Courts-Martial News May 24, 2011
Luke certiorari denial gets media play, see McClatchy report here.
Congress is considering a more rational bill to address the issue of sexual assault in the military. The House is considering the Defense Sexual Trauma Response, Oversight and Good Governance Act. I haven’t seen the bill, WaPo coverage here, but it sounds more rational than the well-intentioned but horribly written Holly Lynn James Act.
Yet another DoN CO is under investigation for command climate issues. See story on the Norfolk Naval Shipyard CO here. This CO, RADM Thomas, replaced an O-6 CO last fall after he was removed for loss of confidence. See here.
A civilian victim in the Ft. Hood shootings receives posthumous award for attempting to stop the shootings. Hopefully no UCI allegations will dampen this nice story–hopefully a JA reviewed the citation to avoid such issues. See WaPo here.
An ALJ refers a case against an insurer that allegedly failed to pay Defense Base Act benefits for DoD contractors killed in Iraq to DoL criminal investigators. LA Times reports here.
I’m still leery of the victim-advocate privilege. A victim could make on statement to the police, and make a completely different statement to the victim-advocate but the accused would never know and the panel would get a false picture that the alleged victim’s statements have been consistent all throughout.
Yep. See US v. Harding (USAFA rape allegation) in which the civilian therapist who treated one of the complainants refused to turn over her therapy notes for in camera review by the Air Force’s chief trial judge. The therapist never caved, and the charges were eventually (years later) dismissed.
Of course, a complainant could also make an inconsistent statement to a chaplain, and that would never come into court. It all depends on the balance of what privileges we deem worthy of protection.
In other news, Bozicevich case to the members.
Well usually we tilt that balance in favor of innocent accused going free over guilty going to jail, but of course, sexual crimes more and more we are leaning towards the reverse, we must get every possible guilty person even if some innocent people get caught up.
Stewie, the problem with privileges is that they can conceal both inculpatory and exculpatory evidence. Yet we retain them even so.
The problem is you seem to be putting forth a goose/gander proposition, we do it for the accused so why not for the alleged victim, the problem is we’ve supposed to have already decided to some extent that we are going to err on the side of the accused.
Outside of 412, it’s fairly rare to see privileges that end up hiding exculpatory evidence. Yes one can come up with hypos, the alleged victim tells her husband or priest she wasn’t really raped and he says nothing (or doesn’t persuade her to admit the truth), got it, but those aren’t things that I imagine happens very often.
This would be a broad expansion of a new privilege for an accused concerning a crime where the credibility of the accuser is extremely important and often the only factor of guilt or innocence.
In shorter words, the existing privileges aren’t there specifically to make it easier to convict someone, this one IMO is just for that purpose.
I’m thrilled that victim’s will start getting their own counsel. Who can come up with a great Army Acronym for the office that houses said lawyers?
3,000 victims, you say? Were gonna need a bigger JAG Corps……..
Actually, if the privilege is scrupulously respected, you can’t tell the bird’s gender.
Privileges inevitably interfere with the fact-finding process. As a society, we’ve decided to accept the consequences of that interference because there are some things we value more than finding the truth. I’m not really trying to weigh in on the wisdom of that decision, just observing that it’s so.
And, look on the bright side —
In return for the victim/advocate privilege, Congress apparently plans to give the defense a ready-made basis on which to impeach the victim’s credibility: by fabricating the allegation the victim also gains the “right” to transfer from the current command.
in this case, the bird’s gender is going to be rather apparent about 90 percent of the time.
I don’t buy your all privileges do the same thing argument. Some privileges we do for historic/cultural reasons (sanctity of religion/marriage), others we do for constitutional reasons (A/C privilege), 412 and this hides stuff purely to get more convictions.
My point is that we can’t simultaneously assert that we believe in letting guilty men go free etc. etc. and then bring on a new rule designed to convict as many as possible by eliminating one of the few ways of addressing credibility in cases where it’s often solely about credibility.
Am I the only one who sees a presumption-of-innocence problem with calling a complainant a “victim” before the accused pleads guilty or is convicted of the offense by which the complainant is alleging he/she was wronged? I never permitted such a reference during the findings phase of a contested trial over which I presided. Do we anticipate a pretrial trial on the merits to determine whether the crime occured in order to determine whether the priviledge and right to independent counsel apply? Perhaps the “complainant-advocate” priviledge would be more apt. Also, in the interest of equal protection and full JAG employment, why limit it to sex-offense allegations? Those subject to cruelty and maltreatment are at substantial risk in reporting their higher-ups. How about spouse/child abuse recipients?
DMW, you aren’t the only one who steers clear of using “victim” prematurely. See above. And, sex offenses seem to be the cause-du-jour with Congress/advocates, but I could see the slippery slope maybe coming into view down the line on other issues.
If history teaches us anything, we will make the requirements ludicrously complex/inconsistent and not grounded in the realities of the CA driven system Congress gave us, do a poor job training on them, allow the system to be implemented differently from region to region with little oversight. We will think nothing of it until someone complains, loudly, at which point we will relieve the offending CO of his duties and give head shots to the careers of anyone unfortunate enough to be associated with the offending case, regardless of experience, training, or involvement. We will then get a lot of annoying micromanagement from the front office, gun deck all records that would suggest systemic failure, and make lots of niose about how important victims are until we get distracted by something shiny and resume not caring.