Sen. Boxer and her co-sponsors are the latest to propose UCMJ changes in the wake of swverl high profitsle sexual assault cases. McClatchy coverage here.

15 Responses to “Congress Messing Around with Art. 32, UCMJ Again”

  1. TDS says:

    “But one well-known military law expert, Eugene Fidell of Yale Law School, advised the panel that Article 32 proceedings impose “exorbitant” costs on defendants and taxpayers and need “reform,” a hearing transcript shows.” – laughable
    Except for some of the more high-profile cases of recent memory such as Sinclair, Hasan, or Bales, I can’t really think of any cases that the government spends money on if they can help it.  The ability to establish another potentially inconsistent statement (and one that is not considered hearsay) is not an exorbitant cost on the accused; it certainly may be for the government’s case.  True reform would include either the requirement that witnesses be sworn to their summaries, as in USAF proceedings, or that verbatim transcipts are produced.

    Read more here: http://www.mcclatchydc.com/2013/11/05/207582/sen-boxer-wants-to-change-how.html#storylink=cpy

  2. stewie says:

    That was ridiculous.  Exorbitant costs on defendants? Taxpayers? What?  The cost of telephone calls is about the most it costs the government and except for accused who have civilian counsel, it costs the accused nada.

  3. Gene Fidell says:

    The following is an excerpt from the opening statement I submitted to the Response Systems Panel:
    Article 32 made sense in 1920, 1948 and 1950 as a check on command’s sweeping power, but with the expanded right to counsel, the creation of a military bench that can properly control the pretrial process, introduction of the Military Rules of Evidence, and the existence of a two-tier appellate court structure to ride herd on the system, it seems to me that Article 32’s costs in time, cost to the taxpayers, and toll on complainants (including deterrent effect) are exorbitant (especially given the fact that all they produce in the end is a recommendation).

  4. stewie says:

    1. What about the cases that don’t merit appellate review? I’ve seen rape convictions without a kick or 1 year confinement.  Certainly there are abusive/wrongful sexual contacts that don’t get that punishment and end up with an accused who is a registered sex offender.
    2. What about the broken CID/NCIS system? Why would you get rid of the prime tool for both sides to in effect finish the investigation?
    3. What is the cost in time?  I’ve rarely seen an Article 32 be the sole or even prime reason why a case gets docketed later in time than it otherwise would have.  It happens certainly, but not in huge percentages.
    4. What is the cost to taxpayers? There is rarely travel involved.  There is almost never funded travel involved. 
    5. I don’t see the “toll on complainants.”  Most 32s they testify in person or telephonically.  They get a taste of what is coming at trial.  The alternative is to make the very first time they face cross-examination be at trial.  Not sure that’s a good thing for the government either…or the alleged victim.
    6. They produce much more than just a recommendation.  They allow both sides to see the strength or weaknesses in a case.  They can lead to guilty pleas or they can lead to withdrawal of charges.  They can lead to a sharper referral where weaker charges are gotten rid of.
     
    With all due respect, I don’t see how much of what you said makes sense to me.

  5. Ed says:

    Stewie you miss his point. The PC people have been insulted that in a somewhat specious sexual assault case there was extensive cross examination of a complainant. That flies in the face of the attitude that any man accused of sexual assault did it. If Susan Burke is offended the law must be changed. Now do you get it.

  6. stewie says:

    Sarcasm can be effective, but often over-used.  I assume Mr. Fidell has legit reasons for believing what he believes that don’t involve making Ms. Burke happy.  I’d like to try and understand them.  Admittedly, I struggle to see how I will.

  7. johnny says:

    @Stewie, 1)  Agree, solution:  eliminate guilty plea review and review all contested court-martials. 
    2) Disagree, depends on the experience of the investigator.  Now SA cases are handled by the most experienced agents, which at large installations includes supervision by a civilian supervisor with significant LE experience.  I have seen very good investigations under this system. 
    3) Disagree, I always request and receive delays in the Article 32 process.  On average an Article 32 adds at least 30 days in SA cases.  For one case, there was a delay of over 90 days.  At least in the Army (presumably every other Service as well) docketing a case does not occur until after referral.  So yes it does add significant time. 
    4) Agree, travel almost never happens.  Almost always telephonic if witness is not in the area.  
    5) Disagree, ask any victim whether facing their rapist at an Article 32 is a pleasant experience, you will only get one answer – no.  A good TC is going to prepare their witness for cross regardless, so the “experience” factor should not make a difference. 
    6) Disagree, in my experience the 32 never led to commanders or SJAs changing their mind.  Right or wrong, my experience on both sides has been that the decision to go forward or not is made before the 32.  In weak cases, the 32 is used by the command as a way to justify dismissal in cases where they would have dismissed anyway.   

  8. stewie says:

    Rebuttal:
    1. I don’t agree with eliminating GP Review.
    2. I’ve seen SVU chiefs as well, and my experiences differ from yours.
    3. I’ve had 32s that went without a delay.  However, the real issue is the docket.  Unless you have a local judge who has a light docket, the 32 delay doesn’t factor all that much into ultimately when it gets docketed.  Experts, civilian defense counsel, and workload for all parties factor in much more IMO.
    5. I’m sure the victim would rather not face their rapist at trial either.  A good TC is a relative term.  I’ve had great TC, but they still have 6-12 months experience and they don’t always know what they don’t know…nor can they always get outside of their own head.
    6. I’ve seen it lead to changing of minds on both sides, so again my experience differs from yours quite a bit.  I’ve seen it result in changing charges, reducing charges, and dismissing charges, and I’ve seen it result in guilty pleas as the accused realize what he is facing.

  9. Christian Deichert says:

    6.  I concur with stewie as far as past practice.  I have seen more than one case change course based on a 32, and I have changed course after a 32 both as a trial and defense counsel.  I only see the chances of this improving when the Army starts using JAs as 32 IOs for SA cases (and, if Article 32 is changed, overall).

  10. Ed says:

    Stewie I wasn’t writing about Professor Fidell. I was writing about Senator Boxer.

  11. brian lc says:

    Stewie, I’m not sure if we’re asking the right question.  If the question is whether defense attorneys are better positioned to defend a case at trial if they get to see the government’s case laid out, and cross all witnesses to see if they can develop inconsistencies, certainly that is true. (But one can imagine all manner of rule changes where one side or the other comes of better or worse.  Fewer innocent accused would be jailed if the government had to get a conviction in two separate  independent trials).
    I think Mr. Fidel’s point is that the original purpose of the 32 is currently served by subsequent changes in the system in the last 70 years (e.g. real defense counsel, lawyers, actual judges and, heck, we’ve even had rules of evidence since the 80s). 
    Since the UCMJ was passed, we have slowly moved towards having a system that is more similar to federal courts. The question that should be asked is not whether an accused is better off having a panoply of rights at a 32 (yup, he is), but whether there is something different about the military that requires rights at a 32 that have no equivalent in the civilian world. The latter question, at least, is the question our Congressional rule-makers will be asking. Where our system is different, we will need to be able to defend why it is different. If we can’t, be ready for change.
    The benefits claimed by defense counsel in defense of the current 32s would apply equally to a civilian defendant in federal court. (Civilian defendants could also, if given the chance, undermine cases with effective pretrial cross etc). The only military specific reason I can divine for giving an accused the rights of a 32, is that it (arguably) balances out other parts of the system that are weighted for the government (e,g, non-unanimous verdicts). However, claiming that there should be two thumbs on the scale instead of one, is not a compelling argument.
    On the margin the current system probably winnows out bad cases AND deters the prosecution of merit worthy cases.  There are pros and cons either way.  The yardstick we are being measured against however does not weigh in favor of the status quo.  (see also, good military character evidence).
     
     

  12. stewie says:

    That isn’t the real question…because as you know, the real question is, how can we make it easier to get convictions at sexual assault trials? (which is ironically the reverse side of the coin you suggest is not a sufficient argument for defense).
     
    It’s not an introspective examination of the utility of Article 32 hearings (which almost no one was even thinking about until Ms. Burke complained about the 32 at the Academy)…it’s about how do we make it as easy as possible for the government to get a conviction.
     
    It’s pretty easy to explain why our system is different.  In some places, those differences make it harder for a military accused, so we balance that by making it better in other places.  All of the “changes” done and proposed have been/are to one side of that equation.
     
    A civilian defendant doesn’t have to worry about 2/3 or 4/5 people convicting them of offenses that lead to being a registered sex offender or a federal felon.  They get a jury of their peers, not hand-picked folks by the same guy or gal bringing them to trial.  They get appeals in almost all cases not only when the sentence is long enough.  The folks bringing charges against them have been doing the job for more than six months (and so have the folks defending them).  They can just plead guilty, instead of having to go through the onerous providency process which is inherently antithetical in part to later mitigation/extenuation.
     
    Yes, there are also some benefits.  An expanded right to remain silent, free counsel that isn’t overburdened perhaps as much as a public defender, and yes something more than a PC hearing in the Article 32 hearing.  The fact that we still have quite a few really bad cases make it to trial suggests to me that the need for the Article 32 hearing is fairly strong.  Removing it is not going to improve the cases that go to trial.
     
    Yes, two thumbs on the scale instead of one absolutely is a compelling argument, because the alternative is one thumb on the scale…which is what is being proposed more and more now.  Weighting down both sides of a scale leads to something that rhymes with balance…weighing down just one side leads to the opposite…we tend to believe in the former over the latter, so your thumb analogy is perplexing to me.
     
    The current system does winnow out bad cases, it refines other cases to make them better, and it gets accused to come to Jesus (or insert Diety here) and plead when they should. 
     
    Of course, the reality is, there is no defense so long as the frenzy is in full-effect.  Article 32s, commander control over the process, and changes to be named later are all going to be on tap regardless of what we say or do here.  That doesn’t make it right, but it does recognize civilians make the final call in our system.

  13. charlie gittins says:

    So, for those Kool-aide drinkers who think that changing the rules about the Article 32 are beneficial, I ask you to do the following.  Read every change to the Manual since 1970 and tell me which one had any benefit to the defense.  My review of every change to the Manual in that period suggests that each and every one was made to benefit the Government as a result of a use of the Rules by some random defense counsel in a case that meant something to Big G that caused the Government heartburn or ended them up losing the case.  Rule change followed.

  14. Dwight Sullivan says:

    Charlie, here’s one of the top of my head:  the 1986 MCM change that required unanimity on findings for a capital case to proceed to sentencing as death eligible.  That rule change has had the effect of sparing several accused from capital sentencing proceedings.  I don’t see a benefit to the government from that rule change; rather, it seems to be an example of a reasonable change that would solely benefit the accused.  I’m sure we could come up with other examples if we flipped through the historic executive orders on the JSC’s website, but that one sprang immediately to mind.

  15. phil cave says:

    I think the regularization of Suzuki credit is somewhat helpful to the defense.  I refer to it by name partly because it’s familiar as being an “old” rule, to some of us.