In this recently decided case, United States v. Clark, Crim. App. No. 37499, the trial counsel argued that lack of responses from the Airman who was confronted by Special Agents about sending sexual messages to a minor constituted, in essence, his guilt. In this case, the Airman sent sexual messages and pictures to a 13 years old girl who was an undercover agent. When confronted by Special Agents, the Airman didn’t say anything, looked down, ‘shoulders slumped and his head dropped; chin to chest.’ The trial repeatedly pointed out to a panel in his opening statement, on direct examination, and also in his closing argument that the non-verbal responses meant that the accused made expressions of guilt. The defense counsel objected, only once, during the rebuttal, but the military judge overruled the objection.


M.R.E. 304(h)(3) states: A person’s failure to deny an accusation of wrongdoing concerning an offense for which at the time of the alleged failure the person was under official investigation or was in confinement, arrest, or custody does not support an inference of an admission of the truth of the accusation.


On appeal, the United States Air Force Court of Criminal Appeals recognized that the 5th Amendment, right against self-incrimination and M.R.E. 304 protect against improper comments by prosecution. As the U.S. Supreme Court recognized in United States v. Robinson, 485 U.S. 25, 32-34 (1988) the trial counsel is prohibited from “‘treat[ing] the defendant’s silence as substantive evidence of guilt.’”


In this case, the Court concluded that the trial counsel violated the accused’s Constitutional rights, but that the violation was harmless due to substantial evidence against the accused. The prosecution matched the accused’s laptop to the messages, the accused waived his rights and made a sworn statement, and admitted to believing that the person he sent the messages to 13 years old. The entire defense case rested on the statement that the accused said that he suspected that the person he was sending messages to was a cop.


A military defense lawyer Fort Hood offers has the prerequisite training and experience to thoroughly investigate each case, develop facts to explain what really happened, and object to protect their clients’ Constitutional rights when it is consistent with a theory of a particular case. Had the defense case been more developed, and there was no substantial evidence against the accused, the United States Air Force Court of Criminal Appeals would most likely hold that the violation was not harmless and that the conviction should have been overturned.


Thank you to our friends and contributors at The Federal Practice Group for their insight into military criminal defense and 5th amendment rights.


Greenberg Law Offices