Article 34 of the Uniform Code of Military Justice (UCMJ) requires the convening authority of a general court-martial to get pretrial advice from the staff judge advocate (SJA). More specifically, Article 34(a)(2) states the SJA must advise as to whether each specification referred to a general court-martial is “warranted by the evidence indicated in the report of a preliminary hearing.” The preliminary hearing is called the Article 32 hearing. The Article 32 hearing is a proceeding in which a military officer listens to the evidence that the government presents against you and listen to what your counsel presents on your behalf. Based on the report produced by this officer, the SJA can advise the General Court-Martial Convening Authority (GCMCA) regarding whether or not the specifications are warranted by the evidence. The National Defense Authorization Act (NDAA) FY15 led to some amendments of the Article 32 hearings. One of these amendments allowed victims of sexual assault to opt out of testifying at the Article 32 hearings. This caused some governments to relax a bit during these preliminary hearings and not present as much evidence as they used to. However, recently in a Coast Guard case a military judge dismissed a specification alleging that the accused used indecent language toward a civilian female because the government did not present her testimony at the Article 32 hearing. In this case, United States v. Mercier, the government simply presented no evidence supporting that specification. Therefore, the Article 32 officer recommended that the indecent language specification be dropped from the court-martial charges and not pursued by the GCMCA. The SJA, however, recommended that the specification regarding indecent language be charged at the court-martial. The SJA made this recommendation based on “expected” testimony from the civilian female. Based on the SJA’s advice, the GCMCA referred the specification to the general court-martial. Once the specification found its way to the court-martial, the military judge dismissed it holding that the specification was improperly referred. The government immediately appealed the military judge’s dismissal. Recently, in March 2016, the Coast Guard Court of Criminal Appeals (CGCCA) upheld the military judge’s decision. The CGCCA essentially concluded that while a SJA can disagree with an Article 32 officer’s conclusions about the strength of evidence, there must be some evidence presented at the Article 32 hearing supporting a specification in order for the referral to be proper. The SJA’s advice regarding “expected” testimony was simply not sufficient. Therefore, the CGCCA upheld the military judge’s dismissal of that specification. This decision should remind government prosecutors that the Article 32 is still important and that despite the NDAA FY15, some evidence must be presented in order for a referral to be proper. If you or your loved one is facing an Article 32 hearing, you need an experienced advocate by your side. If you or your loved one wants to appeal a past court-martial based on an improper referral or another reason, you need someone with experience to represent you. I have vast experience with court-martials, court-martial appeals and Article 32 hearings. Call now for help. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.
By William Cassara | September 3, 2020
By Beth Harvey | August 20, 2020