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Defense Counsel Mistakes Result in Client’s Convictions Which Are Then Overturned by the Military Appellate Court

As another example of how important it is to choose the right military lawyer to represent you, the military appellate court overturned a Sailor’s conviction for ineffective assistance of counsel. In this case, the Sailor hired a civilian defense lawyer to represent him at a court martial on charges that would have required that he register as a child sex offender. The Sailor was convicted on these charges and sentenced to, among other things, six years in prison.[1] 

On appeal, the military appellate court was frank. It chided the military defense counsel, the civilian defense counsel, and the other lawyers and military judges involved in the Sailor’s trial for missing or misunderstanding a pivotal issue in every trial: the Statute of Limitations.

The statute of limitations refers to the time period within which legal action can be initiated for a particular crime. It sets a deadline for bringing criminal charges after the occurrence of the event in question, beyond which the case cannot be brought. The purpose of the statute of limitations is to ensure fairness and prevent the filing of criminal charges beyond which evidence may be lost, memories may fade, or witnesses may no longer be available. It also provides legal certainty by establishing a time limit for potential legal actions. The statute of limitations serves as an important legal principle that balances the interests of justice, fairness, and efficiency in the military justice system by ensuring that servicemembers may not be required to defend against charges that are alleged to have happened so long ago that evidence and memories are no longer accessible. If a crime is alleged to have occurred outside of the Statute of Limitations, the servicemember cannot generally be charged with that crime.

But that’s what happened in this case. Some of the charges were clearly “barred” by the Statute of Limitations. Unfortunately, the military defense lawyer and the civilian defense lawyer both missed it.  How? The appellate court tries to answer that question:

Prior to trial, the appellant’s military defense counsel recognized that there may be a possible statute of limitations issue for several of the charged offenses. But, after researching the issue, he came to the erroneous conclusion that the five-year statute of limitations did not apply. The military defense counsel then incorrectly advised the appellant that he had no statute of limitations defense[.]

The appellant later hired civilian counsel who also identified that there might be a statute of limitations problem with the charged offenses. However, the civilian counsel either relied on the military counsel’s incorrect advice or came to the same faulty conclusion[.] Accordingly, the [client was charged and found guilty of these offenses].

As a result of this failure, the military appellate court ruled that:

The [defense lawyers’] failure to fully research the law and properly advise the appellant on the statute of limitations’ complete bar to [the] offenses for which he was convicted . . . fell below the minimum acceptable level of competence demanded of attorneys and was a fundamental failure . . . We are confident that awareness of the correct statute of limitations would have so altered the progress of this trial and affected the appellant’s decisions that there is a reasonable probability there would have been a different result . . . the repeated failure to identify the statute of limitations issue through multiple phases of investigation and trial deprives us of confidence the trial was fair and reliable[.] The legal system failed the appellant. It is our judgment, based on the entire record, that the findings and the sentence in this court-martial should not be approved [and the] findings and sentence are [overturned]. 

[1] The case name is purposefully omitted to protect the Sailor. Those interested in reading the public opinion, decided on 31 August 2023, are referred to the military appellate court’s website at  

And so this Sailor, who by now had served his time and had been released from prison and was now a civilian, is tracked down, ripped from his new civilian life, and returned to active duty to be retried. He was eventually found guilty but the second trial also legally shocked the military appellate court, who declared:

[As we said in about the first trial]: “The legal system failed the appellant.” Sadly, the system did not redeem itself in the second trial.

In the second appellate decision, issued today, the military appellate court detailed the significant mistakes made by the military justice system. First, the Constitution guarantees an accused the right to a “speedy” trial, thus prohibiting the military’s ability to throw someone in the brig or charge them with a crime and then drag their feet for months or years while the accused suffers from the allegations. Generally, military law speedy trial rules require that the military start the trial within 120 days of being charged. This Sailor was held in this status for over 800 days! The military appellate judge details an appalling lack of procedural compliance that caused the delay and set forth the unforgivable hardship to the Sailor:

I completed my sentence [from the first trial] on 22 September 16. I was then required to sign a 180-day extension which I was told was due to the “legal process.” During that 180-day period I was forced to live in a hotel, and frequently had to pay out of pocket. There were also periods when I received no pay . . . I was ultimately discharged from active duty on 24 April 2017 . . . with an honorable discharge because my discharge was the result of my end of obligated service[.] Since my discharge I have received no pay or allowances from the Navy although statutorily authorized to be on the retired list. I have significant health problems, but do not receive disability or medical benefits from the Navy. Each hearing I have to attend causes me financial hardship . . . [T]he continuation of these proceedings continues to affect my ability to obtain further employment and contracts in my field of work. I have been denied appointments . . . because background checks continue to show that I have an open case for sexual assault of a minor . . . I also have had my security clearance taken away as a result of these proceedings, also denying me an opportunity to work in [my] field.

Reviewing this information, the military appellate court held that:

These impacts and resulting anxiety and concern clearly exceeded the norm attendant to the court-martial process and were exacerbated by the unjustified delay of his trial. [As a result], Appellant was denied his Sixth Amendment right to a speedy trial.  

Wait…there’s more.

Recognizing that servicemembers are in legal limbo and suffer AFTER their trial, while the government processes the paperwork and sends the case to appeal, the constitution gives servicemembers the right to the “timely” review and appeal of their court martial conviction as well. Normally, any more than 150 days will be presumed to be untimely. Here, the military took 311 days! We spare the reader the military’s explanations and the court’s rejection of those explanations and note only that the court ultimately ruled:

[W]e conclude that Appellant was also denied his due process right to speedy appellate review [and so] we order the charge dismissed with prejudice[.] It has been nearly six years since we set aside the results of Appellant’s first trial and more than ten years since the Government first learned of Appellant’s alleged misconduct. The Government has now had two opportunities to convict—and three opportunities to sentence—Appellant; we decline to grant more. In the interest of justice and for the sake of maintaining the public’s confidence in the court- martial process, we order the remaining charge dismissed with prejudice.

Enough is enough.

Indeed. When accused by the military of a criminal offense, our Heroes deserve a system that is fair, competent, and observes—abides by—the rules. This case is but one of many examples indicating that the system we have can be none of those things. Our civilian military leadership, our uniformed military commanders, and our uniformed military attorneys should all be working hard to ensure that unjustifiable, unforgivable mistakes like these happen far less frequently.

Instead, the military justice system—especially that portion intended to protect the accused—is often treated as a nagging collateral necessity, drawing talent and resources from the military’s important main purpose, which is to fight and win our nation’s wars. And our Heroes suffer as a result, usually with no recourse unless lucky enough to get the experienced military appellate judges this Sailor received.

Congress has rightly inserted itself to tackle the very real problem of sexual crimes in the military. It is time that Congress and those with influence who claim to care about our Heroes, spend a little time recognizing that the problems don’t stop there. As the judges wrote—enough is enough. 

At King Military Law, we are retired JAGs, retired Legalmen, and even retired law enforcement. We fight hard to ensure that these mistakes don’t happen to our clients and if the government makes them, that the mistakes inure to our client’s benefit. Collectively, we have over a CENTURY of military justice experience, all with one goal: to bring that experience to help FIGHT the system on behalf of our clients. We know the problems our clients face. We know how to fight back. And we know how to win. To read the experiences of real clients who have trusted KML with their legal issues, click here

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Jess SackettJess Sackett
20:19 15 Sep 23
Mr King recently defended my daughter for misconduct. His defense ended with a unanimous board decision clearing my daughter of that charge. Mr King was tenacious and unrelenting in her case. His staff are true professionals and highly skilled and experienced in preparing the cases. If you or someone you know needs a lawyer who will fight for you Mr King is the one you want in your corner.
Liv SLiv S
07:58 06 Sep 23
My journey with King Military Law began when my Navy Reserve Center falsely accused me of committing a crime but failed to notify me until nearly a year had passed after said crime. I was literally looking at losing everything I had ever worked towards the 16 years I had spent in the military to include a burgeoning career in the healthcare sector, my security clearance, my G.I Bill benefits, ect. If you think that situation can’t get any more stressful, try searching for legal counsel who will treat your case with the utmost importance instead of just a money grab. Thankfully, I found King Military Law quickly and was sold from the many 5-star reviews to Don’s impressive resume, and Kasheta’s prompt response to my initial query.During the consultation, Don did not shy away even after I explained the details of my rather complex case. In fact, he seemed to relish in the challenge of it all. Once retained, he and the rest of his legal team immediately began working various angles of my case and even provided further support by helping me navigate through several legal forms provided by my command to ensure that none of my rights were signed away.As it is the Navy Reserve, I had to wait several months for my Administrative Separation Board to convene; however, Don and his legal team always answered any questions that I had or dealt with any situations that arose in a timely manner and kept me in the loop as new details emerged.To say I was beyond stressed out the weekend of my Administrative Separation Board is an understatement, Angela’s positive demeanor and Don’s encouraging words were greatly appreciated. Don is a talented legal force and well versed in proceedings, his eloquence and extensive knowledge of military law is clear. However, what stuck out to me the most is the moment when the opposing counsel launched a particularly catty and rather unwarranted personal attack on my character. Don immediately but gracefully rebuffed his attack, providing a compelling and moving argument in which he showered me with praise and related similar experiences he had in the navy to my case in order to appeal to board members on my behalf.Thanks to King Military Law, I was able to win my case and can finally relax for the first time in nearly a year. I can’t thank the exceptional legal team (Don, Kasheta, Angela, and Ashley) enough for their tireless efforts, they’re absolute consummate professionals who truly care about their clients and will always go that extra mile for them. I HIGHLY recommend King Military Law to any service members in need and seeking out legal counsel.
Eddie RobinsonEddie Robinson
02:35 04 Sep 23
Mr. King & his associates (Ms. Kasheta) were very responsive and caring to me and my son's case. They explained in terms I could understand, they were timely, and they were caring. My son had serious charges against him and I am hundreds of miles away on the East coast and very scared. He was able to be there to see my son and let him know he had someone on his side. I know we pay for attorneys but you want to feel comfortable with your choice. My son is coming home free & clear. You will be very satisfied with King Military Law when you just can't be there yourself. THANK YOU MR KING & STAFF. posting from : Alethia
Hailey PorterHailey Porter
15:24 30 Aug 23
King Military Law saved my best friend's life and career. The Navy likely illegally separated a close friend of mine with 14 years of service, at the time, as a Sailor. As was I, she was stuck overseas in Afghanistan in 2020 due to the travel ban Gen Miller initiated to prevent personnel from entering and leaving Theater. She wasn't able to fulfill her naval obligations due to the ban. She fought tooth and nail to come back into service and went through MEPs for a second time to continue serving. The Navy again tried to ADSEP the sailor for a separate reason, and that's when she hired King Military Law. If my friend was given her charges she would've lost her medical career, intelligence career, and at this point 16 years of active service. I was present for her ADSEP board and watched King Military Law in action. The process was extremely nerve-racking. The recorder wasn't pulling any punches about my friend's character they were trying to portray to the board. King Military Law's kindness, professionalism, and strategy saved her life. They helped her beat a case that typically the service member wouldn't win. I 10/10 recommend King Military Law. For the first time in 2 years, my friend is able to truly rest and breathe.
Bryce BeeckmanBryce Beeckman
04:26 30 Aug 23
Don is absolutely amazing, I cannot thank him enough for how much he helped me out with my case. He knows the Navy legal system inside out and has a ton of experience. If it weren’t for him I would have never been reinstated. My chain of command literally tried to rail road me, twist my story, and even tried to tell me that it was illegal to get legal representation, but Don worked with me every step of the way. Before contacting Don I spoke with other lawyers and they did not care at all, and didn’t even listen to me and my case. The JAG even blew me off and told me that I was going to loose, didn’t even want to help me out, but Don did it, and got my rank back. I’m so incredibly grateful that he had my back. Don is the way to go for anything legal dealing with the Navy, hese #1 in my books.
Dina TrujilloDina Trujillo
04:46 15 Aug 23
Where do I begin? This will be a bit lengthy as I want to share my experience King Military Law. There aren’t enough words to express how grateful, blessed, and completely honored we are to have had Don King and his team representing my Marine. A few months ago, my son found himself in a very difficult, very scary and extremely stressful situation. A parents worst nightmare. My son was being FALSLEY accused of of a very serious crime. My son had no chance to speak his truth, and was immediately guilty in the eyes of command with absolutely no chance for a positive outcome. This was extremely heart wrenching to a mother who 100% knows without a doubt that her son is innocent, it completely broke me and tore me apart. There was nothing I could do. Once Don heard my sons case he immediately took action. Don ensured that my sons rights were protected. Don protected my Marine when I could not. Don made sure that my son would not get screwed out of what he was entitled to, since my son was a few months from completing his enlistment.Don fought for my boy, presented facts and had these serious charges dismissed against my son, all without having to go to court martial. Don believed in my son from day one and relentlessly fought for him.Don is caring and compassionate and genuinely cares. While going through this stressful situation, Don made sure to reach out to my Marine a few times a week to check in with my son to make sure he was mentally and emotionally doing well. Don kept us updated throughout the process and we always knew what to expect. In the end my son was separated under honorable conditions and is now home. All which never would’ve happened without Don. Don saved my sons career and ensured that my son could have a successful and bright future in the civilian world.I promise that you will not find another Military Attorney with the experience and knowledge that Don has, just take a look at his resume. Don is a warrior who will run circles around anyone. Thank you so much Don and Kasheta for everything! Forever thankful.
Rancell GonzalezRancell Gonzalez
06:29 08 Aug 23
This guy has the best legal team in the nation, hands down. All odds were against my best friend, another co-worker, and myself. Somehow, he managed to win every single battle. Don King literally fought for us 24/7, it did not matter to him whether it was the weekend or late at night. Don always answers the phone provides support through stressful times. Don is a winner, what can I say. I will always be forever grateful that I hired this man. When you go to court with him, you will see that you didn't waste your money and time, but you invested it. This guy awesome, I would hire him a 10000000000000 times if had to because I know he will win.
Kiki WhiteKiki White
00:27 13 Jul 23
Mr. King went above and beyond during our consultation. He was professional, knowledgeable, and very thorough. We went over the 30 minutes. Mr. King did not try to rush me off the phone. This is an attorney who truly cares for a client or potential client. I would highly recommend retaining Mr. King as an attorney. Thank you so much for your assistance Mr. King!
Jeovani StouteJeovani Stoute
02:47 05 Jul 23
Mr. King provided advice for a pending legal issue I am facing. His experience, professional demeanor, and care is unmatched.
Leslie PuikLeslie Puik
01:03 07 May 23
There aren't enough words of high praise to express our appreciation for Don King of King Military Law. He and his very qualified staff Kasheta and Angela took care of our needs like we were their only clients. They are all highly professional, superb communicators, responsive, and thorough. They are caring, compassionate and patiently listen to and address every concern as though they were helping one of their family members. Don excels at helping others understand the processes of the law. He educates his clients so that they can navigate toward the best possible solution and outcome. We will be forever grateful for the entire team's effort to help our family through the most challenging time of our lives.I highly recommend King Military Law.

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