The Navy JAG Corps will probably be happy to see 2010 in its rearview mirror. One of the less-than-pleasant events during 2010 was the VWAP fiasco in United States v. Velasquez, which led to the promulgation of new VWAP rules and procedures for the Navy JAG Corps.
As described in this Stars and Stripes article, LCDR Anthony L. Velasquez was a Navy doctor accused of sexually molesting 23 women during the course of purporting to provide medical treatment at Atsugi, Japan and Camp Arifjan, Kuwait. On 26 May 2010, he pleaded guilty to two specs of wrongful sexual contact and two specs of conduct unbecoming an officer and a gentleman. As part of a PTA, the government dropped 29 other specs. The adjudged sentence was confinement for two years, a $28,000 fine with a 6-month enforcement provision, total forfeitures, and a dismissal. But under the PTA, LCDR Valasquez ended up spending just 7 days in confinement and was protected from the fine as well.
As Stars and Stripes reported:
[A] post-trial e-mail sent to victims by the JAG office left some with the impression that Velasquez would suffer a much harsher fate.
The May 26 e-mail stated that “the judge awarded a sentence of 24 months, a $28,000 fine to be paid right away or else an additional 6 months would be imposed, total forfeitures of pay, and most iportantly [sic], a DISMISSAL from the Navy.”
The e-mail made no mention of the plea agreement. Nor did it state that the judge’s sentence had been largely set aside because of the plea deal. Unless Velasquez violates the terms of the plea agreement and commits another crime, he won’t go to federal prison or pay any penalties.
Victims interviewed by Stars and Stripes were confused by what had happened and unaware of the defense-friendly terms of the PTA. All seven of the victims Stars and Stripes interviewed “expressed dismay over the terms of the plea deal, which most called ‘a slap on the wrist.'”
Some of the victims alleged that the Velasquez case was an example of “different spanks for different ranks.” One said: “[T]his is yet another example of the military protecting officer positions from disciplinary action. Have an enlisted man do the same thing, the sentence would have been much harsher.”
As we discussed, following his return to the States from Japan, LCDR Veleasquez was arrested at one point for failing to register as a sex offender in Washington State, though he was later released. According to the Miltiary Sex Offenders Registry website, LCDR Velasquez is now registered as a sex offender in Kentucky.
This lengthy piece that ran in the Japan Times on 30 November revisted the case. One of the victims criticized the convening authority, RADM Richard Wren, for agreeing to such a defense-favorable pretrial agreement. According to the victim, “[S]omebody had told Adm. Wren it was going to cost $200,000 to go to trial . . . . When he found out it was to come from his budget, Wren forced them to make a plea deal, behind our backs, which is a violation of our rights . . . .”
The Japan Times report indicates that the Secretary of the Navy approved LCDR Velasquez’s dismissal on 20 October 2010. If so, LCDR Velasquez must have waived appellate review, since there’s no NMCCA decision in his case. Perhaps he and his counsel thought it best to quickly terminate the military’s jurisdiction.
Impact of the Velasquez VWAP fiasco continues to reverberate. According to the Japan Times article, an investigation is being conducted concerning the case. Also, the case appears to have led to changes in VWAP procedure within the Navy. On 14 June 2010 — 10 days after the critical Stars and Stripes article was published — the Navy JAG Corps issued a new VWAP regulation: JAG/COMNAVLEGSVCCOMINST 5800.4. The Instruction includes the following provision regarding victims and the pre-trial agreement notification process:
[h.](5) Victims [sic] Views Concerning Pretrial Plea Negotiations. Victims have a statutorily designated advisory role in decisions involving prosecutorial discretion, such as plea-bargaining. Trial counsel shall ensure victims are aware of their right to act in this advisory capacity. In those cases in which a victim has elected to exercise the right to act in such an advisory capacity, Trial Counsel shall ensure the victim’s views concerning prosecution and plea negotiations are obtained and forwarded to the convening authority prior to the finalization of a pretrial agreement.
A later paragraph adds, “Alth0ugh the victim’s views should be considered, this instruction is not intended to limit the responsibility or authority of any service member to act in the interests of good order and discipline.” Id. at para. h.(14). The Instruction also spells out the trial counsel’s notification requirements as to victims and witnesses. Id. at paras. h.(3), (4). The Instruction also includes a VWAP Compliance Checklist. Id. at encl. (1). Block e on that form provides: “Ensure victims are aware of their statutorily designated right to serve in an advisory capacity regarding decisions involving prosecutorial discretion, such as plea-bargaining.” Block f provides: “In those cases where a victim has elected to exercise the right to act in such an advisory capacity, ensure the victim’s views concerning prosecution and plea negotiations are obtained and forwarded to the convening authority.”
The Navy JAG Corps was no doubt embarrassed by the Velasquez case. But it has certainly taken reasonable steps to avoid being embarrassed by a similar episode in the future.