Military Law 101 – Courts-Martial

Posted by on Nov 23, 2015 in Uncategorized

The Uniform Code of Military Justice (UCMJ) provides for three different types of courts-martial: (i) summary; (ii) special; and (iii) general.  These forms of courts-martial differ in their make-up and in the punishments which may be imposed. The Military Rules of Evidence apply to all classifications of courts-martial.  And, like most criminal trials in State and Federal courts, the burden of proof that the Government must meet is guilt beyond a reasonable doubt. Summary Court-Martial A summary court-martial consists of only one commissioned officer, and may try only enlisted personnel for non-capital offenses.  The punishment which may be imposed depends upon the grade of the accused. In cases of enlisted members above the fourth (4th) pay grade, a summary court-martial may impose any punishment not forbidden by law, except: death, dismissal, dishonorable or bad conduct discharge, confinement for more than one (1) month, hard labor without confinement for more than forty-five (45) days, restriction to specified limits for more than two (2) months, or forfeiture of more than two-thirds (2/3) of one (1) month’s pay.  In the case of all other enlisted members, the court-martial may also impose confinement for not more than one (1) month and may reduce the accused to the lowest pay grade, E1. Similar to a NJP, the accused has the absolute right to refuse trial by summary court-martial.  The accused does not, however, have the right to representation by an attorney.  The accused does have the right to cross-examine witnesses, to call witnesses, to produce evidence, and to testify or to remain silent. Special Court-Martial A special court-martial consists of not less than three (3) members and a military judge, or an accused may be tried by a military judge alone upon request.  This type of court-martial is often characterized as a misdemeanor court, and may try all persons subject to the UCMJ, including officers, enlisted personnel, and, in some cases, civilian employees. A special court-martial may impose any punishment authorized under R.C.M. 1003 except death, dishonorable discharge, dismissal, confinement for more than one (1) year, hard labor without confinement for more than three (3) months, forfeiture of pay exceeding two-thirds (2/3) pay per month, or any forfeiture of pay for more than one (1) year. General Court-Martial A general court-martial consists of not less than five (5) members and a military judge, or an accused may be tried by a military judge alone upon request.  A general court-martial is often characterized as a felony court, and may try all persons subject to the UCMJ, including officers, enlisted personnel, and, in some cases, civilian employees.  A general court-martial may impose any punishment not prohibited by the UCMJ, including death, when specifically...

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Military Law 101: What is Non-Judicial Punishment (NJP)?

Posted by on Nov 12, 2015 in Uncategorized

Non-Judicial Punishment (NJP) is known by different terms among the services, e.g., “Article 15,” “Office Hours,” of “Captain’s Mast.”  In any case, the purpose of NJP is to discipline service members for minor offenses.  So the next question is: What is a “minor offense?”  Determining if an offense is “minor” is a matter of discretion for the commander imposing punishment.  Typical examples include: reporting late for duty, petty theft, destroying government property, sleeping on watch, providing false information, and disobeying standing orders. Although the actual punishments under an NJP offense are limited to confinement on diminished rations, restriction to certain specified limits, arrest in quarters, correctional custody, extra duties, forfeiture of pay, detention of pay and reduction in grade, the extent of these punishments depends on the grade of the officer imposing punishment, the grade of the accused, and whether the accused in attached to or embarked on a vessel. Prior to the imposition of NJP, an accused is entitled to notification of the following: (i) that the imposition of NJP is being considered; (ii) a description of the alleged offenses; (iii) a summary of the evidence upon which the allegations are based; (iv) that the accused has the right to refuse the imposition of punishment; and (v) any rights the accused has if NJP is accepted. Except for individuals attached to or embarked on a vessel, service members have the right to refuse the imposition of NJP.  However, refusal of NJP will normally not result in the dismissal of charges.  A commanding officer can still refer the charges to court-martial (stay tuned for an upcoming Blog about courts-martial). An accused has the right to a personal appearance before the officer imposing punishment.  During this appearance, the accused has the right against self-incrimination, the right to be accompanied by a spokesperson, the right to be informed of the evidence against him to present matters on his or her own behalf, and to have the proceedings open to the public. An accused may waive a personal appearance, if agreeable to the officer imposing punishment, and submit written materials for consideration by the imposition authority.  The Military Rules of Evidence, other than rules concerning privileges, do not apply to the imposition of NJP.  The officer imposing punishment may consider all relevant matters so long as the accused has been given proper notice and the opportunity to respond.  The burden of proof lies with the imposing officer and must be by a preponderance of the evidence. The accused may appeal the imposition of NJP on the grounds that it is unjust or disproportionate to the alleged offense.  The appeal must be in writing and forwarded to the next superior authority via the officer who imposed punishment.  The appeal must be referred to a judge advocate (JAG) for consideration and advice before the authority who is to act on it may make any...

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Probation Department – Work Furlough

Posted by on Jul 8, 2015 in Blog

Recently I had a client say he heard about the Work Furlough program, and he was wondering what it was? would it be a good fit for him? did he qualify?  So here is a little blurb on the subject: The Work Furlough (“WF”) Facility houses both male and female county inmates.  WF is a sentencing alternative for judges that allow an inmate to maintain employment whilst serving a custody commitment. While the San Diego County Probation Department does not use WF to detain adults waiting for trial of serving jail commitments, a participant in the WF program are allowed to check out of the facility to go to work; returning to the facility each day as soon as the workday is completed. Inmates are also allowed to attend school, religious services, and programs, such as SB38, First Conviction Program, Anger Managements and other court-ordered counseling.  AA/NA meetings are offered weekly on-site at the WF facility.  Additionally, an inmate’s family and friends are allowed to visit on the weekends at the facility. Each defendant sentenced for custody to the WF program will have his/her case reviewed on an individual basis for approval by the Probation Department’s WF Oversight Unit.  Defendants who pose a danger to the community or do not meet employment standards will not be accepted into the program. Inmates must be able to legally work in the United States, and be gainfully employed at least 35 hours per week in an occupation that allows on-site job checks and telephone checks by WF staff.  Moreover, the job cannot be directly related to the instant offense, involve the use of weapons, involve access to another’s personal information, and be located in San Diego County. Operated by Correctional Alternatives Incorporated (“CAI”), under contract with the County of San Diego, the facility is located at 551 South 35th Street, San Diego, CA 92113. Each inmate is responsible for a program fee of $42.00 a day.  It is recommended that an inmate bring a $300 down payment on or before the day he/she reports to the WF program. If you would like more information, or if you have a specific case and would like to know if you qualify, call me for an evaluation at 619-822-7332. or...

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Pardons in California

Posted by on Jun 22, 2015 in Blog

People sometimes ask me; what is a pardon and how does it work? Well, here is some useful information for those who are interested. Individuals who have been convicted of a crime in California may apply to the Governor for a pardon.  A gubernatorial pardon is an honor that may be granted to people who have demonstrated exemplary behavior following their conviction. Obtaining a pardon is a distinct achievement based upon proof of a productive and law-abiding life following a conviction.  Historically, governors have granted very few pardons. For most, the first step in applying for a pardon is to obtain a Certificate of Rehabilitation from the Superior Court in the county where the applicant currently resides.  A Certificate of Rehabilitation is a court order declaring that a person convicted of a crime is now rehabilitated.  Generally, any person convicted of a felony may apply, provided that he or she meets the legal requirements of demonstrated rehabilitation.  There are special rules that apply to individuals convicted of sex offenses.  If the Court issues a Certificate of Rehabilitation, it is then forwarded to the Governor’s Office where it automatically becomes an application for a pardon.  The Governor’s receipt of a Certificate of Rehabilitation does not guarantee that a pardon will be granted. Be advised though, there is no requirement that the Governor take any action on an application for a pardon.  Once the application is received, it is typically forwarded on to the Board of Parole Hearings (Board).  The Board may conduct a background investigation and make a recommendation on whether a pardon should be granted.  The Board may contact the District Attorney, investigating law enforcement agency, and other persons with relevant information on the applicant. The length of time needed to complete the pardon process cannot be predicted.  Once a completed application has been received by the Governor’s Office, it is not necessary to contact the Governor’s Office to check on the status of an application.  If action is taken on the application, the applicant will be notified. So, after all of this, what does a pardon actually do?  It is important to know that a pardon does not seal the individual’s criminal record or expunge the record of conviction (see my previous blog on expungements and petitions to seal and destroy adult arrest records), and the pardon itself becomes a matter of public record.  When a pardon is granted, however, the California Department of Justice and the FBI are notified so that they may update their records on the applicant.  The pardon is filed with the Secretary of State, reported to the Legislature, and is a public record. A pardon will allow a felon to serve on a jury, will restore firearm rights to certain felons, will allow a felon to be considered for appointment as a county probation officer or a state parole agent (but no other peace...

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Stun Guns in California

Posted by on May 26, 2015 in Blog, criminal defense, Featured

I recently had a client ask me whether or not it was illegal for his girlfriend to carry a stun gun for protection.  Here are some thoughts. A stun gun, popularly know as a Taser, the main manufacturer of stun guns, is a device that is used or intended to be used as either an offensive of defensive weapon, which is capable of temporarily immobilizing a person by inflicting an electrical charge. In California, most people may purchase, posses, or use a stun gun, and they do not have to obtain a permit.  However, you may not purchase, possess, or use a stun gun if you are: (i) a convicted felon, someone convicted of an assault under Federal or any State’s laws or the laws of any country, or have a prior conviction for misusing a stun gun under Cal. Pen. Code section 244.5; or (ii) addicted to any narcotic drug. California law also limits minors’ possession of stun guns.  Those under the age of 16 may not posses them.  Minors who are 16 t 18 years of age must have parental or guardian consent. Furthermore, it is illegal in California to carry or use a stun gun when you are in a secure area of an airport or in a passenger terminal in a harbor facility that hosts regular commuter operations; or in any state of local government building; or in any meeting that is required by law to be open to the public.  Violations of these rules are misdemeanors. Finally, anyone who uses a stun gun to assault another may be charged with an assault.  Violations may be charged as misdemeanors or felonies, depending largely upon the facts of the case and the damage done to the other party. This is meant to be a basic introduction to the laws surrounding stun guns in California.  However, it is important to recognize that there are other applicable laws that could come into play, such as concealed weapon laws and carry a deadly weapon laws. If you have any questions about whether or not you are allowed to purchase, carry, or use a stun gun in California, or if you are facing charges for a stun gun violation, call me to discuss the matter...

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