In the 5th Special Forces group, the commander has a policy letter on tab revocation requirements for misconduct.  As part of the tab revocation, there is a requirement to reclass the soldier out of the 18 series MOS.  So, he loses both the Green Beret and the actual ability to operate in his field.  My response to this is two-fold, (1) I am always saddened to see such highly trained and successful soldiers lose both their MOS and their tab; and (2) I am amazed at the changing landscape of the SOF Community.

Several years ago, I wasn’t hired by many SOF Soldiers.  This has changed radically.  I have represented 18 series Soldiers in many Courts-Martial and Administrative Separation Boards recently.  In the old days, if a Green Beret committed misconduct, the misconduct was swept under the rug and not much was done to the tabbed Soldier.  This developed into an idea of the “big boy” rules, where the tabbed soldiers were expected to be professional, without a lot of supervision.  In the absence of the soldier’s professionalism, many times the command would not know what to do.

Those times have change.  There have been several embarrassing incidents, which have brought unwanted attention to the commands, are causing commanders to reevaluate the “big boy” rules.  Drinking incidents have begun to result in administrative discharges for tabbed soldiers.  Criminal conduct downtown and while deployed the same.

With so much training and expertise, these decisions to end these special careers should be examined carefully by the commands.  We can’t have soldiers who run amuck, but I sure hate to see all that courage and all those tax dollars flow down the drain.

The presumptive civilian and military defense tactic is to go with a military panel.  Many times enlisted soldier believe they will get a better shake with a panel than they will a military judge.

I have recently been having phenomanal success in Article 120 cases.  My recent 120 defenses have either resulted in verdicts of not guilty or low level sentences.  One reason for this success is that my clients have trusted me when I have recommended using a Judge Alone.  My experience with Article 120 cases is that they are generally very hard to prove and much of the prosecutions evidence lends itself to attack.

Reasons for going Military Judge Alone:

1.  Judges tend to be more fact based and willing to critically look at the evidence and determine whether the evidence presented by the Government proves the elements of the offense. This can be critical in close cases.

2.Defense attorneys in a 120 case need to by HYPER AGRESSIVE and attack the Government’s case.  This is done by objecting to everything.  A judge will generally not hold objections against the defense and therefore, no harm, no foul.  A military panel many times will believe the the slick defense attorney is hiding something.

3. The defense is probably going to be most effective with a hard cross exam on the very wounded victim.  A panel won’t like or put up with this if she or he is a nice person or if they are a child.

4.  Sentencing is more predictable with a judge.

5.  Motions can be used to present otherwise excluded evidence to a judge.  A panel will never see the motions.

6.  The Accused can get credit for pleading guilty to lower level offenses or lesser includeds.

Military Judge Alone can be a very effective tactic, unless for some reason or other, the defense believes that the victim is so unlikeable that they are likely to turn a panel off.  If this is not the case, think long and hard before doing a sexual assault in front of a panel.
Law

The Contractors seem to be without much due process in dealing with allegations that are brought against them while being deployed.  A couple of my clients were subject to unwarranted searches and have had personal belongings seized.  Getting these items back has been extremely difficult.

In one of the cases, the FBI is doing the investigation, but has never formally arrested or charged my client.  The investigation seems to have been brought about because of a commander’s suspicions, which at the point are both unwarranted and probably negligent.

In another case, my client brought concerns up to a commander about the safety, both OPSEC concerns and personal safety concerns.  The response was to ignore the problem and send my client home. The commander seemed to believe he had complete discretion.

I would be interested to hear about other experiences like this that contractors may be having in a deployed environment.

I have also represented several clients in Davidson County with relocation cases.  The two counties are very different in the way that they deal with the move of a family out of state.

The relocation statue has two different provisions that apply differently to parents wanting to relocate with their minor children.  The key is to look at two issues.  How much time the parents are spending with the children by practice.  And, how much time the parents are spending with the children by the parenting plan.

If you are planning to move out of Tennessee, you must understand the Relocation Statute.  Essentially, the idea is this:  If one of the parent desiring to relocate has more time with the child, they will probably be allowed to move, but a new parenting plan will probably be needed.  If both parents have equal time with the child or children, there will be a fight and the court will determine what is in the best interest of the children.  This “best interest test” will determine whether the child can relocate with the moving parent.

The statute reads as follows:

Tennessee Relocation Statute
Tenn. Code Ann. § 36-6-108
§ 36-6-108. Parental relocation
(a) If a parent who is spending intervals of time with a child desires to relocate outside the state or more than one hundred (100) miles from the other parent within the state, the relocating parent shall send a notice to the other parent at the other parent’s last known address by registered or certified mail. Unless excused by the court for exigent circumstances, the notice shall be mailed not later than sixty (60) days prior to the move. The notice shall contain the following:
(1) Statement of intent to move;
(2) Location of proposed new residence;
(3) Reasons for proposed relocation; and
(4) Statement that the other parent may file a petition in opposition to the move within thirty(30) days of receipt of the notice.
(b) Unless the parents can agree on a new visitation schedule, the relocating parent shall file a petition seeking to alter visitation. The court shall consider all relevant factors, including those factors enumerated within subsection (d). The court shall also consider the availability of alternative arrangements to foster and continue the child’s relationship with and access to the other parent. The court shall assess the costs of transporting the child for visitation and determine whether a deviation from the child support guidelines should be considered in light of all factors including, but not limited to, additional costs incurred for transporting the child for visitation.
(c) If the parents are actually spending substantially equal intervals of time with the child and the relocating parent seeks to move with the child, the other parent may, within thirty (30) days of receipt of notice, file a petition in opposition to removal of the child. No presumption in favor of or against the request to relocate with the child shall arise. The court shall determine whether or not to permit relocation of the child based upon the best interests of the child. The court shall consider all relevant factors including the following where applicable:
(1) The extent to which visitation rights have been allowed and exercised;
(2) Whether the primary residential parent, once out of the jurisdiction, is likely to comply
with any new visitation arrangement;
(3) The love, affection and emotional ties existing between the parents and child;
(4) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver;
(5) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
(6) The stability of the family unit of the parents;
(7) The mental and physical health of the parents;
(8) The home, school and community record of the child;
(9) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preferences of older children should normally be given greater weight than those of younger children;
(10) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; and
(11) The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child.
(d) If the parents are not actually spending substantially equal intervals of time with the child and the parent spending the greater amount of time with the child proposes to relocate with the child, the other parent may, within thirty (30) days of receipt of the notice, file a petition in opposition to removal of the child. The other parent may not attempt to relocate with the child unless expressly authorized to do so by the court pursuant to a change of custody or primary custodial responsibility. The parent spending the greater amount of time with the child shall be permitted to relocate with the child unless the court finds:
(1) The relocation does not have a reasonable purpose;
(2) The relocation would pose a threat of specific and serious harm to the child which outweighs the threat of harm to the child of a change of custody; or
(3) The parent’s motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the non-custodial parent or the parent spending less time with the child.
Specific and serious harm to the child includes, but is not limited to, the following:
(1) If a parent wishes to take a child with a serious medical problem to an area where no adequate treatment is readily available;
(2) If a parent wishes to take a child with specific educational requirements to an area with no acceptable education facilities;
(3) If a parent wishes to relocate and take up residence with a person with a history of child or domestic abuse or who is currently abusing alcohol or other drugs;
(4) If the child relies on the parent not relocating who provides emotional support, nurturing and development such that removal would result in severe emotional detriment to the child;
(5) If the custodial parent is emotionally disturbed or dependent such that the custodial parent is not capable of adequately parenting the child in the absence of support systems currently in place
in this state, and such support system is not available at the proposed relocation site; or
(6) If the proposed relocation is to a foreign country whose public policy does not normally
enforce the visitation rights of non-custodial parents, which does not have an adequately functioning
legal system or which otherwise presents a substantial risk of specific and serious harm to the child.
(e) If the court finds one (1) or more of the grounds designated in subsection (d), the court shall
determine whether or not to permit relocation of the child based on the best interest of the child. If
the court finds it is not in the best interests of the child to relocate as defined herein, but the parent
with whom the child resides the majority of the time elects to relocate, the court shall make a
custody determination and shall consider all relevant factors including the following where
applicable:
(1) The extent to which visitation rights have been allowed and exercised;
(2) Whether the primary residential parent, once out of the jurisdiction, is likely to comply
with any new visitation arrangement;
(3) The love, affection and emotional ties existing between the parents and child;
(4) The disposition of the parents to provide the child with food, clothing, medical care,
education and other necessary care and the degree to which a parent has been the primary caregiver;
(5) The importance of continuity in the child’s life and the length of time the child has lived in
a stable, satisfactory environment;
(6) The stability of the family unit of the parents;
(7) The mental and physical health of the parents;
(8) The home, school and community record of the child;
(9) The reasonable preference of the child if twelve (12) years of age or older. The court may
hear the preference of a younger child upon request. The preferences of older children should
normally be given greater weight than those of younger children;
(10) Evidence of physical or emotional abuse to the child, to the other parent or to any other
person; and
(11) The character and behavior of any other person who resides in or frequents the home of a
parent and such person’s interactions with the child.
The court shall consider the availability of alternative arrangements to foster and continue the
child’s relationship with and access to the other parent. The court shall assess the costs of
transporting the child for visitation, and determine whether a deviation from the child support
guidelines should be considered in light of all factors including, but not limited to, additional costs
incurred for transporting the child for visitation.
(f) Nothing in this section shall prohibit either parent from petitioning the court at any time to
address issues, (such as, but not limited to visitation), other than a change of custody related to the
move. In the event no petition in opposition to a proposed relocation is filed within thirty (30) days
of receipt of the notice, the parent proposing to relocate with the child shall be permitted to do so.
(g) It is the legislative intent that the gender of the parent who seeks to relocate for the reason of
career, educational, professional, or job opportunities, or otherwise, shall not be a factor in favor or
against the relocation of such parent with the child.

I have watched as the ground swell of support and dissent has grown over the last year for Lt Behenna. I see many Defend LT Behenna web site’s on Facebook, Myspace and elsewhere. I see legal forums and threads popping up all over the place. The hits on my blog have swelled to almost 2500 a month. I have been overwhelmed with the response and it is growing.

I have attempted to remain somewhat neutral on the LT Behenna case. Not because I have anything against LT Behenna, but my clients interests are best served by my neutrality.  My client is Mitch Warner and LT Behenna has numerous supporters and clearly doesn’t need me.  My hope is that this defense and pride in supporting LT Behenna will pour over to other soldiers that have not been treated with the respect they deserve.

In the next few weeks, I will start to detail the story of another client of mine that has experienced injustice in a detainee abuse case.  This happened in Afghanistan and is an amazingly ridiculous response to a proper interrogation.  This story will be broken by CNN but I am hoping that those that support LT Behenna will be willing to pour that over to other soldiers in need.

Sadly, within the same platoon that was hit with the IED allegedly planted by Ali Mansur’s people, there are soldiers that have serious PTSD and Traumatic Brain Injury (TBI) from that incident.  In addition, one of those soldiers, has struggled to adjust to being home.  These soldiers should not be forgotten either. LT Behenna, SSG Warner, and all the members of their platoon have been casualties of the IED attack on LT Behenna’s platoon.  The effects continue to be far reaching.

Within the last year, I have seen a huge move towards do it yourself lawyering.  We are now going offer legal help for Military Law for those that want to do it yourself.  Go to www.invisblelawyer.com

Through the use of online legal document creation and research, people are able to get themselves into court and move their own cases forward without a lawyer.  This can be something that is fraught with peril.  In Tennessee, the legal system remains fairly complex and from county to county and court to court the requirements for case documentation can change.

The Ethical Rules for Lawyers in Tennessee allow a lawyer to offer what are called unbundled legal services.  Essentially, a lawyer may limit the scope of his or her representation to assist the client at a much lower cost.  This can be good for both the client and lawyer.

I am thinking about offering these limited legal services for clients.  We have a new website www.invisiblelawyer.com that is going to offer a way for clients to retain and use our lawyers, without having the lawyers actually appear in court.  This should be a huge savings to our clients.  If the client needs a lawyer, we will of course, either offer the full services or we will refer to an appropriate and reputable attorney.

I am interested in comments from those who read the blog.  Look at our website  www.invisiblelawyer.com and let me know what you thinks.  Below is how it works.

You pay a one-time retainer fee of $100.  This makes you an active member of Invisible Lawyer.  You never have to pay this again, even if you stop and start our service in the future.  Once you have become a member, you choose from one of three packages of legal services.

BRONZE PACKAGE:  For $24.99 a month, you get document creation, case management and case guidance.  This packages offers all of the basic features of document review, correspondence, evaluation and self diagnosis of case law.  This is the best package for uncontested divorces, adoptions, basic wills or simple business matters.

SILVER PACKAGE: For $49.99 a month, this is the package for our customers who need a little more TLC.  This package offers the same essential services as the Basic Service, but it also give you a legal coach.  This is our legal professional who will spend as much time as you need guiding you through your case.

GOLD PACKAGE:  For $99.99 a month, this package is designed for the pro se litigant that is working through a case to trial, or a small business that needs a legal professional on call.  The services in the package include:

• Legal advice: telephone calls, fax, mail, E-mail
• Advice about availability of alternative means to resolving the dispute, including mediation and arbitration.
• Evaluation of clients’ self-diagnosis of the case and advising client about legal rights.
• Guidance and procedural information for filing or serving documents.
• Reviewing correspondence and court documents.
• Preparing and/or suggesting documents to be prepared.
• Factual investigation: contacting witnesses, public record searches, in-depth interview of client.
• Legal research and analysis.
• Discovery: interrogatories, depositions, requests for document production.
• Planning for court appearances made by client, including simulated role playing with client.
• Backup and trouble-shooting during the trial.
• Referring client to other counsel and to other experts.
• Counseling client about possible appeal.
• Procedural assistance with appeal and assisting with substantive legal argumentation in appeal.
• Provide preventive planning and/or schedule legal check-ups.
• Other services as needed by the client.

We also offer a series of products, such as books, pamphlets or any other resource materials you may need for a low additional cost.

LT Behenna and SSG Warner were both part of a very tragic story.  Several weeks before the killing of Ali Mansur took place, LT Behenna’s squad had captured Ali Mansur at his home.  They had credible information to believe he was part of Al Qaeda and that he was a terrorist that had been involved in the death of several of LT Behenna’s squad members.  The members of LT Behenna’s squad, along with SSG Warner, showed restrained at that time.  If they had wanted to, they could have easily made up a plausible story that Ali Mansur resisted his capture.  There were illegal weapons at Ali Mansur’s home and it would have been a simple matter to kill him during the armed take down of that home.  But, that is not what happened.

LT Behenna and the members of his squad decided that they would let the “authorities” investigate Ali Mansur.  They dropped him off at a detention facility with all of the information that they knew about his terrorist activities and hoped that justice would prevail.  Instead, within a matter of weeks, LT Behenna and his squad were asked to return Ali Mansur to his home and his village.  Military Intelligence determined that they didn’t have enough to hold Ali Mansur despite the RPGs, weaponry and illegal passports from Iran that were found at his home.  Clearly, Ali Mansur was involved in nefarious activities and LT Behenna believed he had credible evidence to prove that.

LT Behenna’s frustration at the release of Ali Mansur back to his family was understandable.  After witnessing the death of the men in his squad, in what he believed was directly related to the activities of Ali Mansur, was surely a motivating factor in driving Ali Mansur to the desert and stripping him naked.

These events are very much a picture of what is occurring in both Iraq and Afghanistan.  We ask our soldiers to toe the line, and to deal with whatever decision comes from higher, even if they don’t understand the wherefore’s and the why’s.  For many, the resulting death of Ali Mansur, is no tragedy.  For them, the resulting incarceration of LT Behenna for avenging his men, is the true tragedy.

As a former JAG, I understand the need for the laws of war.  I just don’t believe ultimately that the decisions that are made on the battlefield are so easily codified and analyzed as to fit in the Geneva Conventions.  If SSG Warner and LT Behenna had deliberately decided to kill Ali Mansur when they picked him on that first day, would that have gotten LT Behenna 25 years of jail?  Probably not.

Filed under: Alimony, Attorney, Children, Contested divorce, Custodial Parent, Custody, Default Judgment, Deployment, Depositions, Divorce, Divorce Attorney, Divorce Lawyer, Divorce Transcript, Divorce Trial, Divorce packets online, Final Decree, Iraq, Lawyer, MDA, Marital Dissolution Agreement, Mediation, Motion for Support, Online divorce service, Parenting Plan, Primary Residential Parent, SCRA, Servicemembers civil relief act, Tennessee Child Support Guidelines, Tennessee

I (www.jamesphillipslaw.com) recently represented a client at Fort Campbell in a Summary Court Martial and upon reflection have decided to follow up on an earlier post about Summary Courts-Martial (http://jaglaw.wordpress.com/2009/02/22/summary-court-martial-a-fair-process/).  The reason for this is that there was a suggestion in my prior post that Summary Courts-Martial are somehow inherently unfair.  That was not what I intended to convey.  I was attempting to portray the feel of a summary courts-martial to the servicemember and also the inherent problem with using summary court officers who are wholly unaware of the legal aspects of the UCMJ and the Rules in the Manual for Courts-Martial (MCM).

Last week, I represented a soldier at Fort Campbell on several drug charges.  In that case there were issues that had to be heard through a Motion to Suppress.  The case in some ways hinged on whether or not Article 31 rights had been given to the soldier and whether or not his statement and all derivative evidence should be suppressed (fruit of the poison tree doctrine).  The Summary Court Officer began the proceeding with an eye towards conviction, but as the Summary Court proceeded he became very thought and began to examine the legality and competency of the evidence.  In his verdict, he took into account the Article 31 rights issue and weighted it against the competent evidence that had been presented.  Some of this thoughtful analysis was brought about by the long discussions and period of education that took place between myself, as the only attorney in the room, the Summary Court Officer and the paralegal assigned to record the record of trial.  In the end, using his own initiative, the Summary Court Officer was able to properly navigate the proceeding and come up with both findings and sentence that were legally justified and consistent with a judgement that would have been found in a higher level Courts-Martial in front of a judge or panel.

Much of this was obviously driven by the personality and training of the Summary Court Officer.  In essence, he was a GOOD one.  That ultimately is the problem with Summary Court Martials.   Judges have been trained to provide consistency in the Court Martial.  They know the rules of evidence.  Hopefully, they are up on their case law.  Most of the military and civilian attorneys that practice before a Judge have an idea of how he rules.  All of these things provide defense attorneys and their clients a basis for good advice and sound decision-making.  This is much harder when you are operating in the realm of the Summary Courts-Martial.

In my Motion to Suppress at the Summary Court Martial last week, although the Motion was a valid legal argument, I did not know how the Summary Court Officer would view the Motion.  Was this defense trickery?  Was this a non-issue because he didn’t care?  Was he already convinced the accused was guilty?  It was hard for me to advise the client on whether or not he should object to the SCM because I didn’t know whether or not there would be an honest and fair assessment of our case by the SCM Officer.  We were lucky that this SCM Officer was very thoughtful and serious about the process.

Some of the arbitrariness of the Summary Court Process could be taken away by giving the SCM Officer more training in this area.  Maybe picking them for a term of duty or sending them through a class on legal justice.  Either way, if some of the arbitrariness is taken away, an SCM can be the best way for a servicemember to go.