Here is NIMJ’s own, Gene Fidell, with an op-ed on the Art. 32 proceedings for three former USNA football players accued os sexual assault:

The latest high-profile military justice case to come out of the United States Naval Academy in Annapolis merits nationwide attention. In a nutshell, it involves allegations of sexual assault of a female midshipman by several members of the Academy football team. Liquor seems to have played a pivotal role. . . .

The preliminary investigation recently conducted at the Washington Navy Yard pursuant to Article 32 of the Uniform Code of Military Justice (UCMJ) has been a terrible spectacle in itself. . . . [T]here is . . . an obligation on the part of the presiding officer to impose reasonable limits. That does not seem to have happened here. . . .

It would also be hard to find a clearer case of a conflict of interest than having the superintendent of the Naval Academy — an institution of higher learning that has long prided itself on its football prowess — decide whether criminal charges should be brought against members of the football team. . . .

20 Responses to “Gene Fidell’s Op-Ed on the USNA Sexual Assault Case”

  1. Charlie Gittins says:

    My, the view from the Ivory Tower must indeed be grand.  Do away with the Article 32 hearing?  Really?  That is about the only thing that prevents numerous miscarraiges of justice in weak cases annually in the military.  Not permitting the defense the opportunity to shred a weak and unconvincing case at the 32 stage means there will be more trials — cases where an innocent may be convicted because of the politics of issues such as sexual assault and the well practiced brain washing of members at “sexual assault prevention training” created by those with a political agenda as is ongoing presently    Subjecting an accused to a trial where the evidence is weak and unconvincing is not justice.  Doing away with the Article 32 is not something one would expect to see suggested by someone with actual military justice experience.  Shame on Professor Fidell. 
    One other thing . . . . I suspect that the Military Judge presiding over this hearing permitted relevant questioning based on facts and the law, even though particular questions may not have been PC.  I believe the MJ must have understood the relevance and materiality, or he would not have permitted the questions.  Just because they may have been embarrassing or explicit does not mean they were not relevant to the issues before the hearing officer or not subject to the “broad discovery permitted under the UCMJ.”  DOing awayt with the “bulwark against baseless charges” is a recipe for injustice.

  2. Advocaat says:

    I disagree with Mr. Fidell’s commentary.  Art 32 investigations are the only mechanism left that have some semblance of exposing the “truth” behind questionable sexual assault allegations in an environment poisoned by UCI at every level.  Maybe things are different at Yale but last I heard, even student athletes are presumed innocent…or are they?  I do not think Mr. Fidell intended anything improper with his comment about USNA athletes having “a real penchant for getting into trouble,” but I have tremendous concerns that all 3 accused midshipmen are African-American in a system that lacks racial diversity in most panels, SJAs, TC, military judges, commanders, and convening authorities.  Juxtapose that with the disparity of UCMJ rates per thousand by race and you have, in my opinion, a problem of much greater concern than DoD’s self-inflicted sexual assault “crisis.” 

  3. stewie says:

    An Article 32 can be quite useful to the GOVERNMENT in determining the merits of a case and whether or not to go forward, as it can be to the defense in discovery.  In fact, one clear use of an Article 32 is to offensively show the government that it has a crap case on its hands that should be squashed.
    There are merits to both sides in continuing the Article 32 process.  Civilian alleged victims don’t have to show up and can’t be forced to.  Military alleged victims may be able to be forced to show up and maybe this particular Article 32 hearing had issues (don’t know, wasn’t there) but that doesn’t mean all should be gotten rid of.
    When I was on the government side, I thought there was real value in Art 32s for the government much of the time, either in seeing weaknesses, or in prepping the alleged victim.
    I mean does the Article 32 really doom the alleged victim? They’ve already made at least one statement to investigators, probably made several others (friends, original outcry) so there is plenty of room for impeachment.  The alternative may be to limit impeachment, but it also means the first time that alleged victim gets crossed is on the stand at trial, and not sure that’s a formula for any greater success.  Regardless, Given the issues with CID, and the inability/time for TC to fully investigate, not having an Article 32 means cases will go to trial without either side fully understanding what they do and do not have.

  4. Bill Cassara says:

    Gene is much smarter than I am, but I strongly disagree with this column.  If Congress wants to do away with Article 32, then they should also do away with Article 25, and the requirement that panel members be senior in rank to the accused.  But they won’t.  The 32 is one of the few ways in that the MJ system is superior to its counterparts, and it is with good reason.  It is the last bastion against a commander or TC bringing baseless charges against an accused.  Most government reps I know love the 32 because it separates the wheat from the chaff in weak cases.   Even though the recommendation is just that, it gives the government a way to dump crappy cases, and gives the defense (and the alleged victim) a dry run at trial.  

  5. Matt James says:

    I think any change to the military justice system to make it more like a civilian system should give people pause. Having been on both the military/civilian side of the justice equation, the military court system is far superior in form. There is no slap-dash rush to justice that often plagues overburdened civilian systems. 
    An Article 32 works for everyone: the Defense finds out about the case, the Commander gets the information he or she needs before going forward, and the Government can firm up their charges. I wonder if Mr. Fidell would be surprised to learn that commanders often initiate independent investigations to flesh out non-UCMJ actions. It is a basic principle that better information leads to better decisions, and I don’t  agree with Mr. Fidell that subjecting a complaining witness (who may or may not be lying) to cross-examination is worse than making a bad charging decision. 
    Of course, agreeing with the military won’t get you an article in the Baltimore Sun. 

  6. ExTc says:

    I note that Mr. Fidell, whom I have met and respect, does not put forth an alternative. Probable cause hearings in federal court are before a mag judge and the defense is present and can present evidence. It’s done a lot by proffer, but it’s still done. Otherwise the feds use the indictment process. So if we don’t indict, and Mr. Fidell says we should have something akin to the feds, what about a hearing before a mag type judge where the defense is there and can present evidence? Sounds like a 32.  I am well aware that no mag court hearing on probable cause is akin to a 32, having done both, but the concept is similar. What does Mr. Fidell suggest? The gov’t appear before a mag alone and present evidence without the defense there. Is that best practices? Is that keeping with justice, Article 46 or just notions of fair play. I’m not sure. If you’re going to knock the system, at least knock it constructively.

  7. Grey says:

    The three midshipmen are cumulatively facing something like 87 years in the brig; the extra time and discomfort of the alleged victim might be an acceptable trade-off for increasing our assurance that she is an actual victim.  20 hours of testimony does seem extreme (and I didn’t have a seat in the gallery), but there are three defense teams at work which naturally adds time into the process.  From the press coverage there certainly seems to be a lot of ground to cover.  Her prior statements to investigators and third parties cast doubt on lack of consent:
    Per the next article, the alleged victim is so uncertain as to what happened she came forward out of concern that others could be wrongfully accused and “she would be happy if it turned out she was not assaulted.”
    Combing both of the above it seems she told a friend that she had consensual sexual contact with one of the accused at the outset of the party and she testified to having consensual sex with a fourth, uncharged, football player the next morning. The defense teams are clearly driving toward a theory that the alleged victim set out that evening to have as many sexual encounters as possible, that this was made known to the accused, and therefore the finder of fact can’t say beyond a reasonable doubt that the accused did not reasonably believe they had her consent.  One of the accused (Bush) is said to have had a former consensual relationship with the alleged victim in the past, so the ways in which she expressed consent in the past, while no doubt very awkward to discuss in a hearing, are certainly relevant to Bush’s perception about consent on the night in question.  Not all of this evidence will prove relevant, but a hearing like the Art. 32, where the rules of evidence do not apply, greatly facilitates the discovery process and allows both sides to find admissible evidence they would otherwise miss if the only had one opportunity to examine the witness under the limitations of the rules of evidence.  
    Professor Fidel recommends substituting the Article 32 for “a bare bones preliminary hearing along the lines of those conducted in the federal district courts.”   “Bare bones” sounds more like an indictment than a recommendation of the federal courts.    Military courts on average process their cases much faster, and a good portion of the defense prep time is spent litigating discovery motions since they do not possess subpoena power or internal investigators.  If the military wants to have rapid fire courts, it is a good idea that it continues to allocate the resources that an Article 32 requires.

  8. slyjackalope says:

    “The accuser was subjected to hour after hour of cross-examination by lawyers for the accuseds. The questioning was at times plainly abusive, delving into such matters as preferred techniques for oral sex.”
    Defense counsel complaining about the view from the “Ivory Tower” should stop being holier than thou and admit what the defense really gets out of 32s in sex assault cases; an opportunity to beat up on the victim.  RCM 405(i) explicitly states that MRE 412 applies to 32s.  The number of times I’ve seen defense counsel actually follow this and not delve into areas of the victim’s sexual history and any other irrelevant area of the victim’s private life = ZERO.  My guess is this is why SecDef is now regarding judge advocates to be the 32 IOs in all sex assault cases (so that the IO actually knows what MRE 412 is).

  9. Some Army Guy says:

    The Article 32 IO in this case was/is a USN Judge, so I’m confident that he actually knows what MRE 412 is.

  10. stewie says:

    I may not know much, I’m sure I don’t, I’m just a caveman lawyer, but I do know that neither side of the aisle has a monopoly on holier than thou attitudes.  Government counsel often exclude legit evidence under 412 at an Article 32 hearing by also relying on an IO not understanding 412 very well.  It cuts both ways.

  11. MLW says:

    Well, I think we can all agree that the presence of a SVC would have made it a lot more likely that the victims view on MRE 412 would have been represented. 

  12. Babu says:

    “The accuser was subjected to hour after hour of cross-examination by lawyers for the accuseds. The questioning was at times plainly abusive, delving into such matters as preferred techniques for oral sex.”
    Without drawing a conclusion as to Mr. Fidell’s ultimate policy suggestions, I found his criticism of the IO to be unbecoming. Unless Mr. Fidell was actually present at the 32 (and I am certain he would have mentioned it in his article if he was), then he has no legitimate standing to say that questioning allowed by the IO was “plainly abusive,” as he has no frame of reference with which to second-guess the IO. 
    While a non-lawyer can be forgiven for having a knee-jerk response after reading a news article, and for believing that tough cross questions are “abusive,” Mr. Fidell is certainly not a layman.  He is surely aware that there are a gamut of questions that are relevant and necessary during a cross, depending on what was said on direct, and the facts of the case.  What is troubling is that I don’t think Mr. Fidell suddenly forgot about that, but I think that he instead chose to deliberately pander on this point as some form of advocacy for a policy agenda.  
    Now, if he was in fact present at the 32, then I will stand corrected.

  13. Matt says:

    Sure, let’s get rid of the Article 32.  In addition, let’s make some other changes.  Let’s have SVPs stop playing discovery games, as they are now being trained to do.  Let’s have a grand jury for every case, remove the power of the CG to refer charges, and give the accused a jury of his or her peers.  How about we also do away with the fact that four people can convict somebody in the military?  Yes the military justice system is vastly improved from the 1920’s, but it still lacks a lot of protections found in the civilian world.  We shouldn’t be rushing to change it just because Washington is concerned we aren’t getting enough conviction.

  14. Vic Ferrari says:

    I could not disagree more with the conclusion Mr Fidel draws from the outcome of the USNA Art 32 hearing.  Do away with Art 32 hearings completely?  Why stop there, Mr Fidel?  If the procedures of Art 32s (you know, allowing the defense to cross-examine witnesses, be informed of the charges they’re facing, etc.) “fail to reflect the sea change in military justice that today takes increased account of the interests of crime victims,” why not strip the defense of the right to cross examine?  Why not just keep the identity of the accuser hid?  Perhaps the defense should be removed from the court-room during the court-martial itself so as not to upset the crime victim.  Perhaps the victim might simply respond to written interrogatories from the prosecutors and submit that as evidence. 
    Or maybe we’ll just stick to Constitutional principles.  Crawford v Washington comes to mind:  The Confrontation Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”  If a claim by a witness can’t hold up to testing in the crucible of cross examination, it doesn’t merit consideration. 
    The court-martial process is not intended to be a therapeutic, restorative process for victims of crime.  It is a crucible in which to measure truth claims.  Certainly the participants in a court-martial should not engage in degrading or demeaning treatment of anyone, but when the subject of a court-martial includes sexual conduct, the questioning is going to be unavoidably uncomfortable. 

  15. Ed says:

    Vic Ferrari

  16. Ama Goste says:

    I was sworn into SCOTUS the day Crawford v. Washington was announced.  Rehnquist announced it because Scalia wasn’t on the bench that morning.  Little did we know how drastically that decision would change the way we prosecute cases now.
    While we’re critiquing, I think it’s important to note that deeming individuals “victims” before defendants are convicted gives a prejudged status to someone who should be more appropriately labeled as the “complainant” until the sentencing case.
    For the record, I’ve spent twice as much time as a prosecutor than as a defense counsel.  I don’t think anyone who knows me considers me a defense hack.  I found a lot of value in Article 32 hearings on both sides of the fence.

  17. Frank Rosenblatt says:

    Two points cry out for mention in this thread.  First, the Constitutional confrontation requirement is not for Grand Jurys or indictments.  Second, the Fifth Amendment excepts military trials from the Grand Jury prerequisite. 
    By any measure, the military’s version of Grand Jury, UCMJ Article 32, exceeds Constitutional requirements.  Professor Fidell raises important concerns about why now is the time for a fresh look.

  18. stewie says:

    No, he doesn’t. He raises concerns about a single article 32 hearing.  I am not sure that our goal should be “we just barely met constitutional requirements.”  So saying that Article 32’s exceed them isn’t particularly persuasive.  Also, there are reasons why we purposefully exceed the Constitution in some areas because of concerns of rights lost or restricted in other areas.
    Tell you what, go to a jury, and otherwise make it look like a civilian trial, and we can talk about the 32 perhaps no longer being needed.  Until then, the idea that an alleged victim should be able to get all the way to trial without once having been questioned by the defense (which is effectively what would happen if we got rid of an article 32 unless MJs started to liberally grant requests for depositions) is based on nothing but paternalism.

  19. Pete says:

    Interesting that yesterday CAAF nominee Kevin Ohlson, in his answers to SASC advance confirmation hearing questions, cited the Art 32 as 1 of 5 “major strengths” of the military justice system.  He said “the accused’s right to be present at, and to participate in, the Article 32 proceeding far exceeds any rights that a similarly-situated defendant would have in the civilian justice system.”
    The full statement is at: 

  20. Mike says:

    One of the criticisms that fuels calls for military justice reform is that the process is not at all victim-centric.  I see that theme in many of the posts above. Why are counsel so eager, even at this preliminary stage of the trial, to rip into the victim?  The purpose of the preliminary hearing, whether article 32, or grand jury, or some other form of probable cause hearing, is to determine just that, whether probable cause (or reasonable grounds) exist.  That fact that there is not more outrage in the military community over the treatment of this woman at the 32 only perpetuates the belief that the rights of the victim are somehow tertiary to the military mission and the defendant’s right to confront.  That is the myth that the military should be vigorously combating.  As Frank points out, the military is exempt from the indictment process, but the military should consider implementing some kind of grand jury-like proceeding in special victim cases.  In most jurisdictions, cases like this one go to grand jury explicitly for the purpose of protecting the victim.  Trial will come.  Opportunities to rip into the “complaining witness” will surely present themselves – but it is unnecessary at the preliminary hearing stage.  The article 32 is part of the genius of the MJ system.  There certainly is no need to dismantle it altogether. But, this type of re-victimization at the PC stage of the process is a flaw which should be addressed.