As reported in Military Times and Star and Stripes, recently two Soldiers assigned to Fort Bliss were arrested for an alleged murder by the El Paso Police Department. The Federal Bureau of Investigation was also investigating the case and it involved cooperation between Military Police and local law enforcement. Situations like this present a unique set of challenges for military members and these cases typically generate important questions for military trial attorneys and criminal defense attorneys.
The first question is often, who will take jurisdiction or prosecute the case? Will it be the military or the state or both? The answer is typically…maybe. As a matter of policy, all of the branches of the service instruct their Judge Advocates to maximize courts-martial jurisdiction whenever possible. What that means is the military will, almost without exception, request that the local district attorney allow the military to prosecute the case pursuant to the Uniform Code of Military Justice (UCMJ). If this request is denied, the military may still prosecute some of the criminal activity associated with the case, which is legally permissible because the crimes involve two different jurisdictions, the state and the Federal government.
The second question will likely involve concerns about what the military may do administratively while a civilian prosecution is pending. Army Soldiers will be “Flagged” by their chain of command and no favorable personnel actions will occur for the Soldier while the investigation is pending. Airmen may be placed on Admin Hold or put on a Control Roster. That means that there may be significant career consequences even if the civilians acquit the service member of all charges. The service member may miss on out a new assignment, a PCS or even a promotion.
Another possible question is what will happen when this is all over? Even if a military member is found not guilty in a civilian court it is possible that they military may seek to take adverse administrative action and even discharge the service member. In a military administrative process like a discharge action the burden of proof is the lower standard of preponderance of the evidence so it is possible that a military member could be found not guilty at trial and still face the end of their military career.
The final and often most significant question involves what a service member and their family should do during the legal process to protect their rights and their careers. It is often critical that the service-member is represented by a civilian military defense attorney that understands both military and civilian criminal law. Having the right military trial attorney with experience in both systems will ensure that the service member makes critical decisions throughout the process with a clear understanding of the consequences. From deciding whether or not to provide a statement to law enforcement, accept a plea deal or demand a trial each decision that is made in each step of the process has potential impacts on a military career and their ability to defend themselves at trial.
Whenever military members are under criminal investigation they should know their rights and consider consulting with an experienced criminal defense attorney that understands military and civilian criminal law. The right attorney can be crucial in ensure that a military members rights are protected and that future is properly defended. The military lawyers at Military Trial Defenders have defended uniformed service members worldwide. Please contact our office for a free consultation.