional guidance available.

“There is not a more dedicated Trial Defense Attorney advocate or litigator in Europe, his skills, friendship and mentorship to young advocates will be sorely missed.” PCS Award 

Mr. Carpenter will handle your case with expertise, commitment and passion.  He  is available to consult with you in Washington State, the Western United States, Europe and the Far East.

Available for consultation at your local Trial Defense Service (TDS) Office on military posts, installations and bases worldwide.

email:   stephen@mscarpenter.net

phone: +1 206 326 0803

www.thecarpenter-lawfirm.com

In a landmark opinion, the military’s highest court, U.S. Court of Appeals for the Armed Forces (CAAF), in United States v. Ali, 71 M.J. 256 (2012) held that non-United States citizens that “serve with” a U.S. military forces overseas are subject to trial by court-martial. In principle, CAAF’s opinion opens a potential means for the United States military apparatus to hold noncitizens accountable for committing crimes.  In essence, CAAF held U.S. Constitutional protections, embodied in the Fifth and Sixth Amendments  inapplicable to this body of persons. This case will no doubt be subjected to further judicial review, and may likely be argued before the U.S. Supreme Court, however, for now, the long arm jurisdiction of American military justice has caste itself around the globe, albeit only where our forces serve.

Grants of Immunity

April 1, 2012

The Court of Appeals of the Armed Forces (CAAF) recently decided United States v. Morrissette, 70 MJ 431 (2012), which provides interesting insights into the dangers associated with  grants of immunity.  Simply stated, this case concerned an accused that was involved in the death of a Soldier; who was undergoing, at that time, a brutal initiation into the gang.  The Government provided the accused “testimonial immunity” IAW RCM 704(a)(2).  As a result, the accused had no choice but to make a statement to CID.  In fact, he made four more written statements. The Government then withdrew the immunity and proceeded with the court-martial of the accused.  CAAF held the follow-on prosecution was not unlawful because  the Government did not benefit from the information learned from the previous immunized statements.  Indeed, a second set of prosecutors, who were precluded from learning anything about the accused’s four statements, tried him.   CAAF held the conviction lawful.  Notably, CAAF did not care that a former member of the first prosecution team tangentially discussed the case, via email,  with the second prosecution team’s staff judge advocate.  The lesson to learn is to conduct vigorous discovery of “email” information when looking to pierce the “Chinese wall” to show your client is worse off as a direct result of the forced immunity arrangement.

 

U.S. v. Zarbatany, 70 M.J. 169 (2011) has dramatically changed the landscape of potential relief associated with significant pretrial punishment.  Airman Zarbatany received 595 days of pretrial confinement credit as a result of a military judge’s ruling he was illegally punished prior to his court-martial.  The trial court highlighted several disturbing facts, in part, “appellant was in pretrial confinement at ACC for 119 days in virtual lock-down status; 2) he was confined to his cell for an average of 23 hours a day; 3) he was allowed out of his cell only to shower; 4) he could only meet with his wife over a television monitor; 5) his recreation area was about the size of his cell; 6) he was typically denied the right to talk to fellow inmates; 7) he shared his cell with post-trial inmates; and 8) without cause he was locked in the shower room, about 8 times,  for about 30 minutes a session.  Now, at trial, Zarbatany was sentenced to serve 6 months in confinement, which was far less than the Art. 13 award of 595 days; in fact, he had “415 days of excess confinement credit.”  The appellate court, in a remarkably gracious move held the sentence “disproportionate” and told the Government to effectively disapprove the bad conduct discharge.

Accused was convicted at a general court-martial for making a false official statement. As a result, a military panel sentenced him to a  bad-conduct discharge (BCD), forfeiture of pay for one month, and reduction to E-1.  On appellate review, however, United States v. Marsh, 70 M.J. 101 (2011) reversed the sentence because the prosecutor inappropriately inflamed the panel by arguing, during the pre-sentencing proceeding,  “You can’t trust the accused. The accused is an aircraft  mechanic, someone you trust to work on your airplanes, to tighten that bolt, to make sure that those aircraft are worthy to fly, to do rescue missions, to serve this Army. Can you trust someone who lies with the lives of those pilots?”   In addressing the sacrosanct  rule against using present tense personal pronouns,  the appellate court extended its temporal reach by citing Hodge v. Hurley, 426 F.3d 368 (6th Cir. 2005) for the proposition that court members can never be asked “to place themselves in the shoes of [potential] future victims”, as well.  Notably, military defense counsel did not object to the improper argument. If he had, the court members might have received a curative limiting instruction that would have cleansed the prejudicial comment.

The Military Appellate Court in United States v. Girouard, 70 M.J. 5 (2011),  reversed a negligent homicide conviction finding “negligent homicide is not a LIO of premeditated murder.”  The Court focused on the terminal (art 134) element as lacking in the premeditated murder charge, and thus set aside the conviction because the defense was not on notice of said element which demands a showing of prejudice to good order and discipline or like service discrediting conduct.

The U.S. Court of Appeals for the Armed Forces has issued a highly useful ruling in United States v. Savala, 70 M.J. 70 (2011). Savala reversed the rape conviction because the military judge prevented defense counsel from challenging the testimony of the alleged victim about her prior sexual assault incident; which civilian law enforcement authorities had deemed “unfounded.” Notably, the prosecution curiously “opened the door” with regard to the previous incident in order to justify her delay in reporting this alleged rape.  Savala does an excellent job in highlighting the general weaknesses of rape cases when the only direct evidence is a heavily intoxicated victim.

Civilian and Detailed Military Defense Counsel should be weary of advising AWOL Soldiers properly in light of the recent holding in United States v. Oliver, 70 M.J. 64 (2011). Oliver held that a Soldier could be found guilty of desertion (intent to remain permanently away from the service) even though he surrendered to military authorities, had a part-time job, was living temporarily with his mother and had stored his military gear in a locker for future access.  In light of this case, tell your client to: 1) take his military property out of storage to maintain its appearance and readiness; 2) advise family members that he intends to return to the service; 3) seek temporary jobs and lodging; and, perhaps most importantly 4) reveal to others that the AWOL was wholly influenced by an unfortunate event that, once resolved will result in the prompt return of the Soldier.

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