This video is hard to watch compared to last week’s comments on Morning Joe from Sen. McCaskill.  “Joe”‘s questions are at best mis-informed and Sen. Gillibrand’s responses are about the same. H/t KF

7 Responses to “Sen. Gillibrand Response to Sen. McCaskill”

  1. k fischer says:

    @2:55 Mike Barnacle discusses competence and laments how each branch of service does not have sex crimes unit.  If I were one of the Army’s 33 SVPs, then I would probably be thinking, “Thanks a lot, Mike Barnacle.”  If I were a civilian who didn’t know jack squat about the Army JAG Corps and watched this interview, then I would probably be thinking that Army Trial Counsel are a bunch of untrained ninnies who don’t know how to prosecute a crime as complex as rape.
     
    And does anyone else agree with me that if Sen. Gillibrand got her way and we had independent JAGs taking these cases to trial that they would be treated with the utmost distrust, kind of like CID, NCIS, or AFOSI?  I think we would see a lot more acquittals, as the TCs would lose the inherent understanding with the panel members of “I’m your trial counsel, you can trust me that I or the Commander I advise wouldn’t waste your time with some BS.”  I think that the perception would be that JAGs are out to get everybody, particularly listening to Gillibrands statements that more reporting=more trials=more people going to jail, so we can change the rape culture in the military.  I saw it at Benning during ’05 to ’07 when the Justice shop bragged how they were the busiest jurisdiction in the Army.  They lost the trust of the panel.  
     
    Then again, I could be wrong and having JAGs be independent prosecutors would be a good thing.

  2. David Bargatze says:

    kf,
     
    If we can’t expect a panel selected under Article 25 to adjudge a case fairly (for both the government and defense) simply because the prosecutorial function is independent, then the system is broken.  The government shouldn’t rely on trust rather than facts to get convictions.  The panel ought to trust both the trial and defense counsel to do their job, no matter who convenes the court.  Of course, I will concede your point that if either side starts acting inappropriately, that might not foster a ton of goodwill toward the counsel or the client.
     
    I think that’s the real issue you identified: regardless of who’s in charge, a panel not only doesn’t trust, but may actively resent, a government seeking convictions (or at least cover) rather than justice.  That is not a universally unreasonable fear in the current climate, even with commanders convening courts.  Military justice practitioners ought to do their utmost to ensure it is groundless.

  3. eminem says:

    “The Line of Command” on the graphic makes the depth of their military expertise pretty clear.

  4. k fischer says:

    DB, 
     
    I don’t think the system is broken.  It’s not perfect, but it is by no means broken.  In fact, it seems to me that we are kind of living in some sort of bizarro environment right now where defense attorneys are saying don’t change the command driven system that some in the past sometimes blame as being command driven, UCI, hand selected panel members, trial counsel who advise panel members, etc.  These issues flare up now and then, just like a Commander who dismisses charges against an officer after a conviction for sexual assault.
     
    I think there is an inherent trust that panel members, partcularly Commanders who are panel members, have in their trial counsel if the relationship is good.  I’m not saying that it is discussed in the panel rooms and I’m not saying that every Commander who is a panel member has it.  But, the one question that panels potentially have in the back of their mind that I have learned to address subtely if I can in every case, no matter if it is a sexual assault, a drug case, government theft, etc., is “Why am I sitting here. Why did the old man send this case to a court martial if this guy is not guilty?”  When you hear panel members ask questions like, “What did the 32 officer recommend? Did the accused turn down an Article 15?, etc.” then I translate that into, “Why am I here?” 
     
    I would be interested in knowing whether Senator Gillibrand has interviewed any former SVP’s.  (I’m assuming that she did not because she did not confront Mike Barnacle with that fact during her inteview)  What do they think?  Is the Army SVP program improving the system?  Have SVP’s felt the chill from the Command when they brought a contraversial sexual assault case?  How much heat have they taken from a command because they pushed for charges against a member of the unit?
     
    I’ve had the CoC who put their Soldier in PTC let him out much to the SVP’s chagrin because the SVP told them that he would be allowed to wear his uniform in the civilian jail and he would be separated from people who have been convicted of a crime, neither of which was true. I met with the CoC personally and the BC let him out.  I don’t thnk that unit had a very positive opinion of the SVP after that.

  5. David Bargatze says:

    kf,
     
    JAGs who give bad advice lose the trust of others regardless of whether they have prosecutorial discretion or not.
     
    If your position is that shifting that discretion from commanders to JAGs means panel members will no longer have a subtle predisposition in favor of the government, then perhaps some change is due. I may be misreading your position, as I don’t see who controls the process as being relevant to your examples. Your SVP example is one of bad advice to a commander, resulting in loss of trust. If a JAG were controlling the case, there would have been the same loss of trust due to the SVP’s erroneous belief. In the same vein, if a civilian perceived a local DA to be a jerk who was after the little guy, maybe they wouldn’t have warm, fuzzy feelings for state’s counsel at trial.
     
    An appeal to trust based on trial counsel’s relationship with the convening authority puts a subtle thumb on the scale of justice. I don’t think that’s what we want, but I also don’t think that’s what we’ve got. YMMV, of course.
     

  6. Phil Cave says:

    KF,
    I have successfully challenged senior members off Army panels where the TC in the case is their JAG (they being the CO/XO of the unit getting day to day legal advice and trusting it).  That was based on the point raised here, that they have trust in the JA who is advising them, and there is a subtle influence on the decision making.

  7. k fischer says:

    In a command driven system, when the JAG acts badly on a particular case, only the unit knows about it, and those in the unit who are on the panel and who have knowledge of the case will be kicked.  It takes a while for word to get out about the JAG’s actions because it is perceived that the case is coming from the Command.  At first, Commanders love an aggressive JAG, until the SJA gets one of the Commander’s super studs in his sights and the CG, who typically has reserved the right to act on all officer misconduct, does what the SJA tells him to do.  Then, word gets around and you might have a command revolt. 
     
    In a JAG driven system, one bad case wiill ruin a panel for subsequent cases.  I’ve actually heard from the Government after an acquittal, “Time to get a new panel.  This one is ruined.”  If everyone knows that it is a lawyer driven system, then I believe in a couple of years,  Trial Counsel will not have the inherent trust they once had because the attorneys will have their marching orders, “Try more cases.” Commanders might start giving TDS lawyers commander’s coins and stop referrting to T.D.S. as “The Dark Side.”  Right now, the TC’s have Command cover.  That’s why I would like to see how SVP’s are treated when they take contraversial cases to trial.  Perhaps, their only friend is CID.
     
    Phil, I remember one panel president unapolgetically told a TDS counsel, “Of course, I trust my trial counsel more than I trust you.  I deal with him every day, so I’m going to trust what he says.  I don’t know you at all.”  His challenge for cause was quickly granted.