Victims and witnesses.

In his first public statements since a 2005 double-murder arrest in
Iraq, now-acquitted Staff Sgt. Alberto Martinez of Rensselaer County
said Tuesday he was "very, very innocent" of the slayings — yet
expected a guilty verdict.

This is reported at Veterans for Common-Sense.org, and is a reprint of:

Robert Gavin, Army Staff Sergeant Alberto Martinez, Acquitted of Murder of Two Officers in Iraq, Speaks with Reporter, N.Y. Times Union, 16 December 2008.

Questioned why he did not take the stand in his own defense, Martinez
answered, "There was no need for me to testify. All the witness were
speaking on my behalf."


This may also because he'd submitted a plea offer and his attorney's knew he shouldn't testify, especially to anything that contradicted the PTAO?  We'll never know unless we saw the PTA and any proposed stipulation of fact.

There is an active discussion on CAAFLog about what was or wasn't done in the case in terms of those very pretrial negotiations.   Martinez was prosecuted for killing several military personnel while in Kuwait.  The case was referred capital.  The discussion has been engendered because of a N.Y. Times article.

Paul von Zielbauer, After Guilty Plea Offer, G.I. Cleared of Iraq Deaths, 21 February 2009.

CAAFLog commented:

NYT had a lengthy article about last year's Martinez capital court-martial that ended in an acquittal at Fort Bragg. It reported that two years before the trial, the defense made a written
PTA offer, signed by Martinez and his two defense counsel, to cap the
sentence at confinement for life with eligibility for parole. It also
reported about the convening authority, Lieutenant General John R.
Vines, rejecting the offer. I wonder how that particular document came
into the possession of the New York Times. Interestingly, one
of the prosecutors in the case, Major John C. Benson, is quoted as
saying, "I don’t think there can be any doubt whatsoever as to his
guilt."

There  are a number of comments, including some from Ms. Barbara Allen, spouse of one of the victims.  The family also has a blog — Widows United for Justice.  On this blog the military judge is also to be blamed for the result. 

This would not be the first time a PTA offer has been refused and an acquittal follow.  Sometimes it's not an acquittal but conviction on LIO's or you "beat the deal" on the sentence cap.  Myself I call that litigate to mitigate.  One of the concerns is that the family may not have been properly consulted on the PTA offers or the case.  I've had a case where I had the effrontery, according to the prosecutor, to talk to the victims about a pretrial diversion, show them the offer, and show them my letter to the CG on why the offer should be accepted.  I was seeking to gain support from the victims.  My licence was actually threatened by the prosecutor for "obstructing justice."  The prosecutor had not talked with the victims about PTA's and "didn't care" about what they wanted.  The case, a child sexual abuse case, ended in an acquittal.  The failure of prosecutor's to keep the victims (or other witnesses) informed about a case is in my view malpractice and contrary to DoD and Service policies.  However, I also think that the defense has a role here.  I think it is important for the defense to talk with victims about potential case resolution.  You will be surprised how often victims have some thoughts of mercy, some understanding of the issues, and are willing to support a reasonable PTA or even a diversion from trial.

That said, let's look at the rules for dealing with victims and witnesses of crime.  The Air Force has an excellent powerpoint, DoD Overview Victim-Witness Assistance Program.  I'll quote from the language of one slide:

Victims have statutorily designated advisory role in decisions involving prosecutorial discretion (e.g. plea bargains), however, . . .
Victim’s views considered but DO NOT supersede decision-maker’s authority.

Here is a link to the Victim Witness Assistance Council maintained by DoD.

The purpose of this web site is to facilitate the dissemination of information and resources in support of providing assistance to victims and witnesses of crimes on military installations.

Happily this Council has links to the individual Service regulations on VWAP.  As an example, AR27-10 has the Army rules on VWAP.  Those in the know know that 27-10 is the bible for Army judge advocates involved in courts-martial cases.  Chapter 18 sets out the program for judge advocates.

18–15. Consultation with victims
a. When appropriate, trial counsel, VWL, or other Government representative will consult with victims of crime concerning—
(1) Decisions not to prefer charges.
(2) Decisions concerning pretrial restraint of the alleged offender or his or her release.
(3) Pretrial dismissal of charges.
(4) Negotiations of pretrial agreements and their potential terms.

b. Consultation may be limited when justified by the circumstances, such as to avoid endangering the safety of a victim or a witness, jeopardizing an ongoing investigation, disclosing classified or privileged information, or unduly delaying the disposition of an offense. Although the victim’s views should be considered, nothing in this regulation limits the responsibility and authority of appropriate officials to take such action as they deem appropriate in the interest of good order and discipline and to prevent service-discrediting conduct.

I'm unable to think of a situation where it would be inappropriate for the victim of a physical or sexual assault to be consulted about the case.

To trial counsel, read the rules.  You are doing a disservice to victims by failing, all too often, to treat them fairly.  You don't have to do what they ask.

To defense counsel, get involved with the victims.  Talk to the VWAP coordinator about the case.  Not all of them are zealots.  Many of VWAP coordinators understand their role as advocates for the victim, not for the prosecution.  I've had victims tell me that I've been the only one to let them know what's going on (like telling them the dates of trial), and that's helped.  These victims invariably soften their attitude.  And this is a way that the defense can also do its part to treat victims with respect.

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