Legal Question in Military Law in Kansas

I am trying to find a case that would support an error in a trial. I have read that if the prosecutor in a special court martial knows a charge cannot be supported he has a duty to remove it. A friend was charged with conspiracy and a large part of the testimony was based on establishing this, but when the supposed co-conspirator took the stand and the defense atty suggested he be read his rights, the prosecutor stated no one was planning to charge him with anything so he could not be incriminating himself. As it takes two to commit a conspiracy, it seems the charge should have been dropped. Do you know of such a case or can you suggest a place to look for one. He is between court martial and appeal and is just wondering if this will be helpful. His appointed jag atty from the court martial will not answer these kind of questions for him.

Asked on 8/11/11, 10:39 pm

1 Answer from Attorneys

William J. Holmes Attorney at Military Law
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The answer to your question is not as simple as you might think. The fact that they did not intend to charge the co-conspirator does not mean that he should not have been advised of his rights. Unless he was given a grant of immunity or a promise in writing that he would not be charged, he still had the right to remain silent and not incriminate himself. Were his rights given to him? Did he testify? What did he say? I am assuming that he said he and your friend had an agreement to do something and that your friend was found guilty of conspiracy. If so, this issue should be raised on appeal. His appellate lawyer should proceed with this and any and all other issues whcih were raised in your friend's case.

Although I do not know why they would not want to also prosecute the co-conspirator, that does not automatically mean that your friend cannot be charged with the same offense. You are correct that it takes at least 2 people to make a conspirator and that the prosecutor has an obligation not to bring charges he cannot prove. Your appellate attorney will have to carefully go through the record of trial and ifdentify all issues to be raised on appeal and make a strong argument why your friend should have been found not guiolty or at least deserves a new trial.

I hope this helps. If you or your friend have any further questions, please feel free to contact me directly at WJHLAW@cox.net or at 757-420-9321.

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8/12/11, 5:50 am

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