We frequently represent military personnel in state, federal and military court-martials on charges of domestic violence. A conviction of a domestic violence offense has lifelong implications and can quickly bring to an end what has otherwise been an outstanding military career. The Domestic Violence Amendment to the Gun Control Act of 1968, commonly referred to as the Lautenberg Amendment, makes it unlawful for a service member who has been convicted of a crime of domestic violence by a state or federal court, or by a military court-martial, to possess a firearm or ammunition. There is no exception for members of the military, so a conviction means in almost all cases the end of a career.
We recently had the opportunity to represent a Navy Master Chief (E-9) who had an outstanding service record spanning over 23 years. His second marriage was short lived and ended with accusations of physical assault on four occasions, before and during the marriage. While at a hotel, the level of frustration rose to the point where our client left the room for a period of time in an effort to avoid a continued verbal confrontation with his wife. After our client returned to the room, the verbal confrontation continued, ending in what his wife says was our client physically assaulting her.
What our client did not know was that at some point his wife had secreted her video camera in her purse, so at his court martial for 4 specifications of assault and battery, as well as drunk and disorderly conduct, we faced an audio recording of approximately 10 minutes of the verbal argument, ending with his wife screaming as our client was allegedly physically assaulting her. The next day, his wife went to the hospital for her reported injuries, so we were also dealing with medical records reflecting that she had 4 contusions on her body from the alleged physical assault. At the Article 32 investigation, his wife testified at length as to the alleged abusive conduct of our client throughout their relationship, culminating in the alleged physical assault in the hotel when she said our client was intoxicated. The audio tape, on its face, was very disturbing and certainly was going to be a problem in a court-martial.
The charges were subsequently referred to a Special Court-Martial. Upon our advice, our client requested to be tried by a court consisting of officers and enlisted members. His wife testified about the alleged assaults and the night at the hotel, as well as her injuries and trip to the emergency room. Her best friend also testified as to her observations of the alleged abusive conduct of her husband, and her mother added her comments about the relationship. On cross examination of each witness, I was able to significantly undermine the testimony of each witness. The credibility of the wife (or actually her lack of credibility) was the focus of my several hours of intense cross examination.
The emergency room physician was called by the government to testify as to her injuries, yet in a quick several minute cross examination, she left the witness stand acknowledging that there was absolutely no physical evidence to support the assertion in the medical records that there were two contusions on her head, one on her shoulder and one on her hand. Reluctantly, the doctor admitted on my cross examination that the only evidence of injuries was the fact that my client's wife said to the effect "Ouch, it hurts here, and here, and here and here." In the prosecutor's closing argument, he played the 10 minute recording, leaving the jury with the sound of my client's wife screaming as she was allegedly being beaten by her husband.
Clearly the sound of her screaming was chilling and despite the points I was able to score on cross examination of each of the prosecution witnesses, the recording was a major concern. My argument highlighted the numerous inconsistencies between the witnesses, the lack of physical evidence to support the medical records and that his wife effectively set him up with the recording, screaming to make it appear she was being physically attacked when in fact it was all a well-orchestrated act in an effort to destroy the Master Chief's outstanding career.
After several hours of deliberations, the jury returned with a verdict of NOT GUILTY to all charges.