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.

Military members who are found guilty by a military court-martial often are sentenced to confinement, reduction in rank, forfeiture of pay and/or an assessment of a fine and a discharge from the military. The military member can request a deferral and waiver of the forfeitures of pay to support his or her immediate family members for up to six months after the commander approves the sentence and the deferral.

Manual for Courts-Martial

The Manual for Courts-Martial, which applies to all the Services’ military justice systems, identifies the procedures for requesting a deferral and waiver of forfeitures of pay to support dependents. Immediately following the military hearing, the record of the trial is prepared and sent to the court-martial convening authority for approval. A request for deferral and waiver can be submitted along with the record of trial to the convening authority for his or her consideration.

Reasons for a Waiver and Deferral

Forfeitures can be deferred until the convening authority takes action on the findings and sentence and a waiver can be granted for up to six months thereafter under Rule 1101 of the Manual for Courts-Martial. Deferring and waiving automatic forfeitures resulting from a sentence to confinement can provide for continuing dependent support for that limited period of time. The convening authority may consider factors such as the length of the accused confinement, the number and ages of the family members, debts owed and ability of the family members to find employment.

Military Defense Attorney

This deferral and waiver provision allows military family members to continue to meet financial obligations while transitioning to new circumstances outside of the military environment. Each military case is unique in facts and circumstances, however the military defense attorney can assess whether or not the request for deferral or waiver of forfeitures should be pursued either as a condition for a plea bargain or a matter for clemency after the court-martial concludes.

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.

The high standard of proof required for a person to be convicted under our system of justice recognizes that sometimes guilty people will go free.  But it is necessary to assure that innocent people are not wrongly convicted.  Or at least, in theory, that is how it is supposed to work.  Increasingly, however, it seems that innocent people are being wrongly convicted for crimes they did not commit despite the built in safety mechanism of our “beyond a reasonable doubt” standard for a finding of guilty because the law has gradually shifted to limit a defendant’s access to evidence and witnesses.  The case of William Osborne is emblematic of the problem. 

Mr. Osborne was convicted of the rape of a woman in 1994 after a codefendant made a deal and testified against him.  Mr. Osborne was convicted based partly on the codefendant’s testimony and an old method of DNA testing that narrowed the field of possible perpetrators to 17% of the population.  Recently Mr. Osborne asked the State of Alaska to allow him access to his DNA so he could personally pay the $1000 necessary to get a new DNA analysis that will definitively establish his guilt or innocence.  The new DNA analysis can determine whether Mr. Osborne was the perpetrator to a level of certainty of one in a trillion.  Alaska, however, refused

To me, it seems that Mr. Osborne’s is a reasonable request.  If he is truly guilty we will be able to finally shut him up and move on.  But if he is innocent, then we can begin to undue this human tragedy and look for the real perpetrator.  The Ninth Circuit Court of Appeals saw it that way as well.  They sided with the Innocence Project that is representing Mr. Osborne.  Incidentally, the Innocence Project reports that DNA evidence has led to the release of 232 people who had been wrongly convicted.  On March 3rd, Governor Palin sent the Alaska Attorney General to argue the case before the Supreme Court to persuade the Court to reverse the Ninth Circuit.  Obama’s Justice Department is, confoundingly, siding with Alaska.  Their argument is at best spurious and at worst criminal, “States need finality in criminal convictions.” 

I am not sure where in our constitution States and the Federal government find the language granting them a right to “finality in conviction.”  I do know, however, where to find the right to Due Process for those accused of criminal acts.  It is called the 14th Amendment. 

I am not sure if Mr. Osborne is innocent or guilty.  He did not have a previous criminal history and at the time of his conviction he was serving in the military.  That leads me to want to give him the minimal benefit of doubt to allow him to pay the $1000 to test the DNA retrieved from the condom used on the victim to absolutely prove whether he did or did not rape her.  Our politicians and prosecutors need an infusion of reality and some remedial instruction on our Constitution.  The rights granted by that document in criminal proceedings are to those accused of crimes and not the Prosecution.  Perhaps we can clear up our dockets and help judges turn their attention to more pressing matters of justice if Prosecutors and politicians stop bringing frivolous lawsuits and appeals that challenge common sense and do nothing to improve out trust in our justice system.

Haytham Faraj, Esq.

Puckett & Faraj PC

Attorneys Neal Puckett and Haytham Faraj specialize in criminal defense and trial work.  They are partners in the premier litigation law firm of Puckett and Faraj, PC.  They have decades of trial experience defending those accused of criminal charges in federal trials and military courts-martial. Mr. Puckett and Mr. Faraj also represent clients in a variety of administrative hearings including Boards of Inquiry, Administrative Separation hearings,  Boards of Corrections of Military and Naval Records, Military Discharge Review Boards and National Security Clearance hearings, among others. Neal Puckett and Haytham Faraj have also represented those who have been harmed or injured by the negligence, recklessness, or deliberate acts or failures of others.

The partners take pride in providing client focused representation that seeks to ensure client accessibility to the attorneys and best in class service.  Puckett and Faraj, PC seeks maintain its position in providing the gold standard in legal representation.  The firm has offices in Alexandria, Virginia and San Diego, California.  The partners are licensed to practice in Illinois, Virginia, the Eastern District of Michigan and in all states and all over the world, including Iraq, Afghanistan, Germany, Italy, Japan, and Kuwait representing military clients.

We, at the law firm of Puckett and Faraj, PC, consistently get positive feed back from our clients about the level of personal service and attention that we provide.  We take a personal interest in every case.  We discuss the cases.  We contemplate the client’s options and what is in her or his best interest because we want to ensure that every client receives the best legal service possible.  That level of attention and service is uncommon in the legal profession.  Unfortunately few people realize that and are often drawn only by commercials and glitzy advertisements to lawyers and law firms that are vocal on TV and other media but provide no little or no service to the client.  One such firm is the James Sokolove firm.  It appears that Mr. Sokolove has not tried a case in over three decades; yet he draws tens of thousands of clients a year.  It leaves one to wonder whether clients realize that they are trusting their lives and paying their hard earned money to someone who does not practice law when they call his number after they get it from one of his ubiquitous commercials.

Puckett & Faraj PC

Attorneys Neal Puckett and Haytham Faraj specialize in criminal defense and trial work.  They are partners in the the premier litigation law firm of Puckett and Faraj, PC.  They have decades of trial experience defending those accused of criminal charges in federal and military courts-martial. Mr. Puckett and Mr. Faraj also represent clients in a variety of administrative hearings including Boards of Inquiry, Administrative Separation hearings, immigration removal hearings, Boards of Corrections of Military and Naval Records, Military Discharge Review Boards and National Security Clearance hearings, among others. Neal Puckett and Haytham Faraj have also represented those who have been harmed or injured by the negligence, recklessness, or deliberate acts or failures of others.

The partners take pride in providing client focused representation that seeks to ensure client accessibility to the attorneys and best in class service.  Puckett and Faraj, PC seeks maintain its position in providing the gold standard in legal representation.  The firm has offices in Alexandria, Virginia and San Diego, California.  The partners are licensed to practice in Illinois, Virginia, the Eastern District of Michigan and in all states and all over the world, including Iraq, Afghanistan, Germany, Italy, Japan, and Kuwait representing military clients.