The Army’s newest legal arm is using a “reach back” authority to prosecute old cases of serious crimes that may have escaped prosecution.
Since opening its doors in December, the Army’s Office of Special Trial Counsel has reopened more than 100 older cases, which has included recalling retired service members to active duty to face charges they may have once believed they’d escaped.
The new office launched in December 2023 to answer the long-standing complaint from justice advocates that the military justice system often left legal decision-making to unit commanders. The office shifted that authority for serious cases to allow independent prosecutors to determine if soldiers charged criminally under the Uniform Code of Military Justice should go to court-martial. The offices handle cases involving criminal offenses like sexual assault, domestic violence, child abuse and murder in the U.S. and at American military installations abroad, and will add cases of sexual harassment to its docket in January 2025.
Since December 2023, the office has reviewed nearly 3,300 criminal cases, Brig Gen. Christopher Kennebeck, lead special trial counsel prosecutor said in mid-October. According to the office, prosecutors have referred a total of 180 cases to court martial, including around 113 “reach back” cases that pre-date the office’s launch in late 2023. Among these older cases, 46 out of 60 have resulted in conviction and 53 are still pending.
Of the cases referred to court martial for offenses that occurred after the office was stood up, 67 have been referred to court martial, 32 have been prosecuted, resulting in 29 convictions, Kennebeck said.
By handling “reach back” cases, the office has recalled retirees back to service for court martials, took on a case that was settled previously in a civilian court, and even filed new charges over sexual assaults that occurred before its time.
In the spring, the office recalled retired Staff Sgt. William Rivers, 55, to duty for a court martial where he pleaded guilty to sexually abusing 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 lead Army prosecutor on the case said the Office of Special Trial Counsel took on the case, thinking it was unlikely civilian or previous military prosecutors would’ve brought charges against him.
Adding UCMJ charges to a civilian case in Alabama
In another case, the office is pursuing charges under the UCMJ against a military member who escaped civilian jail after causing the death of a 5-year-old in Alabama.
“While somewhat rare, it is not unprecedented for the Army to court-martial a soldier because of the dual sovereignty nature of state and military (federal) prosecution,” Michelle McCaskill, a spokesperson for the office said in a statement.
Sgt. 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 acting “unruly” in the vehicle, according to WRBL, a CBS affiliate in Columbus, Georgia. His mother was not in the car at the time.
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Starr pulled over at a church and told Birdseye to get out of the car, despite a falling rain. While in the parking lot, Starr told authorities, he “lost track of the boy in the rain” who wandered onto the busy highway and was struck by another vehicle. Birdseye died at a local hospital.
Charges brought by a civilian prosecutor in the case kept Starr out of jail when he pleaded guilty to reckless manslaughter in an Alabama court and was sentenced in September 2023 to 36 months probation, according to state court documents.
“The command initially took action to further address military consequences related to SFC Starr’s misconduct, in addition to the probation sentence given by the state of Alabama,” McCaskill said in a statement.
After Starr received civilian probation, Army officials decided to prefer 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.
Starr’s motions hearing 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 may be set “in the near future,” McCaskill said.
Sexual assault case in Korea
The new office also took on its first South Korea case with Pfc. Quentin D. Fontenot, 22, who convinced his friend and co-worker Pfc. Ethan K. Flintroy, 22, to sexually assault his then-girlfriend, an E-4, in the Camp Humphreys barracks in May 2022.
The victim, whose name was not disclosed, filed a restricted report – submitted confidentially without notifying law enforcement – months after the assault. After arriving at her new duty station at Fort Liberty, North Carolina, she un-restricted the report, leading the Army Criminal Investigation Division to begin its investigation.
At Fontenot’s trial, the “government’s sole evidence” was testimony by the victim “which showed he played a critical role in facilitating the crime and encouraging Flintroy to sexually assault the victim,” according to the office. On Oct. 8, Fontenot was convicted by a military judge of aiding and abetting a sexual 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 sexual assault during his trial and apologized to the woman. Flintroy pleaded guilty on Oct. 17 to sexual assault charges and was sentenced by a military judge to 26 months in prison. He was also dishonorably discharged and reduced to private.
“These two verdicts could not have been possible without the courage of the victim to step forward and report the crime to law enforcement,” said Cpt. Danny Lim, Army Office of Special Trial Counsel lead prosecutor for the seventh circuit. “We hope these results help give other victims the confidence to report similar crimes in the future.”
UPDATE: 11/13/2024; This article has been updated to include a revised number of “reach back” cases provided by the OSTC, and the status of both older and newer cases in the military justice process.
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