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Opportunities With The Biased Preliminary Hearing Officer

Posted by Ernesto Gapasin | Apr 24, 2020 | 0 Comments


I completed an article 32 hearing last week and it was for a serious sex assault and rape case and what happened in that hearing is something that will happen from time to time. You will get an extremely biased young inexperienced article 32 preliminary hearing officer who is jag who will hear your case. This particular hearing officer I voir dire-ed this hearing officer which means I asked them questions. He had never worked a court-martial, he had never served as an article 32 hearing officer, he was very clearly inexperienced, seemingly right out of law school. And you're going to get hearing officers like this. You're going to get hearing officers who make poor choices with regards to objections who will not be well-read on the law, and that's exactly what we got. When you have that type of situation, what you have to do is take advantage of it. You object to everything.

Based on the hearing last week, we established potential motions for a defective referral, a potential motion for defective preferral, a motion for a new article 32 hearing, and we established an unlawful command influence motion straight from the hearing officer himself who said that he was pushing the hearing because that's what the higher-ups wanted him to do. And that's straight unlawful command influence, the evidence is there. I even objected to the hearing officer hearing the case and requested that he recuse himself. Now, very rarely, if ever, will a hearing officer will actually recuse himself, and he didn't, which is the standard which typically happens. But what you want to do in these situations
is establish every opportunity to file a motion for purposes of appeal and to correct the record down the road. 

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Ernesto Gapasin



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