The Navy-Marine Corps Court of Criminal Appeals heard oral arguments today, June 25, 2009, on the U.S. v Wuterich appeal from the quashing of a government subpoena of the CBS 60 Minute out-takes of Scott Pelley’s 2007 interview with Sgt Wuterich.  The Court will determine the government’s appeal of Judge Meeks’ April 2009 decision denying the prosecutors access to the out-takes based on a military rule of necessity.

Military Judge Rules in Favor of Wuterich

Judge Meeks, in his in camera review of the out-takes, ordered by the U.S Court of Appeals for the Armed Forces earlier this year, identified Wuterich’s out-take accounts of what happened in Haditha in November 2005, as cumulative to the government’s case but not critical.  Additionally he found that the information in the out-takes was readily available from other sources.

Journalist’s Privilege Questioned in Court

Today the government argued that that only four of the 12 Federal Circuit Courts have recognized the press privilege and invoked a military procedural rule whereby the military judicial system is required to rely on the rulings of Federal Courts if a given issue has not been vetted in the military appeal process.  In other words, there is no precedent in the military justice system for journalists rights to privilege when interviewing non-confidential persons, and in this case, when they are charged with war crimes.

1st Amendment Rights

The defendant in the case, SSgt Frank Wuterich, waived his presence and CBS argued for the rights of journalists under not only press privilege, but under the 1st Amendment to the Constitution.  They maintained that a government who impels compliance and turning over of information formed and managed during the editing process is proprietary to the journalist and CBS.  Additionally, for the government to subpoena CBS and make them capitulate would, in effect, force the free press into service as another arm of the military investigators and prosecutors.

Possible Appeal to Supreme Court

A ruling on the appeal of Judge Meeks quashing the government subpoena is expected by the end of the summer.   The government or CBS could still appeal the ruling of the Court to the highest military appeal court, the US Court of Appeals for the Armed Forces or further to the Supreme Court of the United States.  In the meantime, the March 2008 court-martial of SSgt Frank Wuterich is still suspended and awaiting appeal of this single motion.

Press Release:  An Army drill sergeant with 13 years of service is being charged with two counts of rape, by two different accusers.  The “rapes” allegedly happened in the drill sergeant’s office in July 2008.  The two accusers claim to have been raped by this drill sergeant while filing papers in his office – together.   One reported the incident over a month later and only after she was not allowed to march in the basic training graduation ceremony because she was wearing make-up.  The other was contacted by the Army Criminal Investigation Division, (CID), when the first told them the second had sex with the drill sergeant after witnessing the first “rape.”

Military Justice

Once charged with rape in the military system, an Article 32 hearing is held to determine if the actions of the military member warrant further prosecution and trial under the military justice process.  If the Article 32 hearing officer recommends a court-martial, the senior military officer usually orders a court-martial.  A full trial, with all the rules of evidence, is then convened and scheduled.  In the third week of June 2009, Mr. Neal Puckett represented the Army drill sergeant in an Article 32 Hearing where the government sought to minimize his right to a full preliminary hearing at Fort Jackson, SC.

Military Defense Attorney

The Army prosecutor came to the Article 32 Hearing claiming that four of the nine witnesses “could not be located.”  This failure might have limited the ability of the military defense lawyer to bring into the courtroom the defense facts associated with the case and to challenge the government evidence.  Mr. Puckett brought a motion to require the testimony of the other witnesses, and the Investigating Officer granted the motion by finding them himself and making sure they testified by telephone.  Mr. Puckett effectively cross-examined all of the witnesses, including the lead CID agent to prove the investigation process was incomplete and biased in its analysis of the facts.   The next step in the case will likely be a general court-martial of this veteran Army drill sergeant.

Military Court-Martial

The Law Firm of Puckett & Faraj, PC, fights hard to ensure that all of the rights of its clients are protected and effectively used to defend against charges based on shoddy investigations and overzealous prosecutors.  We are confident now that the resulting general court-martial of this client will allow for full disclosure of the truth and reveal that he is innocent of the charges of rape.

Press Release:  A Marine Corps officer is being charged with three counts of rape, with three different accusers.  The Law Firm of Puckett & Faraj, PC represent this Marine against the charges of alleged rape which reportedly happened on temporary duty to New Orleans, LA in 2008.  The three accusers, all friends and including one who was the girlfriend of the defendant, claim to have been raped by this Marine during a night of partying in New Orleans. They reported the incident and the New Orleans district attorney refused to prosecute for lack of evidence.

Military Law and the Court-Martial Process

Civil courts have jurisdiction when military members are in trouble off the base, but the military reserves the right to prosecute through military jurisdiction.  This apparent “double jeopardy” exists to ensure good order and discipline in the military.  This officer called Haytham Faraj, Esq. to help him when, after charges were dropped in New Orleans, the Marine Corps chose to prosecute him for three counts of rape.

Military Justice Process

Once charged with rape in the military system, an Article 32 hearing is held to determine if the actions of the military member warrant further prosecution and trial under the military justice process.  If the Article 32 hearing officer recommends a court-martial, the senior military officer usually orders a court-martial.  A full trial, with all the rules of evidence, is then convened and scheduled.  In the first week of June 2009, Mr. Haytham Faraj represented the Marine officer in an Article 32 Hearing where the government minimized his right to a full preliminary hearing at Marine Corps Recruit Depot, San Diego, CA.

Military Defense in an Article 32 Hearing

The government went through the motions of an Article 32 Hearing, but did not call to the stand any of the accusers or witnesses.  This limits the ability of the military defense lawyer to bring into the courtroom the defense facts associated with the case or to challenge the government evidence.  Realizing the government’s move to preserve their evidence and witness testimony for a general court-martial, Mr. Faraj effectively cross-examined the one government witness, a Naval Criminal Investigative Service (NCIS) agent to prove the investigation process was biased in its analysis and presentation of the facts.   The next step in the case will be a general court-martial of this officer for violation of Article 120.

A Marine Corps officer was acquitted of the charge of aggravated sexual assault in a general court-martial after a two-day trial at Quantico Marine Corps Base on May 19-20, 2009.   Criminal defense attorney and partner of the Law Firm of Puckett & Faraj, PC, Haytham Faraj, stated, “the acquittal was the just outcome given the facts of the case.  Rape or aggravated sexual assault is a very serious accusation with life altering consequences for the accused.”

Military Defense Attorney Strategy

Mr. Faraj identifies the military defense strategy, “I knew we had a tough fight on our hands as these cases always tend to be.  We prevailed because we had the better facts and theory and were able to challenge the government’s theory and demonstrate that it could not be proven.  This was by no means an easy victory because, in these types of cases, you’re almost always dealing with a real victim or someone who believes she is a victim.  Accordingly, the fact finder will have a great deal of empathy for the accuser.  The challenge is to ensure that you present the facts dispassionately without attacking the alleged victim so that the fact finder can neutrally evaluate the evidence for him or herself.  That’s what I did and it resulted in a just outcome, an acquittal.”

Military Law

The military services follow Title 10 law regarding the prosecution of alleged sexual assault and rape cases.  United States Code, Title 10, Section 920, Article 120 defines rape as any person who causes another person of any age to engage in a sexual act by using force, causing bodily harm, threatening, rendering them unconscious, or administering a drug or intoxicant.   Maximum punishment by court-martial is death.

Consequences of Military Rape Conviction

Rape is a sex offense legally punishable by death in the military but most often results in jail time when there is a conviction.  Aggravated sexual assault carries a maximum sentence of 25 years.  When a person is convicted of a sex offense, such as rape or aggravated sexual assault, he or she will be required to register as a sex offender.  Additionally, sex offenses are most often felony offenses.  In many states in the United States felons lose the right to vote, hold a government job or buy a firearm.  Moreover, service members will be denied discharge upgrades and will forfeit VA benefits.  If you find yourself accused of sex offense call us for a free consultation.

The Stars and Stripes is reporting the theater show “Sex Signals,” a Catharsis Production, is touring Air Force bases in Japan with the goal of training Airmen on DoD sexual harassment policy.  The goal is to use “improvisational comedy, education, and audience interaction to provide a provocative look at dating, sex, and the core issue of consent.”   This audience interactive training allows the military members to input scenarios and questions to the actors about the awkward process of dating and what consent means.

Military Training to Prevent Rape

The Airmen get a chance to ask questions about the signals they receive from the opposite sex and whether or not those can be construed as consent to sex.  This upfront discussion allows Airmen to talk about the policy and understand the military law’s definition of rape.  Prevention of rape by teaching the concept of consent is aimed at preventing rape in the military and reducing the military members charged under the Uniform Code of Military Justice.

Consequences of Military Rape Conviction

Rape is a serious charge under military law and follows the federal guidelines. Rape is a sexual offense, legally punishable by death but most often accompanied by jail time.  If a military member is convicted of rape, serves his sentence and is subsequently discharged from the military service with a bad conduct or dishonorable discharge, he must register as a sex offender in his community.  Additionally, he is not eligible to vote, hold a government job, buy a firearm, upgrade his discharge, or receive VA benefits.  The best defense is to not be in the position of being charged with Article 120, “Rape, Sexual Assault and Other Sexual Misconduct.”   As the actors of Catharsis Productions tell the Airmen, “If the person you’re having sex with says, ‘Stop,’ you stop.”

The Uniform Code of Military Justice (UCMJ) provides for the federal conviction of military members who willingly violate the laws of the United States and the laws of war.  The inadequacies of this system show that laws passed or amended by Congress were during a time when our enemies did not use civilians as shields or weapons.

Rules of Engagement

This lack of adaptability of the UCMJ has resulted in a complex set of rules of engagement that ensure military members on the ground and in the air do not intentionally kill civilians.  More often than not, the military justice system is quick to charge the individual military member on the ground while hesitant to charge the aircrew that dropped the bomb or the command and control managers that authorized the drop.  Take for example the bomb dropped on the Afghan village of Granai.

Recent Afghan Airstrikes Kill Civilians

An Air Force preliminary report found fault in the B-1 crew for releasing a weapon without positive identification.  From thousands of feet in the air, the B-1 crew was to positively identify Taliban fighters from the men, women and children of the community.  The military prosecuting attorneys find it much easier to try a Soldier or Marine who, face-to-face, in a split second when his or her own life might be in danger, fails to identify an enemy combatant target; an enemy indistinguishable from their civilian counterparts except for their intent or weapon in hand.  Is this a double standard for our military members?  Is the UCMJ outdated and unable to adapt to the complex warfare the United States now faces?  Are the military procedures set up to prevent the release of a bomb prior to intelligence confirmation of the target but that same safety valve is not provided to our Soldiers and Marines on the ground?

UCMJ and Modern Warfare

We truly must not rely solely on the UCMJ to provide justice within the military system.  We must argue the mitigating circumstances and look into the souls of our military men and women to find the truth.  Did they deliberately kill innocent civilians?  Why is the military justice system set up to punish the individual who pulled the trigger, making a decision that in the case of our ground troops, may have saved their lives?  The military justice system needs to become more adaptable to modern warfare.

Army Vice Chief of Staff General Peter Chiarelli has directed Army commanders to do a better job of getting drug and alcohol offenders into treatment or separated from the Army.

Military Criminal Defense

Any drug use or alcohol abuses are criminal offenses in the military legal system.  Receiving a charge sheet with these offenses, especially on the battlefield in Iraq and Afghanistan, means our Soldiers, Marines, Airmen and Sailors could end up with a federal conviction that will haunt them the rest of their lives.

Treatment or Court-Martial

The Army Times Article, dated June 8, 2009, states the Army is cracking down on violations and emphasizing reporting requirements.  It could mean increased inspections of barracks rooms and more visits to our Soldier’s off-post homes to make cursory evaluations of their living conditions.   If the Army begins inspecting private homes off-post they dangerously verge on stepping over and violating constitutional rights.  They must first have evidence of abuse and request and receive a civil court order to enter the property.  Otherwise, the evidence they seize will likely be inadmissible in any subsequent court-martial proceedings.

Battlefield Stress

Our military members are under extreme stress as they return to the battlefield for their fourth and fifth tours.  It is incumbent on military commanders to safeguard our military men and women and get them the help they need in dealing with the stress.  The Law Firm of Puckett & Faraj, PC, specializing in military criminal defense, would hope the Army focuses on getting these Soldiers into treatment rather than taking them to a court-martial.  Only by treating these unseen wounds will the Army truly be taking care of their own.  We have extensive experience in working with service members who are suffering from post-traumatic stress disorder, as well those who have succumbed to the temptations of illegal drug use or alcohol abuse.

The North County Times reported June 1, 2009, that the Marine Corps most senior officer, the Commandant, is determining the fate of Lt Col Chessani, after the military justice system has ruled unlawful command influence in the government case against him and dropped the charges.  It is up to the Commandant whether to recharge Lt Col Chessani again with dereliction of duty by not thoroughly investigating the deaths of 24 Iraqi citizens at Haditha in 2005.

Haditha, Four Years Later

Staff Sergeant Frank Wuterich, the leader of the Platoon charged with counts of murder occurring in November 2005, in Haditha, Iraq, still has not had his day in a military court-martial.   The loss of Iraqi civilian life occurred in November 2005, when members of his squad were clearing houses looking for the trigger man, who moments earlier had set off an IED that killed one Marine and severely wounded two others.  There were two official military investigations of the incident, and an in-depth NCIS investigation, taking another year and a half to complete.  However, 2007, the Hamdania murder cases were in the news, and the Marine Corps chose to take them to trial first, further delaying the Haditha cases.

Article 32 Hearings for Wuterich

In 2007, nearly two years later, the Article 32 hearings, similar to preliminary hearings, were underway with eight Haditha Marines facing charges.  As rarely happens in the military justice system, the results of various Article 32 hearings led to 6 of 8 cases being dismissed.  By the end of 2007, there remained only two Marines charged with manslaughter and failure to investigate, Staff Sergeant Wuterich and his Battalion Commander, LtCol Chessani, respectively.

Military Defense Lawyers

Staff Sergeant Wuterich’s civilian and military lawyers, Neal A. Puckett and Haytham Faraj, were ready for a court-martial in the spring of 2008, two and half years after the IED attack in Haditha.  During the military court pre-trial hearings, the government subpoenaed the outtakes from the CBS 60 Minutes Interview.  The judge quashed the subpoena.  Another subpoena was also quashed on First Amendment grounds.  The prosecutors appealed the military judges ruling twice, delaying swift justice for a Staff Sergeant Wuterich.  The first appeal has now been appealed to the Supreme Court of the United States.  The second appeal has just reached the first military appellate court.  In the meantime, the Battalion commander’s case has been dismissed due to unlawful command influence, and Staff Sergeant Wuterich, who is not allowed to attend professional military education or be promoted, is still waiting to go into a military court, having waited three and half years.  Most of the military lawyers involved with the case, including the military judge, have retired or transferred.

Military Defense Attorneys Puckett & Faraj, PC

The Law Firm of Puckett & Faraj, PC are the best military defense attorneys available, and have worked incessantly to bring Sergeant Wuterich’s case to trial. Neal A. Puckett and Haytham Faraj have pieced together the truth of what happened at Haditha, and are waiting for the opportunity to prove it in a military court-martial.  It is unconscionable that the US Marine Corps would delay justice for a Marine who, protected his platoon and executing his job on the battlefield in urban terrain should put his entire life on hold while the nuances of the Uniform Code of Military Justice are argued in an appellate process that takes years. The Law Firm of Puckett & Faraj, PC, defend the rights of all military members and work to support the fair treatment of our brave men and women.  If you or a member of your family is being investigated by the military, please call our toll free number for a free consultation, 877-970-0005; or contact us via Email.  Your questions will be answered and all communication is protected by the attorney-client privilege.

Neal Puckett, senior attorney at The Law Firm of Puckett & Faraj, PC., along with CPT Roger Hill, gave an interview to Lauren Gregory of the Chattanooga Times Free Press, stating they believe that “the media and government officials have tried to create a black-and-white debate about a type of warfare that’s anything but. Fighting a lawless enemy requires leeway in the rules of engagement…”

Military Lawyers

I’ve seen a change in the application of military law in my over 25 years as a military defense attorney.  We are applying antiquated laws based on the battlefield engagement of two major military forces who in theory, abide by all international conventions.  Today’s senior military officers use military lawyers on the battlefield to assess every targeting action prior to execution.  This works for military standoff weapons, but it does not help the ground warrior faced with terrorist actions aimed at one thing – death to Americans.  These insidious terrorists act without compassion for the rule of law and even place their own children at risk.

Law of War

When our opponents are not concerned with application of the laws of war and can count on our military forces having to choose between the death of their men and women or extracting information from a prisoner, we place our military in a no-win situation.  The result is that our young men and women are charged with war crimes and held personally responsible.  The military lawyers are zealous in their prosecution of these military men and women, who do not have the benefit of a lawyer on the battlefield advising them.  Until the law of war accounts for the new reality of hand-to-hand combat with an enemy who places no value on human life, it is critical that our military members are afforded the best military criminal defense attorney support available.

CPT Roger Hill

Our client, CPT Roger T. Hill demonstrated a higher leadership standard of protecting his men and getting the mission done, which cost him his career.  He held this high moral standard by resigning his commission for the good of the Service in an attempt to take all the blame from his troops as they desperately tried to stop the insidious attacks from within their forward operating base.  When will America stop putting our young men and women in a no-win situation and demand that senior military leaders take responsibility to protect their young warriors from the presumption of guilt on the battlefield?