Timothy: In the military justice system, the perception is that you’re guilty until proven innocent. If you wanna change that perception, learn how in the next episode of “Off the Record.”
I remember when I was on active duty, I was stationed at Fort Hood, Texas, in a town called Killeen. You probably have heard of it. There’s a little town, I think it’s called Rogers, Texas, where there’s this known speed trap down there. So, I think the speed limit was almost 35 miles an hour, and I was doing…actually driving pretty slow for me. I was doing like 39, 40 miles an hour when I got pulled over by this police officer.
I was a brand new lawyer so I thought I knew everything. He was giving me a ticket and I told him, “Well, I’m just gonna take it to court,” trying to be wise with him. And this officer was something out of, like, Dukes of Hazzard, right? He’s like, “Court? Boy, you’re guilty.” And the look of like, “Boy, you’re guilty.” I was like, “How can I be guilty? I just got a ticket and I’m gonna fight it. No one’s proven me guilty yet.”
And I remember the feeling that I had when this officer assumed I was guilty. I had no due process, didn’t go to court. I ended up paying the ticket anyways, but it was just the thought of that. And I understand if it’s on that low of a level, think about the reality of the court martial system where the minute an accusation is made against you, no matter what the accusation, in particular if it’s a sexual assault allegation, every single person in the system thinks that you are guilty and they will do everything they can to prove you are guilty, and not try to show if you’re innocent or not. That includes your chain of command, the prosecutors, CID, NCIS, every single person who has a stake in this, except for you, thinks that you are guilty.
We run into an issue of confirmation bias where law enforcement believes you’re guilty so they look at all of the evidence in a light that they think makes you look guilty. For example, if you make a statement and you’re telling the truth, they think you’re lying. If you invoke your rights and say nothing, they think you’re being quiet because you’re guilty. It is always done through that lens.
So, in the court martial system, maybe more than any other system, whether it’s the state court system or the federal system, the belief is that you are guilty until you’re proven innocent even though the Constitution says otherwise.
Noel: As soon as you’re charged.
Timothy: As soon as an allegation is made against you…
Sexual Assault Allegations
Noel: That’s true. That’s true. As soon as an allegation is made against you, especially in the context of a sexual assault allegation, especially in this day and age, in the #MeToo, #TimesUp generation that we’re in, as soon as the allegation is made, they believe that you are guilty, and you have to prove yourself innocent.
How many times have you seen it on TV, in the news, everywhere, that people are presumed to be guilty?
And that situation is no more evident than in the military justice system, where as soon as the allegation is made, they assume that you’re guilty, and it is up to you to go out there and establish your innocence.
Timothy: It’s almost like a train left the station, whether the allegation is made or when the charges happen, and you hear that sound, and that’s the sound of inevitability, the inevitability of that train reaching the end of the line, and the end of the line is usually a prison cell. And at every stage, it is our job, or the job of a competent attorney, to try to derail that train and get it off on a side path so it doesn’t hit the end of the line. But everything that happens in this process is designed to get one thing, and what’s that, Noel?
Noel: A conviction.
Noel: Do you know how difficult it is to derail a train once it’s left the station?
Timothy: It’s pretty hard.
Noel: Once it’s got up to speed? And that is exactly what you’re facing when you’re facing a criminal charge.
Timothy: Noel, let’s break this down a little bit. And why is that? Why is that this…we talked about the train that leaves the station. We talked about the sound of inevitability, which is maybe the sound of the cell door closing. Why is that? Because we have a law enforcement that is designed, and the mindset is, to prove you guilty, not to look for evidence that exonerates you, not to look for evidence that’s exculpatory. That’s one step.
Number two is you have, oftentimes, prosecutors, who all they care about is winning. It’s the win-at-all-costs mentality. Weren’t going out there and looking at the evidence, you know, “This person may not be guilty. This person may be innocent. It may be a false accusation.” It’s, “No, let’s pile on, let’s pile on, let’s pile on, and take all of the evidence, even that evidence which may be exculpatory or may be looked at in a different light, and use it to show that someone is guilty, maybe when they’re not.” It’s the way charges are done.
If you notice, on a court martial, or if you have a charge sheet if you’ve been court martialed before, you probably just don’t have one charge. You have a sexual assault, some type of wrongful sexual contact, they added in adultery, they added a fraternization, they added an orders violation.
They add all of these additional charges to ensure that even if you win the sexual assault charge, you get a conviction for a fraternization or a conviction for an adultery so they can kick you out. When the government…and you know darn well that fraternization would never be handled at a court martial on its own, but they tack those along that the inevitability happens that you get convicted. And what happens then, it becomes a criminal charge, so even if you beat the charge of sexual assault, you may have a rap sheet and a conviction for adultery or fraternization.
Then we go from there to the fact that we do the Article 32 process, which we talk about in other episodes, and how that is designed to move the case forward to a trial. It is the issue of inexperienced counsel on the defense side, where prosecutors have two, three…sometimes, I’ve seen four prosecutors. They will fly in a team of prosecutors, called a TCAP, a trial counsel assistance program, from Washington, D.C. but your military defense counsel is no ding on them. They’ve had 12 months of experience.
Noel: And they’re by themselves. You’ll see that oftentimes, where the defense counsel is just you or I and the military defense counsel, whereas on the other side, you’ll have a lieutenant colonel, a major, you’ll have a commander, all sitting behind the bar, passing notes to the prosecutor. You’ll have a special victims prosecutor, you’ll have a victims’ legal counsel, and you’ll have two or three prosecutors at the table. Meanwhile, on the other side, it’s just me and you.
Timothy: And then when we get to a trial, the rules are designed so that if there’s…in a sexual assault case, you can’t necessarily cross-examine on all the things you want to cross-examine on because of MRE 412, which is military rule of evidence 412, the rape shield laws. You oftentimes can’t cross-examine on motive. You can’t cross-examine on other things which show that someone else may have consented that night. As you go through the entire process, what you’ll learn is the trial is not about you telling your story so it gets out, the trial is designed so you get convicted. And so, this mentality of “you’re innocent until proven guilty” is absolute and it is real, and if you’ve been charged, or you have a charge sheet, or you’re under investigation, you know exactly what I’m talking about because you feel it.
The only person who has the power to change that is you to not be a victim and to be a victor by who you have representing you, the quality of the counsel, the integrity of the counsel, the knowledge and the skill, and to have a relationship with the attorney, someone you know, you like, and you trust, that can deliver you from inevitability.