Update on Retired Army Maj. Gen. Graziloplene

7/9/2020

CNN reports, https://www.cnn.com/2020/07/08/politics/retired-two-star-army-general-pleads-guilty/index.html

See also, https://connectingvets.radio.com/articles/retired-army-general-james-grazioplene-stand-trial-rape-charges-army-dismissed; https://taskandpurpose.com/news/retired-army-general-rape-charges

Retired Army Maj. Gen. James Grazioplene on Wednesday admitted to sexually abusing his then-teenage daughter in the 1980s, in exchange for a suspension of his sentence.

His daughter, Jennifer Elmore, turned 49 on Wednesday.

Grazioplene pleaded guilty in a Prince William County, Virginia, circuit court to aggravated sexual battery. He has been in jail for approximately 18 months. He was expected to be released on Wednesday and will serve 20 years of probation, according to Elmore's lawyer, Ryan Guilds.”

The case will be familiar to military justice practitioners.

Grazioplene, 69, faced an Article 32 hearing on charges he had repeatedly raped his daughter at various military postings in the United States and Germany in the 1980s. The military charges were dropped due to statute of limitations issues within the Uniform Code of Military Justice. See United States v. Mangahas, linked here, and others.

The U. S. Supreme Ct did not have a chance to rule on CAAF's Mangahas decision, but the military statute of limitations is pending before the Supreme Court in two cases. Here is a link to SCOTUSBlog on United States v. Briggs, consolidated with United States v. Collins. In the process it is expected that the Supreme Court will take on the issue of whether Coker v. Georgia, link here, really does apply to the military. SCOTUSBlog opines that “it will be interesting to see whether any of the justices demonstrate an appetite for the constitutional issue, or whether they think the statutory interpretation questions are dispositive.” I wonder if the Supreme Court will follow the doctrine of Constitutional avoidance--the usual practice of avoiding constitutional issues if the case can be resolved on a non-constitutional ground?

"The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of." Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).

Phil Cave

Contract Lawyer

7/10/2020 11:09:27 pm

It appears they held Grazioplene in jail for almost two years to coerce him into pleading guilty. With all the recent bail reform, I find it hard to see the basis to hold someone like this without bail. There was nothing reported that would indicate Grazioplene was a danger to the community or a flight risk. It appears he was held in jail long enough to coerce a plea in exchange for time served. I don’t feel sorry for him, but the circumstances do appear to give the old fart a good reason to claim he didn’t do it, but pled out to get out of jail.

Scott

7/11/2020 05:17:41 am

Agreed. I was wondering the same thing re the basis for holding him in jail for so long.

Without knowing the merits of the case, it must be hard to turn down a time-served plea deal for a man of his age.

Cloudesley Shovell

7/11/2020 06:50:39 am

I am not a Virginia lawyer, but judging from this review of Virginia bail law, Grazioplene may not have qualified for bail. There's a rebuttable presumption in VA law that there is no set of conditions that will ensure a defendant's appearance for trial if charged with a crime of violence, which includes sexual assault.

https://medvinlaw.com/virginia-bail-bond-motions-defense-lawyer/

§ 19.2-120. Admission to bail.

Prior to conducting any hearing on the issue of bail, release or detention, the judicial officer shall, to the extent feasible, obtain the person's criminal history.

A. A person who is held in custody pending trial or hearing for an offense, civil or criminal contempt, or otherwise shall be admitted to bail by a judicial officer, unless there is probable cause to believe that:

1. He will not appear for trial or hearing or at such other time and place as may be directed, or

2. His liberty will constitute an unreasonable danger to himself or the public.

B. The judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public if the person is currently charged with:

1. An act of violence as defined in § 19.2-297.1;

7/12/2020 11:25:14 am

Supposing the pending Supreme Court rulings on the relevant Statue of Limitations issues go the government’s way, what is the chance the Army decides to re-initiate it’s own prosecution as a separate sovereign?

7/13/2020 01:50:28 pm

Scott - I was thinking the same thing. This would be a good case to review to re-file charges under the UCMJ if the Supreme Court ruling allows, though I think there are two categories of jurisdiction that may apply and Grazioplene may fall into older category. There could be two separate results from the Supreme Court. This is a “wait and see” issue. Probably not a priority since justice was served, though I suspect this case will not fall through the cracks.

7/14/2020 09:10:35 am

As far as the bail issue, the laws in Virginia are written in terms of presumptions that seem easily met by the defendant in this case. On the other hand, the presumptions also allow the judge to effectively deny bail by drafting a legally sufficient ruling. The Commonwealth’s interest here was served through punishment by indictment, which allows them to strike a deal for time served or achieve the benefit of some punishment even if a defendant is acquitted.

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Update on Retired Army Maj. Gen. Graziloplene

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