We’ve had some amazing success in having cases dismissed or disposed of before trial. Sometimes, the cases that are dismissed are the ones we thought would definitely go to trial, and sometimes a case should get a deal, but stubborn prosecutors, accusers, and commanders refuse to a reasonable outcome.
There are really four ways cases can be disposed of before trial: 1) new evidence comes out to demonstrate your innocence and the case gets dropped; 2) key Government witnesses, like a sexual assault accuser, refuse to participate; 3) there are legal issues with your case that are so significant that the judge orders your case dismissed; and 4) you reach some sort of pretrial agreement to plead guilty or to accept a discharge in lieu of court-martial.
New Evidence at Court-Martial
As we prepare our cases and work toward trial, we often uncover new evidence and witness testimony that the prosecutors previously didn’t know about. Usually this evidence is critically important for cross examination and for our case at trial, but is not sufficient proof for the case to actually be dismissed. Although it is not typically the case, this does happen. In fact, there is one case we had in which the alleged victim was in the middle of cross examination with our attorney when she made a shocking statement about documents that the prosecutors did not know about. The case was delayed as a result, and three weeks later it was dismissed.
Victim Refuses to Participate at Court-Martial
“New evidence” or evidence that the Defense has but the Government doesn’t can also operate to discourage witness participation for good reason. In many of our cases, there are certain timelines ahead of trial in which the military judge orders the Defense to disclose certain evidence, such as evidence of past sexual behavior of an alleged victim in a sexual assault case. On many occassions, our disclosure about the past sexual relationships of the alleged victim and the accused is so shocking and detrimental to the alleged victim’s credibility that they refuse to participate and the case is dismissed. A great military defense attorney uses tactical timing and legal maneuvering to achieve these pretrial wins.
Winning a Court-Martial Before Trial
During preliminary hearings before the trial, your attorneys have the responsibility of bringing legal issues in the case to the attention of the judge to request relief. These are called “motions.” There are several errors that the Government can make in the way they investigate a case, charge the case, or in how the commanders or prosecutors act regarding the case, that could be such a significant violation of rights that the judge orders the case dismissed. Even if the judge doesn’t dismiss the case and allows the case to go to trial, those issues raised by your defense counsel will be reviewed for accuracy by the appellate court in most cases if there is a conviction. In fact, we recently had a case dismissed by the appellate court even though the trial judge allowed the case to proceed. The issue in that case was whether certain evidence was improperly gathered. The whole case came down to that question because without that evidence they couldn’t prove the misconduct.
Negotiating a Deal in a Court-Martial
Finally, clients often have the opportunity to cut a deal. We don’t like to go into any case with the goal of cutting a deal, but there are times in which the risk of litigation is more than the client wishes to bet on and would rather the certainty of a deal. When we cut deals, we often make an agreement that lessens the seriousness of the alleged criminal act. For example, in a sexual assault case, we may negotiate the charge down to an assault instead of a sexual assault which removes the possibility of sex offender registration and significantly lowers the maximum jail time. Deals can also be reach where the court is dismissed entirely in exchange for certain administrative action, such an administrative discharge from the military.
