Puckett & Faraj

News Release: Haytham Faraj, Esq, Partner in the Law Firm of Puckett & Faraj, PC graduated July 31, 2009 from Gerry Spence’s nationally acclaimed Trial Lawyer College in Wyoming. This intense defense trial lawyer training focuses on proven techniques and processes aimed at winning each and every trial.

Trial Lawyers College

The Trial Lawyers College is a concentrated, 23 consecutive days program taught by the renown US defense trial lawyers. They are dedicated to training a new generation of younger trial lawyers to be effective and winning advocates for justice. The goal is to inspire the attendees to become a winning trial lawyer who will ethically and nobly champion the cause of the individual against big government or corporate industry. To achieve that goal, Mr. Spence and the staff at the Trial Lawyers College, have developed an advocacy program that demands lawyers learn how to connect with their clients to better represent their point of view and present them in a way a jury or judge will rule in their favor.

The Law Firm of Puckett & Faraj, PC.

The Law Firm of Puckett & Faraj, PC has over 50 years of combined professional and legal experience, including providing military defense attorney services to defend members of the military and exceptional litigation skills for those accused of federal crimes.  Mr. Faraj continues the Law Firm’s record of unparalleled success, with a recent full acquittal of rape at a Marine Corps officer court-martial.

The spotlight is on Soldiers and former Soldiers accused of over a dozen slayings in the Colorado Springs, CO area near Fort Carson. These men are charged with violent crimes and a military study suggests a relationship between increasing levels of combat exposure and the risk of negative behavior in the community. Why didn’t the military justice system take care of these Soldiers before they committed crimes in the community?

Military Justice is a Commander’s Program

Military justice is a commander’s program; in other words the commanders exercise discretion on deciding if an offense should be charged and how offenders should be punished. When faced with an increasing escalation of behavior in a Soldier, a court-martial is the final step in a series of remedies available to ensure good order and discipline. Options include Wounded Warrior programs, behavioral counseling, medical treatments, alcohol and drug abuse counseling, and family support programs among others. The military legal processes are used when a crime as defined in the Uniform Code of Military Justice is allegedly committed.

Combat Related Stress Diagnosis

Programs, that support military members, are more limited or simply not available in a combat zone. The Commander’s must observe and identify those Soldiers with behavioral problems and get them the help then need. This may mean returning the Soldier to the home duty station for full diagnosis and support. Each individual’s case is different regarding the options for influencing possible negative behaviors.

Mental Issues in Court-Martial Defense

Military justice considers all the possible reasons for behavior and in some cases, gets a medical diagnosis of mental issues. A medical diagnosis can help in the defense of a military member and his or her sentencing if found guilty of a crime. If there is any indication of combat stress in a military member, those need to be shared with the military criminal defense attorney to determine the best options for defense.

A Sailor assigned at Camp Pendleton CA is charged with murder in the June 30^th fatal shooting of a fellow sailor, on duty at a guard station. The news coverage raises the possibility of a hate crime as a means to justify this alleged action. There currently is no so-called “hate crime” offense under the Uniform Code of Military Justice. The intent of the individual charged and the results of his or her actions is what the military investigator and attorneys seek to discover.

Military Investigation Services

Supporting or inhibiting this task is the investigation completed by the military services’ investigative arms. The Army Criminal Investigative Services (CID), Air Force Office of Special Investigations (AFOSI), Navy Criminal Investigative Services (NCIS), and Coast Guard Investigative Services (CGIS) all have the same focus – to discover the truth.

Military Seeking the Truth

Why is it that a defense or prosecution of a particular case is won or lost on the proof of truth based on the same investigation? Uniformed military attorneys serve as prosecution attorneys, defense attorneys, and sometimes judges during their careers in the military. Their ability to seek out the truth and represent the facts and intent of the defendant is one aspect of litigation. The seeking of truth is a principle that applies to all participants in a trial.

Military Rules of Behavior

Military lawyers must also analyze how the investigative service discovered evidence, how they interpret statements by witnesses and how they developed a sequence of events and timelines. The military criminal defense attorneys seek to clarify defendant’s actions (or inactions in some cases) within the principles of military rules of evidence, combat rules of engagement, operational tactics, techniques and procedures, and DoD, Service and Command conduct policies.

Military Legal Process

All of this information will be presented in a court of law, with appropriate procedures that protect the rights of the defendants and alleged victims. Anyone outside the process who publicly speculates about a rationale for action by any member facing military court-martial does an injustice to the rights conferred by the Constitution and our US laws.

The recent release of the new US battle rule to stop return fire on Afghan homes is intended to limit the collateral damage on the battlefield.  This adds to the rules of engagement (ROE) and further restricts the military in combat actions.  There are good military and political reasons for this addition to the rules of engagement but a possible consequence is the increased need for military justice.

Military ROE Training

ROE are trained and exercised by the military until every member of a unit is aware of and understands how to engage the enemy combatant.  This new ROE will require on the ground training in Iraq and Afghanistan and the military is very effective at getting the information out to each and every member in the field.

Military Member Responsibility

The individual application of the rules when faced with dire combat situations is a different matter.  As in all limitations on application of force, there might be an increase the incidents where military members, under duress, take action and are then held individually accountable for violations of the rules of engagement.

Violations of ROE

During Operation Iraqi Freedom and Operation Enduring Freedom, there have been several high profile media military justice cases involving military members killing civilians.  Examples include the Sadr City case where an Iraqi was deliberately shot in his home and another was dispatched in a “mercy killing.”  The Hamdania Case, where 8 Marines and 1 Sailor were accused of killing an Iraqi civilian instead of the suspected Al Qaeda fugitive they set out to kill.  The Haditha case, where 24 Iraqi civilians died after an IED explosion killed one Marine and seriously wounded two others.  The Haditha military case is still pending for 2 of the 8 originally accused.

Military Good Order and Discipline

Restrictive rules of engagement support good order and discipline on the battlefield along with ensuring safety in a dangerous environment.  The military lawyers, schooled in the law of war, provide battlefield assessments of each military action for commanders.  But they are not there, fighting hand-to-hand with the frontline military members who make decisions under duress.  The hope is that this new ROE can be applied to the battlefield to prevent unnecessary loss of civilian lives and actions of individual military members when called upon will not violate the new ROE.

Military members accused of a crime under the Uniform Code of Military Justice have the right to hire a civilian attorney in their defense.  The Government is obliged to provide a uniformed military defense attorney free of charge to each military member who has been given a charge sheet.   The outcome of a military court-martial depends on the facts of the case and the skill of your defense attorney.

Your Legal Rights

A uniformed military attorney is assigned to your case when you receive a charge sheet.  But what happens while the commander and the investigative service (NCIS, CID, CGIS, or the AFOSI) analyze the facts and determine whether a case merits legal proceedings or non-judicial punishment?  What are the long-term effects of military legal actions against you vice the non-judicial punishment?  Which one is better for your particular situation?

Military Charge Sheet

A military member can go to the legal office and talk to a defense counsel who will tell you that until you receive a charge sheet they can’t help you.  They will advise you to not make statements to the investigative service and they will tell you not to talk to anyone about your case.  They can advise you if your commander is offering you non-judicial punishment instead of a court-martial.  That decision depends entirely on the specifics of your case and your long-term life goals.  The problem is they don’t really represent you until after a decision is made to charge you.

The Best Defense Starts Early

The best defense is to think about all your actions before you do something.  If there is any concern that anything you do or say might violate the UCMJ, you should talk to your chain of command, review the operating and/or safety regulations in your unit, and/or talk to the legal office on the base.  If the command has started an investigation into you or your friends’ actions, the best defense is to not make any statements and seek an attorney.  Remember attorneys cannot counsel you unless they are hired or in the case of your uniform military attorney, you have been charged under the UCMJ.

Puckett & Hill, Afghanistan Dec 2008

Captain Roger T. Hill, left active duty on 30 June 2009.  The Army extended him for 90 days to run tests on his debilitating combat injuries suffered in nearly 8 years of service.  CPT Hill’s outstanding military service came to a halt when he allowed the rough handling of detainees in a Camp on the border of Afghanistan and Pakistan.  The Army charged him with a violation of the Geneva Convention.  Military Lawyer, Neal A Puckett, traveled to the front lines to defend CPT Hill in an Article 32 investigation.  Mr. Puckett inquired of the government, right before he left the combat zone, of the possibilities of non-judicial punishment instead of a general court-martial.  The government ignored his request until they reviewed the initial draft of the Article 32 and then called Mr. Puckett upon his return stateside to obtain an immediate agreement for military non-judicial punishment.

Resignation for the Good of the Service
Per the agreement, CPT Hill agreed to resign his active duty regular commission for the “Good of the Service,” as required by Army Regulations.  No one in his chain of command understood the Department of Veteran Affairs little known 38 Code of Federal Regulations 3.12, which states that when officers resign for the good of the service, no matter what discharge characterization they receive, they are not eligible for VA Disability Benefits.

Living with Afghan Spies
CPT Hill admits his errors in trying to secure the safety of his men, outnumbered 200 to 1, and living with Afghan spies on the post who were exposing their every movement to the Taliban.  He pleaded with Army headquarters to move the detainees where they could be secured and not returned to the streets before the 96-hour detention time limit had expired.   With the clock ticking down to the release hour, CPT Hill took some detainees into the yard and fired shots into the ground, simulating execution to fool those remaining inside in order to convince them to confess.  Those detainees inside started to talk and give the information that implicated them.  For this, safeguarding the lives of his men, he resigned his commission and now has lost his disability benefits from the VA.

Losing VA Disability
CPT Hill’s injuries are such that he will be disabled the rest of his life and suffer pain constantly.  He received those injuries in training and on the battlefield, and readily accepted responsibilities for his military actions in an attempt to save the lives of his men.  For that, he lost his commission and a promising career in the Army.  He should not lose the VA Disability compensation he deserves.

Fighting for VA Benefits
His military lawyer, Neal A. Puckett, continues the fight to restore CPT Hill’s VA Disability Benefits.  Recently Puckett & Faraj PC presented the SECARMY a novel, creative legal option for the Army to restore CPT Hill’s benefits.  However, the SECARMY declined to take the option.  The next step Puckett & Faraj, PC will take in correcting the system’s failure to provide CPT Hill his VA Benefits, is to apply for VA benefits under CPT Hill’s honorable discharge for service as a Cadet at West Point.  Another approach is an appeal to the VA for award of disability payments, as an exception to 38 CFR 3.12.

Military Defense Attorneys – Puckett & Faraj, PC
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, 888-970-0005; or contact us via Email.  Your questions will be answered and all communication is protected by the attorney-client privilege.

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.

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.