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 www.jag.navy.mil.
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.
King Military Law
~~ When Experience Matters Most ~~
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