Despite the public outcry, the Navy SEALs are still facing special courts-martial after their January 2010 arraignments; SO1 Huertas and SO2 Keefe in April and SO2 McCabe in May 2010.

Military Judges Rule on Motions

The military judge in the Huertas and Keefe case closed the last motion hearing by directing the April courts-martial be held in Baghdad so the Iraqi detainee would be present to testify live in the courtroom.  The government declined to attempt to bring the detainee to Norfolk for the trials.  The military judge determined the defense attorney’s request for the Constitutional right to confrontation required the Iraqi detainee to be present.  The government request to depose the detainee was denied, and the entire cadre to support two special courts-martial will travel to Iraq.

A second military judge, ruling on the McCabe case, upheld the government request for a deposition but did not move the court-martial to Iraq.  The special court-martial will be held in Norfolk, VA, beginning on May 3, 2010.

General Cancels Deposition

Since those two military judge’s rulings, Major General Cleveland has canceled the government trip to Iraq to depose the detainee.   This leaves the SO2 McCabe defense and government teams without the Iraqi detainee’s presence or sworn statements as evidence in the case.

Press Release:  The government requested Major General Cleveland order a deposition of the mass murderer accusing the three Navy SEALs of abuse.   This deposition would take place in Iraq in lieu of the insurgent’s presence in a courtroom at the Norfolk Naval Base, VA.  The deposition would be in the detention center and requires travel to Iraq; adding to the government expense of the courts-martial of the three Navy SEALs, as well as to the cost of private legal expenses for all three SEALs who have hired civilian attorneys to represent them.

Demonstration of Efforts to Produce the Accuser

The government appears not to have attempted to coordinate the insurgent’s travel to the United States to testify in the three courts-martial of these SEALs.  They are assuming it would be too difficult, requiring Department of State intervention and permission from the Iraq government to assure the detainee’s custody during travel to the United States for the courts-martial.  Instead, the government is requesting a deposition, and is doing so without first demonstrating all attempts to have the accuser in court have failed.

Deposition in Iraq

A military judge can admit into evidence a deposition of someone who cannot attend a court-martial only if all other remedies to get that individual to the courtroom failed.  If Major General Cleveland approves the request, the government will travel to Iraq to ask the insurgent questions.  While military attorneys can attend, the accused Navy SEALs have the option of attending, and the civilian defense attorneys would be invited as well.  But the government will not pay for their travel or accommodations for the law firms representing SEALs.

A Fair Trial

A deposition where both the government and the defense have an opportunity to question the detainee on the record may be admitted in a military court.  However, it denies the Navy SEALs the their full Constitutional right to confrontation of their accuser during military judicial proceedings in the courtroom.  A court-martial allows the members, known in the civilian courts as a jury, the opportunity to ask questions of the detainee.  But if a deposition is presented to the military jury, they will have no opportunity to ask questions.  If the government does not bring the insurgent into court, the defense will be hampered in their pursuit of justice for the Navy SEALs.

Some Discovery Still Withheld

SO2 McCabe’s defense team has recently received a portion of the discovery (“evidence”) against him.  Other parts of it remain classified and are being withheld until the Navy approves the clearance of the civilian attorneys.  In the meantime, full preparation for the defense of SO2 McCabe cannot occur until all evidence is available and the disposition of the insurgent’s presence at the court-martial is resolved.

Press Release – SO2 McCabe, the main accused in the Navy SEALs detainee abuse case, has formally notified the government of his intent to plead “Not Guilty” to all charges and is requesting a trial by a panel of military members, including enlisted members, commonly known as a jury.

Arraignment without Evidence

On December 7, 2009, SO2 McCabe’s civilian military attorney, Neal A. Puckett, reserved the entry of pleas and selection of forum until a later date, as is customary at military arraignments.  Unusual about this case was the fact that as of the date of the arraignment, the defense had not yet been provided with the evidence against Petty Officer McCabe.  Mr. Puckett was told that the evidence was undergoing a security review before being released to the three Navy SEALs charged in this case.

Notice of Plea

The formal notice of pleas and selection of a jury trial were submitted to meet a court-ordered deadline of Friday, December 11, 2009, even though prosecutors have not yet provided the evidence to the Law Firm of Puckett and Faraj.

Court-Martial Schedule

The courts-martial of the three Navy SEALs are set to begin sometime in January, 2010.  SO2 McCabe and his defense team are preparing for his court-martial, currently scheduled to begin on January 19, 2010.  Navy JAGs LT Kevin Shea and LT Kristen Anastos have been detailed as Petty Officer McCabe’s military defense counsel and are working diligently to prepare for trial.

Press Release:  SO2 McCabe was arraigned in a military court room at Norfolk Naval Station Monday, December 7, 2009, Pearl Harbor Day.  His attorney, Neal A. Puckett, Esq., reserved pleas, forum selection and motions until a later date as SO2 McCabe chose not to enter a plea or chose whether to have judge alone or members (jury) nor did his defense team present any motions.

UCMJ Charges

The military has charged SO2 McCabe under the Uniform Code of Military Justice (UCMJ) with Article 128 Assault, Article 92 Dereliction of Duty and Article 107 False Official Statement.   Under the UCMJ, the government is required to provide evidence to the defense prior to an arraignment.  To date, there has been no evidence turned over to the defense that would tend to prove that SO2 McCabe committed any of the charged crimes.  The court-martial is currently scheduled to begin on January 19, 2010.

Press Release:  The three Navy SEALs charged with hitting a detainee, a detainee who allegedly is responsible for the deaths and mutilation of four Blackwater Contractors in Fallujah in 2004, begin their courts-martial process next week.  On December 7, 2009, the military will hold an initial hearing, an arraignment of SO2 Matthew McCabe.  SO2 McCabe is charged with hitting a detainee.  Each of the three SEALs is represented by a different law firm.  The names of the accused SEALs and the firms representing them are below:

SO2 McCabe is represented by the Law Firm of Puckett & Faraj, PC.   Mr. Puckett can be reached through his website (www.puckettfaraj.com/contact-us), Email at neal@puckettfaraj.com and via phone 888-970-0005.

SO2 Keefe is represented by the Law Firm of Greg D. McCormack, PC.  Mr. McCormack can be reached through his website (www.militarylawyers.org), Email at inquiry@mccormackpc.com or via phone 757-463-7224.

SO1 Huertas is represented by Monica L. Lombardi, LLC.  Ms. Lombardi can be reached through her website (www.militarytrial.com), Email at mlombardi@militarytrial.com or via phone 757-309-4764 (toll free 888-826-5529).

Major Hasan, the alleged suspect in the shooting of 13 Soldiers at Fort Hood last week, has sparked numerous discussions on the possible motives he had for his horrendous act. One of National Public Radio’s programs, “Tell Me More,” explored one aspect of the debate on Monday, November 9, 2009 with one of the Law Firm of Puckett and Faraj, PC’s attorneys, Haytham Faraj.

Haytham Faraj, Esq.

Haytham Faraj spent over 22 years in the Marine Corps, and is a native of Lebanon. He is fluent in Arabic and served in the Marines as both an enlisted infantryman and as an officer in charge. He attended the Citadel and American University Law School, receiving his JD in 2005. His last duty in the Marines was the Senior Defense Counsel at Camp Pendleton, CA.

National Public Radio

Listen to Haytham Faraj at this link: National Public Radio, Tell Me More, “For Muslims, Military Service Sometimes Met with Hostility.” November 9, 2009.

The Hasan family has hired a civilian attorney to defend Major Hasan. The attorney spoke with the Major this week and has requested no law enforcement interviews with his client. The military justice system allows for a suspect to remain silent when Criminal Investigation Division (CID) requests an interview.

Statements to CID

When a suspect refuses to interview with military criminal investigative services, the military criminal defense attorney can focus on challenging the evidence rather than refuting statements made without an attorney present. While statements can either be coerced, partially factual, truthful or various perceptions of reality, finding the ground truth is the task of both the prosecution and the defense.

Statements Under Duress

Any statements made by a suspect must also be without coercion and voluntary. The state of the individual, under the influence of alcohol, drugs, medications or mental afflictions, can taint the statements and make them involuntary and inadmissible in a military court. Major Hasan, when charged, must be treated for his wounds and recover sufficiently to participate in his defense.

Speedy Trial

The 120-day clock for a speedy trial begins after a military member is served a charge sheet or placed in confinement. The speedy trial count down of 120-days can be delayed by either the prosecution or defense. Either the prosecution or defense presents a motion to a military judge who can deny, approve, or revise the request. The reasons for delay include but are not limited to, recovery from medical issues, mental health evaluations, and the interview of witnesses or collection of evidence.

Rights Under the UCMJ

Major Hasan’s lawyer must protect the rights of his client as provided by the 5th Amendment to the Constitution. When a military member hires a civilian attorney or is provided an appointed military defense counsel, he or she has the same protections under the Uniform Code of Military Justice, as anyone facing criminal prosecution in the U.S.

The Associated Press published a story on the second appeal of an Abu Ghraib Soldier’s conviction citing the defense attorney’s theory that the Soldier was following Army policy. The story is a bit confused about the military justice process.

US Army Court of Criminal Appeals

Military courts-martial that end with a sentence of at least one year in jail and/or a dishonorable or bad conduct discharge are automatically forwarded to the Service-specific Court of Criminal Appeals (CCA). Each Service has military active duty or reserve lawyers for the defense and the government, who work on appellate issues. The United States Army Court of Criminal Appeals is located in Arlington VA. The Air Force, Navy-Marines, and Coast Guard each maintain an appeals court that presides over their Services appeals.

Military Attorneys at the Appellate Level

The military member is assigned an appellate defense attorney just like they were assigned a military defense counsel for his or her court-martial. This appellate defense attorney reviews the trial record and identifies any substantive issues in the process that may have led to a decision that warrants reversing the conviction or some other relief. When the appellate case is presented, there are government military attorneys arguing the merits of the process as it relates to military case law, the UCMJ and previous appellate decisions in the courts above. A military member can hire a civilian attorney to present his or her case, arguing the issues of law and the military justice process.

Military Criminal Appellate Cases

Any Service appellate court decision unfavorable to the military member can be appealed, on a case-by-case basis, either by right or by certification to the higher court by the Judge Advocate General of that Service. However, there are very few automatic appeals above the Service CCA level. The U.S. Court of Appeals for the Armed Forces (CAAF) is comprised of five judges, appointed by the President, “from civilian life” for a 15 year term. Military attorneys and judges who retire from the military are not eligible to serve on the CAAF. This ensures a distinct civilian nature to the court.

US. Court of Appeals for the Armed Forces

If a case is appealed through the Service’s appellate court and is referred to the CAAF, which then again rules unfavorably for the member, the only remaining remedy for further appeal is to the Supreme Court of the United States. The number of military cases that reach the U.S. Supreme Court are very few, and focus on the application of Title 10 of the U.S. Code and the UCMJ in light of other federal law. In the cases of the Abu Ghraib convictions, those who were sentenced to more than one year or were discharged either with a dishonorable or bad conduct characterization, will have the right to have their appeals considered by the Army Court of Criminal Appeals.

Individual Ready Reserves, Be Prepared

All individuals who enter military service incur a military service obligation (MSO) of eight (8) total years from the date of enlistment, appointment, or when authorized by law, induction into one of the Services. Any portion of those eight years that is not on active duty or active duty for training shall be performed in a Reserve component as defined in 10 USC (Sections 10101, 10142, and 10143).

Military Obligated Service

The date on which you complete your 8 years of military obligated service is listed on the DD 214, Block 6. You are eligible for recall by the military services if you have not completed your eight years of MSO. Additionally, if the ‘Mailing Address After Separation’ in block 19a, listed on the DD214 is incorrect, the mobilization orders may be delayed in getting to you, thus narrowing your response time to request a delay or exemption.

Deadline to Request Delay

The Services require you to respond quickly when they issue you a set of orders. Usually you only have 4 – 8 weeks before you report for duty. They need your request for a delay or an exemption within 14 days of the date of the orders. This allows them to amend your orders and issue orders to another individual to replace you on the mobilization.

Requests Due to Hardship

The process is not difficult but does require adherence to the process steps and requirements. Present the facts with supporting documentation that verifies your statements. Reasons for delays or exemptions from the mobilization orders include extreme personal hardship, extreme community hardship, medical disqualification, and administrative reasons. These categories seem broad, but allow for individual ready reserve members to present their facts and concerns for the Service to delay or complete exempt from duty.

Be Prepared, Know What Your DD214 Says

Know where your DD 214 is and keep a copy. Know your individual ready reserve date when you are no longer subject to recall (usually 8 years after your initial entry into the military). Keep your current address, phone number and Email updated with your former Service so any mobilization orders are delivered to you without delay. This maximizes the amount of time available to you to request a delay or exemption from duty. A checklist of the IRR delay and exemption process is located on the Law Firm of Puckett & Faraj, PC website: Common Questions, IRR Delay and Exemptions

The Associated Press reported this week that the Marine Corps dropped charges against Sgt Jermaine Nelson in the death of detainees, one of four men who surrendered when the squad entered a house in Fallujah in November 2004. The wiliness to plead guilty to the lesser charges on the charge sheet were negotiated in a plea bargain, but Sgt Nelson still faced a court-martial with possible sentencing to prison, a dishonorable discharge, a felony conviction record and ineligibility for any Veterans Administration benefits.

Military Justice Process

Sgt Nelson, through his civilian attorney, worked a plea bargain deal prior to the court-martial with the government military trial team (prosecution). This was not a case of the government dropping the charges of murder or not holding the court-martial, but a case of the military justice process working correctly given the evidence in the case.

Information to Suspect a Crime

The process begins when a commander is informed of something irregular during an operation. This information can be through the chain of command by someone reporting comments they hear from other military members or by other military members who witnessed the action. In this case, a squad member of Sgt Nelson’s, was applying for a job with the FBI in 2006 after leaving the Marine Corps. During a polygraph test for entrance into the FBI, this squad member confessed to the shootings. The FBI turned the evidence over to the Marine Corps who requested an NCIS investigation.

Evidence and Appropriate Punishment

The evidence was gathered and charges preferred against three of the squad members. Two were acquitted including Sgt Nelson’s squad leader, setting a precedence that the evidence and facts of the cases did not support murder charges. Sgt Nelson’s military attorney reviewed the specific evidence against his client, and determined the failure on his client’s part to be a lesser charge rather than murder or voluntary manslaughter. He negotiated with the government for a plea bargain and superseded the court-martial proceedings with the plea. During the court-martial, the government accepted the guilty pleas for lesser charges based on the evidence and facts of the case. Punishment for those lesser charges was set by the judge but superseded by the negotiated plea bargain agreement.