| OCR Text |
Show f s . HMopJ&Mi August 24, 2000 IT. iuntsu limits Post process could change sentence, overturn conviction court-marti- al by Capt. David J.R. Frakt finding of innocence. s A recent case, held at Hill AFB, how the court-martia- l and clemency process works. Reported in the May 25 Hilltop Times, the headillus-trate- Area Defense Counsel The Hilltop Times, like many base newspapers around the Air Force, regularly publishes the results of courts-martithat occur here on base. The results are published for a couple of good reasons: first, to keep the base population informed about sig-nificant, newsworthy events on the base, and second, to help deter others al V from engaging in criminal misconduct. Due to space limitations, and out of concern for the privacy rights of the accused (and sometimes the victims), these stories are necessarily limited to a general statement of the charges and the results. What many people dont realize is that the verdict announced at the court-- f martial, and reported in the paper, isnt necessarily the end of the story. In line read, Inappropriate Behavior The artiResults in Courts-Martiacle stated, in pertinent part: On April 21, a staff sergeant pled guilty to one act of adultery and failure to obey a direct order. A panel of l. The convening authority (usually the wing commander for Special Courts-Martiand the Numbered Air Force or equivalent commander for General Courts-Martiahas the final say. At Hill Air Force Base, the Special Court-Marticonvening authority is Col Kenneth Page, the 75th Air Base Wing commander, and the General Court-Marticonvening authority is Maj. Gen. Scott Bergren, the Ogden ALC commander. The majority of the time, the convening authority approves the findings and sentence of the court as announced by the judge or jury. How-- k al l) al al without finement for two from the end of the story. As through the on of clemency process the ph story began last fall, a con-clusi- the &jj syn- when coun- sel, it is my job to represent the accused not just at the trial, but opsis. The the area defense cap- one-paragra- young woman accused her uncle, a staff sergeant, of having an inappropriate sexual relationship with her. Because of the serious nature of the allegations, the Office of Special Investigations was tasked to investigate. They conducted a proper and thorough exam- ination, but were not able to conclusively broad has the ever, convening authority prove the girls claims. There were no eyewitnesses and there was little, to powers, called clemency powers;, reduce the sentence and even to over- if any, corroborating evidence, as is turn a conviction if the punishment often the case in sexual misconduct doesnt fit the crime. For example, if cases. Because the case was basically a the jury sentences the accused to a she-sai- d type of case, the staff year in jail and a Bad Conduct Disof command decided could chain sergeants charge, the convening authority reduce the sentence to six months jail to refer the matter to a court-martiand allow a jury to determine the guilt and substitute an administrative disDisa Bad or innocence of the accused. During Conduct charge instead of charge. To aid in making this decision, the investigation, the OSI learned that the convening authority is provided the staff sergeant in question was with a trial transcript and is provided engaged in an ongoing consensual relaa recommendation by the Staff Judge tionship with an adult female. Although Advocate, but he or she is not lim- both the staff sergeant and the woman ited to these documents. Anyone with were separated from their spouses and an interest in the case may provide pending divorces, they were still legally additional matters or recommenda- - married. In fact, the staff sergeant tions for the convening authority to had been given an order by his first consider, including the accused and sergeant not to have contact with this his or her defense counsel. The con- woman until her divorce was finalized. vening authoritys charge is to ensure Thus, charges of adultery and violation of a lawful order were also referred the punishment is appropriate. matters are known as clemency to the These At the trial, the staff sergeant admitmatters. Once the convening authormatall to his relationship with the adult reviewed ted has the clemency ity ters, he or she makes a decision, known woman and pled guilty to adultery and order. to violation of the as final action. The convening authordenied he the can courts sexually abusing findings, However, approve ity or give some relief; he or she may not his niece and pled not guilty to these increase the punishment or reverse a charges. The jury heard the case and he-sai- d, al court-martia- l. no-conta- ct Published by MorMedia, Inc., a private firm in no way connected with the U.S. Air Force, under exclusive written contract with Hill AFB. This commercial enterprise Air Force newspaper is an authorized publication for members of the U.S. military services. Contents of the Hilltop Times are until con- vening authority takes - final action on the case. In this case, I felt that the outcome of the trial was not totally just. I was pleased with the acquittal, and I felt that the sentence recommended by the jury was fair and appropriate for the offenses to which my client pled guilty. But I wasnt happy that my client ended up with a General Court-Marticonviction equivalent to a fedal eral felony conviction for an affair between two consenting adults. Having been an Air Force prosecutor for'four years before becoming an Area Defense Counsel, I am familiar , with the going rate for various offenses. Under the circumstances of this case, I was certain that; were it not for the more serious allegations of child molestation, the adultery-relate- d charges would never have been referred to a Rather, they would have been handled with punishment, commonly referred to as an Article 15. Since my client was found innocent of court-martia- l. non-judici- al the more serious charges, it didnt seem fair that he should suffer harsher consequences than others who com- mitted similar offenses. I asked the convening authority, in the clemency process, to completely e the conviction and to allow my clients squadron commander to offer him an Article 15 instead. I approached each of the seven court-martipanel members all officers and asked if they and senior NCOs set-asid- al would support this request for clemency. All of them felt that an Article 15 would be more appropriate than a General Court-Marticonviction, and all seven al of them wrote separately to the convening authority to express their support for the clemency request... My Air Force people building the world's most respected Air and Space Force Hilltop Timei cer who originally preferred the charges against my client, also wrote separately to support the request. Once the clemency request was submitted, the Staff Judge Advocate orga- nized a meeting with the squadron and the wing commander and vice commander to discuss the clemency request. They unanimously decided to support the request for clemency. The Staff month for per Judge Advocate recommended to the convening authority that clemency three months. The reported be granted. The convening authority result was far independently reviewed the case court-martia- l, tured in this for- feiture of $200 pay This article fairly stated the result of the but as with be con- months and for three months. than could clients squadron commander, the offi- labor commander, the group commander hard seven court members found the accused innocent of carnal knowledge, sodomy and indecent acts with a female under the age of 16. The court members sentenced the accused to hard labor without confinement for two months and forfeiture of $200 pay per month the military justice system, the ver- many cases, dict, as determined by the military there was much judge or the jury, known as a court- - more to martial panel isnt final, but rather is this story simply a recommendation. found the staff sergeant innocent of the charges pertaining to his niece. Nevertheless, because he had pled guilty to the other charges, they were required to sentence him for those offenses. As the Hilltop Times accurately reported, the jury recommended and chose to follow the recommendation. The conviction was dismissed and the squadron commander imposed nonjudicial punishment instead. In the end, nearly 10 months after the initial allegations were brought, my client ended up with a reprimand and removed from the current technical sergeant promotion list, a very fair and appropriate sentence for these offenses, and consistent with the punishment given for similar offenses. My client is now being given a chance to continue to pursue his career, and I have every reason to believe that he will have a long and successful one. The point is that, ultimately, the process worked. Certainly, it was not a pleasant experience for my client; but, in the end, justice prevailed. The lesson to be learned from this case is to trust your chain of command, trust your area defense counsel and trust the process. It has been my observation, both as a prosecutor and as a defense counsel, that commanders constantly strive to be fair while impos- ing consequences for inappropriate behavior. This case is a classic example of this. Everyone in the process, from the commander who preferred the charges, to the legal office who prosecuted the case, to the jury who tried the case, to the convening authority who made the ultimate decision, kept an open mind and went the extra mile to ensure that justice was done. Everyone followed their conscience and a fair and just result was reached. It has also been my experience that, area defense counsels are very competent attorneys who vigorously and zealously defend our clients. In fact, area defense counsels have been placed under an independent chain of com- mand completely separate from the bases at which we are assigned to give us the freedom to do so without concern about any repercussions. Finally, in over 50 cases in which I have been involved as either a prosecutor or defense counsel, I have yet to see a truly unjust result. The military justice system, as a practiced in the U.S. Air Force, is as fair and as flexible as any system of jus- tice in the world. It is a system in which we all should have a high degree of confidence, and of which I am proud to be a'part. v Global Power and Reach for America. not necessarily the official views of, or endorsed by, the U.S. Government, the Department of Defense or the Department of the Air Force. The appearance' of advertisements in this publication, including inserts or supplements, does not constitute endorsement by the Department of the Air Force or MorMedia, Inc., of the products or services advertised. Everything advertised in this publication shall be made available for purchase, use or patronage without regard to race, color, religion, sex, national origin, age, marital status, physical handicap, political affiliation or any other nonmerit factor of the purchaser, user or patron. Editorial content is edited, prepared and provided by the Ogden Air Logistics Center Public Affairs Office staff in Bldg. 102, second with story ideas or comments, or send floor. Call Ext. to hilltop. pahill.af.mir. Unless otherwise indicated, all photos are U.S. Air Force photos. 1 TO PLACE AN ADVERTISEMENT, CALL Hilltop; Times Editorial Staff: Scott Rergren Maj. Sam Hudspath Bill Orndorff Maj. Gen. Commander, Deadlines: OO-AL- C Director, Public Affairs Mary Galbraith, Gary Boyle, Senior Airman Russ Martin Editor Staff writers the Hill items, 3 p.m. Thursday, seven days before publication; sports arti;. Editorial and Around cles, 9 a.m. Monday, week of publication; classified ads, 2 p.m. Tuesday, week of publication. For more information, call the editor, Ext. 625-430- 0 . |
