If you are a military member and you get into trouble, you are generally entitled to be represented by an active duty JAG as your defense attorney. You are also allowed to hire a civilian defense counsel. If you hire a civilian defense counsel, you generally have the option of either keeping your active duty defense counsel on your defense team or dismissing them.
An active duty defense counsel gets assigned to help you through a court-martial, Article 15 (non-judicial punishment), or involuntary separation action. An active duty defense counsel may also represent you on smaller adverse actions, including a poor performance report, a letter of reprimand, a promotion delay action, and an administrative demotion action, to name just a few.
So why might a military member want to hire a civilian defense counsel? As a JAG, active duty defense attorneys are likely smart and hardworking (but there are exceptions). More importantly, however, like all attorneys they may be very experienced, very inexperienced, or anywhere in-between. If you do your research and hire a civilian with a track record, then you know you have experience working for you. And that helps maximize your chances. Further, just like with a public defender, your active duty defense attorney works with the same prosecutors and the same command chain at your base all the time. This means that they sometimes have to pick and choose when and for which clients they can be super aggressive for - because they do need to maintain a good relationship with commanders and prosecutors. A civilian defense attorney has no such issues.
Remember, by adding a civilian defense counsel in a UCMJ or other adverse action, then you still have the choice of keeping your active duty JAG as well. This creates a defense team who can work together. This can have loads of benefits – and not just double the resources, double the manpower, and double brainpower. You get diverse attorneys who can edit each other’s work and ideas, which often leads to a better product. Think O.J. Plus, your active duty JAG may have deeper insights into some specific local tendencies and personalities, while your civilian defense counsel has more litigation and courtroom experience.
If you are ever in a situation where your military career or even your life or liberty are at stake, you may want to speak to a civilian defense counsel before going it alone with your military defense counsel. The consult is generally free and it should lay out your options so at least you make an informed decision.
Imagine this – you are suspected of a crime in the military and things are headed for an Article 15 or even a court-martial. It happens to people all the time. A urinalysis test come back hot. A person reports being the victim of a sexual assault. Money goes missing from the office snack fund. For certain cases, like a DUI, the investigation might start and stop with you right there. But for most cases, things start rolling well before the subject is even aware anything is going on.
How does a criminal investigation start? Usually a complaint is made to the local CID / NCIS / OSI. Perhaps that is an assault or theft victim voicing a complaint, perhaps it is the drug lab reporting a positive urine test. Once a case is opened, however, guess what – the accused is not immediately brought in for his or her side of the story. The investigators were not born yesterday. They know to get their ducks in a row before the big interrogation. They know they have a much better shot at a confession if they have the upper hand on knowing all the facts – and they already have the upper hand in knowing powerful interrogation techniques.
Do not underestimate this: no matter how they come across or what they say, the investigator is looking for a confession. That is how they get their performance bullets and high-fives. An interrogation ending in a denial or the subject “lawyering up” is a failure. A confession is a win. At least in general. And a confession or any kind of statement made at this stage of the game can be devastating for your defense case – a total admission can seal a conviction right there. Even small statements can seriously hurt your case. And this is whether you are truly guilty or truly innocent.
How do you protect yourself? If you ever find yourself in a situation where someone reads you your rights, always consider these points:
1. Silence. It’s golden. At least in most cases. While making an immediate statement might be the right call, that’s a rarity. You have the absolute right to keep your mouth shut – and every criminal defense attorney will tell you this is the best default advice. Come back to the cops later to make a statement after you talk to a lawyer if that makes sense.
2. Ask for a lawyer. By clearly and unequivocally stating “I want a lawyer” the investigators have to stop questioning you. It’s the key phrase to take off the pressure. Say those words and don’t second guess it, if you want a chance to think and get expert advice before locking yourself in.
3. Investigators manipulate their subjects. They start off by being buddy-buddy with you. They talk about the game. Or the news. Or whatever other small chit chat for a while before then slipping in “these rights advisements are just a technicality but we need to read them, you have the right to remain silent . . .” and then they get back to small talk. They want their subjects to get used to talking and feel comfortable. They want to pretend they are your friend. You don’t notice it’s an interrogation most times. They eventually work in how much evidence exists against you and how they are ready to go to bat for you with the command if you cooperate, and if you don’t cooperate you are toast. Well, nothing could be further from the truth in most situations – confessions and admissions are what toasts most suspects.
4. Investigators can even lie to you. They can tell you they have your DNA, or a video of you doing it, or 100 witnesses against you, even though every single line is a bald-faced lie. Their trick is to make their subject feel so helpless that the only rational choice for the subject in his or her mind is to plead for mercy with the investigator and confess all their sins. These techniques are so powerful that they have been proven to coerce false confessions from totally innocent people. One of the more famous examples was the Central Park Five.
5. Stand up for yourself. In these situations, a subject is at an extreme informational disadvantage. It’s unfair. Stand up for yourself and ask for a lawyer so that you can get on an even playing field. Maybe making a statement is the best option. Maybe you have nothing to hide. You don’t lose anything by asking for a lawyer, which will result in you getting all the facts about what is going on. Then, if it makes sense, provide your statement under fair conditions to the investigators. Or not, and invoke your right to remain silent if a statement would hurt you.
First Amendment to the Constitution --
"No person shall be . . . compelled in any criminal case to be a witness against himself."
Article 31, U.C.M.J. --
"(a) No person subject to this chapter may compel any person to incriminate himself or to answer any questions the answer to which may tend to incriminate him.
(b) No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.
(c) No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence in not material to the issue and may tend to degrade him.
(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial."
Our firm is proud to be helping organize a military-themed CLE on October 14, 2016, at the Sheraton in New Orleans. Come join us for an outstanding lineup of speakers and topics!
The program is targeted for Louisiana practitioners who may encounter military members in a case - as their client or as an opposing party. Topics include the military issues related to family law, immigration, criminal law, civil litigation, and labor and employment law.
Three speakers of note will be:
The Honorable Charles A. Blanchard - The former General Counsel of the Army and former General Counsel of the Air Force will talk on Leadership and Professionalism. From clerking at the United States Supreme Court to being the head attorney for two branches of service in the Pentagon, Mr. Blanchard provides incredible insights - don't miss this opportunity!
Mr. Kenan Torrans - A deputy director from the U.S Department of Labor in D.C. will join us to discuss the Uniform Services Employment and Reemployment Rights Act. Knowledge of USERRA is vital if you ever advise a client who employs a military member.
Colonel (ret.) John Odom - A Louisiana native and retired Air Force JAG, Colonel Odom is one of the nation's leaders on the Servicemembers Civil Relief Act, having settled millions of dollars in cases as well as having testified on Capitol Hill on the subject. The SCRA has implications across a multitude of practice areas and is a topic that every attorney should be aware of.
Check out the LSBA website to register!
The federal government has low loans available for those affected by flooding in Louisiana, but the window is closing. You must apply for an SBA loan by October 13, 2016.
Loans can be used for flood damaged property, including your home, your belongings, and your business. You do not need to own a business to apply - anyone in the area can qualify.
Interest rates are as low as 1.563%. You may even be able to refinance your existing mortgage with a low interest SBA loan.
Read more here. Visit a disaster recovery center or call the SBA's hotline.
Anyone affected by the flooding in Louisiana may be eligible for low interest loans from the SBA. It is meant to help those with property and economic damage not covered by flood insurance. This may be the biggest federal program to help you rebuild - and even if you do not need a loan it is worth considering because of the interest rates. The deadline for applying for loans to help with physical damage is October 13, 2016.
If you own your house and it was damaged, you may be eligible for a low interest loan of up to $200,000 to help with repairs and rebuilding. If you have credit available elsewhere, your interest rate will be 3.125%. If you cannot get credit elsewhere, your interest rate will be 1.563%. These interest rates are significantly better than carrying a credit card balance, and probably beat the market rate for home equity loans. You also may be able to refinance your existing mortgage with this program.
Whether you own or rent, you may be eligible for a low interest loan of up to $40,000 to help fix or replace personal property damaged or destroyed in the flooding, such as furniture and clothing. If you own a business that was damaged, you may be eligible for additional loan programs of up to $2,000,000 to get your business back on its feet.
SBA representatives are physically present in Louisiana to help answer questions and accept applications. They are located at these locations and times. You can also read more about SBA disaster loans here or on the SBA website.
“The case against Clevinger was open and shut. The only thing missing was something to charge him with.” Catch-22 by Joseph Heller.
While satirical, with this quote Heller brought attention to the concern that the military did not always dole out justice in righteous ways. And there was plenty of real life, legitimate outrage after World War II on this subject, which helped herald the creation of the Uniform Code of Military Justice.
But even today with the UCMJ, the tension between military necessity versus a fair trial creates debate. Military courts are not a separate body in the way an Article III court or state court is. While they have a tremendous amount of independence and power, a military court is still an entity inside the military. The commander who convenes the court, as well as military judges, military prosecutors, military defense counsel and military juries still all work for the same person (albeit far up the command chain).
Experienced military counsel will tell you that this generally works, although recently some of the safety measures originally placed in the UCMJ have been removed for political reasons. And that is bad. But, the system is tested sometimes to the breaking point when dealing with tough cases. The Bowe Bergdahl case is a great current example. And good for his defense attorneys for pressing the issue.
General Robert Abrams was the commander who decided to send Bergdahl to a court-martial, despite the fact that Bergdahl spent five years as a POW to the Taliban under incredibly severe conditions and despite the fact that his Article 32 hearing officer recommended a lesser form of punishment. That decision was for General Abrams to make – or was it? Before General Abrams made the decision to send the case to a court, Senator John McCain very publicly stated that he would hold congressional hearings if the case did not go to a court-martial. So, General Abrams was faced with at least the appearance of a political problem – if he chose not to send the case to a court then he would personally face a hearing before Congress where he would be cross-examined on a national stage, complete with congressional grandstanding. Oh, and not to mention McCain sits on the Senate Armed Services Committee and has as much control as any regarding which generals get confirmed by the Senate for promotions and job assignments. If General Abrams failed to send this case to a court – even if he truly in his heart knew that it was an unfair decision – what would happen to his career?
Perhaps, as he testified, General Abrams would have made the same decision without McCain’s threats. Or perhaps not. It sure seems like a politician made the decision for General Abrams. That perception alone points to a major flaw in the system, and is a reason to commend defense counsel who are brave enough to stand up to the powers that be.
Flood insurance and other government assistance may help pay for property damage if you or someone you know has been affected by the Louisiana flooding. However, those payments may not be enough to cover all your expenses. Low interest loans are available now, which can be a much cheaper option than carrying a high interest balance on a credit card. We are highlighting two options, but there are many more opportunities out there if you or someone you know could use some financing.
If you are looking for a relatively small amount of cash to help you through the near future until you get back on your feet, you may qualify for an unsecured personal loan through a bank. Whitney Bank, for instance, is offering loans to qualified flood victims of up to $50,000, with low interest rates and no payments for 90 days. Call Tyelise Vavasseur at (225) 381-0452 for information.
If you are a flood victim and are looking for a larger loan or are looking to refinance your home mortgage, you may qualify for a low interest loan through the Small Business Administration (even if you do not own a business). These loans typically require you to mortgage your home or other real property. See more on SBA disaster loans here or visit a local disaster recovery center to speak with an SBA representative.
A power of attorney is a document that authorizes another person to do something on your behalf. If you or someone you know has been a victim of flood damage, executing a power of attorney to authorize someone else to deal with FEMA or your insurance adjuster on your behalf may be very helpful and convenient. Similarly, perhaps you want to authorize someone else to be able to speak and contract with utility companies, contractors, your bank, or any other entity.
If your elderly parents had flood damage, perhaps they would like to rely on you to take care of the discussions and paperwork for them. If you find it difficult to find time and attention to devote to these issues during the day, because for instance you are busy or out of touch at work, you may want to give someone else the authority to have those discussions for you.
If you want more information, call our office and we will be happy to discuss your situation. If related to flood damage, we will also be happy to draft and execute a power of attorney for you at no charge.
Condon, Wood & Burkhart want to help people find the quickest path to recovery, so we are running a pro bono service for those affected by the floods. If you have a flood-related issue, you are welcome to sit down with one of our attorneys to discuss your situation free of charge. We will have computer terminals available for online FEMA filing and other applications if you do not have access to the internet. Even if you do have internet access, but want help through the process, we can assist you with registrations and applications.
You may call us at (225) 372-8877 to schedule an appointment, including after hours or on a weekend if your situation requires it. You can also reach us by email on our contact page. If making an appointment is difficult because of your circumstances, feel free to walk-in any time between 9AM and 5PM at our downtown office located at 457 Louisiana Avenue – we are on the corner of Louisiana Avenue and St. Charles Avenue one block from Christina’s Restaurant.
While you are welcome to see us for any flood-related issue, we recommend you keep these things in mind if you have had property damage or injury due to flooding. Please keep in mind that we will continue to update page, so please check back from time to time for more information.
What to Do First
Farm Service Agency (USDA)
Before Hiring a Contractor
In conclusion, there are loads of reasons to create a will if you live in Louisiana. Even if only one of the seven answers we discussed applies to your situation, you probably still want to consider doing a will.
Why come to Condon, Wood & Burkhart as the firm to help you and get your affairs put in order? Well, we offer free access to the will worksheet to help guide you through all the issues as well as a free consultation with an attorney who practices in this area, either Garrett Condon or Diane Burkhart. Both have actively drafted wills over the course of their entire legal careers. As a former active duty JAG, Garrett has drafted over 1,000 wills for clients in the military and retired, as well as their families. We have decades of experience.
You can, of course, pull form sheets off the internet and attempt to do a will by yourself. However, you should keep in mind that there are technical form rules in Louisiana and if you do not meet the minimum form requirements, the document you create may be invalid. Further, unless you have legal training, it will be difficult for you to set up the more complicated parts of the will like creating a usufruct or a trust. Creating a will that complies with the form requirements, addresses all the issues relevant to your situation, and properly states what needs to be stated will be best accomplished by a legal professional. Further, we have helped countless people just like you think through their situations and create a will that best suited their needs – we can similarly help you and your family.
Keep in mind also that, in addition to the benefits of having a will, there are other issues you should be considering to prepare for a potential serious illness or injury. Legal documents such as a living will, medical power of attorney, and general power of attorney, may also be critically important for you to have on hand just in case. Our firm will discuss those documents during our consultation with you, and we will be publishing those topics in the near future.
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