The military’s legal arm uses its power to reopen old criminal cases

The military’s newest legal branch is using a “reach back” power to prosecute old cases of serious crimes that may have escaped prosecution.

The doors have been open to the army since they opened in December Office of Special Trial Attorneys has reopened more than 100 older cases, including recalling retired service members to active duty to face charges they once thought had escaped.

The new office was launched in December 2023 to answer long-standing complaints from justice advocates that the military justice system often left legal decision-making to unit commanders. The office has shifted that authority for serious cases to allow independent prosecutors to determine whether soldiers criminally charged under the Uniformed Code of Military Justice should face court-martial. The offices handle cases involving criminal offenses such as sexual assault, domestic violence, child abuse and murder in the US and at US military installations abroad, and will add sexual harassment cases to their docket in January 2025.

As of December 2023, the agency has reviewed nearly 3,300 criminal cases, including approximately 116 “reach back” cases that predated the agency’s launch in late 2023. Of the total number of military cases the agency has reviewed, 67 have been referred to court. Court-martial, 32 have been prosecuted, resulting in 29 convictions, Col. Christopher Kennebeck, chief prosecutor of the special trial, said in mid-October.

In handling “reach back” cases, the agency has recalled retirees to court-martial, taken on a case previously handled in civilian court, and even filed new charges for sexual assaults that occurred before then.

In the spring, the office called retired Staff Sgt. William Rivers, 55, to serve before a court-martial where he pleaded guilty to sexually assaulting and raping his stepdaughter between 2013 and 2014 while on active duty in Hawaii and Florida. He was sentenced to more than six years in prison under a plea agreement.

Maj. Steven Poland, the Army’s lead prosecutor in the case, said the Office of the Special Trial Counsel took on the case because he believed it was unlikely that civilian or previous military prosecutors would have filed charges against him.

Adding UCMJ charges to a civil case in Alabama

In another case, the agency is pursuing charges under the UCMJ against a military member who escaped from civilian custody after causing the death of a five-year-old child in Alabama.

“While somewhat rare, it is not unprecedented for the Army to court-martial a soldier due to the dual sovereignty nature of state and military (federal) prosecution,” Michelle McCaskill, a spokesperson for the office, said in a statement.

Sergeant 1st Class Bryan Starr, 35, was driving one evening in late November 2020 with his girlfriend’s five-year-old son, Austin Birdseye, as a passenger. The boy began to behave ‘unruly’ in the vehicle, according to WRBLa CBS affiliate in Columbus, Georgia. His mother was not in the car at the time.

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Starr stopped at a church and told Birdseye to get out of the car, despite the falling rain. While in the parking lot, Starr told authorities, he “lost the boy in the rain” who walked onto the busy highway and was struck by another vehicle. Birdseye died at a local hospital.

Charges filed by a civil prosecutor in the case kept Starr out of jail when he pleaded guilty to reckless manslaughter in an Alabama court and was sentenced to 36 months of probation in September 2023, according to state court documents.

“The command initially took action to further address the military consequences associated with SFC Starr’s misconduct, in addition to the probation sentence imposed by the state of Alabama,” McCaskill said in a statement.

After Starr was placed on civilian probation, Army officials decided to favor court-martial charges against him for involuntary manslaughter, child endangerment and negligent homicide in military courts. The special trial counsel took over the case in January 2024.

The hearing on Starr’s motions was scheduled for last week, but the military judge has not yet made a decision on how the case will proceed. Depending on how the judge rules, a new trial date could be set “in the near future,” McCaskill said.

Sexual assault case in Korea

The new office also handled the first South Korean case with Pfc. Quentin D. Fontenot, 22, who convinced his friend and colleague Pfc. Ethan K. Flintroy, 22, to sexually assault his then-girlfriend, an E-4, at Camp Humphreys barracks in May 2022.

The victim, whose name was not released, filed a limited report – filed confidentially without notifying police – months after the attack. After arriving at her new duty station at Fort Liberty, North Carolina, she unrestricted the report, prompting the Army Criminal Investigation Division to begin investigating.

During Fontenot’s trial, the government’s “only evidence” was the victim’s testimony “which established that he played a critical role in facilitating the crime and encouraging Flintroy to sexually assault the victim,” the office said . On October 8, Fontenot was convicted by a military judge of complicity in an assault and sentenced to 21 months in prison. Fontenot was dishonorably discharged and reduced in rank to private.

After Fontenot, the instigator of the crime, was found guilty, Flintroy admitted to the assault at his trial and apologized to the woman. Flintroy pleaded guilty to sexual assault on October 17 and was sentenced to 26 months in prison by a military judge. He was also dishonorably discharged and reduced to private duty.

“These two verdicts would not have been possible without the courage of the victim to come forward and report the crime to law enforcement,” said Cpt. Danny Lim, chief prosecutor of the Army Office of the Special Trial Attorney for the Seventh Circuit. “We hope these results give other victims the confidence to report similar crimes in the future.”

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