Dismissal of a case can happen where the Government "vindictively prosecutes" an accused.  Vindictive prosecution is a prosecution to deter or punish the exercise of a protected statutory or constitutional right. United States v. Goodwin, 457 U.S. 368, 372 (1982). Although there is no uniform test for proving that a prosecution is or is not vindictive, a threshold common to all tests is evidence that the government action is taken in response to an exercise of a protected right. If governmental misconduct is found, the court can dismiss the vindictively motivated charge or the entire action. United States v. Meyer, 810 F.2d 1242, 1249 (D.C. Cir. 1987), cert. denied, 485 U.S. 940 (1988). 
 
Take for example, if an accused turns down NJP or an Article 15, then turns down a Summary Court-Martial (which is still administrative in nature and can be turned down) and then declines to accept plea negotiations -- the Government may lash out at that accused.  For instance, there have been situations where the Government vindictively prosecutes an accused by adding specifications for minimal offenses.  The Government may respond by trying to make an accused look like a “bad guy” by adding minor offenses.  The Government may want to ensure that it gets a guilty verdict on something by adding a charge which is a very minor offense but easy to prove up. 

The burden of persuasion on a claim of vindictive prosecution is on the Defense.  See R.C.M. 905(c)(2)(A).  What this means is that an accused who raises a claim of vindictive prosecution has a “heavy burden” of showing that “others similarly situated” have not been charged, that “he has been singled out for prosecution,” and that his “selection ... for prosecution” was “invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent [her] exercise of constitutional rights.”  United States v. Garwood, 20 M.J. 148, 154 (C.M.A.1985) (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d. Cir.1974)). Convening authorities and prosecutors are presumed to act without bias. Appellant has the burden of rebutting this presumption. United States v. Hagen, 25 M.J. 78, 84 (C.M.A.1987).   

Vindictive prosecution can take on various forms and can easily look like reprisal, or actions taken that seem personal in nature.  If you are facing a court-martial trial and you believe that your unit or chain of command is attacking you using the court-martial process, contact Gapasin Law Group, LLC by filling out and submitting a "Contact Us" form. We will reach out to you as soon as possible and consult with you about this serious issue.