Back in January the DoD published an interim final rule in the Federal Register, and solicited public comments (due by Tuesday, March 27), for the Sexual Assault Prevention and Response Program. The rule includes this interesting item regarding establishment of a Defense Sexual Assault Incident Database (“DSAID”):

DSAID. A DoD database that captures uniform data provided by the Military Services and maintains all sexual assault data collected by the Military Services. This database shall be a centralized, case-level database for the uniform collection of data regarding incidence of sexual assaults involving persons covered by this part and DoDI 6495.02. DSAID will include information when available, or when not limited by Restricted Reporting, or otherwise prohibited by law, about the nature of the assault, the victim, the offender, and the disposition of reports associated with the assault. DSAID shall be available to the Sexual Assault and Response Office and the DoD to develop and implement congressional reporting requirements. Unless authorized by law, or needed for internal DoD review or analysis, disclosure of data stored in DSAID will only be granted when disclosure is ordered by a military, Federal, or State judge or other officials or entities as required by a law or applicable U.S. international agreement. This term and its definition are proposed for inclusion in the next edition of Joint Publication 1-02.

There is also a notice regarding this collection activity, which was published on February 7 (comments due by April 9), that provides more detail about the information to be collected:

Needs and Uses: Section 563 of Public Law (Pub. L.) 110-417, the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2009 mandated the implementation of a centralized, case-level database for the collection, in a manner consistent with DoD regulations for Unrestricted and Restricted Reporting, and maintenance of information regarding sexual assaults involving a member of the Armed Forces, including information, if available, about the nature of the assault, the victim, the offender, and case outcomes in connection with the assault.

DSAID will include the capability for entering records and interfacing data; generating predefined and ad hoc reports; and conducting case and business management. Specifically, the system will be a warehouse of sexual assault case information; have the ability to run queries and reports; provide the Sexual Assault Response Coordinator (SARC) with the capability to interface and manage case- level data; include victim, subject, and case outcomes in connection with the assault; allow for Sexual Assault Prevention and Response (SAPR) Program Administration and Management; and include additional business management functionalities.

35 Responses to “DoD creates a Defense Sexual Assault Incident Database”

  1. Lieber says:

    yup, they’ve been collecting the info for this for at least the past 8 months now.

  2. stewie says:

    yes, annoyingly so.

  3. Christopher Mathews says:

    How long until we start hearing difficult cases referred to as “DSAID-she said” cases?

  4. ksf says:

    This is awesome for the military defense bar.  Imagine how easy it will be now to run victim’s names into the database to see if he/she made a previous false allegation of sexual assault. 
    I just had a case where there were rumors that the alleged victim previously made a false rape allegation at a previous post.  However, I couldn’t get the info from CID.  After the 32, the TC called me and told me that she asked the vic about any previous allegations.  The vic whose credibility is extremely suspect told the TC that she never made a false rape allegation, but she went to her commander and told him that she and three guys were drinking and they all went back to somebody’s room and she had sex with two guys while the 3d watched.  While she claims she did not make a claim of rape, she said that she told the commander that she couldn’t really remember what happened, even though she had very little to drink.  She and one of the married guys got an Article 15 for adultery.
    If there was a database, then I could have just looked her up in the vic list.  This is also good for civilians.  Just like there are serial rapists, there certainly are serial false accusers, too.  I wonder if the SAPRO will make the vic’s portion of the database confidential.  I’m sure they will try, as they believe that sauce for the gander is not palatable on the goose.  This database could help keep an innocent man out of jail.

  5. Dew_Process says:

    Under Davis v. Alaska and Pennsylvania v. Richie, while the information may be restricted or confidential to the general public, and accused who makes a specific request under Kyles v. Whitley to have the TC run a search on the complainant in the DSAID would be entitled to it.  A prior false allegation is clearly “favorable” under traditional Brady concepts.

  6. Charles Gittins says:

    Yes, I can see how collecting this data would be a good thing from a defense perspective.  I understand that it is really about trying to figure out ways to get Government contracts for the litany of victim advocate organizations, but the unintended consequence may be a good thing for defense counsel and accuseds, since this will be a part of every basic sexual assault discovery request.

  7. stewie says:

    How would you prove it was a prior false allegation?
    And Mr. Gittins, I hope that was sarcasm, because it would be difficult to think that one could honestly believe that is the reason for the database and not simply because the military is, wrongfully I think, under the microscope for sexual assaults and thus Congress is wanting more and more information before they, again wrongfully, take it out of the hands of the military completely.

  8. Charles Gittins says:

    No, not sarcasm.  The SARC program and the TC HQE program is nothing more than a jobs program.   

  9. stewie says:

    Well, then I don’t know what to say, because with all due respect, that’s just silly.

  10. ksf says:

    Stewie,
    I guess I’m just silly, too, because I believe that the sexual grievance industry has a foot in the door of the military, and they will manipulate this data to their own advantage because the military is a target rich environment that will give people like Teresa Scalvo and Roger Canaff jobs.
    Have you read the Navy Times article talking about how super swell the Army SARC, HQE, and SVP program has saved a service that had an paltry 6% rape prosecution rate at court martial a few years ago?  In their “conviction” rate, they include Chapter 10 requests.  Why?  Because it boosts the numbers.  They tout that the Army has quadrupled the amount of rape courts-martial (26%), AND they have the highest conviction rates (58%) amongst the armed services,which include conviction or other-than-honorable discharges in lieu of court martial.  They are calling a Chapter 10 a conviction?  We all know it isn’t a conviction.  And, anybody who has been a defense counsel knows that by the time charges are preferred, an accused has become quite disenchanted with the military, unless he is a super lifer.  So, when the Government offers a Chapter 10, then usually, they will take it, or their TDS counsel will get them to take it.  And, we all know this would be like a civilian prosecutor agreeing to plea a rape down to a simple battery, i.e. this is a bs case, but I can’t bring it upon myself to dismiss the charges after getting the indictment (advising the commander to prefer charges).  Really?  A Chapter 10 for a bona fide rape?
    Why would they want the conviction rate to be higher than all the other services?  Because the writer, or whoever is giving the writer these statistics, is trying to convince the reader that the Army’s model is the best and all the services should use it.  That would create a lot of jobs in the respective service’s JAG Corps wouldn’t it?
    http://www.navytimes.com/news/2012/03/military-army-improves-help-sexual-assault-victims-032212w/
    And really, I wouldn’t mind the SVP program so much, if the Army was as concerned with ensuring innocent men are not convicted as they were about getting convictions.  However, the actual shift I’ve seen is CID no longer investigates the veracity of the accuser’s claim out of fear of “victimizing the victim.”  I really think it is because they fear that they will uncover evidence that exculpates the accused.  Now, that investigation is relegated to the accused’s TDS counsel who not as experienced as the TC and has a ton of other cases like AWOL, Murder, Theft, Drugs, etc., not just sex cases.  Also, the guys that were supposed to wear the white hats are now acting like caricatures of the worst defense counsel.
    Is this database being created for noble reasons?  That’s the idea, but I wonder if we will see the kind of data manipulation that we see in the article above in order to justify the HQE and SVP’s existence. 

  11. stewie says:

    In all honesty, yes it is a bit silly. It’s one thing to recognize, correctly, that the folks were are talking about are often over-zealous true believer types who on occasion can be somewhat to quite extreme in their approach and beliefs. I’ve been told by one that the incidences of false reporting is only 2 percent.
    That’s crazy of course, but I don’t doubt they actually BELIEVE these stats, just like there are folks on the other side who think the majority of allegations are false or never met an actual rape victim they thought was actually raped.
    If they want to count Chapter 10s as convictions, awesome, maybe that means less pressure to take cases that can’t be won to court-martial. I think the reason why folks want their service to look the best is pretty simple and requires no conspiracy theory.
    Actually, we’ve had several investigations by CID into the veracity of the victim’s claim where I am at, so your assertion that they no longer do that simply is not true. Should I now accuse you of being part of your own grievance industry? Of course not, that would be equally silly.
    I’ve rarely seen a case where the defense counsel wasn’t up to the task of defending their client. This idea that somehow TDS counsel are overmatched by SVPs isn’t something I’ve seen. I would have no problem going back to the dark side and going up against any SVP. The defense has the high ground in sexual assault cases because they are so difficult to prove BRD.
    I think the justification for the SVPs is that we do a poor job of developing experienced TC. They spend a year, 18 months if they are lucky, and then because we want jacks of all trades who don’t specialize, we don’t bring them back or allow enough folks to get the skills needed, thus we end up with COJs who might have two years of criminal law experience.
    THAT’s why you need SVPs and HQEs, not because you are trying to create jobs or enrich the “sexual grievance industry.” If we did a better job allowing folks to track in criminal law, we wouldn’t need either. But as long as we maintain a jack of all trades, everyone’s going to be an SJA mentality then we will.

  12. Just Sayin' says:

    I’ve seen both.  I’ve seen defense counsel, SJAs and even trial counsel who just default assume every allegation is made by a lying drunken floozy, and I’ve seen the flip side where even in the most obvious fact patterns, the zealous advocate (or agent) refuses to even consider the possibility that there may be a motive to fabricate.

    It would really be nice if we could go back to the good old days when cases were evaluated on the strength of the evidence or lack thereof.

  13. k fischer says:

    Charlie,

    Stewie is just plain naive.

    Stewie,

    Let me make a few corrections.  I’ve heard from more than one CID agent where I predominately practice who has espoused the policy of not questioning the credibility of the accuser out of fear that they will “victimize the victim.”  They will accept outlandish allegations whole cloth and testify under oath that what the accuser said was reasonable even thought he physical evidence did not match.  Also, CID agents where I practice have told me, “It isn’t like the old days where we could actually question the victim when the story doesn’t make sense.”

    You know, when I first saw General Black put out the flyer regarding the SVP program, I thought, “That’s kind of unfair.  Bunch of senior CPT’s and Majors only prosecuting sex crimes, while Snuffy only has his TDS attorney.”  But, then the optimist in me kicked in and I thought that perhaps the Senior CPT’s and Majors would be able to ferret out the bs cases from the cases that had merit before charges were preferred. 

    Then, I read from someone posting that “all sexual assault offenses go to an Article 32 at his post.”  Hmmmm….who was that?  Stewie, do you remember who that was? 

    So, then I was perplexed because it appeared that even more bs cases were going forward.  Then, I started reading Roger Canaff’s blog, http://www.rogercanaff.com, who the Army hired to be an HQE, and that made me wonder what TJAG was thinking.  Then, I read those McClatchy articles busting on the military’s aggressive stance on sexual assault prosecutions and how they result in stupid cases going forward and some of the absurd statements made during SARC training.  And, we don’t even need to mention how the investigators at USACIL have screwed over Servicemen.

    And, now I am thinking like Mr. Gittens.  I share his opinion that the HQE/SVP program is a JAG Corps multiplier where all sex cases get minimally investigated and preferred no matter how stupid in order to justify the existence of the HQE/SVP’s.  At some point, though, I am hoping that it backfires and we see a string of acquittals because nobody trusts the words coming out of the mouths of the sex police.

  14. Just Sayin' says:

    I won’t name names but one of the DoD’s hired prosecution “experts” had a nasty habit of brady violations and prosecutorial misconduct in the state from which they came prior to joining the DoD team.

  15. Nails says:

    I’ve questioned for years whether AFOSI wasn’t taking the same approach as CID.  Then, at the last Air Force JAGC Keystone, it was briefed that AFOSI will not confront an alleged victim in an interview no matter how absurd her story for fear of the victim “shutting down.”  Better an innocent man go to jail than an alleged victim be “re-victimized,” I guess.
    So of course, basic facts that could easily cast substantial doubt on the allegations often don’t come to light until the defense raises them much later in the process.  And of course at that point, the train’s so far out of the station that few folks have the stones to step up and call a halt.  I’ve had SJAs, when presented with “newly discovered” evidence clearly showing no crime was committed, tell me that “my client deserves his day in court,” or “I’ve got to get my trial counsel some experience,” or “We promised the victim…”.  Depressing, really…

  16. k fischer says:

    Just Sayin’

    You should change your moniker because you aren’t just sayin’. 

    Why not send a link of an opinion. 

    For instance, I could say that Nancy Grace was the subject of an opinion that stated “she played fast and loose with her ethical duties.”
    http://www.ca11.uscourts.gov/opinions/ops/200315251.pdf

    Also, she apparently made illegal arguments in a drug case which required reversal:
    http://supreme-court-georgia.vlex.com/vid/bell-v-the-state-20396230

    If there was no opinion, then I can understand you not naming names, as that is simply uncorroborated gossip.

    Can you link the opinion, though, if there is one?

  17. stewie says:

    Citing what some random CID agent said is:

    a. not an example of my “naivete.”
    b. not in the slighest responsive or despositive as to the reasons why we have HQEs or SVPs

    Neither is citing the problems at USACIL in any way being related to the SVP/HQE program.

    Neither is citing bad/lazy SJA who don’t take their job seriously but instead answer that they need to give their TC experience. Those are all problems wholly independent of the SVP/HQE program.

    You are confusing the reactions of select folks you’ve talked to to the program with the basis/reasons for the program to begin with. You are effectively saying, they came up with this program, to justify said program. That’s, with all due respect, nonsensical. 

    As an aside, I have no problem with all sexual assault offenses going to a 32 assuming you don’t have clear evidence of lying by the alleged victim (which is a caveat I included that you’ve left out). That’s the process, a neutral person figures it out, and then makes a recommendation one way or the other. It also has nothing to do with SVPs or HQE. It does factor in the fact that sexual assaults are under a microscope, but that policy/practice/motivation occured prior to getting either HQEs or SVPs.

    I saw it as a defense attorney five years ago. Which I believe predates SVPs and HQEs by a bit. So no, I don’t believe the reason for either is to justify the HQE/SVP program. The only connection is that the driving force behind sending all non-verifiably lying cases to an Article 32 (spotlight on sexual assault in the military) is similar to the motivation behind HQEs/SVPs (the lack of qualified TC to prosecute sexual assaults in the military, which is an issue because of the spotlight on sexual assaults in the military).

    The primary motive for the SVP/HQE program is a lack of qualified TC. I also do not buy that accused are left with inadequate representation. Having been a TDS counsel, I know the vast majority of them are as good as an SVP. Collectively, they have the same experience, the benefit of a team of almost 20 in each region, and a LTC RDC. that’s more than a match for a MAJ SVP and a TC with a year or less of experience.

    Now you can question the effectiveness, motives, biases, etc OF those HQEs and SVPs til the cows come home if you like, that’s fair game (I’m no fan of much of what Mr. Canaff espouses), but it seems fairly obvious that the program was set up to address the lack of qualified TC and the spotlight on sexual assault cases in the military, not as some self-justification for the program.

    You can also question the bias, effectiveness movties, etc of CID, and folks on both sides of the aisle would agree with you. The only people more frustrated with CID than defense counsel are government counsel.

    My main criticism of the SVP/HQE program is it would be unnecessary if the Corps would allow folks to specialize in criminal justice, and in that narrow area abandon the jack of all trades model.

  18. Charles Gittins says:

    The victims’ lobby criticized the military because there was not enough convictions in relation to the claims of sex assault in the military.  The fallacy of their assumption was that all or most sex assault claims are true because “women don’t lie about sexual assault.”  They pressured Congress alleging that the military didn’t take sexual assault seriously.  DoD created a Pentagon office in response to the lobbying of Congress and the noise Congress was making. The whole point was to “get convictions.”  The HQE program was created in response to continued calls for convictions; everyone was assuming that the trial results were caused by poor trial counsel when, in fact, the results were based on bad facts or incomplete recollections based on prior voluntary intoxication.  

    In a case that has received much discussion in this Blog, Captain Stewart provided a detailed sworn statement not knowing what his accuser had said about their sexual encounter.  It conflicted in many respects with the accuser’s recollections of the sexual acts, but was also corroborated by the prosecutrix with regard to some facts that Captain S claimed demonstrated consent or reasonable mistake as to consent.  The NCIS agent, confronted with the discrepancies (although not specifics because of the G hearsay objection) and potential that the prosecutrix’s statement corroborated Capt S’s statement of consent or conduct reasonably leading t to a conclusion of consent testified at trial that she saw no reason to reinterview the prosecutrix to determine if Captain S’s statements were true with regard to consent.  Had the NCIS agent done her job before the prosecutrix had been prepared for trial and decided that the whole process demonstrated her victimization, the case probably would have ended up dismissed as the Article 32 IO recommended.  Instead, NCIS ended up as a de facto victim advocate unwilling to question the prosecutrix’s story.  I consider her conduct criminally negligent contributing to the wrongful conviction of Captain S.      

  19. stewie says:

    Well now that’s at least a step in the right direction. Absolutely true that the HQE program was created because of pressure from Congress and because of a belief that TC were underprepared/experienced. I believe the latter to be true, they are, even now. I know. And heck Mr. Gittins you know that to be true too. I’m sure you’ve practiced against quite a few young TC who didn’t know what the heck they were doing, and probably a few COJs who had not much more crim law experience.

    So let’s be honest here, there IS a crisis in the ability/preparation levels across the board among trial counsel and military justice shops.

    Now, not sure I personally would have come up with the HQE program, but all in all I think the SVP program is a good idea IF you aren’t going to track crim law, which is a better idea since it gets you the experience/ability you need over time to a deeper level.

    So, is it the case that we had fewer convictions because of poor TC training? Yes, probably true. Better attorneys get better results. Don’t know who you argue against that.

    Is it the sole reason? No, because as we all know, sexual assault cases are difficult for the military (or anyone), the incidents of false reporting are higher than the HQEs/true believers want to believe (although probably not as high as the defense true believers want to believe), and cultural/human biases make it hard to convict unless your alleged victim is squeaky clean, which can seem akin to finding a unicorn being ridden by a leprechaun.

  20. Charles Gittins says:

    At the risk of a “when I was a plebe” story, I think that the decreasing trial numbers in the 25 years since I was a young justice school student, and now, along with the fact that the military uses junior officers as OPLAW guys at a critical juncture of their experience to partially explain the lack of competence (not effort) of counsel on both sides. I think it has always been true that the defense counsel experience provides more and better experience for litigation (sitting through 100 guilty pleas does little to hone trial skills), but decreasing time in the court room is killing the litigation experience level at all levels on both sides of the courtroom.  Senior judge advocates who are SJAs (and Military Judges) now have substantially less litigation experience than 25 years ago, and I think that shows in the decision-making.  They lack the breadth of experience to “value” a case, which in part (along with the fear of career disaster if they have a case get bad media or Congressional scrutiny) explains the quick fix of sending everything to trial “to see what sticks.”  

    Add the problems inherent in mixing alcohol with hormones of 19-23 year olds living away from home for the first time in a generally permissive environment (on liberty) and the lack of litigation experience is compounded  by bad witnesses and worse facts.  I don’t believe every alleged victim is a liar, but I have seen too many to count who can’t remember what they did or why and, unless they are unconscious or obviously unable to make decisions for themselves, that is not generally a crime.  You can be drunk and choose to drive, just like you can be drunk and choose to have sex.  They may both be bad decisions, but only in one case are women held responsible for the choice.  It, instead, is usually a case of a bad decision that they cannot remember and for which they want to blame someone else.  

    Ok, beautiful day outside.  Time to go flying . . . . .  

  21. k fischer says:

    Citing what some random CID agent said is:
    a. not an example of my “naivete.”
    b. not in the slighest responsive or despositive as to the reasons why we have HQEs or SVPs
    Stewie, I heard CID agents, TC’s, and SVP’s say that since I had a rape defense down at GTMO in 2006.  I’ve heard the phrase “victimize the victim” since then so many times I can’t count regarding matters that I wanted to ask that had nothing to do with sex and to explain why they failed to do minimal investigative work.  It has grown since the HQE/SVP program. 

    I’m saying that if CID Agents thoroughly investigated sex offenses as they did in the past, then there probably wouldn’t be as many courts-martial to justify the existence or number of the SVP’s/HQE’s.  So, they do a minimal investigation.  Why?  Because they know that there are people like you who will take anything to trial when it can’t be proven that the alleged victim is lying.   

    Who is training the CID agents on sex offenses?   

    As for TDS counsel, you are right.  The majority of them are good.  Here are examples of some bad ones: 

    1.  I called the TDS counsel to see what his thoughts on a case were where the client was considering hiring me and he told me, “You don’t want to take this one.  It’s a loser.” I disregarded his advice.  Result: Acquittal.

    2.  Career client fired his female TDS lawyer who was strong arming him into putting in a Chapter 10 that the Government said they would support in a bs domestic violence, adultery, weapons offense case, so I got assigned as his TDS lawyer as I was the incoming FNG.  He was facing a GCM and 15 years, and I filed one UCI motion and it went to an Article 15 within 2 days.  Result: No rank reduction, fine $1,000 per month x 2 months, restricted fiche.

    3.  Client fired his male TDS counsel who told him within 15 minutes of meeting him, “The Government is offering a 90 day deal to plead guilty.  I think you should take it.”  He was charged with Sexual Assault.  He got assigned to me, and I told him within 15 minutes of meeting with him that the case was bs, but his AWOL offense was going to get him kicked out with a BCD.  Result:  Guilty to AWOL, dismissed sexual assault, BCD with a no jail time deal.

    4.  A fellow TDS counsel who was quite competent told me, “I would never file the motions you file because, honestly, I don’t want the SJA to paint a target on my back.”

    5.  Two clients charged with theft hired me because their TDS counsel were strong-arming them into submitting a Chapter 10.  One freaked out the Friday before trial and signed the 10 conditioned on a General Discharge while I was in a 3 hour mediation because his TDS counsel called him down to his office and told him if he didn’t do it he was going to jail.  The other one had the stones to go to trial.  Result: Acquittal.

    6.  Got a call two days before trial from parents whose son was going to plead guilty for a 4 month deal on a 2 month AWOL.  I got hired, filed a motion for a new 32, and when I got it, submitted a resignation in lieu of court martial that was accepted.

    These were all different TDS lawyers.  I’m not saying that all TDS lawyers are bad, but I would say that EVERY SVP is going to be better than they were.  And every SVP is going to have more trial experience and the added benefit that they only take sexual assault cases.  It is a lot different when the only cases you prosecute are sex offenses because you become an expert at it, just like you would if you only tried DUI’s.  And the Army has quadrupled sex offense prosecution.  I should be happy for that because it’s great for business.  But, the reality is that they try a bunch of bs cases, too, and it isn’t a fun time for my clients, even when they are acquitted. 

  22. stewie says:

    Where is this mythical paradise five years ago where CID agents did a proper investigation in rape cases, because I sure as heck didn’t benefit from that when I was a TDS counsel. CID has been doing minimal, insufficient investigations since time immemorial, and not just in sexual assault cases.
    I also find the idea that NOW CID agents do a bad job because they know I will take cases to a 32 laughable.
    As an aside, the last time I checked a 32 isn’t a trial, and this is the second time you’ve put the wrong words in my mouth…which is frustrating because one doesn’t need to leave this thread to see that I typed:
    “As an aside, I have no problem with all sexual assault offenses going to a 32 assuming you don’t have clear evidence of lying by the alleged victim…”So it makes me wonder if you are just ignoring what I type or spinning what I type.
    In fact we don’t take case to TRIAL solely because we can’t catch the alleged victim in a lie. We’ve taken only one or two more cases to trial versus not since I’ve been here. We do take those cases to a 32, and if they have merit, they generally go forward, and if they generally do not. The OSJA office I was TDS counsel with five years ago h ad that same philosophy by the way so this isn’t a new HQE thing.
    I’ve heard the phrase “victimize the victim” BEFORE the HQE program, so again, where is this mythical world that you say existed prior because I must have been on another planet.
    I love when CDC tell their TDS warstories, would you like me to tell a few CDC warstories, because I’ve got a couple of doozies.
    You are plain wrong that EVERY SVP is better than ANY TDS counsel. I have no doubt in my mind that’s a counterfactual statement. I know for a fact it is. And SVPs do not only take sexual assault cases, they do murder trials, they do other cases as well. I know this for a fact as well.

  23. k fischer says:

    Stewie,
     
    My use of the word “trial” has caused a fracture in the discussion.  I imagine that you use the word for a court martial.  Instead, I believe that the trial begins when charges are preferred.  I would imagine that my clients feel the trial begins at preferral as well since they are flagged, denied leave, denied promotion, taken out of their duty position, suspended from their leadership position, sent to a different unit, denied going to schools to advance their careers, etc. 
     
    So, I’m sure that they will find solace that there are JAG Attorneys who “have no problem with all sexual assault offenses going to a 32 assuming you don’t have clear evidence of lying by the alleged victim,” particularly when CID has done a horrible job investigating the charges.  I mean, it’s just a 32, right?  That’s nothing.  We’ll get him cleared and back to the unit in no time.  And, we’re sorry you felt like you had to spend $15k+ on your civilian attorney because your TDS attorney has been in the Army for a little over a year, but it’s the policy that all sexual assault offenses go to a 32 unless we have clear evidence of lying by the alleged victim.
     
    Let me know when you make SJA.  I’ll put a billboard outside your gate with your picture on it with the quote: “I have no problem with all sexual assault offenses going to a 32 assuming you don’t have clear evidence of lying by the alleged victim.” 
    At the bottom will be a picture of me with the line: Men, when abstinence fails, call me at 1-800-rapedbs.

  24. Just Sayin' says:

    agree with kf on this one.  The stigma of a 32 is permanent regardless of the outcome.
    As to the other request, I really prefer not to name names.  My point was not to shame an individual attorney, but rather to point out that we should be wary of some of the DoD’s so called experts, as some have less than clean pasts.  Google is your friend.  And yes, the incident to which I alluded is a matter of appellate record.  But again, this is not about slamming the individual, but questioning a system that, knowing of that type of behavior, would still want someone like that advising and mentoring young attorneys.

  25. Charles Gittins says:

    I have had experience with the HQE referenced by Just Sayin.  If you come up agains this lawyer be very wary . . .      the reputation and incidents you can find on google were reinforced by my personal experience.  There were 7 mistrial motions in my case, several of which were the result of failure to produce evidence or disclose past mistakes by a Government expert (after the government was allowed over defense objection to elicit testimony that the expert had never made a mistake), and I am convinced this attorney was calling those shots for the very inexperienced TCs.  This lawyer was like Jim Henson operating the muppets from behind “the well.”  No DP received and I have some question whether the conviction will stand on appeal given the machinations the MJ had to go through to “save” the case for the prosecutors.  At least the DP will be off the table on the next go around.  

  26. k fischer says:

    Okay, I got who you are talking about.  This person was involved in a case I had, which got dismissed after the SVP asked the judge for a delay in an 802 because she learned that “Mr. Fischer was looking for evidence that impugned her integrity.”  This SVP, according to the twice recanting 15 year old “victim,” screamed F-bombs and told her that her parents did not love her when she attempted to tell the SVP that the accused did not do the things she said he did. 

    A month later the charges were dismissed, but my client still got a GOMOR in his permanent fiche for allegations, “if true” made the GCMCA doubt my client’s future in the military.  This HQE was there for the hearing that was supposed to have taken place, but for the SVP’s outburst.  I wonder how much input the HQE had in the SVP’s tactics.

    I wonder if the DoD knows that a civilian murder charge got dismissed because one of their Army’s HQE engaged in witness signaling. Scary stuff, indeed.  Maybe this HQE should be known as “Highly Questionable Expert.”

  27. stewie says:

    A 32 is not a trial, despite what your client or you feels. No they are not all denied leave. I’ve seen plenty take leave while awaiting a 32. Leave isn’t blocked by a flag. You make so many extreme exaggerations it becomes almost worthless to address them. Most TDS attorneys have more than a year in the military, and all of the things you list as problems happen when folks are INVESTIGATED before charges are even preferred. Anyone under investigation is flagged (required by regulation), removed from a leadership position, and stigmatized, sending the case to a 32 doesn’t change any of that. What does happen is that the 32 gives them an opportunity to clear themselves, and that happens often.
    So since those are such great issues, apparently we shouldn’t ever even start investigating an offense unless we are convinced beyond a reasonable doubt from the start.
    And yes I have no problem with going forward to an article 32 hearing if I don’t have evidence the alleged victim is lying. So trying to hang that like it’s some badge of shame is a waste of time. I didn’t have a problem when the government took that position five years ago when I was on the other side, so long as they were quick to dismiss if the 32 showed the case wasn’t tenable. Which we do.
    If you were reasonable, you’d save your wrath and righteous indignation for those who go forward from the 32 with cases that don’t pass the 32. But your standard seems to be something a lot more unrealistic, we shouldn’t go forward to a probable cause hearing even if we have probable cause. Quite frankly, it’s a waste to continue discussing because with all due respect, your position is unreasonable.
    For the other two posters, I’ve already said not a fan of that particular HQE, although I don’t have much in the way of personal dealings with him to be honest, but I do know some of the ideas he has that I don’t agree with. However, the fact that there is someone extreme on the other side doesn’t make the idea incorrect. I think DCAP should get more HQEs of their own, even if it turns out one of them is equally extreme, doesn’t make the idea/program bad.

  28. k fischer says:

    “So since those are such great issues, apparently we shouldn’t ever even start investigating an offense unless we are convinced beyond a reasonable doubt from the start.”
    Interesting.  That is a pretty extreme position, but I won’t get all out of shape about it.  Certainly, an allegation deserves an investigation no matter how absurd because the accuser, if making a false accusation, should probably be given some type of punishment.  However, you don’t need to believe beyond a reasonable doubt for CID to investigate.  But, are you referring to the investigation at a 32?  You know there are DA’s offices that won’t indict unless they believe they can prove the case beyond a reasonable doubt?  
     
    I agree that if you have probable cause, then you should charge the Servicemember.  What I am seeing now is probable cause because CID takes the vic’s statement, doesn’t ask any of the tough questions perhaps due to FETI, and doesn’t attempt to acquire evidence that could contradict the vic’s statement. 
     
    Maybe my opinion is tainted because that exactly is what happened in my last case.  This guy never should have been charged if CID had done it’s job.  So, when they don’t, and the SVP doesn’t, and the Servicemember gets charged, a lot of the adverse consequences of the CID investigation could be stopped.  Instead the Servicemember has to wait for the 32 investigation.  It’s been two weeks since the IO recommended dismissal and the charges still aren’t dismissed on my guy.  So, my issue is when the Government (this includes CID, TC, SVP, COJ, and SJA) prefers a case because there is no evidence that the vic is clearly lying, resulting from an investigation by the Government that does not attempt to determine whether the vic is clearly lying.
     
    FYI, the HQE to which the other two posters and I referred in the previous 3 posts is not a “he.”
     
    Stewie, you haven’t seen me be indignant.  I know you are better than those who disregarded 32 IO recommendations, so I hope you are an SJA in the future because you would actually dismiss the case after the 32 IO recommends it.

  29. stewie says:

    So you yourself say CID doesn’t do a sufficient job investigating, yet we shouldn’t go to a 32 unless we have beyond reasonable doubt?
    If you believe that if you have probable cause you should prefer, then you must believe that if you have probable cause you should go to a 32. Because that’s the only investigation that takes place between preferral and trial. The TC do not have the time or resources to do CIDs job for them.
    And guess what, having an alleged victim that you don’t have evidence is lying is pretty much probable cause.
    Guess what CID rarely does its job EITHER way. There are plenty of cases of all types that are good cases, that end up in convictions, where my trial counsel have to do further investigation and prep because CID didn’t do enough. And it’s frustrating because things like deals would also come more quickly if CID did its job and thus TDS counsel realized the true measure of the case, and the need to deal. CID sucks is a universal mantra.
    You seem to think poor CID investigations only affect the defense negatively, but they don’t. And unless I think the 32 officer is a rock, and believe me, that happens, then odds are yes I wouldn’t go forward if it can’t pass reasonable grounds standard at a 32, but I have no problems at all going to a 32, I do not feel that is such a burden on the accused that I need anything other than a lack of belief that the victim is lying. Particularly when the case comes down to the alleged victims credibility under cross-examination.

  30. Phil Cave says:

    Stewie,

    Agreed CID (and the others) have always been a problem regardless of the type of case.  As a SJA and Senior TC I’ve always told the TC’s to investigate the case  themselves.  After a while the new TCs would come tell me they “understood” why I was making them do some work of their own.  And yes, NCIS would balk at having to do follow ups to “closed” investigations because the TC asked them to – that was a constant battle.  BTW, there’s civilian case law that says its IAC for a DC to rely solely on police reports and statements in advising a client prior to trial on PTAO’s.  This is not a new problem, but the sexual assault cases highlight it.  This might be one of the better results of the whole politicization of the issue.  Perhaps in some way that will put the spotlight on CID, NCIS, OSI, CGIS, to do investigations, not just better ones.  Requiring them to do better ones assumes they do one in the beginning :-).  Generally they get the witness statement and do the minimal to verify it; often with the cooperation of the idiot suspect who gives a statement — I know.

    So, Stewie, here’s my question.  If you agree that CID does a lousy job, and the 32 is intended to help flush that out, or educate the accused as to how badly he’s going down to get an early PTA — why do government reps at the 32 fail to disclose information IAW RCM 405(f) and fight so hard to object to the defense using the 32 as a discovery mechanism?  Why do GR’s fight so hard in refusing to get witnesses to the 32?  Why do GR’s fail to do any of their own investigation prior to the 32 — it’s obvious to me (and any other defense counsel whose got decent experience) the cases where the GR has not done any pre-32 work other than read the reports.  Those are the ones who have trouble locating RCM 405 in that red book that sits there on the desk unused.  According to your thinking, which I’m not in complete disagreement with, aren’t the GR’s and DC’s interests at a 32 the same — to be a bulwark against baseless charges, or as I tell clients educating the defense on how bad the case is for the accused.  And therefore being a bulwark against discovery and a barrier against 405 Production (discovery) seems to defeat both purpose.  Perfunctory 32’s with perfunctory IO reports don’t help get PTAs, all they do is make the client dig their heels in more because they have heard the system was bent and unfair, and now they’ve seen and heard it.  In that way you make my job harder in getting them to the table if that’s where they need to be. 

    I agree with you Stewie about why there’s a 32, but my experience of the GR’s behavior before and during the 32 is thoroughly inconsistent with that laudable goal of identifying bogus cases or encouraging PTAs.  They aren’t interested.  They just want to get over the roadblock and on to trial.  I see it in their actions and their body language, I hear it in their words and tone.  In sexual assault cases they have been told to believe the complaining witness — and they do (ethical responsibilities aside).

    My Liege — sorry, I ended up hitting send after all – in my defense I at least waited 18 hours. 

  31. stewie says:

    Government reps shouldn’t fight hard to refuse to provide witnesses. Now I think telephonically is fine for secondary witnesses, but the alleged victim should be there in person (both for the accused’s sake as well as for the government to see how she does in person during cross). I also think it helps with credibility (assuming she has that).

    You know that part of the problem is money, no one has any, and thus some of these decisions on bringing folks in, in person, are based on finances.

    I concur that some IOs are better than others at preparation, and it’s frustrating. I personally wish we just used JAs for all 32s. Sure they take longer, but you generally IMO get the rules followed.

    My folks dont do perfunctory 32s, and I tell my guys all of the time to go ahead and give them what we got. I don’t view it as a roadblock at all, and I don’t tell my guys to view it that way. I don’t think they view it that way, of course, I’m not in their head. I tell them that the 32 is important because they get to see a “Panel of 1” and that’s really good practice to see what pitfalls there are in the case and where it needs to be shored up.

    I don’t think I’m all that special in that regard, but admittedly I only see what my folks do, not what anyone else does.

  32. k fischer says:

    Stewie,
     
    Don’t kid yourself; you are special in that regard.  I see the worst at other posts, and I don’t believe I have ever dealt with you.
     
    I am probably taking what you write in the worst possible way because I am a kool-aid drinking defense hack, when actually you are probably not a kool-aid drinking government hack. 
     
    I still think there is some sort of EVAW/SVP/HQE conspiracy going on up in big Army….. And, on that note, I just finished reading “One Second After,” and I have to go crank up the backhoe and dig my Faraday bunker. 
     
    By the way, make sure your TC’s don’t do stuff like this:
    http://articles.courant.com/2009-10-31/news/charges-dropped-1031.art_1_murder-case-key-witness-superior-court

  33. stewie says:

    I don’t think I’m as rare as you assert, I think there are plenty of reasonable COJ/SJAs out there, folks just remember the unreasonable ones for the obvious reasons.

  34. Phil Cave says:

    So I filed my motion to dismiss charges and recuse a TC the other day in a sexual assault case.  Why, because the IO caught the GR “coaching” a witness behind my back, and because the GR audibly coached a telephone witness at the 32.  It’s on the audio.

    Query:  may the defense legitimately question prosecution witnesses about the possibility of prearranged signals or cues for their testimony?

    I think this should now be a standard question at all Article 32’s, in particular Army sexual assault 32’s?
     

  35. stewie says:

    Don’t see why not. I would think either side can inquire about that of the other side’s witnesses. Of course let’s not kid ourselves that this is a prosecution only phenomenon. I do think it rare on either side.

    Unsure what you mean by audibly coached…isn’t that just “asking a leading question?”