Monday, April 30, 2012

Charges Against US Servicemember Dismissed

Unfortunately, I am unable to share the names of the persons involved in this case.  Suffice it to say that a male Non-commissioned officer in the Army was accused by a female Non-commissioned officer of sexual battery under the UCMJ in a truly he said/she said case, i.e. no witnesses and no physical evidence, and the military dismissed the charges against him. 

I was able to convince the Article 32 Investigating Officer that the accuser was lying in much the same way the Duke Lacrosse players attorneys were able to convince the Judge that their accuser was lying.  An Article 32 is a military hearing to determine if enough reasonable grounds exist to forward the case to a court martial; this is a very low burden.  Many of the "details" she gave to local authorities and the Army's Criminal Investigative Division (CID) were completely contradicted by the evidence that we presented, which consisted of pictures of the crime scene as she alleged and phone records. 

In June 2011, the accuser alleged to the local police that she went to my client's house at night in late November or early December 2010 and watched TV where she was sexually assaulted on his couch.  During her Article 32 testimony, she described the entertainment center as dark wood and the couch as a tannish or cream colored cloth sofa.  Actually, my client's entertainment system is white and he has a chocolate leather sofa.  Also, the accuser said that she called him on his cell phone twice on the way over to his house, but his cell phone records indicated that she never called him during the two month period in which she alleged the assault occurred.  My client was adamant that the accuser has never been to his house.  I finally learned today that the General Court Martial Convening Authority dismissed the case without prejudice, so I can ethically comment on the case.

Two things struck me about this case.  First, my client exercised his right to speak to an attorney, which is always the right thing to do.  I will admit that exercising your rights to an attorney under the 5th Amendment is difficult to do when you are innocent because you would prefer not to pay for a consultation for something you did not do.  If you can find an attorney, like me, who will provide a free initial consultation, then at least you are not out a ton of money if the charges are dropped before you are charged.  However, most attorneys want to be retained and earn a fee for their advice.  While it is difficult to keep quiet when you know you are innocent, believe it or not, there are sexual assault reponse counselors ("SARC") who will help their "victims" clear up lies by allowing them to review the accused's sworn statement or ask them leading questions after the SARC reviews the accused's statement, so the accuser can amend her statement. 

My client did the right thing and allowed this woman to make two sworn statements without anyone hearing his side, so that she could not fix her statements.  I find myself often times convincing my male clients to be stoic and allow the lying accuser to keep talking in anticipation that the tales will grow so outlandish that even the investigator will not believe the accuser.  Even if I have a video clearly showing consent, my policy is that when confronted with a false allegation, the best thing to do is to say nothing until you speak to an attorney.  The military has recently criminalized surreptitiously recording a sex act between you and your partner, even for alibi purposes in a 2012 amendment to Article 120 of the UCMJ, so if a Servicemember produces a video, then he will probably receive non-judicial punishment.

Second, this accuser's allegations could have been easily disproved even without my client's statement.  Usually, CID will request that an accuser draw a diagram of the alleged crime scene.  This is particularly important when the alleged assault supposedly occurred at the accused's home and the details of which would support that the accuser was actually in his home.  In this case, the CID agent did admit that she should have directed the accuser to draw a diagram of the accused's home to prove that she was there, but the agent failed to do that.  The agent also failed to ask the accuser to describe details regarding the accused's home, such as what kind of couch he had, what the entertainment center looked like, etc.  Once the CID agent got that information, she could have gotten a search warrant and could have taken pictures of the accused's home.  When it did not look as the accuser described, then the CID agent could have gone back to the accuser and confronted her with the pictures to see if the accuser would admit that she was lying.  If it looked exactly how the accuser described, then at least the CID agent could have taken solace in the belief that the accuser had been there before.

The accuser stated that she called my client's cell phone from her cell phone on the way over to his house to get directions twice and that it was dark when she began driving over to his house.  His cell phone records clearly showed that she never called him.  In fact, he made 3 calls to her during the two month window when she said the alleged assault occurred, none of which were after 3:30 p.m. or over one minute.  Once again, CID should have requested her cell phone records to show that she made the phone calls to him.  Had they done that, then perhaps they would realize that her story was contradicted or she might have confessed to making the incident up.

When I finished my examination of the CID agent during her Article 32 testimony where I questioned her failure to get a diagram of the accused's home, the accuser's cell phone records, or conduct any other kind of investigation whatsoever, the Special Victim Prosecutor (SVP) led her with questions about "victimization of the victim."  The SVP actually attempted to justify NOT asking questions or requesting corroborating evidence because it would further victimize the victim if the accuser thought for a second that CID did not believe her.  I have been doing this kind of criminal litigation for about 10 years now, both as a prosecutor and a defense counsel, and I have seen CID go from investigating the veracity of the accuser's claims somewhat thoroughly to merely taking a sworn statement without any attempt to determine whether the accuser is telling the truth.

In addition to all of this evidence showing a lack of corroboration of her story, this particular accuser had a history of mental health treatment.  She also had a history of making up lies to explain her shortcomings in life.  I believe that she might have made a false allegation at a previous duty station.  The SVP fought me every step of the way in trying to get her mental health records, which I believed were quite relevant, especially if she was diagnosed with a histrionic personality disorder.  This alleged victim accused my client of sexual assault in June 2011, after she returned to the unit in May 2011 because she failed out of a military leadership course; she testified that she heard my client say that she was stupid.

The lesson learned from this case is that military accused are on their own when accused of sexual assault, and it is up to them to prove their innocence.  They can no longer rely on NCIS, CID, or AFOSI to conduct an unbiased investigation into the veracity of an accuser's allegations because these agents are trained to avoid at all costs "victimizing the victim."   The accused needs to lawyer up and begin collecting adverse evidence regarding the accuser immediately.  My client was fortunate that he was able to provide me evidence that showed he was innocent.  Had he not, then I imagine I would be representing him at a General Court-martial.