I recently represented a Coast Guardsman who was convicted of sexual abuse of a child and a general disorder for making a statement to a child that was of a nature to bring discredit upon the armed forces. Two days prior to the court-martial, the alleged minor victim completely changed his story from the conduct alleged in the sexual abuse charge. Mid-way through trial, after the alleged minor victim had testified and after a weekend recess, the government moved to amend the charge to comport with the alleged victim’s testimony. The government argued that it was a minor change but the defense objected to the change as a major change to the original charge which required the government to prefer and investigate a new charge. The Coast Guard Court of Criminal Appeals affirmed the trial court but the Court of Appeals for the Armed Forces agreed with my argument that it was a major change because the change altered the means of the offense and was not fairly included in the original offense so that it affected the potential defenses available at trial. The CAAF noted that the government could have amended the charge sheet prior to trial but, for some reason, chose not to do so. The final part of CAAF’s decision on the sexual abuse offense overruled its previous case-law regarding whether an appellant needs to show some prejudice. In short, our argument changed some longstanding precedent in military justice case-law.
Next, CAAF agreed with our argument that the government improperly charged our client with a novel offense under Article 134 when the conduct described in the charge was already covered by a different offense under Article 134.
CAAF threw out the conviction for both offenses.
If you or a loved one is convicted at a court-martial, you need an experienced court-martial appeal attorney. Please contact Mr. Cassara for a free consultation.