What is discriminatory or selective prosecution? What should I do if I think it happened to me?
Discriminatory or selective prosecution occurs in the military when the command, in bad faith, singles out an individual for prosecution at a court-martial while not prosecuting another servicemember who was alleged to commit the same or similar offense. For example, if two servicemembers were equally involved in a theft and only one faces prosecution because of his race, that servicemember may allege that he is a victim of discriminatory or selective prosecution. If the servicemember can demonstrate that this occurred during his court-martial appeal, he may be entitled to relief on appeal. Proving selective prosecution is not easy however. Recently, in U.S. v. Redmon, an appeal to the Navy-Marine Court of Criminal Appeals (NMCCA), a male Sailor alleged discriminatory prosecution. In this case, the appellant and a female Sailor ended up engaging in sexual activities after both becoming highly intoxicated. Soon after the female alleged sexual assault against appellant, he made the same allegation against her. The appellant faced prosecution at a court-martial while the female Sailor did not. Therefore, appellant alleged selective or discriminatory prosecution. In their opinion, the Court stated that the burden of establishing selective prosecution is a high one. The Court stated that the appellant must establish, 1) that he faced prosecution while others similarly situated based on the same conduct were not prosecuted and 2) that he was singled out based on a bad faith reason, such as race, religion or the desire to prevent his exercise of constitutional rights. In Redmon, the NMCCA determined that the appellant did not meet this burden. However, that does not mean that this high burden cannot be met in a different case with different facts. If you believe that you or your loved one faced selective or discriminatory prosecution in his or her court-martial, you may have a valid appeal. I have a lot of experience with court-martials and court-martial appeals. Call me and we will talk about the case together. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.