Here’s a link to a Stars and Stripes report that that the Air Force JAG Corps has designated 60 judge advocates as Special Victims’ Counsel.  These lawyers will enter into attorney-client relationships with military members and adult dependants who report that they are victims of sexual offenses.  The program will launch on 28 January.

The article reports that the Air Force Special Victims’ Counsel “will be able to help with everything from reassignment requests and non-contact orders to courts martial and appeals . . . . The attorneys can help victims with issues related to collateral misconduct and privacy rights and can request testimonial immunity from the government.”

Stars and Stripes also published this article about sexual assault prosecutions in the Air Force, prominently featuring the widely respected Chief of the Air Force Government Trial and Appellate Counsel Division, Col Don Christensen.

16 Responses to “Air Force designates 60 Special Victims’ Counsel”

  1. Brian Bouffard says:

    You’ve got to be kidding me.

  2. Phil Cave says:

    What is the ethical responsibility – of one of these lawyers – if during the representation they come across evidence or information that is Brady type material?  Are they to be treated as part of the “one government” and must therefore disclose that, at least to the prosecutors?

  3. Cloudesley Shovell says:

    Mr Cave–That is the question, isn’t it?  I would argue that in any such situation, at an absolute minimum, the attorney in question ought be required to conduct a noisy withdrawal, one that is noisy enough for all parties to hear with equal clarity.
    The scope of confidentiality afforded to persons making criminal complaints in areas of the criminal law subject to much political scrutiny and political tinkering is going to be a continuing fight.  The law will continue to evolve “sex is different” theories to justify convictions at nearly any cost, much in the same way “death is different” is used to justify avoiding the death penalty at nearly any cost.  The law will be the worse off for it.
     
    Humbly,
    CS

  4. Cloudesley Shovell says:

    Mr. Cave–to follow up a bit on your precise question, I suspect the Government will argue that a Special Victims’ Counsel has utterly no duty to disclose any Brady material because that attorney represents a private client, not the Government, and is not in any role analogous to a prosecutor or law enforcement.  
     
    What’s the ethical obligation of a private attorney representing an un-charged “real killer” who confesses to the attorney that he alone committed a murder and the wrong person is on trial?  What’s the ethical obligation of a priest in that situation?  It’s one of those ethical conundrums no attorney (or priest, I imagine) hopes to face.
     
    I would imagine that the obligation of a Special Victims’ Counsel is no different, to a point.  The point is when the Special Victims’ Counsel’s client gets on the stand and commits perjury, or gives sworn statements contrary to things said within the attorney-client relationship.  That’s when I would, at a minimum, require the noisy withdrawal.
     
    Humbly,
    CS
     
     

  5. k fischer says:

    What constitutes “help with…courts martial and appeals?”  The Air Force has 8 SVPs, so is there any danger that an SVC will be detailed by the SJA to the court martial and morph into an SVP?  If so, then there goes attorney client privilege and Brady is in play.   But, if they remain an SVC and they hear their client testify falsely on the stand, then does the SVC have an obligation to withdraw from representation?  And, they will be assigned from a different base.  Logistically, that sounds like a mess.
     
    And did the recent changes in the MCM provide accusers with appellate rights?  How can the SVC help with the appeal?  Good luck with that one, particularly in the Air Force.  Sounds like the AF JAGs are going to have special victim clients for a good 5 years.
     
    I wonder at what point those in the sexual grievance industry who have infilitrated the military can flap their wings and squawk, “Our job is done here.  It worked!” then fly off like a flock of seagulls leaving a bunch of crap-covered cases behind.  Sounds like they are getting close as Dr. Lisak admits that the military is prosecuting cases that the civilians wouldn’t have touched with a ten-foot pole.  Based on my experience, that has always been the case and is not a recent phenomenon.  Regardless, it sounds like the civilians now have the problem in failing to prosecute, rather than the military.

  6. Lieber says:

    I don’t see how this is inherently a bad thing.  Most cases still don’t make it all the way to a C-M (for a variety of reasons, and probably never will).  The victims in those cases still usually need legal assistance and advice.  Some one who is representing their interests (instead of the government’s…which is not the same thing) could be quite useful for them.  (Thinking outside the MJ box here.)

  7. Joseph Wilkinson says:

    <i>The victims in those cases still usually need legal assistance and advice.</i>
    Why?  It’s not a lawsuit.  To my knowledge, the accuser gets the same benefits regardless of how the criminal case comes out.  She’s already got counsellors and “advocates” to make sure she gets all the treatment and benefits that are available, and I don’t know of anything she loses if the accused is acquitted or never tried.  If she wants to sue, I don’t see why the government should provide her a lawyer for that.   

  8. Dew_Process says:

    Phil – there can be little doubt that one of the “goals” of this crazy program is to compartmentalize the (not even alleged) “victim” from TC and thus, shield (hide) Brady material.
     
    The AF’s program is going to be a boon to DC everywhere!  Is the SVC a “mere interloper” as that party is nowhere mentioned in the UCMJ in general and specifically, is not anywhere within the 4 corners of Art. 27?   Who is going to advise the SVC’s about the potential criminal liabilitythey may be walking into as far as the many “traps” contained in 18 U.S.C. 205′s criminal prohibitions.
    [W]e tentatively conclude that the limiting principle guiding Congress with respect to § 205 is that it is to apply only to matters in which the governmental decision at stake is focused on conferring a benefit, imposing a sanction, or otherwise having a discernable effect on the financial or similarly concrete interests of discrete and identifiable persons or entities. These are situations in which a federal employee, acting as a private party’s agent or attorney, could be perceived as having divided loyalty and as using his or her office or inside information to corrupt the government’s decision- making process.[emphasis added]
     
    Van Ee v. E.P.A., 202 F.3d 296, 302-303 (D.C. Cir. 2000).  That statue expressly applies to courts-martial.  See also, U.S. v. Bailey, 498 F.2d 677 (D.C. Cir. 1974) [205 bars part-time law student who were government employees (one was ironically an AF Captain) from participating in law school Appellate Litigation Clinic in criminal cases brought by U.S. government].
     
    Better yet, if the DC attempts to interview the purported victim and she responds that “on the advice of counsel,” she’s not going to talk to DC, but has in fact talked to TC, is the SVC guilty of “obstructing justice” under Arts. 46 and 98?
     
    Or consider the possibility of the SVC negotiating “immunity” for his/her client from the CA, who thereafter denies immunity to a potential defense witness?  That litigation promises to be interesting and most likely requiring the CA’s testimony.
     
    What if the purported victim doesn’t “like” her SVC or if a civilian, wants to file a claim against the U.S. – can she at her own expense retain civilian counsel as her SVC?
     
    How about a purported victim at Grand Forks AFB, ND, who in February, decides she’s been sexually assaulted and demands to be reassigned?  Will DC be precluded from using that as a possible “motive to fabricate?”

  9. soonergrunt says:

    @Dew_Process, 10 Jan 2013 1443hrs
    How about a purported victim at Grand Forks AFB, ND, who in February, decides she’s been sexually assaulted and demands to be reassigned?  Will DC be precluded from using that as a possible “motive to fabricate?”
    Wait, what?

  10. k fischer says:

    Dew/SG
     
    What’s the problem with Grand Forks AFB, ND in February?  Sounds like it would be lovely that time year.
     
    DC will only be precluded from using that fact as impeachment under 608(c) if she is reassigned to Elmendorf AFB, Alaska.

  11. ResIpsaLoquitur says:

    I get that sexual assault is the topic du jour in military justice and political oversight right now.  I really do.  The thing that strikes me as odd is that we’ve carved out a special class of victim for special treatment, including a broader range of confidentiality and now their own specialized attorneys.  (I’m curious who will want to do this job–most Air Force attorneys I know are too cynical or too burnt out from bad VWAP experiences to want the assignment.)
    Thing is, there are other broad classes of victim out there who, as I read it, would not get this special treatment despite also being subjected to a horrific crime.  As an example, would a domestic abuse victim–with no underlying sexual element–be granted their own special counsel?  I’m taking it that, no, he or she wouldn’t, even though a lot of the same concerns about abuse and reliving the experience in interviews and trials would still be there.  At the risk of sounding politically incorrect, I get that alleged rape victims are subject to special sensitivities, but why aren’t other classes of victims as well?  Why does–in theory–a person whose rear gets grabbed (low end of the sexual assault spectrum) get a special counsel, while a person who’s been beaten to within an inch of her life by her military spouse (high end of the assault and battery spectrum) not?

  12. Ama Goste says:

    Elmendorf is much warmer than Grand Forks in the winter; I think you mean Eielson.

  13. Lieber says:

    Well if they’re going to have them they most certainly should have them for domestic violence victims as well.  As for Joseph Wilkinson, if those advocates were actually good at what they do you’d have a point…but they’re often not.

  14. Joseph Wilkinson says:

    Even if they’re not — and that’s far from my experience — telling the accuser about benefits and treatment isn’t lawyer’s work, is it?  We aren’t especially well suited to that. 
    The accuser isn’t, or at least shouldn’t be, a party to the case trying to get a certain result.  She’s supposed to be a witness who’s there to tell people what happened, plain and simple.  You don’t need a lawyer for that.  

  15. Ex TC says:

    Who joined to deploy? (hear hear!!)  Who joined to try cases? (Me, you, us) Who joined to be Special VIctim’s Counselors with no defined job, huge pitfalls and most likely no ability to impact what actually occurs???
    Anyone, anyone? Bueller? Bueller??

  16. Isaac Kennen says:

    Training being provided to the field states that SVCs will be entitled to sit in on pretrial interviews with all investigative and pretrial personnel – including trial defense counsel.  Further, the guidance being given is that, in order to insulate the SVC from the possibility of being called as a witness at trial, the base legal office will be expected to detail a paralegal to sit in on those interviews alongside SVC.  The theory being that the paralegal rather than the SVC would be the person to be called for testimony by the defense, if necessary.  My concern is thus  The SVC’s (and the assisting paralegal’s) interest in a case that has proceeded to prosecution is roughly aligned with that of the prosecution.  Requiring defense counsel to invite two prosecution “moles” to sit in on pretrial interviews is concerning enough.  To go further and allow the government to choose which of those “moles” would be subject to testifying for impeachment purposes is an unacceptable level of gamesmanship.  Further, I think the tactic could backfire and harm the chances of successful prosecution.  What if the defense counsel were to ask for a private interview with the victim but explicitly not invite the SVC to come along?  The victim would then surely decline that invitation.  The resulting cross-examination, if the defense counsel otherwise appeared reasonable and un-intimidating to the members, would certainly not help victim credibility.  That he or she refused to even meet with defense counsel before trial because he or she was not permitted to have an attorney there to act as an intermediary would make many (if not most) members question whether the victim had something to hide, especially if the defense can put forth any evidence of a possible motive to fabricate.  Add that to the possibility of SVCs requesting immunity on behalf of their victims for collateral misconduct (which would be explored in cross), and also the likely increase in the number of cases where SVCs help victims request rapid reassignments (another possible motive for fabrication that would be explored in cross), and our recent efforts to help victims will actually only make it harder for member panels to believe them.