On 28 October, Rep. Michael Turner (R-OH10) introduced a bill to amend Article 32, UCMJ. Among some of the major changes, the bill gets rid of the troublesome “reasonable grounds” non-burden of proof in favor of a probable cause requirement, mandates that the investigating officer be a judge advocate except in “exceptional cases,” defines the accused’s pre-investigation discovery rights, and eliminates the accused’s right to request a re-investigation.

Additionally, there seems to be a concerted effort to limit the scope of the investigation, including explicitly stating that the investigation “shall not be to serve as discovery tool for the accused.” There’s also an effort to protect complaining witnesses by giving them the right to refuse to testify. If the complaining witness does refuse to testify, the investigating officer must deem them unavailable for the purposes of the investigation. It seems likely that at least some changes are responsive to the outcry following the recent Article 32 at the USNA.

The bill has been referred to committee and the full and relatively short text of the bill is available here. Currently, GovTrack gives the bill only a 6% chance of getting past committee and 1% chance of being enacted. But then again, all some people need is a chance. Either way, this bill is worth keeping an eye on, as it seems to have at least some features that both TCs and DCs could get behind.

29 Responses to “MILJUS Legislation Watch: H.R. 3360 and Article 32 Reform”

  1. Zachary D Spilman says:

    Today, Article 32 reads:

    (a) No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made.

    (emphasis added). The proposed language begins:

    (a)(1) No charge or specification may be referred to a general court-martial for trial until an impartial investigation of the matters set forth therein has been made.

    Now I get it.

    The problem with the military justice system is that it’s too thorough.

  2. stewie says:

    Isn’t reasonable grounds in the definition for probable cause in Black’s Dictionary?  I always thought, and I was pretty sure the school taught that they are more or less the same.
     
    Otherwise, seems designed to increase the court-martial volume in these case, but won’t really increase convictions.

  3. Terri Zimmermann says:

    While they’re re-writing Art 32, where is the provision that makes a finding of no probable cause after the hearing binding on the convening authority (or whoever the charging official ends up being at the end of this mess)?

  4. Eckert says:

    The bill’s proposed text reads that if the Complaining Witness (alleged victim) declines to testify, they are “unavailable.”  Not sure why any DC would get behind a bill that guts the best thing an accused has going for them at a 32, the ability to cross the victim and lock them in under oath. 
    Zach, great point about deleting “thorough” from the statutory text.  How does a thorough investigation impede the pursuit of justice?
    I think this bill is designed to make the 32 even more like a civilian preliminary hearing where the accused learns virtually nothing about the case and one police officer (or NCIS agent) testifies about what he read in the police paperwork.
    Finally, the first paragraph of the bill reads: “The purpose of this investigation shall not be to serve as discovery tool for the accused.”  Interesting that our elected representatives believe the problem with military justice is too much discovery.   

  5. Some Army Guy says:

    A good trial counsel wouldn’t want to “protect” the alleged victim from testifying.  Article 32s can function as a great way to give the victim his/her day in court while letting bad cases go to die.

  6. Jason Grover says:

    I think the provision to use judge advocates is interesting. Is there a problem with using non-judge advocates? Does that happen very often? While an overseas SJA, we had a hard time sometimes getting IOs. I would occasionally push for a line IO but I think we only ended up doing it once. Ironically, he took it very seriously and put a lot of effort into preparing himself and the report. I thought he did better than a lot of judge advocates. But I can’t imagine this is a huge problem.

  7. Lieber says:

    Jason Grover: Most Article 32 hearings in the military do not have a Judge Advocate IO. 
    As for the 32 itself, from a defense perspective they’re great, from the government perspective they give the accused two trials for no reason and from the historical perspective they’re an anachronism. 

  8. KJRMiller says:

    @ Grover – I agree with you that in most Services JAs are generally assigned to serve as IOs. It appears the Army is the outlier where JAs are not always the norm. In August, the Secretary of Defense directed that IOs for all sexual assault cases shall be JAs; HR 3360 simply expands this requirement for all Article 32s, so as not to create “sexual assault specific” requirements. The “exceptional circumstances” language does leave some room for the Services to use line officers in those cases where justice may require.
     @ Eckert and Some Army Guy – All the Complaining Witness provision does is provide the same option to a miltiary victim which is already afforded to a civilian victim.  If there is a situation where it is extremely necessary for the victim to testify at the Article 32, nothing in the reforms prevent a “good trial counsel” from addressing this issue with the alleged victim and convincing them to appear and testify. But where a trial counsel is using the Art 32 as a means to kill a bad case that is likely the case where more victim protections may very well be necessary, and arguably is not an example of how a “good trial counsel” would operate.
    Also disagree that the legislative intent is based on a Congressional belief that “the problem with  military justice is too much discovery.”  Rather, the legislation appears to take aim at the specific means by which discovery is currently accomplished.  The proposed reforms actually establish a governmental discovery requirement to provide access to particular statements and evidence pre-Article 32 which is not currently afforded to the accused within the UCMJ; some DCs may actually appreciate this.
    @ Zimmerman – your reguest could go both ways – why require a “no probable cause” determination by an IO be binding but not one that determines probable cause does exist? Is it appropriate to tie the CA’s hands in one case but not the other?
    @ Adams – Might I suggest that the GovTrack predictions of a bill’s likelihood of passage is somewhat misinformative and misleading as to potential enactment of the subject legislative proposals.  Even GovTrack will tell you that only about 11% of bills made it passed committee and only 3% were enacted as independent bills between 2011-2013.  What those numbers don’t tell you is the large percentage of provisions from independently introduced bills that later found their way into committee legislation, such as the NDAA, and were subsequently enacted. 
     

  9. johnny says:

    SAG, that may be true in some cases.  Depends on the facts.  Overall, though, if I was a TC there would be very few cases where I would encourage the victim to testify under these rules.  As a DC, prior inconsistent testimony from the 32 is usually critical to diminish a victim’s credibility.  Stewie, given the loss of a critical cross-examination opportunity, imho, it probably would lead to additional convictions.

  10. Jason Grover says:

    Lieber,

    What service do you have experience with? I was in the Navy and there were very few that didn’t have judge advocates as IOs. Perhaps it is a service difference.

  11. stewie says:

    I’m not convinced.  The AV is still going to have other statements out there. The AV is still likely to have inconsistencies.  What the AV won’t have is preparation for the cross from DC asking for an explanation of those discrepancies.  The TC won’t have prepped as well for that or maybe not even seen it coming.
    I think the conviction rates won’t change much at all, but AVs  (and TCs) will be blind-sided on cross at trial more.  I also think more bad cases will go to trial because government won’t have a 32 to open their eyes to the problems in the case.  That means more acquittals.
     
    I don’t think prior inconsistent statements at a 32 have ever been critical in my experience.  Helpful yes, not critical.  I do admit that my experience is not universal though.

  12. Sam Adams says:

    @stewie – You’re right that reasonable grounds is in the definition for probable cause. Anecdotally (which is always the best sort of evidence) it seems to me that IOs have a problem figuring out that relationship. I’ve definitely been in 32’s where I felt the IO was using something closer to a “some evidence” standard – e.g. is there a warm body on the stand that thinks or at least has been told he/she was sexually assaulted? Yes? GCM! For whatever reason I just think it’s cleaner for the IO to say yes or no on probable cause, rather than an amorphous “inquiry as to the truth of the matter.”
    @Terri Zimmermann – I agree ma’am that a “no bill,” as it were, should be binding on the covenening authority.
    @Eckert – I may have overstated it a bit in my post, and I don’t mean to insinuate that a DC would like everything in the bill. I would think they would support a probable cause requirement for the reasons I discussed above and having a judge advocate as the IO. I can’t say from personal experience, but I don’t think I would care to have a non-lawyer as an IO (although Some Army Guy might have a different experience).
    I think the goal here is to make the process some sort of hybrid between a prelim and a grand jury. I guess the question is (and I’m sure I’m about to get an education by asking it) why does the military justice system still need the Article 32 in its current form, beyond the fact that defense counsel like it and it benefits their clients? What are the policy justifications? I’m just not sure that the fact it’s a tool for TCs and DCs to kill bad cases is a good enough policy reason to keep it. If a case is bad enough to die at a 32, it probably didn’t have any business being there in the first place. That takes SJAs and TCs working together to kill bad cases early. If that doesn’t work, even under the proposed changes in the bill, I don’t see what prevents a case dying at a 32. It just seems like it makes it a more efficient process and avoids the problems with them becoming mini-trials with few rules. I don’t know that this bill is the answer, but I do think the discussion of why we need the 32 in its current form is a discussion worth having.

  13. Advocaat says:

    Can anyone shed light on Rep Turner’s sponsorship of this bill?  He is an advocate for Wright-Patterson AFB and appears to be a pro-business conservative.  Although he is a lawyer, I found no indication he practiced criminal law.  While I disagree with any changes to Art 32/RCM 405 beyond clarifying how IOs should apply MRE 412, I was pleasantly surprised with the use and definition of the phrase “complaining witness” vice the overused “victim.”

  14. (Former)AFTDC says:

    We still have the protections of Article 32 and Article 60 because we still have Article 52(a)(2).  If Congress wants us to start looking more and more like the federal system, hopefully they require unanimous verdicts as well. 

  15. Lieber says:

    Jason Grover: the Army does not usually use JAs as IOs. And since the Army does as many cases as the other services combined…..

  16. Jason Grover says:

    Thanks Lieber, I didn’t realize the Army’s practice was different. That provision then makes a bit more sense.

  17. Jason Grover says:

    Lieber, according to the latest CAAF reports, the Army tried 1180 cases in 2012 and the Navy and Marine Corps tried 1141. The Air Force had 571 cases.

    http://www.armfor.uscourts.gov/newcaaf/ann_reports.htm

  18. Charlie Gittins says:

    It’s been a while, but my recollection is that there is a line of MJ cases that provide that where an important witness (like the complaining witness) is “unavailable” for the Article 32, then the appropriate remedy is a deposition.  I have had depositions ordered for a recalcitrant civilian complaining witness.  DC is still going to get a shot at a deposition if they are on the ball and make the record for the need for discovery and opportunity to investigate the facts.  Motion for deposition and you get to the same place as with the Article 32 in its present form, although the IO would not have the benefit of considering the testimony in such circumstances. 
    Jason:  The Army generally does not use JAs for Article 32s and I have had some really bad experiences with unfortunately unequipped non-JA Army IOs. SMA McKinney had a Colonel who was challenged to sit and not drool, let alone parse complex facts and circumstances.   By the same token, when I had a MJ for a death penalty case, the hearing was thorough and the report competently prepared.  The IO didn’t make a recommendation as to DP, which was quite a pleasant surprise.  And, in the end, the client didn not get the DP due to a non-unanimoou findings verdict. 

  19. Jason Grover says:

    Charlie,

    Great point about using MJs. I tried to do that in bigger cases. Sometimes the trial judiciary was supportive and sometimes they weren’t. But it always did produce higher quality investigations and reports. And they generally kept out-of-control civilian defense counsel in their place.

    I jest, of course!

  20. stewie says:

    Well, my thoughts as to why we need an Article 32:
     
    1. CID/NCIS has issues.  The opine/founded system has issues.  These two things to me means that we need something more than just a rubber stamp at the preliminary level.
    2. Getting rid of bad cases is a viable reason why Article 32’s are needed.  Particularly in a climate where almost any allegation is basically going to end up with a strong chance of being at least preferred.  It would seem to me in this changing climate, 32’s are MORE necessarily than less.
    3. No compelling reason to get rid of/substantially change Article 32s.  I’ve yet to see a compelling argument as to how either will result in more convictions (or why more convictions is a worthy goal in and of itself).

  21. Tami says:

    All this is going to do is lead to more rubber-stamping and a LOT more depositions under RCM 702.  Note that the bill removed the “inquiry into the TRUTH of the charged matters” language.  Apparently Congress is not interested in getting to the truth at the early stages.

  22. stewie says:

    Are we sure there would be a lot more depos? Some judges will order them, others will ask what the exceptional circumstances are.

  23. Christian Deichert says:

    Didn’t realize that the Navy and Marines mostly use JAs for 32 IOs — learn something new every day.  Already knew that about the Air Force from my time at AFJAGS.
     
    Given that most of our docket here consists of sexual assault cases, this wouldn’t burden us much more than the upcoming requirement for JAs on 120 cases.  But given the qualifications recommended (MAJ or senior CPT, TC and/or TDS experience), it’s going to be tough on the BJAs we have — i.e., the only three JAs who have those qualifications in my jurisdiction.  I do have three Air Force bases nearby, though…

  24. USNJA says:

    Jason Grover – You might have read numbers wrong in report you linked above.  Page 83 of report shows 722 total GCM and SPCM in 2012 for Navy and Marine Corps.  Page 49 shows 1190 total GCM and SPCM in 2012 for Army.

  25. Jason Grover says:

    USNJA,

    Indeed, I did. Thanks for clarifying.

     

  26. Tami says:

    Stewie,
     
    A request for deposition can only be denied for good cause.  While availability to testify at trial is usually “good cause,” if there are “unusual circumstances,” such as an essential witness was unavailable at an Article 32 hearing, then the default is to grant the request.

  27. stewie says:

    but if we effectively get rid of requiring a witness to be at a 32 in the rule itself, doesn’t that cease to be an unusual circumstance?
    I’d be hard-pressed to see the argument consistently made successfully that we need to do a depo because the witness didn’t testify at a forum where the rules specifically say the witness doesn’t have to testify. I think the change to the rules changes the default in this situation.

  28. Tami says:

    Stewie, I disagree.  The proposal is that the complainant gets the choice of being unavailable.  So an accused could get due process if the complainant chooses to testify, but another accused doesn’t get due process because the complainant chose to make herself “unavailable.”  The inconsistency in that creates the “unusual circumstance” that would justify the deposition.  And the standard is not whether there is good cause to grant the request for a deposition, it’s good cause to deny it.  When is there ever good cause to deny due process?

  29. stewie says:

    And the rule (well discussion to the rule) says that good cause includes that the witness will be available for trial.  It lists as an extraordinary circumstance that the victim was unavailable at the Article 32, but this change to the rule no longer makes that an “extraordinary circumstance” and I strongly assume the rule will be changed to reflect that.
    Bottom line, I do not believe depositions will be the fix that you appear to think they will be to the seemingly inevitable changes to Article 32s.  I really don’t think such a loophole for want of a better word is going to be left open.