WaPo article here.  And here’s a link, courtesy of Doug Rawald, to the text of Senator Gillibrand’s bipartisan, bicameral Military Justice Improvement Act of 2013, which would remove prosecutorial discretion from commanders for UCMJ offenses punishable by more than a year with the exception of some, though not all, purely military offenses, and give that authority to a military lawyer instead.

21 Responses to “Chairman of JCS and Air Force Chief of Staff signal openess to removing prosecutorial discretion in sex assault cases from commanders [corrected]”

  1. casual reader says:

    Interesting proposal.  First, define “significant” experience.  Second, does anyone address the fact that the individuals determining actions will not be responsible for funding the same.  Just some initial thoughts.

  2. Phil Cave says:

    Does this make the speedy trial 90 days again – for the relevant offenses?

  3. stewie says:

    It means a couple of things I think:
    1. significant experience means SJA.  I don’t know whom else fits the bill at that level.
    2. No more SJAs who don’t have significant crim law experience perhaps?
    3. Corollary to 2 might be more allowances for SJAs who are mostly crim law specialists as opposed to jacks of all trades?

  4. Charlie Gittins says:

    So this will have a beneficial effect, how?  An experienced lawyer, seeking to have a successful JA career, is assigned the duties of CA for sexual assault.  He or she correctly believes that dismissing the usual BS — “we were both drinking and made bad decisions” military SA case will end up with Senator Suzierottencrotch climbing up his ass, says “refer it to trial and let’s see what sticks.”  What is new about this, other than it is a lawyer who gets to be intimidated into making crappy decisions, and has their career terminated when Susan Burke turns on the press/stupid members of Congress in the case of an unpopular “no-prosecute” decision that gets Senator RC’s attention. This is going to be a great example of Congress legislating on sound bites instead of intelligence, facts and truth.  Every day, my decision to leave MJ practice is further validated.  “Justice” really is not part of the MJ equation any more.

  5. Charlie Gittins says:

    Oh, yeah . . .  those of you still doing it, I salute you.  Working MJ in the face of a system now biased and intent on convictions, and not justice, is an honorable calling.  It really is a feather in your hat to obtain an acquittal in the face of a scale of justice with the big Government thumb on it, the way it is these days.  Unfortunately, Congress, the victim’s lobby and weak, pathetic excuses for general officers  will  make your work more than just difficult.  

  6. neuma777 says:

    CG – well stated. I applaud those of you who are defenders of justice and truth but based on the political pressures from the lawmakers, media, special interest groups and commanders who are unwilling to stand for justice and truth, your job will be more difficult in this climate to achieve justice for your clients. I am a firm believe that one day ALL truth will be reveal and justice shall prevail. 

  7. Christopher Mathews says:

    Wow — in the midst of this defense love-fest, I’m starting to have a sad about the rapists I sent to prison.

    Oh wait, no I’m not.

  8. ObservationPost says:

     [”Justice” really is not part of the MJ equation any more.]  Uh, when was it ever? – at least since the first “new 120”
    This is about fundraising.  Create a strawman.  Claim that said strawman assaults more often than before.  Then fundraise off of the fact that you’re now the knight in shining armor, fighting the good fight.  The “good fight” will last a long time, by the way, so we need to keep re-electing you to Congress.
    CM-  Those “rapists” you sent to prison, was that with a 2/3 jury (panel)?  Wow, you’re my hero.

  9. stewie says:

    So now all trial counsel and folks on the government side are evil now?  Always seemed to me both sides were trying to do the best they could, honorably and ethically the vast majority of the time, particularly those on both sides in uniform.

  10. Paleo Enthusiast says:

    What’s bothering me about this SA issue is that I’m getting the impression that Congress does not fully understand the nature of the problem and that most senior members in the DoD and service branches are playing a game of wait and see, more like wait and escape. Any of these people that thinks SA is the only issue in play is just not living on this planet.
    In the WaPo article Secretary Hagel asks, ‘who could be fired’ (paraphrase) in reply to what’s to be done, showing accountability, etc. Well, pretty easy question: the 2013 NDAA is showing a target of 15000 troop reductions per year for the Army alone. Commanders, particularly those with 19+ years that have shown themselves to be less than ethical in their handling of complaints, adjudications, etc for any military justice issue, not just SA, are the low hanging fruit. That will give us a much needed and long overdue purging of the O-7+ ranks. That population is bloated, in more ways than one. Time for them to retire. It will also dip down into the O-5 and O-6 ranks, and that’s a good thing too. But, everyone E-7 and up needs to be included in this review. 
    And, the review needs to apply to all regardless of time in service, but those with 19+yrs are the way to fix this so-called budget crisis we are in, while making the military a better place. Why would it be better? Because the central issue here is abuse of authority and discretion. The military justice system is problematic because those running it are suffering from serious lapses in ethical conduct and integrity. While I disagree with the idea of making the military smaller, if we’re going to do so, let’s keep those that take the ethics, the ethos, the professional responsibility seriously. 
    This first rebuttal to such a plan will be this: We’re in transition, the military needs these leaders to help see us through the mire and the muck. Counter-point: These leaders, particularly the most senior are the reasons for any mire and muck. The military has had deference like no other institution in the government, ever. Such deference has been given to the most senior, and they have wrecked it. So….party’s over.
    How to fix it, well here’s just one possible solution:
    1. Anyone that is an O-7+ needs to be carefully vetted before their input is accepted, to include active and retired. The buddy network within that community has gotten out of hand. Their track record is abhorrent.
    2. No more special offices for receiving complaints of UCMJ and/or ethical violations for SES and O7+ members. They get purged from all exceptions and have to start playing by the same rules. Likewise, the administrative requirements, the meetings, the inane schedules dictated upon the offices of Generals and Admirals must come to an end. To be fair to them, their schedules are ridiculous. Most of it is admin garbage. Stop the insanity at that level, and it’ll trickle down to the lower levels, which are plagued by the same issues. Free these people up from mindless meetings and ‘grip & grin’ events and they can begin to act like true service members again. We must demand more from that group in terms of accountability, but we must also grant them the ability to be accountable by virtue of time and availability to actually be out there leading and not attending some senseless progress review prior to a decision brief etc. Some of their burden is their own creation, to be sure. They and Congress together must start eliminating endless meetings, face to face briefings when VTC is available, the ceaseless knee-jerk reactions and so forth.
    3. Audit the fraud, waste, and abuse numbers to include all those missing billions from Iraq and Afghanistan. Independent investigation: those at fault have to go or face punishment, depending on severity of their role. Then deduct the dollars “lost” through FWA from budget analysis. The budget reductions are going to be made on the backs of lower and mid-grade members, as well as their families. They should not be suffering from the abuses of others. Set a goal to recoup 25% of this lost money, that should be considered a bonus to future budgets. 
    4. Recent book ‘the lawyer bubble’ if I have the title correct points to issues with the legal field such as saturation. Ok, well, time to create some blue ribbon panels on legal investigation, ethics, and so forth. Let’s put some older judges, attorneys tired of trial practice, and others on the payroll to open slots for the apparent excess of law school graduates etc. Create this independent panel to look at professional conduct, areas of poor enforcement and so forth. Results will produce a better system and show more people that need to stop wearing the uniform or otherwise participating in the military justice system.
    5. Most important aspect is to realize this issue is not related to SA only. It’s systemic.
    6. Remove misconduct from administrative separations. Force court-martial proceedings that involve MRE and a panel of at least six people. Combine with overhaul of personnel system that is not ‘up or out’, does not subscribe to ‘zero defects’ mentality, and punishes minor incidents of poor behavior rather than purging the members. Purging not only denies potentially great performers of invaluable lessons learned through a crucible of life, but it denies the military of their wisdom learned through hard lessons. It also presents more leadership responsibility, which too many leaders duck from. Ex: Stein case. POTUS should have pulled in the Commandant of the USMC and said, “So, you’re telling me you need to discharge this guy for the good of the service. In so doing you assert your combat effectiveness is reduced by one E-5? If so, then you need to be fired. On the other hand, if you’re going to tell me that you and your subordinate chain down to his level, which probably encompasses 300 years of combined experience and over 50 deployments, can’t show him the flaw in what he’s doing by the use of reasoned persuasion, and a genuine concern for your unit and this Marine? If that’s the case then you should be fired.” Then the Commandant leaves and directs his chain to work with the Marine. If the guy wants to assert 1st Amendment, take it to trial. If he’s wrong, then give him an ultimatum: stop or leave. But to do what they did was abuse of authority and more importantly, it showed an inability to lead and cowardice on the part of the USMC leadership by not sitting him down and pitching their case. He wasn’t complaining about the chow hall, it was related to the Constitution. That should have been dealt with. Settle that issue and you either have a Marine that is exercising his rights or a Marine that turns his nose up at the system outside the purview of protections of the Constitution. They just tossed him out. Such treatment needs to stop – it is never equitably applied to all ranks and is not good for the military.
    7. LTG Hertling spoke of burdens on the system in the Army Times related to body fat assessment. The DoD knows the tape test is flawed, and it knows careers are over because of a $2 piece of fabric and a flawed equation. If that’s not an ethical transgression, then nothing is. Time for ‘burdens’ to cease as an excuse. 
    8. To pay for these blue ribbon panels and so forth, require every installation to send accounting of money spent, within 24-hrs. No cooking the books. Sometimes commanders use discretionary funds to assist training. That needs to be seen. However, the remainder such as travel, hosting get togethers, special events and so forth – all of those need to go. Travel for all commanders at all levels needs to be cut by at least 50%. Gigantic waste. 
    9. Time for people to wake up. The budget is a real issue, but fixing it is going to be placed on the backs of service members. It will undoubtedly be used by senior leaders to fight suggestions in fixing the military justice system. Commanders say it will take too long and cost too much for trials, amending administrative discharge procedures, and various court-martial issues. As a result the economy will be flooded with about 50000 military members in the next 5-10 years, most of them with discharges unwarranted, hindering job searches, adding to unemployment, void of VA benefits, GI Bill, retirement accounts etc. Is that an adequate trade-off? Certainly it is not. By the time it becomes an issue, those responsible will be long gone, free from accountability. Congress needs to act now, otherwise it’s a disaster waiting to happen while the military justice system meanders through the current crisis and ends up no better than it currently is. It’s just one part of the problem with the military. But all the problems fall on one group: Commanders. If these inquiries into the military justice system don’t start and end with commanders, then it is all moot.

  11. Ex TC says:

    I love the 2/3 argument. Neither TC , DC, MJ, SJA know the vote of the members. You have no idea if an accussed was convicted on a 2/3 or unanimous vote. I’d like to see unanimous verdicts personally, but it can go both ways for either side. 

  12. Cap'n Crunch says:

    I personally believe that, like our founding fathers, better for 9 guilty men to go free than convict an innocent man.  Hey CM: are you SURE that all those folks you sent to prison, were, in fact guilty?  Given that we have a system with non-unanimous verdicts, a system where the CA picks the members, and a system where those same members report to the CA, albeit indirectly, do we seriously believe that we do not convict innocent folks?  Even our civilian system is prone to error, after all, we see DNA freeing people on death row.  I can state with absolute certainty that our military justice system has convicted innocent individuals.  My own preference is that we convict the guilty, and do so aggressively in a manner that rids of our military service of those that commit sexual assault, theft, murder, etc etc etc.  Along the same line, my same preference is that not one person who is not guilty gets caught in the net we are casting.  The current system was set up to be a balance to achieve the former, while being mindful of the later — convicting the guilty, and freeing the innocent, is conducive to good order and discipline.  Take away the scales, and sure, you convict more of the guilty — but you also convict more of the innocent.

  13. Cloudesley Shovell says:

    A few thoughts:
    O-6 or higher JAG must make the decision.  I don’t envision any flag or general officer having the time to review these issues.  Is this a back door to the creation of more flag/general officer billets?  I can see stars in the eyes of some more senior JAGs already.  The proposal states that these new special prosecutors will have staffs that can be either military personnel or civilians.  How jealously will the military guard against civilian involvement in this arena?  The services are going to have to grow that “significant experience” to qualify officers for those O-6 and above billets somehow.  I see JAGs working to ensure the special prosecutor’s staff is mostly commissioned JAGs and enlisted.
    What is “significant experience” qualifying an officer for this new billet?  Will that standard be the same across services, or left to the good judgment of the service JAGs/JAG detailers?   The requirement that a commissioned officer be “available for detail as trial counsel” under Art. 27 is ambiguous, because anybody can be detailed as trial counsel to a special court-martial under Article 27.  Perhaps Congress ought to amend that provision to clarify that said officer must be available for detail to a general court-martial under Art. 27(b), thus requiring law school or bar membership and JAG certification. 
    Convening authorities retain all their powers for punitive articles 83-91 and 93-117, and Art. 133.  Why skip over Article 92?  Is not violating or failing to obey a lawful general order one of the classic purely military offenses?  I cannot conjure up any possible explanation for omitting Art. 92.  Also, why is not Art. 134, at least clauses 1 and 2, included in the articles over which CAs retain authority?
    If this new special prosecutor declines to order a court-martial, this proposal limits CAs to a summary court or NJP.  Is the Art. 133 exception a big loophole for CAs, at least in cases involving officers?  Looks like it to me.  What if a CA just refers something under Art. 133 right off the bat even though the underlying offense is one that should be routed through the special prosecutor?
    How does one decide whether a case must be referred to this new special prosecutor?  Say a disgruntled sailor aboard a ship at sea intentionally burns a hated shipmate’s uniforms and other personal property in a trash can, destroying $610 of personal property. Simple arson under Art. 126, more than $500 of property, 5 years and a DD.  A classic case where a commanding officer might want to use mast or a summary court to impose swift punishment.  Yet under this proposal, said CO will have to do nothing while referring the case off to some O-6 or higher JAG somewhere who can take all the time he wants to decide how to handle the case.  What if the CO decides the property is really only worth $499, thus simple arson punishable only by one year, thus under the “more than one year” threshold.  Can the CO make such a factual determination to avoid referring the case through the special prosecutor?  Or is that a matter to be left to service-specific regulation? 
    Does this create new jurisdictional issues?  Suppose a commander interprets the factual allegations as a military offense and refers a case to a special court-martial.  Can the accused challenge the jurisdiction of that court on the grounds that the matter should be reviewed and decided upon by one of these new special prosecutors first?  What if the accused raises the issue for the first time on appeal?
    This proposal significantly alters who has GCM convening authority.  Even though a military commander in a command that has traditionally had GCM convening authority retains authority over Art. 83-91, 93-117, and Art. 133 offenses, he no longer has GCM convening authority.  He still has to refer it to a new “Chief of Staff for Courts-Martial” or to the President, SecDef, service Secretary, or the commander of a unified or specified combatant command if he wants a case to go any higher than a special court-martial with regard to purely military offenses.  I’m not sure that’s a good idea.  Then again, maybe that’s how it works now as a practical matter.
    Who now has authority to enter into PTAs?  Does this just shift PTA authority over to the new Chief of Staff for Courts-Martial?  How long before Congress flips out because one of these new special prosecutors enters into what’s viewed to be a unduly favorable PTA?
    This proposal largely strips from commanders the authority to maintain good order and discipline within their command, since even minor disciplinary matters must first be referred out for review so long as there is the possibility of an offense being punishable by more than a year.  Will commanders nonetheless retain responsibility and accountability even though they’ve been stripped of authority?  Will the new Chief of Staff for Courts-Martial be in any way held accountable if discipline within his area of responsibility goes to pieces? 
    Someone else mentioned this already, but who pays now?  Will these new offices get their own funding for prosecuting cases?  Or is the poor commander involved still on the hook for funding cases out of his pot of money even though he’s lost authority over the process?
    This proposal uses the word “victim” when it prohibits one of these new Chiefs of Staff from convening a court where the “accused or victim” is in his chain of command.  Loaded word.  What about “accused or complainant.”
    You can try to prohibit consideration of character and military service, but that consideration is going to happen anyway.  It’s human nature, whether the underlying characteristics are good or bad.
    Kind regards,

  14. casual reader says:

    All of these are serious considerations.  One added thought – by blurring the chains of command, those prosecutors already so prone will have no incentive to curb abuses of discretion.  They neither know nor care about the accused and the venire.

  15. AF CMJ says:

    CS –
    On the 92 issue, my read is that it stems from so many of our military ‘sexual assaults’ being prosecuted as LGR violations because they are consensual relationships arising in environments (e.g. BMT at Lackland) where prohibited. 
    After reading the proposal, my first question is whether splitting the offenses like this makes any sense? Not saying that I support authority being taken from command, but if it’s going to be, why go half way? Our system is Byzantine enough as it is in my opinion.
    Also, sound-bite comparisons are constantly made to other western militaries WRT this issue; is anyone aware of a good law review article discussing how they are set up?

  16. Contact Lawyer says:

    There is a lot of good grad course paper topics here.

  17. Christopher Mathews says:

    Cap’n C:  When I didn’t believe they were guilty, I didn’t take them to trial.  This was on occasion a source of some friction between myself and others.

  18. k fischer says:

    Seems that the Government won’t be able to add on a sex offense with a marijuana offense because the Sex Prosecutor won’t have jurisdiction to try the weed violation.  That is somewhat comforting knowing that you can put your client on the stand without having to worry about the panel hearing that he’s a pothtead.  
    So, this bifurcated system should work really well, until Brigade commander finds out his super stud is being targeted by the Sex Police because of allegations made by a woman with severe psychological issues.  All Super stud has to do is be disrespectful to Brigade commander who quickly separates him for a serious act of misconduct before sex charges can be filed.
    I’m wondering why this bill does not require the Article 32 hearing officer to be a Judge Advocate.  If line officers are so lack the legal acumen to make a just recommendation, then why waste everyone’s time wtih a recommendation that will be discarged by the O-6 or above with significant legal experience?
    Ultimately, I see Judge Advocates becoming very hated in this statutory scheme.  There is nothing worse for morale on a post then when TDS is more beloved than the TC’s.  I can see the Commander yelling at his TC, now.  “You’re wasting time and money trying my super stud sniper for some BS rape charge, but you don’t have time to trouble yourself with the heroin addict in my barracks!!”

  19. Contract Lawyer says:

    I see Art 32 as a big issue without a real CA.  We really have no “grand jury” if the CA is also the prosecutor.  There should be some somewhat independent screening process.  Despite the thing about a prosecutor worth his/her salt being able to indict a ham sandwidch, at least they must still obtain the true bill.  We may be on a course to a process where a conviction is as easily obtained.

  20. Mary Hall says:

    All this angst about changing the system over a single CA setting aside the findings in a single case . . . Perhaps I missed the memo with the numbers, but does anyone other than CAAFLog readers really have a rat’s clue how seldom this happens in sexual assault cases?