Zuanich Law Newsletter
Episode #30: The Uncle Sam Episode
I’ve always thought about doing some sort of military-related episode, and I figured that because I’m on military duty, well now is the time.
Of course, because I am on military duty, this episode will be short and less comprehensively exciting than you’ve come to expect.
In other words, it’ll be somewhere between the Patrick Mahomes throw to Tyreek Hill on 3rd and 15 and Jimmy G’s decision-making in the 4th quarter.
In brief, this episode is what should you know if you’re client is in the military.
This episode is primarily geared to the defense attorneys but hopefully judges and prosecutors will find it useful.
There is randomness to this episode … sort of bits and pieces of useful knowledge sprinkled along the way.
(My goal is to do something longer, more comprehensive, and more systematic in the future—maybe a CLE in a more formal setting).
Reporting your arrest / conviction?
Yes. You need to advise clients of their obligations.
Army: Soldiers above the rank of E-7 (i.e. sergeant first class) must self-report their criminal convictions to their chain of command. Keep in mind that “conviction” is broad—basically, guilty plea, deferred prosecution, deferred sentence, probably even an SOC.
So you need to know your client’s rank. If your client is lower than E-7, reporting not mandatory, but may be useful in any event, depending on relationship of Soldier to chain of command.
Navy: All Navy personnel must self-report arrests and convictions. But under naval law, the command can’t use the fact of the arrest as incriminating evidence in any trial—think of this like immunized evidence.
Your clients may not want to. You may not want to. But they fail to report at their peril.
Article 31: The Military’s Miranda
When is Miranda required? Custodial interrogation, right?
When are Article 31 rights required? Basically, interrogation, without the custody requirement.
Is this a little simplistic? Absolutely.
But your clients need to know that the chain of command may / probably will start snooping around / investigating / deciding what to do with soldiers charged with criminal offenses / or even conduct that may lead to something that could be criminal in some way.
Remind your clients about their Article 31 rights, and remind them how broad and protective they are.
Counseling Statements
In the Army, for instance, Soldiers can be “counseled” in writing for conduct—even if conduct is not proven. For instance, your client Private John Smith is counseled in writing like this: “John Smith, we understand that you’re being charged with DUI, and that allegations involve drinking and we’ve read the police report and we’re just reminding you that you can’t drink and drive anymore and don’t shirk on your duty. Sign here.”
Simple pro forma? Or potentially incriminating?
Tip: Always ask your clients if they’ve been “counseled” by their chain of command or if they’re about to be counseled by their chain of command (sometimes, your client will know in advance).
I highly recommend you ask them to send you something in writing before your client signs it.
Social Media / Politics
You have the freedom to bash your boss or President Trump on social media or praise him up and down your feed.
But not in the military. You don’t need to watch your military client’s social media feed like a hawk, but you may want to warn younger clients about their social media limitations for engaging in political discussions and comments about their chain of command.
Commissioned officers can be criminally prosecuted for expressing contempt toward senior officials (i.e. President or VP) and Soldiers in general can be charged with disrespect toward senior officers and supervisors.
Is your client going to actually be prosecuted for going off on the President on social media? Very likely not. Going off on the chain of command? More likely. At a minimum, other administrative and career-killing consequences? Yes.
In the military, President Trump is your boss. Even if you're in the Reserves. Criticizing the President is somewhat the equivalent of a DPA going off on Dan Satterberg on social media—i.e. not smart.
About Us: Zuanich Law focuses on criminal appeals, DOL appeals, and post-conviction relief, including expunging / vacating / sealing criminal records.
We also handle civil appeals, family law appeals, personal injury law, business litigation, and general civil litigation, including contract disputes, probate, and a lot of other civil stuff that may be dangerous and boring to hear while operating heavy machinery.
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