We’ve seen a fair amount of flak thrown Sen. McCaskill’s way for her position on sexual asault in the military.  But, I have to say that her comments this AM on MSNBC’s Morning Joe, here (starting at 3:30 mark), were quite well informed.  Whether you agree with them or not, it is hard to argue that she hasn’t educated herself on the issues and facts.  She puts the 26,000 figure in context (during which time MSNBC puts up a graphic that mis-characterizes the 26,000 figure) and makes the case that removing the chain of command from the UCMJ process doesn’t address the real problem.  I’ve heard those two sentiments somewhere before, here and here to link a few? H/t KF

21 Responses to “Sen. McCaskill’s Latest Well Informed Comments on Sexual Assault”

  1. k fischer says:

    I was rather impressed by what she said at around 6:50 where she said that Commanders have more frequently sent cases forward against the JAG’s advice than Commanders not sending cases forward when their JAGs advise referral.  I’ve seen that with some Commanders who believe that a court-martial is not always a place where Commanders send Soldiers to be convicted.  Sometimes they refer cases, so their Soldier can be acquitted and cleared.  (That’s a good contra-UCI theme on those cases that are unpopular for the Government).  I have rarely, if ever seen where a GCMCA disregards the SJA’s advice to refer a case.
    And, I happen to agree with this statement:
    “What we’ve done is create a crime of retaliation and I firmly believe–and this is an honest disagreement of what is stronger for victims–I believe there is less chance of a victim being retaliated against when the commander remains in the process in the beginning.  If the commander is not in the process in the beginning, that woman goes back into the unit where the only one who signed off on her case going forward is a bunch of outside lawyers that nobody knows.”

  2. Bridget Wilson says:

    But, I bet we have all seen GCMCA send cases forward when the SJA recommends against it.

  3. RKincaid3 says:

    Is it just me or is the fact that the services don’t bother to prepare substantial records for CMs that result in acquittals the primary reason no one can counter the politician’s statistical increase in sex assaults with facts about how badly they have screwed up charging practices under the new and oft-amended Art 120?  Of course the stats go up when every kind of human conduct can arguably be charged under the broad definitions of the statute.
    Each Art 120 allegation generates a statistical number in a Congressional report showing an ever-growing number of reported sex assaults that DOES NOT necessarily correlate with a conviction. Why is this important? Because when a factually idiotic allegation under the ever-expanding panoply of Art 120 offenses surfaces and the convening authority lacks the political courage to NOT prosecute it, and/or the SJA/trial counsel each lack the courage to invoke their ethical obligation to refuse to prosecute a court-martial that they cannot pursue in good faith on idiotic facts, the services are left with ever growing “incidents” of sexual assault reports.  And in the cases where acquittals result from the idiotic allegations, where no record is prepared, there is no way to review and analyze after-the-fact whether the offense was well-founded in the first place.  In short, the current system allows the services to be beat up politically and publically for being incapable of stemming the ever-growing tide of sex assaults under the new Art 120 definition, yet the services do not have ready access to the data to demonstrate which of those allegations should never have been brought, much less prosecuted, in the first place. It is a death spiral towards how to look bad and be completely defenseless in responding to questions about why the services look bad, statistically.
    The sheer volume of amendments to Art 120 since abandoning the three element common-law offense in 2007 evinces a partial recognition after-the-fact that the new version was largely unworkable but also evinces a blindness to the fact that each iteration makes its absurdity worse, not better. Obviously, the reasons that Art 120 is and will be a mess until it is finally abandoned in favor of the traditional, common-law Art 120, pre-2007 is the collective failure of all the experts involved in advising Congress to properly advise; Congress’ willingness to jump on political bandwagons for PR reasons and legislate without thinking things through; and the failure of all the services respective JAG experts to point out the systemic failures (such as the statistical death spiral described above) and speak truth to power or by recommending to Congress or taking their own internal remedial actions.
    While well-intended, the ever-ballooning Art 120 ignores the simple axiomatic truth about legislation: there is and can be no one-size fits-all criminal statute. Art 120 has become a behemoth designed to criminalize a narrow range of human conduct, but it is so poorly drafted in its attempt to be an all-inclusively comprehensive criminal statute that it in fact criminalizes a wide range of ordinary human conduct–declaring such a sexual offense; while minimizing conduct that under the common-law was “plane” rape as mere “sexual assault,” and bringing some instances of hazing (most of which clearly have nothing to do with sex) within the purview of Art 120.  How absurd is that? 

  4. David Bargatze says:

    One should not force a member to endure a public accusation of sexual assault, the expense of his defense (if a civilian attorney is retained), and the stress of trial with the expectation the member can be acquitted and “cleared.” First, a finding of not guilty doesn’t mean the accused didn’t do it. Second, what happens when the panel convicts him despite the belief of the convening authority that he’s not guilty? I think we’ve seen that movie before.
    Forcing such steep costs on an accused with the justification that this is somehow for the accused’s benefit doesn’t seem like a reasonable answer.

  5. Zachary D Spilman says:

    Ah yes. The old “we’re going to try you for a crime we don’t think you committed” trick. Certain to be followed by the “this isn’t prison, it’s a chance to relax” routine. All while insisting that “we only have your best interests in mind.”

  6. stewie says:

    In my experience, both directly and indirectly, I’ve rarely if ever thought that TC/SJA’s sent forward cases that they didn’t believe the alleged victim was telling the truth which to me is enough to “pursue on good faith.”  If I have a he said/she said drunken alleged sexual assault, the odds are probably against me in nearly every case of getting a conviction.  Does that mean I never prosecute those cases?  Because there’s a good chance of an acquittal? Do I only take forward the cases I’m sure I will get a conviction on?
    I don’t think so.  So, respectfully, it’s a bit unfair to casually toss out the e-word towards folks on the government side as if it’s a common thing.  I know of very few JAs who take a case forward to trial believing that the accused is innocent or that the case is ridiculous because of a lack of ethics or fear.
    Now, I’m sure some get blinded by inexperience, or sympathy/gullibility towards the alleged victim, but that’s a different thing.
    Not sure what we would learn from acquittals that we don’t already know.  It’s not as if every acquittal is because of a facially idiotic allegation.  More likely, it’s because the BRD standard makes it really hard for panels to convict solely based on the allegation of an alleged victim, even one who seems credible and whose claim is reasonable and possible or even probable.
    And that’s ok, we choose that standard for a very good reason.

  7. Contract Lawyer says:

    I have had my share of McCaskill issues on the contract law side of things to include Arlington Cemetery and Afghanistan’s SIGAR.  In those cases, she was always well prepared, but she pressed her agenda and when a witness deviated from her agenda, she went after them with  questions to demean them.  An example is the superintendent of Arlington Cemetery, he came in and testified and answered all questions without taking the fifth.  This is after he resigned .  His deputy came in and took the fifth and did not testify.  In the SIGAR case, Major General (Ret.) Arnold Fields was ripped open by McCaskill and resigned soon after.  He awarded a “no bid” contract against the advice of the contract attorney:   http://www.washingtonpost.com/wp-dyn/content/article/2010/11/18/AR2010111807404.html  and http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&cad=rja&ved=0CCsQFjAA&url=http%3A%2F%2Fwww.mccaskill.senate.gov%2Ffiles%2Fdocuments%2Fpdf%2F2010-11-17MemoforMembersandStaffFINAL.doc&ei=YALEUZPnBcaRswazooGQDA&usg=AFQjCNF1iH6E8aDOynEMBXNzPxphPwgovA&sig2=SXpoHyunVsM1bScV_KoCdQ&bvm=bv.48293060,d.Yms

  8. Contract Lawyer says:

     My point on McCaskill is that she is always well prepared and her staff goes after the right information to prepare her.  The problem is that they use the information and shape an agenda that they stick to and if the answers to the questions are different, then McCaskill uses her position to ask questions or make statements without allowing the witness to properly defend.  For example, the superintendent said he did not have enough funds to do all the things they fault him for not doing.  She asked if he had requested funds.  He said he had.  She said did you really fight hard for the funds?  And when he said he did, she faults him for not fighting hard enough and where he makes good points, she says he lacks credibility because there is no contemporaneous documentation to verify his statements and that he is not believable.  I actually found the witness quite credible.  In the Fields case, they all deserved to be fired over the Joseph Schmitz contract that is cited in the Senate link I provide above, though the evidence they presented to the Senate made it seem not as bad as it was.  I felt bad for the SIGAR IG because he was being guided by others who were not doing their jobs and his organization was not properly resourced and staffed.  They were essentially given authorizations/TDAs for an organization and then told to use CPAC to go hire people.  This did not work out too well for SIGAR as CPAC was slow to hire personnel and SIGAR was being measured against metrics that assumed the full up staff that it was authorized.  We all have to perform our missions even when we have vacancies and in the face of hiring freezes and inefficiencies with CPAC, but SIGAR was a new organization flying in the wind but were measured as if they were fully staffed and running full speed.  The point here is that McCaskill is smart and can be swayed with facts, but that part of the process is when information is being provided to her staff and not during the hearings.  Once the agenda is set, past hearings show she will stick to the agenda and attempt to knock around any unsympathetic witness that attempts to show facts different from her agenda, even if those facts are true.  She is more respectful of senior officials who do not in some sort of row or trouble. 

  9. K Fischer says:

    I wasn’t condoning the practice of referring a he said/she said case that cannot be disproved, in hopes that the accused gets acquitted.  I’m just saying that it happens and there are Commanders who think that way.  And, I would posit that it happens with a much greater frequency lately with all the attention that military sexual assault is getting.  Read Lt Gen Franklin’s memo again and consider whether that happened in the Wilkerson case.  Similar to what Stewie asked, does reasonable grounds mean that the Government tries only those cases it thinks it can win?  Some SJA’s have that view.  Others don’t.  I heard more than once during my Judge Advocate years, “If you haven’t been on the receiving end of an acquittal or two as a TC, then you just aren’t trying enough cases.”  
    If the SJA believed that no reasonable grounds existed for the case to be referred and the GCMCA told the SJA that he was referring the case because he was being looked at for another star, then I would hope that the TC and SJA would have the intestinal fortitude to withdraw from the case.
    And maybe “impressed” was not the best word.  Perhaps, surprised would have been better, or impressed by her admission that does not fit her apparent previous agenda of taking prosecutorial authority away from Commanders.  The fact that convening authorities refer cases when the SJA advises against it more frequently than dismissing cases against the SJA’s advice does not support that Commanders are light on sexual assault and giving these cases to the lawyers would result in more cases seeing the courtroom.  

  10. Zachary D Spilman says:

    I like to refer to the United States Attorneys’ Manual in conversations like this. Specifically:

    9-27.220: Grounds for Commencing or Declining Prosecution

    The attorney for the government should commence or recommend Federal prosecution if he/she believes that the person’s conduct constitutes a Federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless, in his/her judgment, prosecution should be declined because:

    No substantial Federal interest would be served by prosecution;

    The person is subject to effective prosecution in another jurisdiction; or

    There exists an adequate non-criminal alternative to prosecution.


    9-27.300: Selecting Charges—Charging Most Serious Offenses

    Except as provided in USAM 9-27.330, (precharge plea agreements), once the decision to prosecute has been made, the attorney for the government should charge, or should recommend that the grand jury charge, the most serious offense that is consistent with the nature of the defendant’s conduct, and that is likely to result in a sustainable conviction. If mandatory minimum sentences are also involved, their effect must be considered, keeping in mind the fact that a mandatory minimum is statutory and generally overrules a guideline. The “most serious” offense is generally that which yields the highest range under the sentencing guidelines.

    (emphasis added)

  11. paleo says:

    I wonder what the USAM says about bypassing court-martial protections and “prosecuting” the article / conduct in administrative hearings. 

  12. stewie says:

    “probably be sufficient.”
    I am not really sure what that means.  Is it a preponderance standard or probable cause standard or some hybrid in between?

  13. Christopher Mathews says:

    @ Phil –  I think the underlying domestic violence charge, and the probation violation, could easily justify significant jail time.  Johnson was in the process of getting a very well-negotiated deal approved by the court when he did something remarkably dumb by leading the judge to think he wasn’t taking the proceedings seriously. 
    “Stupid on station” is apparently a crime outside the military as well as in.

  14. Phil Cave says:

    Chris I read it for his twice putting his unwanted arm around the prosecutor and then slapping his own female lawyers backside in the courtroom.
    That would be a 120?
    Would that warrant a 2 year minimum for sexual assault if tried in the military.

  15. Christopher Mathews says:

    @ Phil –  Johnson was in court on a probation violation, said probation having been imposed following a domestic violence incident in which he head-butted his wife and left her bleeding.  His lawyer, Adam Swickle, negotated a deal to extend the probation three months with no jail time, but the judge rejected the deal after seeing Johnson’s behavior in court.

  16. Phil Cave says:

    Right, but she gave him 30 days for his rather improper behavior.

  17. Christopher Mathews says:

    @ Phil – Not as I understand it.  The judge declined to exercise her authority to approve a no-jail deal and sentenced him to 30 days for the probation violation.  It amounts to the same thing in one sense — act like an idiot, go to jail — but the legal basis for the sentence was the underlying offense, not the dumb behavior. 
    “Never annoy a person with a robe, a gavel, and unfettered discretion not to cut you any slack” may not be the only policy, but it’s a pretty good one.

  18. Bridget Wilson says:

    American footballer, Phil. No where near as crazy as Suarez.

  19. Ed says:

    Bridget Wilson
    Do nothing to demean Senor Suarez. Liverppol Football is far more important than anythng on this blog.

  20. Phil Cave says:

    Man. U. Ed, with Barca as a backup yes.