Military Defense Lawyer Argues for Not Guilty in Sex Assault

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

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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.

Gomez, 35, is charged with violating five military laws in connection with the rape and sexual harassment stemming from missions of the cutter Gallatin or its crew.

“Was anyone else in that chain of command held accountable?” Morris said. “No. The scapegoat of that culture was (Gomez).”………..

Four, or two-thirds, of the six jurors, must agree on the findings. Unlike civilian criminal trials, a unanimous verdict isn’t necessary.

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.”

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The five counts against Gomez are:

. Violation of a general order by sexually harassing a seaman on the basis of her gender.

. 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.

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Military Sex Assault Resources

The Basics

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-About Sexual Assault
-Family Readiness System
-Sexual Assault Prevention and Response Program
-The Impact of Sexual Assault
-Policy and Legislation

Reporting Options

-Reporting Options and Policy Information

Popular Links

-Army SHARP Program
Department of Justice Office for Victims of Crime
DoD Victim and Witness Assistance Council
MCCS: Sexual Assault Prevention and Response (SAPR) Program
-Military One Source Tips
National Center for Post-Traumatic Stress Disorder (PTSD)
National Center on Domestic and Sexual Violence
Navy Sexual Assault Prevention and Response
Rape, Abuse, and Incest National Network (RAINN)
Sexual Assault Prevention and Response (SAPR)
Siridian Institute for Traumatic Stress Education and Advocacy
US Coast Guard: Sexual Assault Prevention and Response Program

Borderline Personality Disorder & False Accusations in Military Sexual Assault Cases

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What are the Costs and Guarantees Associated?

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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.

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‘The Kill Team’ Director Dan Krauss on Whistleblowers and War Crimes

The sad truth is that this will happen again’

April 22, 2013 11:55 AM ET

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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.

Donald Rumsfeld: ‘Kill Team’ Photos ‘Much Worse’ Than Abu Ghraib

What can be done to remedy these situations?

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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, arent 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? 

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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.
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Court Martial Lawyers – Alexandra González – Waddington & Michael Waddington Attorneys at Law

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Show Cause Boards/Administrative Separation Boards

If you are facing an administrative separation or show cause board, then you need the hardest hitting representation possible. At a board, military personnel face:

  1. Losing their career;
  2. Losing hundreds of thousands of dollars in hard earned retirement pay and benefits;
  3. An Other Than Honorable (OTH) discharge, hurting their ability to find a job and support their family; and
  4. Losing their reputation and pride.

Military Sexual Assault Defenses : Mistake of Fact Explained by a Military Defense Lawyer

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Our attorneys drive a hard bargain and fight to win the best possible outcome for our clients. Our results speak for themselves. Below are cases that we contested in front of boards. In hundreds of other cases we have negotiated deals that have secured favorable discharges, retention, and retirement, thereby avoiding a board all together.

Note: These are examples of real case results. All cases are different. A success in one case does not guarantee success in another similar case. We do not guarantee a certain final outcome, to do so violates the Rules of Professional Responsibility.

  • U.S. v. Army O-3, Fort McPherson, GA – Soldier accused U.S. v. Army O-3, Fort McPherson, GA – Soldier accused of abandoning her Company Command, adultery, false official statement, falsely claiming that a married E-8 was her husband and supposedly lying in order to get married quarters while on R& R in from Afghanistan. The Army tried to give soldier an Other Than Honorable Discharge (OTH).
    Result: Soldier received an Honorable DischargeRead the full story
  • U.S. v. Air Force O-5, McGuire Air Force Base, New Jersey – Air Force attempted to separate client and give him an Other Than Honorable Discharge. Contested case in front of an officer board.
    Result: Client retired with an honorable discharge
  • U.S. Air Force E-6 – Eglin AFB, FL – Avoided court martial. Contested charges at board. Airman received a General Under Honorable Discharge.
  • U.S. v. Navy E-7 with 18 years of service – Jacksonville NAS, FL – Separation board for various sex crimesWe fought the charges in front of a board. Board found that no misconduct occurred. Sailor retained on Active Duty.
  • United States v. O-3 – Conduct unbecoming an officer, Inappropriate relationship with a female GS employee while married. Retained and allowed to PCS.
  • United States v. E-4 – Homosexual conduct. Retained.
  • United States v. E-4 – DUI, Drugs/wrongful use of cocaine, two time PLDC failure, two counts of assault. Suspended discharge and rehabilitative transfer.
  • United States v. E-6 – Personality disorder discharge. Diagnosing psychiatrist testified against soldier. Board found that psychiatrist misdiagnosed the soldier and retained.
  • United States v. E-6 – Failure to meet weight standards. Retained, promoted to E-7.
  • United States v. E-4 – Drugs/wrongful use of methamphetamine. Retained.
  • United States v. E-7 with 25 years – Wrongful use of cocaine. Retained, allowed to retire.
  • United States v. E-4 – Drug use, aggravated assault with an ax handle in Kuwait. Awarded Honorable Discharge.
  • United States v. CW2 – Fraternization, Adultery, Violation of a Regulation, Conduct Unbecoming an Officer. Retained.
  • United States v. E-7 (Recruiter) – Drugs/wrongful use of cocaine x 4, dereliction of duty. Awarded Honorable Discharge.
  • United States v. E-7 with 21 years – Drugs/wrongful use of cocaine. Retained, allowed to retire.
  • United States v. E-7 – Fraternization, adultery, false official statement (to an O-6 in front of his entire staff), conduct unbecoming, and fraud. Avoided court martial and took it to a board. Won a General, Under Honorable Conditions Discharge, rather than Other than Honorable (OTH) at the board. Soldier was able to re-join the Army and will retire.

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Soldier Avoids Discharge – Gets 30 Days in Korea Brawl

Stars And Stripes
By Ashley Rowland, Stars and Stripes
Pacific edition, Wednesday, October 7, 2009

SEOUL — A sergeant at U.S. Army Garrison-Yongsan was sentenced Monday to 30 days of confinement and a reduction in rank to E-3 for hitting two other soldiers during a street brawl outside an Itaewon nightclub in February in which two soldiers were severely beaten and one was stabbed.

False Accusations of Sexual Assault in the Military & Why Are They So Common?

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Military Intelligence Brigade

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Sgt. MJ, of the 501st Military Intelligence Brigade, was charged with one specification of making a false official statement and two specifications of felony aggravated assault with means likely to produce death or grievous bodily injury for allegedly beating two soldiers with a beer bottle. He faced 11 years in prison and a dishonorable discharge.

As part of a plea bargain, he pleaded guilty to and was convicted of two lesser offenses of misdemeanor assault consummated by battery. The false official statement charge was dropped.

Joyner, who was tried by military judge alone, was also sentenced to a forfeiture in pay of $300 per month for three months.

One soldier was stabbed in the chest during the Feb. 1 fight outside the popular King Club. An altercation started inside the club and spilled onto the street after police emptied the club.

Joyner testified during an Article 32 hearing in July that he got involved in the fight to defend his twin brother, Spc. Markelle Joyner, after he was allegedly attacked by Pvt. Matthew Bonham, who sustained deep cuts and bruises in the incident.

But on Monday, Sgt. Joyner said in the court-martial that he didn’t act in self-defense or to defend anyone else. Joyner’s civilian attorney, Michael Waddington, said outside court that Joyner had been defending his brother during the first part of the fight but not during the entire fight.

Spc. Markelle Joyner was to be court-martialed Tuesday on charges of assault and making false official statements.

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Aiken County Deputies Bust An Atlanta Man For 22-Pounds Of Pot

By Danielle Johnson, NBC

August 16, 2007

Aiken County deputies arrested a man from Atlanta after they found thousands of dollars in marijuana in his rental car. It happened Sunday morning at the intersection of Old Edgefield and Atomic Roads in North Augusta.

Bestmilitarydefenseucmjdefenselawyer73 Gonzalez &Amp; Waddington - Attorneys At LawAiken County investigators say Kelvin Spencer of Atlanta had just pulled off from filling his tank at this gas station Sunday morning. That’s when a deputy noticed the rental car he was driving didn’t have a license plate.

After pulling Spencer over, the deputy say he smelled a strong odor from the car. He then checked the trunk, in it more than 22-thousand dollars worth of marijuana. Spencer was immediately arrested and charged with drug trafficking.

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“I was surprised because I thought they cleaned up the area over here,” says Brenda Young.

Brenda Young just moved back to this neighborhood to raise her two daughters. She left it 10 years ago because of drug activity had escalated.

“Especially in this area it was real bad. You could hardly walk out the door without somebody trying to sell you something,” she says.

While neighbors are relieved about the arrest, others say the problem is going away fast enough and want more to be done.

“I would like to see them patrol more cause it’s different now,” says another neighbor.

Why Spencer was in the area is still under investigation. He’s being held at the Aiken County Detention Center awaiting a bond hearing. He could face charges in Atlanta as well.

Judge Questions First Trial

Augusta Chronicle Small LogoJudge Questions First Trial
Attorneys told to outline sides of slaying verdicts
By Sandy Hodson, Staff Writer
Thursday, May 17, 2007

The judge who will decide if six men convicted in one of Augusta’s biggest criminal trials in 2001 are entitled to new trials focused prosecutors’ and defense attorneys’ attention Wednesday on three potential trouble spots in the original trial.

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It was a complicated Richmond County Superior Court racketeering case. Six men were convicted of playing various roles in a criminal enterprise that included a double homicide. In addition, two of the defendants also faced charges associated with the brutal 1998 slaying of Sam’s Club Manager David Holt.

At the end of the two-day hearing Wednesday, Judge Neal W. Dickert outlined those points he had the most questions about, beginning with the combination of the Sam’s Club crimes and the racketeering case.

Judge Dickert, who inherited the case from Senior Judge Bernard J. Mulherin Sr., said he wanted to hear what prosecutors thought was right and the defendants’ attorneys thought was wrong about the trial judge’s refusal to split the case.

In addition, he pressed the sides to stake their positions on what more, if anything, should happen because potentially damning evidence arose for the first time in a closing statement.
Judge Dickert also asked the attorneys to weigh in about District Attorney Danny Craig’s attack on one of the defendants for deciding not to present an expected alibi.

Carlston Coleman, Ronald Coleman, Jarman Harold, Charles D. Winters, Kendric Dudley and Ronnie B. Overton were each convicted of violating the state’s Racketeer Influenced and Corrupt Organizations Act. That charge included aspects of the July 1997 slayings of two young men, Ryan J. Singh and Manuel B. Arroyo.

The Colemans, who are not related, were the only defendants accused and convicted of the Sam’s Club crimes.

Murder charges have never been filed in Aiken County, where Mr. Holt’s remains were found in the trunk of his burning car, or in Warren County, where the remains of Mr. Singh and Mr. Arroyo were found in the trunk of a burned car.

Judge Dickert set a schedule for when attorneys are required to submit their positions in writing. After a transcript of this week’s hearing is prepared, the defendants’ attorneys have 60 days. The prosecution will have 30 more days to respond. Once he receives all the briefs, Judge Dickert will decide if any of the defendants are entitled to a new trial.

The Colemans, who are serving two life sentences plus 65 years, are now represented by Barbara Claridge and Michael Waddington.

Mr. Harold, Mr. Winters, Mr. Dudley and Mr. Overton – who are now serving 20-year prison sentences – are now represented by attorneys William Sussman, Jeannie Hyatt, William M. Fleming and Randolph Frails, respectively.

Lawyer fights to win his battles

Bagram Prison Abuse Scandal

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Court Martial Lawyers – Alexandra González – Waddington & Michael Waddington Attorneys at Law

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Bagram Detain Abuse Overview

According to US and Afghan officials, KABUL — The US military has begun investigating allegations that two Afghan teenagers were beaten by guards in a secret detention center on Bagram Air Force Base last year. Human Rights Today has called on the United States government to respond to new allegations that Afghan detainees have been mistreated in a secret prison at Bagram Air Force Base.

American-run prison houses about 700 inmates

The detention center described by the teens appears to be a facility managed by US Special Forces, separate from Bagram Theater Detention Facility. This main American-run prison houses about 700 inmates. The teens’ accounts of the detention center coincide with those of two other former detainees who said they suffered similar mistreatment, if not beatings, while detained last year in Bagram, which Afghans call a “black prison.” US military officials took statements of two Afghan teenagers over the past month and are in contact with others who say they were held at a secret detention center at Bagram Air Force Base.

The latest allegations in Afghanistan fit a pattern of allegations of brutal treatment of former Guantanamo detainees and Afghans held by the US, reported first last year by the Guardian. Documents obtained by Guardian contain evidence that such abuse had occurred in the main prison of Bagram near Kabul city and a smaller US facility located in the southern city of Kandahar. In December 2002, two Afghan detainees died in Bagram Air Force Base; their deaths were declared a homicide by a US military doctor who conducted autopsies. Defense Department officials said they launched an investigation into the deaths in March 2003 and another Afghan died in another detention facility in Asadabad near Kunar Province. However, human Rights Watch is concerned that the investigation findings were never made public and that appropriate criminal sanctions never took place.

Synonymous with torture and ill-treatment of detainees

Like Guantanamo, Bagram, the US detention center on its vast airbase in Afghanistan, has become synonymous with torture and ill-treatment of detainees. Although some of the US Government’s most brutal torture practices have been inflicted on detainees at the Bagram Detention Centre, allegations of maltreatment and abuse continue to surface, even though only two detainees have died. Incidents of mistreatment of detainees at Bagram in 2002, including details of the deaths, were reported to American officials, who described them as isolated issues that needed to be investigated.

During this time, two Afghan prisoners, Habibullah and Dilawar, who had been hanged on their wrists, were tortured in December 2002 by US soldiers in the Bagram prison to death. Two other detainees held in late 2002 at Bagram Detention Center told a New York Times reporter they had been tied, deprived of sleep, and beaten while standing for weeks. Although, in December 2014, the United States handed over control of Bagram, a US detention center near its vast airbase in Afghanistan that has become synonymous with torture and ill-treatment of detainees, to Afghan security forces, it shirked responsibility for the men held there.

Allegations of torture and murder

All the allegations of torture and murder took place in the military prison known as the Bagram Theater, an internment facility erected by the Soviets as an aircraft machinery factory during the Soviet invasion of Afghanistan in 1980-1989. Although the US government ended brutal torture, the military continued to maintain secret “black prisons” where detainees were subjected to sleep deprivation, cold, forced nudity, and other abuses, and where detainees were cut from their families and lawyers. In addition, the website reported that the CIA tortured and code-named horrific abuses in four prisons in Afghanistan used by the CIA in 2004, one of which served as Bagram Air Base, a separate site from the Military prison where the abuses took place.

In January 2010, the US military released the names of all 645 detainees held at Bagram main prison, despite their long-standing position on releasing such information. Bagram was a collection and clearinghouse for captured detainees in Afghanistan. Up to 40 and 80 detainees were held for interrogation and eventual transfer to the Pentagon’s Long-Term Detention Center at Guantanamo Bay, Cuba.

Report is significant as the first official response

The report is significant as the first official response from the US government to the allegations of widespread abuse of detainees in Afghanistan and the Guantanamo Bay detention center. Two Afghan teenagers held in US captivity in Kabul for years, Abdul Rashid, who said he was just 16 years old, said in interviews that they were beaten and slapped by their captors at the Bagram Air Base were held in solitary confinement. In addition, Joshua Claus Claus Claus was charged with assault, mistreating a detainee, and making false statements to investigators for his participation in interrogation that led to the death of an Afghan detainee in December 2002 at Bagram Air Force Base.

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