Innocent Until Proven Guilty…Sometimes Even Judges Forget

All accused Soldiers, Sailors, Airmen and Marines are innocent until proven guilty.  That means that prior to any conviction in a court-martial, they are still Soldiers, Sailors, Airmen and Marines.  Sometimes those who are involved or who know about the upcoming court-martial forget this principle and they begin to treat that servicemember like they are presumed guilty.  This can make someone accused of a crime feel like they have no chance of being acquitted even if they are indeed innocent.  It can also cause them to feel like they have to prove their innocence when the burden clearly lies with the government to prove guilt.  If an accused chooses to be tried by a panel, a military judge still presides over the court-martial.  While the panel decides guilt or innocence, the military judge makes many procedural and evidentiary decisions during the court-martial.  He or she is therefore still an important part of the court-martial and is in charge of the courtroom.  The panel listens very intently to the judge’s instructions and looks to the judge for guidance.  Therefore, the military judge must be very careful about what he or she says in front of the panel so that he or she does not influence their decision regarding guilt or innocence.  Recently, the Court of Appeals for the Armed Forces (CAAF) has agreed to review a Coast Guard case named United States v. Leahr.  One of the issues under review is whether the accused in that court-martial was denied a fair trial when a military judge said two different things that implied that he believed that the accused was guilty prior to the panel making a decision in the case.  First, the military judge thanked a witness after he testified at the court-martial, for the actions that he took to protect the victim.  At this point in the court-martial, the accuser was just an “alleged victim.”  By thanking a witness for testifying and protecting the accuser, the military judge probably gave the panel the impression that he sided with the alleged victim in the case and that he believed the accused was guilty.  Additionally, prior to the panel making a decision regarding guilt or innocence, the military judge asked the defense counsel whether a witness who testified on findings would be recalled during the sentencing case.  Obviously, if an accused is found innocent, there would be no sentencing case.  By implying that a sentencing case was forthcoming, the military judge implied that the he believed the accused was going to be found guilty.  The defense in that case was correct to ask for a mistrial, but their motion for a mistrial was denied by the military judge.  It is yet to be determined what CAAF will decide about that military judge’s actions.  If you or your loved one is facing a court-martial or would like to appeal a court-martial, I urge you to call me for a free consultation.  I have a great deal of experience.  I know when to object at a court-martial, what motions to make and how to preserve issues for a later appeal.  You need someone by your side with this experience to protect you from those who believe you are guilty until proven innocent.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

William E. Cassara- Military Law Attorney

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