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Local Attorney Fights for Military Justice

How is the military justice system different from the civilian system? What kinds of military cases occur in San Diego and how are they handled? These Days takes a look at some recent high-profile m

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Aired 7/2/09

How is the military justice system different from the civilian system? What kinds of military cases occur in San Diego and how are they handled? These Days takes a look at some recent high-profile military cases handled by San Diego attorney Jeremiah Sullivan.

This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

MAUREEN CAVANAUGH (Host): In addition to being subject to the laws and regulations of civilian life, military personnel are required to obey a variety of rules and regulations that are strictly tied to their military service. Being absent without leave or insubordination are two distinctly military offenses. Even a charge like murder or kidnapping, which would be a crime in any court, when charged by the military, a different court procedure, a different kind of jury and a different kind of lawyer is involved. My guest Jeremiah Sullivan has a long history of being that different kind of lawyer. Now in private practice in San Diego, Jay was formerly a full-time attorney for the Judge Advocate General. As a reservist, he still handles many cases that involve military personnel, some of which have been in the headlines in recent years. So, Jay Sullivan, welcome to These Days.

JEREMIAH 'JAY' SULLIVAN (Attorney): Well, thank you. Good morning, Maureen.

CAVANAUGH: Jay, let's start with your most recent high profile case, that's the case of Giselle Flynn, an El Cajon resident who just deserted the Army in 1999. She had a very interesting story. Tell us what happened and why she was arrested.

SULLIVAN: Well, this case has some extenuating circumstances. She had essentially been in an A.W.O.L. status, absent without leave, for approximately nine years here in San Diego. What is interesting in this case is nine years ago, was well documented, that she actually surrendered herself, over at Naval Station San Diego at 32nd Street, to the Navy. She's an Army soldier but she was obligated to surrender herself when she went into that A.W.O.L. status to the closest military installation and she did that on two separate occasions. Unfortunately, the Army, when notified, failed to pick her up and then, you know, fast forward nine years. She made a life for herself here in San Diego, the local authorities showed up at her house at about one in the morning and arrested her, and she was in Las Colinas for several days and then was shipped to Fort Sill, Oklahoma, and that's where the case came to life again.

CAVANAUGH: How did you get involved in the case?

SULLIVAN: Through other attorneys who knew that I handled military justice sort of matters. It's kind of a, I think, a unique practice. I was able to contact the – I think she flew out on a Wednesday to Fort Sill and I contacted the Army Judge Advocates out at Fort Sill, Oklahoma and they were very receptive. They had no idea she was coming. And it was kind of like a processing center and they were actually very, very agreeable and accommodating. I was actually able to get her back on the plane on Friday and back to San Diego and they administratively discharged her on Friday.

CAVANAUGH: Now is this an unusual situation? I mean, don't the military services act on someone turning themselves in more quickly?

SULLIVAN: Well, in talking to the, I mean, the Judge Advocates at Fort Sill, they were a little surprised at the length of the circumstances and that's why this case never progressed to a court martial. The fact that there were – it was documented she had surrendered herself, you know, did put the case in a different light. I've had other A.W.O.L. situations where, you know, they actually end up in a court martial. And depending upon, you know, what you're doing and the reasons surrounding it can determine whether you're, you know, even in the ballpark for administrative discharge or you're looking at a court martial.

CAVANAUGH: Now I heard that Ms. Flynn was notified that she lost her job as a result of this action. Do you know what the resolution of that has been?

SULLIVAN: She was a represented by, I think it's, a union representative regarding her local employment and I – it's my understanding – I did not represent her there. She was subsequently terminated from her position. I do not know all the circumstances surrounding that.

CAVANAUGH: Well, what's going to happen now in her legal dealings with the military?

SULLIVAN: Well, it's finished.

CAVANAUGH: It's finished.

SULLIVAN: It's over. She is no longer a fugitive and won't – and the police won't come knocking at her door at one in the morning again.

CAVANAUGH: Well, what kind of discharge did she get?

SULLIVAN: Well, she was, administratively, she – we haven't received the final paperwork back yet.

CAVANAUGH: Uh-huh.

SULLIVAN: She put in for – It'll either be a general or other than honorable discharge, and it's going up the chain of command. It's – I don't know what it is but it'll be an honorable – I mean, a general or other than honorable discharge.

CAVANAUGH: I'm speaking with Jeremiah Sullivan. He is in private practice in San Diego but he handles many cases that involve military personnel. Here in San Diego, we read about cases being tried in military courts fairly frequently. And I wonder if you could, in a nutshell, tell us what does that really mean? How is the military justice system different from our civilian system?

SULLIVAN: Well, it is – it's similar in many ways but there are some differences. It's a federal type court with – it follows the federal rules of evidence, federal rules of procedure; they're very similar. There are some nuances. You know, one that comes to mind is in your local courts, you're tried by a jury of twelve and it takes a unanimous verdict to convict. In the military, it's by majority vote and you don't – you can require twelve, a quorum is five, so you could actually be tried by, what we call a members, a members panel of as little as five. And the prosecution only needs a majority. The reason for that is, you know, one of the reasons for the military justice system is to make it easier for the military, for the commanders, to insure that there's good order and discipline in a timely fashion. You know, these military commanders are, you know, during war, fighting wars and have to be very efficient. So you'll never have a hung jury in the military where you would out in town because there's not going to be a retrial. It's majority, so that makes the system very efficient and that is something significant that I – because I try cases in both military and state court. And, you know, in the military, again, it's a majority.

CAVANAUGH: And it's a done deal. You don't get a second chance at it.

SULLIVAN: Well, there's no hung jury, so…

CAVANAUGH: Yeah.

SULLIVAN: …I mean, there's obviously appellate rights…

CAVANAUGH: Right.

SULLIVAN: …but that is something that – You know, and the jury pool itself can be different depending upon, you know, the branch of service and even within the communities within the military, whether it's your submariners, aviators, special warfare, surface warfare officers, they all have their own unique personalities and that make up the jury pool.

CAVANAUGH: Now who prosecutes and who defends?

SULLIVAN: Well, in the Navy, for instance, there's two separate commands. For the prosecution, you have what's called a Regional Legal Service Office, or RLSO, and they are charged with, you know, the prosecution representing the government in court martials (sic). And then there's what's called the Naval Legal Service Office, NLSO, and they have – it's a separate command, separate chain of command. What that has, all the military detailed defense counsel that would be detailed to an actual court martial. And all of the branches have a similar system.

CAVANAUGH: And where does a private attorney like you fit into the picture?

SULLIVAN: Well, it's kind of unique. It's really a niche practice and there's not really a lot of us out there that are dedicated to military justice. So most of us have either served in the military, you know, either Navy, Marine Corps, Army or Air Force, and have continued with that practice and, you know, over the years and it's – And it's a unique practice that can take me to, you know, like cases in Hawaii or Italy but, you know, I've gone to Yuma, Arizona and Fort Campbell, Kentucky and some other places. But it is – I had one in Key West pending, but it's definitely – There's some unique challenges and it's a very interesting practice.

CAVANAUGH: Let's take a phone call. Al is on the line in Coronado. Hi, Al.

AL (Caller, Coronado): Hello, there.

CAVANAUGH: Good morning.

AL: My question for Mr. Sullivan is how does he represent our service members when – in a trial in a foreign jurisdiction?

CAVANAUGH: Thank you, Al.

SULLIVAN: Well, that's a good question. You know, when I was on active duty, and I've done trials, both prosecuted and defended cases when I was over in Europe, and each country has – well, the military's negotiated, you hope, the status of forces agreement when off station. In Italy, if a crime happened out in town, for instance, Naples or in Sardinia, you know, the first step would be is the Navy would negotiate with the local authorities to see if they would relinquish jurisdiction and sometimes they would and other times they would not. So that would be the first step is to determine jurisdiction. And in many cases we've had, the local authorities would turn over the service member and then you would, you know, prosecute the case from there. However, there are other cases, I'm sure you've read in the news, for instance, we've had a number of high profile cases out of Japan, assaults on locals, and those cases, the Japanese government did not want to relinquish jurisdiction; they prosecuted. There are other countries where, for instance, Morocco, when we've had incidents there, there's no status of forces agreement, at least at the time I was over there, and you're subject to the local jurisdiction. For instance, for drugs, I mean, they have like a death penalty. So it can be…

CAVANAUGH: Wow.

SULLIVAN: It can be quite – the consequence can be quite great for our service members. But we spend a lot of time on negotiating with foreign governments on relinquishing jurisdiction.

CAVANAUGH: I wonder, if a service member is tried by a foreign court and either acquitted or receives a very small penalty, is then that service member subject to another trial in the military?

SULLIVAN: Wouldn't be subject to a trial in the military but probably administrative processing. He could be – he or she could be processed administratively from there depending upon the circumstances.

CAVANAUGH: And I'm wondering, because your discussion about your – or your description about how the military face justice either in civilian court or a military court overseas, how are those things determined here in the States? In other words, when does an active member of the military get tried in civilian court as opposed to military court?

SULLIVAN: Well, it can vary from state to state, county to county. For instance, here in San Diego County, if a service member gets arrested on a – for a DUI, they're going to be prosecuted by the local jurisdiction, and that happens quite a bit. Now if a crime – if a DUI happened on base or a crime happened on base, then that would be within the jurisdiction, exclusive jurisdiction of the military and the federal enclave. But if it happens out in town, you are subject to the local jurisdiction. Now there have been cases where, for whatever reason, the local district attorney's office or the San Diego, Riverside County decide, well, this is a case better pursued by the military. And I've had both those situations play out. I've had several cases in San Diego County, Riverside County, L.A. County, and also a number of cases, you know, I've defended within the local military courts.

CAVANAUGH: Let's take a call now from Mike in Golden Hill. Good morning, Mike.

MIKE (Caller, Golden Hill): Good morning. Thank you for taking my call. I had a question about court martials in general. Are there different types of court martials? Or like are there more serious ones for serious offenses? Or are they all the same?

SULLIVAN: Good question, Mike. There's actually three types of court martials. There's a general court martial and that is the top court martial that actually you would try death penalty cases, more serious felony cases, and you can receive, depending upon the charge, basically unlimited jurisdiction as far as confinement goes. You're looking at a – you can earn a dishonorable discharge there or a bad conduct discharge. And then at the next level down, is what's called a special court martial. That is a court of a more limited jurisdiction. The maximum jurisdiction there is actually twelve months, so you can – some people call it a misdemeanor court. And there you cannot get a dishonorable discharge but a bad conduct discharge. Then, finally, there's something called a summary court martial, which is really not a court martial, criminal conviction, it's an administrative process where – that – it's a much faster, speedier process and you cannot get a bad conduct discharge or a – or any punitive discharge there but it's more – it's purely administrative and it's used quite frequently on ships and other areas where they want to implement justice pretty quick.

CAVANAUGH: Is there any appeals process for a court martial?

SULLIVAN: Yes, there are.

CAVANAUGH: Oh.

SULLIVAN: Is they – we have appellate court, we have, if somebody if receives a punitive discharge at a court martial, your case is automatically appealed. We have an Appellate Defense Division within the Navy, Marine Corps, and then you're assigned an appellate lawyer, your case is automatically reviewed and they have an appellate court and they will – So, yeah, it – There's one well in place.

CAVANAUGH: Let's take another call from Anita in Spring Valley. Good morning, Anita.

ANITA (Caller, Spring Valley): Yes, hi. Thank you for taking my call. I have a son who was in the Army and about ten years ago he received a bad conduct discharge because of – we found out that he does have a mental illness. And he has had no, of course, medical benefits or anything and we've really struggled, you know, over these last ten years. But I've heard from people that he could possibly get that overturned. Just to back up a bit, during the court martial, the – in his – I have the documents, and the psychiatrist who saw him said that – and that was the first time we'd heard that he possibly had a mental illness, and they were trying to get him released on a medical discharge but it didn't happen. So is it too late? And how would we go about possibly getting that changed to a medical discharge because it has turned out that he does have a very severe mental illness.

CAVANAUGH: Thank you for that question, Anita. Is that the appeals process that you were talking about?

SULLIVAN: I'll do my best to answer that question.

CAVANAUGH: Okay.

SULLIVAN: Ma'am, it's my understanding that it happened ten years ago?

ANITA: Yes.

SULLIVAN: Okay, well, obviously ten years is a long time. You know, you could – you've got – you can certainly seek the advice of an appellate lawyer who practices military appellate defense, you know, to exhaust all of your avenues. I think you're going to have an uphill battle. But if there's new evidence or evidence not considered as far as his mental health or capacity, you'd certainly want to bring that – bring any documentation or diagnosis to an appellate lawyer to take a look at that. But you've got nothing to lose by at least seeking out advice from an attorney who can handle the case but it's really difficult to make any sort of assessment without looking at all the documents, without seeing the actual court record and other collateral matters.

CAVANAUGH: I'm speaking with Jeremiah Sullivan. He's an attorney in private practice who handles many cases that involve military personnel. And one of your high profile cases in recent years was Navy corpsman Melvin (sic) Bacos. He was in the Hamdania case. He was one of those – the Pendleton Eight, charged with murder and kidnapping. Oh, what – Can you refresh our memory about that just a little bit?

SULLIVAN: Yes, that was – there were two significant cases or a group of cases that came out of, you know, Iraq the past – a couple of years ago. And we had the Haditha and I had a client there, and then the Hamdania was – it was a separate incident and that's – involved the Pendleton Eight and I represented a petty officer, the corpsman, Navy Corpsman Melson Bacos, who – they were all first implicated and charged with murder and it was a case that took on a life of its own and was a very challenging case. Any time you have a case involving war crimes or, you know, just cases overseas, it certainly requires a lot of attention. So we spent a lot of time investigating the case, working with the prosecutors, and, ultimately, but as to Bacos, and we had a lot of significant meetings and litigation with the military and all the homicide charges were dismissed. The case was resolved to a negotiated plea and he's actually still serving in our military today.

CAVANAUGH: And on your website, there was a – you really did blast the commanding general of Camp Pendleton by name for violating the constitutional rights of Bacos and the others. Why did you do that? What was the problem there?

SULLIVAN: Well, all of the accused, all eight of them, were represented by counsel and, at one point, the Marine Corps fully knew that. There was a Marine Colonel, went down and put all of the – my client and all of the other co-defendants were in solitary confinement or in the brig. And he ordered them at attention, then he started to proceed to interrogate them, ask them questions about NCIS questioning. Clearly, he knew—they all knew and admitted that – the Marine Corps admitted that they knew all these individuals, including my client, was represented by counsel. They had absolutely no right to discuss anything about the case with my client, so that they quickly backed off and that didn't happen again. But that really concerned me that, you know, my client represented – was being further questioned. I mean, this came well after it was even in the media that the, you know, this particular – and it wasn't an attorney. I think he just made a great error in judgment in doing that and didn't do it again.

CAVANAUGH: And that leads me to the question, what are the constitutional rights of active duty military personnel? Are they different? Do you cede some rights if you go into the military?

SULLIVAN: Same rights as you and I. No, they – the Constitution applies equally to all and you have to make sure that you stand by your constitutional rights so nobody walks over them or erodes them.

CAVANAUGH: Now there's one significant difference to military law that I did discover and that is that when you – when the members of a jury decide on a penalty, the commanding general can sort of put that aside.

SULLIVAN: Well, what's interesting is, if you elect a members trial, a trial by a jury in the military, not only do they do the guilt/innocence phase but they also do the sentencing, and that's kind of unique. Whereas if you were tried out in town in San Diego Superior Court and convicted by a jury, then excuse the jury and the judge would actually do the sentencing. But here, the members would do the sentencing. Now you have a, as a matter of course, a right to what's called clemency. You can petition the convening authority, the individual who put the court together, bring forth reasons why you think, you know, the sentence should be mitigated, lessened, to some degree and that could be for any number of reasons. And the convening authority would then review your matters that you would submit in writing and, in some cases, we actually ask for a meeting. You sit down. We did that in the Bacos case. Sit down with the convening authority and argue your points, why you think the sentence should be, you know, mitigated. And sometimes they do. But not all the times.

CAVANAUGH: Let me – I think we have time for one last call from Bill in Point Loma. Good morning, Bill.

BILL (Caller, Point Loma): Good morning.

CAVANAUGH: Yes, what is your question?

BILL: Well, my question deals with the role of the civilian defense counsel in the military justice system. I'm – I hear reference to a fact that a colonel goes in and interrogates clients and so forth. Isn't the accused provided with a military defense counsel? And if they are, what's the role of the civilian defense counsel in this regard?

CAVANAUGH: Thank you, Bill.

SULLIVAN: Well, every individual who's charged in the military, regardless of what branch of service, he will be detailed a military defense counsel. And you're entitled to that, so when my clients or when other military members decide to seek out a civilian counsel, typically they do that for experience. I've been doing this for 15 years, both as a prosecutor and defense counsel. There are many skilled lawyers out there who do military justice matters. The military has outstanding detailed defense counsel and top law schools, very intelligent, but they, you know, they may not have the experience as some of the civilian defense counsel get involved. But, typically, when I take on a case, I always keep the detailed defense counsel on the case. I mean, I have the – I have the – I can have the choice of excusing them or keeping them on but I always keep them on and make them part of the team and we work together to seek justice for our client.

CAVANAUGH: We don't have that much time left but I would very much like to ask you, I know you're a defense attorney so it's all about the specific client but when terrible incidents happen during wartime, do you think the U.S. military does a good job in holding people accountable?

SULLIVAN: I think the military justice system and the military wants them to do the right thing. They really do. And the commanders have a very difficult job and, you know, they're out fighting the war, they're doing great things for our country so our service members – I just want to ensure that my client, you know, is afforded all of his constitutional rights. And mistakes do happen and there can be errors in judgment. But, you know, it is important that he – those constitutional rights of these service members are fighting for all of to have are afforded to him or her.

CAVANAUGH: I've been speaking with Jeremiah Sullivan. He's in private practice in San Diego, handles many cases that involve military personnel. Well, thank you, Jay. I appreciate your time.

SULLIVAN: Thank you very much.

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