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:
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.
The Federal Practice Group attorneys who practice military law have 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.