I recall very vividly when I first became a military defense counsel—literally the best job any judge advocate (JAG) can have in the military. You run your own office, have the honor of helping military members who are facing courts-martial or other disciplinary action and get to advocate for the best clients in the world. As a new defense counsel, I had some getting up to speed. Thank goodness for my mentors and supervisors who were there to train and advise me.
One of my first cases involved an non-commissioned officer who came up positive for cocaine. And, when he was called in by the Air Force Office of Special Investigation (AFOSI) for an interview–he was read his rights and he confessed. Back then the investigators had a routine modus operandi. They always told my clients that if they confessed, they would “put together a good package” for my client’s commander telling my client how he cooperated during the investigation–implying this would help my client’s case and its disposition. That seemed to do the trick. It worked every time. My client had already confessed before he walked into my office.
As I discussed my case with my supervisor, a Lieutenant Colonel (I was a captain), I told her that my case was going to be a guilty plea–because my client confessed. I just assumed–confession equals guilty plea. As I said, thank goodness for the mentoring. My supervisor explained that a confession did not automatically mean a guilty plea. First, the confession may be tainted. Perhaps there was not a proper rights advisement. Perhaps the client was coerced into confession. Or maybe my client asked for a lawyer after rights advisement but the agent reiterated that he would put together a good package for my client and got my client to start writing a statement–his confession.
Or, even if the confession was given after proper rights advisement, this does not mean that my client has to plead guilty. Under the law, my client (or “the accused”–the term used in the military) is presumed to be innocent of an offense. The Government has the burden of proving the accused’s guilt by legal and competent evidence beyond a reasonable doubt. In fact, the military judge instructs the court members (jury) that “the burden of proof to establish the accused’s guilt rests solely upon the prosecution and the burden never shifts to the defense to establish the accused’s innocence.” And, that “the defense has no obligation to present any evidence or to disprove the elements of the offense.” After the judge’s instructions, as the defense counsel, we would then remind the court members that they could not hold it against my client that he chose to plead not guilty as this was his constitutional right.
And, guess what? The court members never held it against my client if he or she pleaded not guilty and was subsequently found guilty of the offense. They never held it against my client during sentencing. They never took it out on my client that he made the government prove his guilt. They never complained that they had to sit through the trial when my client could have saved time and money and just pleaded guilty.
And, in fact, when my clients pleaded not guilty–even with a legal confession, they got a less severe sentence than the clients who pleaded guilty. You wonder why. Because during a litigated trial, the court members had an opportunity to see every aspect of the allegations. They got to hear the testimony and all of the witnesses. They got to hear all of the facts and circumstances surrounding the allegations. They got to see my client during the trial and saw him as a human being who may have stumbled, but who was a good Airman. He was an airman who stumbled and now needed some help to get back up on the right track. He was not an airman that deserved to be locked up in jail and the key thrown away. The court members got to see the testimony of the witnesses. They understood how the allegations transpired. They got to see what happened and how it all happened as opposed to reading a charge sheet that just had words on it in black and white that the jury would then evaluate to adjudge a sentence.
That’s when I learned that a confession was not a guilty plea. I learned that court-members take everything into consideration. They use their judgment to decide what is fair based upon the allegations, the facts and my client’s military record. So next time you hear about a confession—don’t automatically assume it should be a guilty plea. And, don’t get talked into a guilty plea by your defense counsel. If you are a military defense counsel, don’t get talked into a guilty plea by the prosecutor who may have no interest in trying the case and wants an easy win. The beauty of the US system of law is that there are constitutional rights guaranteed to those who are accused of crimes. Don’t ever let anyone bully you into giving up your rights. Know your rights and decide what is in your best interest after talking to a competent defense counsel. Not every case is the same. There is no black and white rule. Don’t ever give up on yourself. Never. There is always hope.
Ferah Ozbek is a retired from the U.S. Air Force where she served as an active duty judge advocate for over 20 years. She continues to practice military law and represents military members and veterans who are facing injustice. To learn more about how Ferah can help you, you can send her an e-mail at [email protected] or direct message her on LinkedIn. Visit Ferah’s website at ferahozbek.com
