Neal,
I litigated this issue 2 weeks ago and got three specifications of Art 120 dismissed with prejudice. I will forward you some of the e-mail traffic on the reasoning behind our argument. The first one you'll get will be my explanation to Col Baker of CDR Rugh's ruling. I'll also send you both the motion we put together.
The unfortunate thing is that this kid is still going to a GCM for a barracks violation, indecent act (consensual group sex), and conspiracy to commit an indecent act. All this despite my offer of NJP and now summary court-martial. The other Marine in the "group" got a GCM conviction and reduction by one grade. I really see this as a general officer not willing to think about the individual Marine.
Anyway, I thought you and Haytham might find this stuff interesting and you may be able to use it in your own practice. It's gonna make you review that Art 34 letter even closer.
V/r,
Bret A. White
Captain, U.S. Marine Corps
Defense Counsel
Defense Services Organization, Eastern Region
Marine Corps Base, Quantico
3250 Catlin Avenue
Quantico, VA 22134
Front Desk: 703.784.4615
Direct: 703.784.0405
Fax: 703.784.0259
-----Original Message-----
From: Puckett Neal [mailto:neal@puckettfaraj.com]
Sent: Tuesday, November 01, 2011 12:49
To: White Capt Bret A
Cc: Faraj Haytham
Subject: Re: Improper Referral Question
Hey, Bret,
Interesting scenario. I have seen this often, in fact. Am aware of no case law which finds an improper referral even when all recommendations are against it. You're seeing what happens when common sense and legal sense align, but moral cowardice prevails at convening authority/CMC guidance level. We give Art 120 "victims" their day in court to avoid the greater pain of family/public backlash for past allegations of failing to adequate pursue "military rape cases." I'm copying Haytham to see if he has any better insight or has found some case law.
Unlikely to prevail in my view since recommendations are "advisory only."
Wish I had more. I feel your pain, though. You just have to go to court and hand the accuser her ass (so to speak). And when she complains of ill treatment, you can point to the CA for pushing it to trial.
S/f,
Neal
Neal A. Puckett, Esq
LtCol, USMC (Ret)
Puckett & Faraj, PC
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On Nov 1, 2011, at 12:42 PM, White Capt Bret A wrote:
Neal,
I wonder if you've run into this scenario before, and if so, if you can point me in the right direction:
I have an Art 120 case (with other minor charges) with the following actions since the Art 32 investigation:
- The IO finds "no evidence to support" the nonconsensual sex
- The TC concurs with the IO
- The Art 33 advice concurs with the IO
- The SJA to the GCMCA also says "no evidence to support" the nonconsensual sex
- All charges and specs referred to GCM without modification
The CDC thinks that this is ripe for a motion to dismiss due to improper referral, but I can't find caselaw to support that assertion.
Do you have any experience in this area from your days on the bench? I'd appreciate any pointer you have in this.
V/r,
Bret A. White
Captain, U.S. Marine Corps
Defense Counsel
Defense Services Organization, Eastern Region
Marine Corps Base, Quantico
3250 Catlin Avenue
Quantico, VA 22134
Front Desk: 703.784.4615
Direct: 703.784.0405
Fax: 703.784.0259
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