Friday, May 6, 2011

Military and Civilian Prosecutions for the Same Incidents

While it's not a Double Jeopardy Clause violation for civilian (state/local) prosecutors and the military to try an individual for the same crimes stemming from a single incident, service regulations generally prohibit (with limited exceptions) the military from pursuing courts-martial when civilian authorities choose to exercise their jurisdiction on the matter.  Often, collateral military consequences flow from the civilian prosecution (re-enlistment denial, letter of reprimand, Article 15 for related military-specific offenses, removal from leadership position, etc.), but the military member ends up with a single conviction.  For more on recent litigation regarding Article 15 non-judicial punishment that is followed by federal court prosecution, see this CAAFlog post.

So, it's been with some amazement that I've noticed several cases in recent weeks in which both the military and civilian authorities have pursued military members for the same events. 

The more high-profile case of this nature involves former Cherry Point MCAS commander Col Douglas Denn, who has already pled guilty to DWI and other charges in state court. Denn had his case referred to a general court-martial earlier this week on charges that include driving while impaired and a host of military-specific crimes related to his violations of flight rules and attempts to cover up his drinking arrest.  (Note: The article is incorrect in stating that the Article 32 investigating officer's recommendation could have stopped the case from moving forward.  The recommendation is non-binding on the convening authority.)

The other case has garnered far less attention.  A senior NCO at Aviano AB, Italy, was court-martialed for possession of child pornography, and then the US Attorney's Office for the Northern District of Georgia prosecuted MSgt Charles Caley for paying a woman to watch the woman's preschooler engage in sex acts over the Internet.  Caley got a 13-month sentence at his general court-martial, and he received a 15-year sentence from a civilian federal judge on Monday.  Since both convictions were in federal courts, presumably, the charges were different.