Lawyer decries lengthy jailing of sergeant accused of going AWOL
December 20, 2002
EDITOR’S NOTE: Sgt. Keith Brevard was ordered released from the Army jailhouse in Mannheim, Germany, on Friday. While courts debate his case, Brevard will return to his unit to await a decision on a trial. Stars and Stripes is following up on the latest developments.
MANNHEIM, Germany — For more than a year, Sgt. Keith Brevard has been sitting in an Army jail in Mannheim, waiting on a trial that appears no closer to beginning than it did 12 months ago.
This is despite a judge’s ruling in July that 1st Infantry Division prosecutors had violated the soldier’s right to a speedy trial.
“He is looking at spending his second Christmas in jail, and we haven’t even begun address the question of guilt or innocence yet,” said David Court, Brevard’s lawyer.
Army officials declined to be interviewed for this story.
Brevard’s case has highlighted a question of when is a soldier no longer a soldier. It also raised eyebrows over a legal system that leaves accused murderers free while awaiting trial but holds someone, such as Brevard, in prison — standing accused of fraudulent separation after being honorably discharged by the Army.
Typically, a soldier might wait as long as three months in pretrial confinement, say legal experts, perhaps as long as four months for very complicated cases involving serious offensives. But many never spend a day in jail before their trials.
Brevard has been in jail for more than year.
In contrast, Sgt. Everett Robinson — accused of violently strangling his live-in girlfriend to death in October — is free while waiting to see if he will go to trial, although he must check in with his superiors every three hours and cannot leave his base without an escort.
Brevard’s strange saga began Nov. 8, 2001, when CID agents in the Washington, D.C., area called to tell him that he was wanted on an arrest warrant for being absent without leave.
Out of the Army
With a freshly minted DD-214 in hand — the formal military document honorably separating him from the Army — not to mention the clearing papers bearing his own commander’s signature, Brevard thought he was already out of the Army. His Army contract as an intelligence analyst ended on Aug. 11, 2001 — three months earlier.
As far as Brevard knew, his estimated time of separation — or ETS, as most troops call the last day of their contract — had been his actual time of separation.
“The Army even bought him his plane ticket home,” Court said. The only thing Brevard still needed was his last paycheck, which finance officers told him would be in the mail.
Moving his pregnant wife and two children back home to Washington, D.C., with dreams of becoming an electrician, Brevard returned to civilian life.
Or so he thought.
Back in Germany, an investigation was under way into computers that had gone missing at the peacekeeping headquarters in Sarajevo, where Brevard had served.
Brevard was a suspect in the case, and when the military’s version of a grand jury hearing convened to see if there was enough evidence to send Brevard to trial, the soldier had already been released by the Army.
Brevard has steadfastly denied stealing the computers, said Court. But that’s almost beside the point, he said.
“The Army decides what happens to people,” Court said. “The fact that they scheduled something in the future and then let him go is not his fault.”
It appears, however, that the Army wanted to make it his fault, Court said.
On Aug. 17, 2001, the 1st Infantry Division commander signed a memo saying that Brevard should be held past his ETS, said Court. “But his ETS had already come and gone — he was already out.”
Capt. Michael A. Wilding, Brevard’s commander at the 101st Military Intelligence Battalion — who in the Army legal system was also his accuser in the computer thefts — denied signing the soldier’s separation papers. That, said Court, led authorities to suspect Brevard had faked his own release.
In later hearings, however, the Army’s expert on forged documents said Wilding’s signature was legitimate, said Court.
Joseph L. Parker, of CID’s Questioned Documents Division, stated with the “highest certainty” that Wilding had in fact cleared Brevard for release from the Army.
On Nov. 8, 2001, when Army officials asked Brevard to go to the CID office at Fort McNair in Washington to help straighten out the AWOL business, he dutifully complied.
“He should have brought his toothbrush,” Court said. Agents arrested him on the spot, “and he’s been in custody ever since.”
“For five days, they wouldn’t let him shower or bathe,” said Brevard’s wife, Tanya — who at the time was seven months pregnant. “When he started talking about getting a civilian lawyer, that’s when they moved him back to Germany.”
In later hearings, 1st Infantry Division prosecutors contended that because Brevard still hadn’t received his final paycheck, he could technically be considered a soldier and prosecuted for the computer thefts under the Uniform Code of Military Justice.
Neal Puckett, a retired military judge and now a defense attorney in Nebraska, said that while there is no specific law or policy making this clear, prior court rulings have upheld the contention that only after a servicemember gets his last paycheck is he completely out of the military.
“Until you have a DD-214, and the accounting is final, you’re not really done,” Puckett said.
Now that Brevard really was back in uniform — albeit a military prisoner’s uniform — it would take three months before he started getting his paychecks again.
Even now, more than a year later, his wife said she cannot convince military officials Washington to give her a dependent’s ID card.
“I can’t even go to the hospital to get checkups for my baby,” she said. “Everything in the system says he’s out of the military.”
When the Brevard’s third child, Kierra, was born on Jan. 15, Tanya Brevard had to pay for the delivery out of pocket, not to mention all the checkups before and after the delivery.
For an American legal system that is supposed to assume innocence until guilt is proven — and an Army that prides itself on taking care of soldiers and families — Tanya Brevard said she has learned to keep her faith only in God.
“I used to cry a lot, especially while I was pregnant. This has been very hard. I just pray that God will bring him home soon — I could sure use the help.”
“The government is trying to have it both ways with this,” Court said. “On one hand they insist he is still in the military, and on the other, Brevard’s family can’t get their benefits.”
In the courtroom, the case has been like a slow-motion tennis match between defense and prosecution.
So slow, that on July 3, Army Judge (Lt. Col.) Stephen Henley ruled prosecutors had violated Brevard’s right to a speedy trial, Court said.
Arguing that finance officials cannot be allowed to determine when a soldier is released from active duty, Henley ordered the case dismissed.
Under military rules, the prosecution had 20 days to file an appeal, which is exactly how long it took, Court said.
By Aug. 20, all the paperwork had been filed to the Army Court of Criminal Appeals in Washington. Court requested that Brevard be released from pretrial confinement pending the outcome of the decision, but prosecutors argued that Brevard was a flight risk.
“They said he had already gone AWOL once before,” Court said, despite the facts that Brevard had a “valid DD-214, clearing papers proven to have been signed by his commander, and tickets to fly home to the U.S. bought by the government.”
Henley, who denied Court’s request to release Brevard, declined comment for this story.
While the Army appeals court approved Court’s request for an expedited review of Brevard’s case, it took until Nov. 22 to provide a ruling overturning Henley’s dismissal of the case.
“That’s three months,” Court said. “I hate to see how long it would have taken if it hadn’t been expedited.”
Now, Brevard’s case is under review by the Court of Appeals of the Armed Forces.
“And remember,” Court said, “we haven’t even started a trial yet.”
In the meantime, however, Henley has decided to reconsider whether Brevard should be released from pretrial confinement. A hearing is scheduled for Friday, Brevard’s 407th day in prison.
“I’ve never heard of anyone sitting in pretrial for that long,” says Puckett, the former military judge.
Former Navy lawyer Matt Freedus had a client last year who was left in pretrial detention for 520 days. But his client, Navy Petty Officer 1st Class Daniel King, was charged with espionage.
In Brevard’s case, said Freedus, “this seems like a troublingly long period of time.”
Determining accused’s risk factor
With no allowance for suspects to post bail while they await their day in court, military magistrates must balances two questions to determine whether someone should be held in pre-trial confinement.
Primary question is, said Matt Freedus, a former Navy lawyer a now a civilian attorney in Washington, is he a danger to the community? That’s usually defined, for example, as someone suspected of murder or committing a violent robbery.
The second factor is he a flight risk, said Freedus: “Will the suspect flee prosecution?”
“If they present neither of those two concerns,” said Freedus, “they shouldn’t be held.”
In military law, said one Army lawyer, “because we don’t have bail, the assumption going in is that the soldier wants his day in court.”
In the case of Sgt. Keith Brevard, who has been held in pre-trail confinement for more than a year, say observers, it seems strange that a soldier who has been stripped of his passport and voluntarily gave himself up could be considered a flight risk.
“Certainly,” said Freedus, “if someone turned himself in, he hardly sounds like a flight risk.”
— Jon R. Anderson