Military Defense Lawyer Argues for Not Guilty in Coast Guard Sex Assault Court Martial in North Charleston, South Carolina
by Andrew Knapp
December 6, 2013
Read the full story here postandcourier.com/article/20131206/PC16/131209607/1009/as-defense-rests-in-coast-guard-court-martial-witnesses-contradict-accusers-accounts&source=RSS
Asking for the acquittal of a Coast Guardsman accused of sex crimes, a defense attorney said Friday that Petty Officer 2nd Class Omar Gomez was blamed for depraved behavior that’s rampant aboard the Charleston-based ship he served on.
During his closing argument, lead prosecutor Lt. Cmdr. Mike Cintron said the facts of each alleged incident “speak for themselves.” In one case, he noted, Gomez sent a text message to a seaman that said, “I want you bad.”
“Those are the words of a sexual predator,” Cintron said, dubbing the defense argument a “distraction.”
. Maltreatment of subordinates by making sexual comments to six female Coast Guardsmen inferior in rank.
.False official statement by telling investigators that he didn’t have sex with the civilian woman who accused him of rape in West Ashley, then recalling the next day that he had sex with someone whose face he couldn’t remember.
. Aggravated sexual contact by fondling four female shipmates, raping the civilian, and exposing his genitals to shipmates on three occasions.
. Conduct discrediting to the armed forces by taking a picture of his genitals with a seaman’s camera.
If convicted, Gomez could face more than 30 years in prison.
Suppose you’re facing a potential court-martial trial and you aren’t exactly sure what it is and how it can affect your life. In general, any person associated with the U.S. military could potentially face a court-martial from the Uniform Code of Military Justice for committing offenses against U.S. military law. If an accused party is found guilty, the punishment usually depends on the crimes and can include reduction in grade, confinement, a punitive discharge, and even prison.
Any member of the armed forces can be accused and end up facing a trial due to unfortunate circumstances. For that reason, if you ever find yourself accused of misconduct and face a court-martial, it’s best to hire an experienced court-martial attorney to steer you through the process.
When facing a court-martial, you can presume that the process will be long and arduous. Most investigations can drag on for multiple months before a final decision is made. In brief, as soon as the investigation is concluded, a high-ranking military official will decide whether you’ll face court-martial charges or not. The entire process from being initially charged to trial can take between eight weeks and eight months to process.
Facing a Court-Martial
At this early stage, the accused party facing a court-martial will be invited to the commander’s office, usually in full-service uniform. The accused is anticipated to stand in attention in the commander’s presence and other high-ranking military officials. These military officials are likely to include a First Sergeant, supervisor, and members from the prosecution’s legal office. A complete script detailing the accusation will be read to the accused, who’s foreseen to remain silent during the process.
The Discovery Phase
The whole process starts with “discovery” being demanded by the uniformed member’s defense lawyer. This allows attorneys to receive documents from the prosecution which inform the defense about all evidence. During the discovery phase, gathering additional exculpatory declarations or documents could heavily influence the case’s outcome.
Besides motions, which are requests to the judge in the form of written legal documents which might limit or completely prohibit a particular piece of evidence from being used in the trial, the final preparations before the trial include witness interviews, prepping clients, and deciding upon trial strategies and tactics.
Types Of Court-Martial
There are three different types of court-martial that a military member may encounter:
When a military member gets convicted of a summary court-martial, depending on their rank, the maximum sentence they may face is 30 days of confinement, reduction to E-1, 45 days of unconfined hard labor, and a reduced monthly salary to one third. These types of court-martial can’t result in a discharge of the military, and the process doesn’t involve a judge or jury.
This type of court-martial involves a judge and a panel. The punishments handed out from these are harsher than those from summary court-martial and less severe than the third type of court-martial. The max sentences include one year of confinement, reduced wages to one-third for six months, reduced E-1, hard labor, and restriction.
The max sentence in a general court-martial is dependent on the offense committed. If there’s a probable cause, this can be determined by a neutral military lawyer, called a preliminary hearing officer, after an Article 32 hearing. Like special court-martial, a two-thirds majority is demanded from the panel for a conviction. This proportion may be increased to three-quarters if the sentence exceeds ten years of confinement.
If found guilty, the next phase of the court-martial procedure is sentencing. First, the evidence is presented to the court by the government before the defense attorney has the opportunity to respond. The response is a real chance to present any mitigating evidence that may reduce the final sentence.
This can involve any evidence that speaks to the defendant’s character or previous actions that suggest that the defendant deserves a less severe sentence. After this phase of the process, the panel must make up their minds and agree on the verdict. If the sentence comprises confinement, the guilty party or parties will be taken into custody upon the ending of the trial.
So, now that you know what to expect from it if you’re facing a court-martial proceeding, try to stay as calm as possible during the process and prepare a winning strategy to keep yourself out of trouble. For that reason, you should consider seeking the assistance of an experienced court-martial attorney to represent you during the case to ensure that you’ll get the most favorable outcome out of it.
Don’t dump the prosecutor’s paralegal… or, you’ll be charged with rape!
Allegations: DOUBLE RAPE, 2 VICTIMS Max Punishment: 2 LIFE SENTENCES Result: NOT GUILTY OF ALL CHARGES Discharge: NONE Location: Fort Polk, LA & Kandahar, Afghanistan Branch/Rank: Army/E-6
Summary: Our client, a Combat Engineer, was accused of raping two women (a US Army soldier/JAG Paralegal and one British citizen). Later, the prosecution claimed that he sexually assaulted two additional people, for a total of four alleged victims. He faced 14 different allegations, over 100 years in prison, and sex offender registration. Mr. Waddington and CPT Brian Greco defended this case.
The two primary victims were scorned ex-lovers out for revenge.
This trial was like an episode of Dr. Phil mixed with Jerry Springer. In and out of court, there was crying, lying, and a lot of drama. We had a local stripper in the audience, a bunch of British witnesses that hated each other, and the British victim kept accusing the defense of intimidation because we were laughing with our client outside of court at the smoke pit, which was completely authorized. She peeped out the window and was offended by us laughing. The prosecutor then scolded us for laughing in public and asked us to stay hidden. Our response was to laugh even louder.
The two alleged rape victims took 3-4 hours EACH to tell their stories. It was painfully boring. The prosecutor kept asking, “How did you feel?” about every minor detail of the case. While how they “felt” was not relevant, the defense intentionally did not object. Instead, we let them blab on and on to the point where the jury stopped listening. 90 minutes into their testimony, the jury stopped paying attention and some jurors were falling asleep. Few people can pay attention to 4 hours of fake sobbing. After the first box of tissues, the jury tuned her out.
On cross-examination, these witnesses were quickly cut to shreds when confronted with lie after lie. After impeaching her with numerous blatant lies, one victim’s neck (the JAG paralegal) started to twitch. It would have been amusing, but for the fact that our client sat falsely accused of heinous crimes.
During Mr. Waddington’s closing argument, the paralegal “victim” brought her husband into the court to watch. When Mr. Waddington talked about all of her lying and cheating, she ran out of the courtroom in tears, in the middle of the closing. Apparently, she never told her husband about her love affair with my client or the fact that she was bragging about my client’s sexual prowess to fellow soldiers, while she was with her husband.
The jury deliberated for about 60 minutes. The defense witnesses went out to party and Mr. Waddington went to his hotel to rest for his next case the following Monday in Norfolk, VA.
In this post, I am going to talk to you about how to choose the military attorney that’s going to handle your case. Now, if you have been charged in the military, the odds are stacked against you. There is a very good chance that you are going to jail. The government is going to do everything they can to make sure that you go to jail and that you are kicked out of the military.
Court Martial Lawyers – Alexandra González – Waddington & Michael Waddington Attorneys at Law
Put together the best defense team
What you have to do…? And the only thing you can do is put together the best defense team that you can possible. If you don’t do that than your chances are very slim. Well, how do you go about putting together the best defense team possible or choosing a civilian or military defense attorney? You have to do homework. And I can’t stress how important it is that you do your homework.
I will give you an analogy. Let’s say your son or daughter is facing serious medical conditions… a brain tumor or something of that nature. And they have an 80 to 90% chance of not surviving this tumor. There is a procedure out there that you can have brain surgery done and there is a chance that you may survive. So, you have a 10-20% chance. That’s kind of what your chances are in many court martial situations.
You are not going to just go with any doctor, especially not a doctor that the army or some government agency gives to you for free. You get to try to find out if that doctor is qualified. And if you talk to that doctor and you learn from that doctor that who is going to operate on your son or daughter that the doctor has never done a surgery before or has a 100% failure rate at saving the lives of his other patients, you are probably not going to go with that doctor.
Diligence when picking your military lawyer
You need to use the same diligence when picking your military lawyer. A lot of military defense lawyers have a lot of self confidence and they will tell you how they will take care of you. They are the right attorney for the job. They are confident that they can get you a good result. You know, the confidence doesn’t win trials, experience does. Experience and skill!
There are few questions that you have to ask, either your military lawyer or any perspective civilian lawyer before you hire that attorney or you choose to go to court with that attorney. One of the basic questions that you should ask an attorney is about the success rate. You should ask them, “What are the results of the last 10 jury trials that you have did… that you did?”
The Best Court Martial Lawyers Have a Winning Track Record
If they haven’t done 10, then figure out what the last results were of any jury trials they did. If they have never done a jury trial then that’s a red flag that that attorney probably doesn’t have the experience to take your case to trial and get an excellent result.
When were these cases done?
Another thing you would want to ask that attorney, “When were these cases done? Where they have done it in front of an illicit panel or jury or an outside panel, where they are in front of the judge…”
You want an attorney that has at least tried… at least tried at a minimum 10 to 15 jury trials in the military system. Now, not every military attorney has done 10 to 15 trials. Lot of civilians haven’t done even 2 to 3 trials and gotten good results. But, you want to try to gauge how experienced that attorney is. But, a good starting point is 10 to 15 jury trials at a minimum.
Real Costs of a COURT MARTIAL Conviction and Discharge
The next thing you should ask the attorney is, “Of those… Of the last 10 clients you had, how many of those clients were retained? How many were retained and how many were kicked out of the military?” You know, one of the big things that’s going to affect you for the rest of your life is whether or not you get a discharge. A military defense attorney that is 0 for 10 in getting his clients retained is probably not the attorney for you. If you want to be retained, in much…Most people want to be retained.
“How Many Court Martial Case Have You Won?”
Now the other thing you want to ask the attorney is, “One in all the last 10 cases, how many those cases were acquittals, either partial acquittals or full acquittals. And then weigh and balance their experience against other attorneys that you talk to.
And other thing you want to ask the attorney is, “Of those past 10 clients that you had, how many of those clients were sent to jail? And of those 10 clients, what were their charges? And of those 10 clients what was their jail time?”
If you have an attorney who has never contested a case or in the cases that he has contested, he is 0 for 10 in getting…I should say, 10 in 10 in getting clients sent to jail for lengthy periods of time, then again weigh and bounce that attorney’s results with the other attorneys that you speak with.
Attorney’s relationship with the prosecution
Another very important factor is what is this attorney’s relationship with the prosecution, the SJA office? The SJA office is the General’s or the Convening Authority’s lawyers. Ask and find out, what their relationship is with these folks? If they go out drinking with them, if they are roommates with them, if they are best friends with them, if they plan on going to work with these individuals or they just left that same office… And now one minute through the prosecutor, now they will be your defense attorney, that is a red flag.
Court Martial Lawyers – Military Defense Attorneys – Our defense lawyers defend cases in Army, Air Force, Marine Corps, and Navy courts worldwide. Court-martial defense attorney, Michael Waddington, discusses why his law firm, Gonzalez & Waddington, LLC, has the experience to defend serious military cases worldwide. Call 1-800-921-8607 to speak with an experienced civilian court-martial defense lawyer today.
Military Attorneys: Costs When Hiring a Court Martial Lawyer
In the spring of 2011, Rolling Stone reported the chilling news of a rogue band of soldiers, or “Kill Team,” responsible for murdering three Afghan civilians. Although Sgt. Calvin Gibbs was the convicted mastermind, for filmmaker Dan Krauss, the unique moral conflict rested with Spc. Adam Winfield. While on duty in Afghanistan, Winfield discovered several of his fellow soldiers were intentionally killing civilians. If he reported the behavior he would betray his brothers in arms and put his own life at risk. If he stayed silent, he’d be equally guilty. Winfield confided in his father, Chris, who attempted to report the crimes to military investigators to no avail. When Winfield returned to the U.S., he was charged with murder. Krauss’ documentary The Kill Team, which premiered this weekend at the Tribeca Film Festival, centers on Winfield and his family as they navigate the military judicial system. Krauss also interviews other members of the platoon, including Corp. Jeremy Morlock and Spc. Justin Stoner, who provide context for the team’s behavior. Rolling Stone spoke with the director, who shared his thoughts on war crimes, whistleblowers and the justice system.
The Kill Team: How U.S. Soldiers in Afghanistan Murdered Innocent Civilians
What drew you to this story?
My first film was about Kevin Carter, a war photographer in South Africa confronted with a moral dilemma. When I read about the “Kill Team” trials, specifically Adam Winfield, it held a certain resonance for me. Here was another man in the theater of war who was forced to choose between moral priorities in a way that had no clear path or no good outcome. I remember putting down The New York Times Magazine article and immediately composing a note to the Winfield family. Six weeks later, I found myself in Fort Lewis with a camera sitting face to face with Adam Winfield.
This idea of barbaric groupthink seems like a tale as old as time with the military. It reminds me of Abu Ghraib and even Colonel Kurtz in Heart of Darkness. Did you come away with that feeling as well?
These events are much bigger than just soldiers or the institution of the military. War crimes are not a new phenomenon – they’ve been occurring since the Greek wars. I just read the Odyssey and the Iliad and you see desecration and all kinds that are familiar to people who have studied similar cases from the Vietnam era. We don’t hold the licenses on war crimes. Part of the thesis of the film, part of the fundamental conflict of the film, has to do with this notion that clean war is a modern myth.
Did you get a sense of why they did it?
I’m a little hesitant to go there. I don’t think it’s my job, or the film’s job, to provide an explanation, and I intentionally left the film somewhat open ended. Adam says, ‘I still don’t understand what they did, I’ll never understand it.’ I love that he says that. To me we can’t turn this into a quantifiable scientific equation. There’s no x+y = war crimes. These are, to some degree, unanswerable questions that are fundamental to human nature. But I will say that there’s a lot of frustration among these soldiers as you can probably detect. A lot of them felt a sense of betrayal, and part of that is because the military tasked them to complete a mission that they felt like they weren’t trained for and they didn’t sign up to do. The military was in the business of nation building, and they were very, very focused on protecting the local population. The restrictions on the use of force that were put on the soldiers was in their opinion so extreme that it essentially exchanged their safety for the safety of the people. They felt that the government was more interested in protecting potential Taliban or Afghan terrorists than protecting its own troops and that was a source of great frustration and anger. It created a sense that they were being put in harms way, and they were not able to use the tools they had been equipped with. That was certainly one factor that the guys pointed to.
There is part of me that feels that there aren’t any solutions. There are two pieces to this. There is the whistleblower piece, and the war crimes piece. The military has a culture of protecting its own. Whistle blowers are not looked on kindly in military culture. If you ask the military about what the law is, they will say, “We have hotlines and we have people who are ready to respond.” But the fact is, especially if you are oversees in a remote part of Afghanistan, your opportunities for going to senior command or military investigators are basically nil. And that leaves you with your chain of command – and it’s a very close system. You can’t report something to someone in your chain of command without feeling pretty confident it is going to come right back to you and the guys on your left and right. And that’s a no-go for any soldier. They depend on the guys beside them, and they can’t afford to be seen as being a rat. Even amidst circumstances of murder.
Has the military put any safeguards in place? If Adam Winfield can Facebook chat his father, as he does in the film, aren‘t there military police officers he can Facebook chat?
More can be done to adjust the culture of the military so that whistleblowers and potential whistleblowers understand how to voice their concerns, and provide more mechanisms, too. In this case those avenues all failed so clearly there is more to do. But I think the biggest problem is cultural. It would be foolish for me to say, “These kinds of things won’t happen again.” Every time a nation commits its soldiers to war, we are paying a toll in terms of what soldiers are giving up to achieve that goal. The sad truth is that this will happen again.
Has the military taken any specific actions?
They have a multi-hundred page report on the command of this unit, and I hope they’ll learn from it. They’ve done an investigation of the phone call that Chris Winfield [Adam’s father] made to the military and why that wasn’t taken seriously. The military has an interest in making sure these things don’t happen again. There were certainly failures, but the military, in some ways, is very good at responding to its failings and trying to address its failings. I don’t want to say they’ve necessarily gone as far as they should have with this case, but they’ve taken some first steps.
‘Death Zone’ – How U.S. soldiers turned a night-time airstrike into a chilling ‘music video’
Much of the film focuses on the military courts. What was most surprising about the way a military court functions?
The military justice system is really based on a foundation of punishment. Historically, it was built around the idea of determining how best to dole out punishment to soldiers that have been accused of wrongdoing. It wasn’t built around an independent authority tasked with proving guilt or innocence. The people who are involved in the judicial process, including the jury members, are all the authority, the very command that have a vested interest in making sure these prosecutions go through. I’ve heard, anecdotally, that military prosecutors have a 90% plus conviction rate. There is no independent body involved in this process. Once you’ve been charged with a crime, your chances of walking away are very small.
Has the military responded since the film came out?
I don’t know how many military officials attend film festivals, but when it’s available more publicly, I think there will be some response from the military. But right now, no one has seen it.
Read more: https://www.rollingstone.com/movies/news/q-a-the-kill-team-director-dan-krauss-on-whistleblowers-and-war-crimes-20130422#ixzz2TzAcG424
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Court Martial Lawyers – Alexandra González – Waddington & Michael Waddington Attorneys at Law
Each branch in the military has three defense attorneys that can be appointed to your case or if you haven’t been charged, they can advise you on how to proceed, whether to speak or not speak, whether to consent to searches or not consent.
All those types of questions both military defense attorneys on active duty and civilian military defense attorneys can answer. And they can give you peace of mind and help protect your rights.
Many people say I’m going to wait, I’m going to roll the dice, I’m going to wait to see what happens. That waiting to see what happens is generally is not a good strategy, especially if you’re facing serious felony level charges or misdemeanor charges in the military.
If you wait to see what happens, then it’s often too late. Sometimes if you get a military lawyer involved in the case whether civilian or military from the beginning where they can advise you on what to do, then you end up getting a lot better outcome. Those who wait to the very tail-end of the case, and some people wait until a week before their court martial jury trial to go out and either hire an attorney or get actively involved putting up… putting together a defense.
By that point, it’s often too late, the damage is done. What you should do, if one of the following things apply to you or a loved one, you should go out and hire an attorney or get a military attorney.
Number one, you’ve been accused by someone of a crime, or you think you may be accused. Two, the agents have called you in their office and they’re reading your rights. If you’re at that point where agents are reading your rights, then they believe that you’re guilty of a crime. That’s how it works.
When you’re called in and they tell you that you are suspected of manslaughter, rape, larceny, then those agents believe in their minds that it’s probably likely that you’re guilty.
So, they’re not advising you of your rights because they’re trying to look out for your best interest because they’re your friends, they’re advising you of your rights because they think you’re guilty and they have to advise you of the rights, of your rights before they can get your confession.
And you know what? If you sit down with these skilled investigators in the military, there’s a good chance they’re going to get either a confession, meaning you admitting to something or just an admission of guilt where you admit to parts of an offense even if you don’t realize that you’re admitting to it.
And the last thing that should trigger you wanting to get a attorney on your case is you’ve actually been given a charge sheet, whether it’s an Article 15 or NJP charge sheet or an actual court martial charge sheet.
Criminal Defense Lawyers
If you get one of those and it’s handed to you, then you need to run to the nearest defense office or get on the phone and get a defense team put together. You snooze, you lose, guys. You need to get someone on board quickly that’s competent and aggressive if you want to have the best chance of success in your case.