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.

Our latest success, as of 25 October 2024:

Almost four years ago we represented a Soldier for his appeal of his court-martial (under the UCMJ). He had been convicted of a (homosexual) assault on another Soldier and was sentenced to 14 years. We argued to the Army Court of Criminal Appeals (ACCA) that the military judge had made a serious error in not permitting the defense to go into evidence covered by Mil. R. Evid. 412 (“rape shield”).

ACCA agreed with us that the error was so prejudicial that the findings and sentence were set-aside and there could be a retrial. This was in December 2023. The client was immediately released from the U.S. Disciplinary Barracks (USDB), Fort Leavenworth, Kansas awaiting a decision on whether there would be a new trial. We waited months to hearing anything until we were told they were going to dismiss the charges and admin him out.

Jump to early October 2023 and finally the client was served papers for an administrative discharge Under Other Than Honorable Conditions (OTH / UOTH). The problem was that the client’s ETS had expired in 2022 so initially the sole legal reason to hold him on active duty was that he was pending court-martial. We believed this joint “process” to be illegal so (1) we filed a request for redress, (2) a Petition for an Extraordinary Writ of Habeas Corpus, Mandamus, Prohibition, and for a Stay.

The command went ahead with the Board hearing over our objection. However, the Board voted 3-0 that there was not sufficient evidence of misconduct and recommended retention.

Finally, the command has dismissed the charges which means the client will soon be off active duty with an honorable discharge.

Persistence, planning, and using all available resources helped us save this client’s life and future.

Need expert litigators for a court-martial retrial or Extraordinary Writ petitions about ongoing trials or retrials–reach out to us and we will see what can be done to help.

Go here for other appellate cases

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. Army O-1, 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. Army E-6, 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.

Restoration pending retrial

What about rank and pay pending retrial? The client is entitled to be restored to the prior rank and wear that rank. As to pay, this is different (and frustrating).

Pretrial pay is at the rank before the original sentence. So, if reduced in rank to E-1 from E-5, then while in a pretrial retrial status (confined or released) pay will be at the E-5 rate. It didn’t used to be that way.

The pay issue has been litigated.

The basis for the reduced pay rate is the opinions of several Comptrollers of the United States, which became the subject of litigation. The Federal Court of Claims and Federal Circuit Court of Appeals decided two cases in Dock in 1995 and Combs in 2001. In each case the court decided that the Comptroller was right in calculating pay for someone pending retrial who had already been reduced in rank. In 2016, the Court of Appeals for the Armed Forces decided how to adopt the Comptroller and federal decisions. As to Dock, the Supreme Court denied a review of the issue. If there is an acquittal or dismissal of charges or a lesser reduction in rank, there is a claim for back pay.

In 2017, Congress amended the law with the National Defense Authorization Act for Fiscal Year 2017 (NDAA), Pub. L. No. 114-328, 130 Stat. 2000, which will resolve the very pay restoration issue in this case. As amended, Article 75(a) instructs the President to “prescribe regulations, with such limitations as the President considers appropriate, governing eligibility for pay and allowances for the period after the date on which an executed part of a court-martial sentence is set aside.” § 5337, 130 Stat. 2937.

Pending retrial, reach out to us at (703) 298-9562 or mljucmj@court-martial.com for advice from military defense counsel experienced in retrial.