Retrial or rehearing

Over the years, we have been military defense counsel in several retrials for a person whose conviction was set-aside on appeal.

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The first was for a sailor convicted initially of premeditated murder. In a robustly contested members case, he was convicted of voluntary manslaughter, which resulted in a much-reduced sentence. We had to deal with experts in forensic pathology and forensic anthropology. It is this case that introduced us to The Body Farm.

Two other cases reflect our advocacy, not just on appeal but also with retrials as military defense lawyers.

In United States v. Schloff, we represented a medical provider accused of fondling patients during office visits. Despite an aggressive defense at trial, the members convicted him of one of four charges. On appeal, we successfully established that he did not get a fair trial due to unlawful command influence. The Army Court of Criminal Appeals reversed the conviction. With that, the Army decided to do a retrial. Again, in an aggressive and well-prepared defense, we convinced the members to find him not guilty. The second result is what should have happened at the first trial had not two of the members brought up command influence issues during deliberations.

In United States v. Garcia, an out-of-control prosecutor got him convicted of sexual assault. We persuaded the Army Court of Criminal Appeals that his trial was unfair. Again, we presented a well-prepared defense at the retrial, and he was found not guilty by the military judge.

A third case involved an Air Force medic convicted of fondling patients. As his appellate military defense counsel we were successful in having his conviction overturned. He was released from confinement. During the work ups to a retrial we were able to convince the prosecution that an administrative discharge was a suitable resolution for all concerned.

Since then, our retrial clients have either been found not guilty or administratively separated instead of trial. In each case, that meant no conviction, and because they all involved sex offenses, there was no sex offender registration. Retrials can be more complex than the original trial because of lost evidence, memory problems of witnesses, and other administrative issues. Sometimes, the complaining witness doesn’t want to testify and is satisfied that the client has served time in jail already—sometimes several years by the time the case gets to retrial.

What happens when the appeals court sets aside the conviction or sentence? About a month later, the record goes back to the original jurisdiction (or to the commander at Fort Leavenworth) for them to decide if there will be a retrial. While the prosecutors are assessing the strength and difficulty of a retrial, this can be an opportunity to negotiate for a better result than the first time: either the administrative separation or a pretrial agreement to lessen the charges and sentence.

What happens to those on appellate leave is that they are recalled to active duty. Those who are confined might be released pending trial (we have one client now on pretrial release), or there will be a pretrial confinement hearing to decide if they should stay in confinement. It depends on the charges and the sentence adjudged at the first trial. There is less chance of pretrial release if the charges are serious, and a lengthy sentence remains if re-convicted.