Legal Question in Military Law in New York

Re: court martial appeal

Were the notes taken before or after the record of trial was prepared and authenticated?

Re: court martial appeal

If the notes were lost or stolen, the results of the trial cannot stand because there is no verbatim transcript. Thus, the Army's only choice is to either not discharge him or have another trial. Since it appears they will retry him, the first trial will be treated as if it never existed. You need a good attorney who can learn from the mistakes of the first trial and hopefully get a better result this time around.

Because the first court will be declared a mistrial and deemed as if it did not occur, a second trial will not violate Double Jeopardy. Your son needs to prepare for this court and hope that he gets a much better result.

I hope I have answered your questions. Please feel free to contact me if I can be of any further assistance.

Re: court martial appeal

The Army may want to retry your son, but that does not mean that they can just because they say so. There is a conflict between the statutory "former jeopardy" provision in the UCMJ and the former jeopardy provision of the Constitution. As Mr. Cave points out, just how important that may be depends on where in the process the notes were stolen. In a recent Army case from Fort Lewis, WA, the military denied "former jeopardy" in a case, and so, the defense attorneys went into federal court and got a federal judge to bar a retrial under federal, constitutional standards.

But, I am skeptical about the Army's story, having tried probably 200 Army Courts-Martial. I have never seen them NOT use a back-up system, e.g., tape-recording or steno-mask or some process. If both are missing, then it's an "inside" problem - like the equipment wasn't working to begin with.

If your son was NOT in pretrial confinement before his court-martial, but is NOW in confinement, whoever defended him at his court-martial should be insisting that he be released from confinement ASAP.

West Point is a few hours down the road from me. You don't say whether or not he plead guilty or not guilty, or whether he had a "jury" meaning a panel of officers, or just the Military Judge. If it was part of a plea-bargain [pretrial agreement], then there are other considerations that must be evaluated. In any event, it is not an easy or simple issue.

Please feel free to contact me if you have any other questions at [email protected]

Good luck to you and your son.

Don