A commenter mentioned something about “The Weirick.” A little research turned up this story in the Marine Corps Times:

The Marine whistle-blower who was fired from his job in September received a poor performance evaluation after his removal — more proof of reprisal, his attorney says, for voicing concerns about senior leaders’ involvement in the legal proceedings stemming from a high-profile scandal.

Maj. James Weirick, a Marine attorney stationed in Quantico, Va., received his most recent fitness report in late October from Col. Donald Riley, the supervisor who ousted him from his post after Weirick wrote a confrontational email to Peter Delorier, a former legal adviser to Marine Corps Commandant Gen. Jim Amos. Dated Oct. 24, the document rates Weirick as average or below average in individual skills, character and leadership competencies, and recommends he not be promoted.

If this keeps up then I’m going to have to issue a retraction of my post where I argued that the existing prohibitions on retaliation for reporting offenses are strong enough.

The Marine Corps Times also has this story of an acquittal in a long-running court-martial in California:

A combat-wounded Marine accused of defrauding the government as part of a massive embezzlement scheme was acquitted this month after defense attorneys argued during his court-martial that his command took extraordinary measures to ensure he was punished.

The criminal case against Staff Sgt. Anthony Rios Jr., 38, is significant because his legal team tied the aggressive effort to prosecute him to a presentation delivered last year to thousands of Marines around the world from the service’s commandant, Gen. Jim Amos. Amos’ so-called Heritage Brief took aim at what he saw as a rash of misbehavior in the ranks — everything from sex assault and hazing to monkey business in the war zone — and called for Marines to hold one another accountable when they screw up.

Rios, a forward observer with 3rd Air Naval Gunfire Liaison Company, was charged in 2011 with conspiring to steal $3,000 through bogus travel claims.

Law and Order: SVU has a new episode titled “Military Justice.” A full rundown of the episode is here (spoilers galore), and includes this:

Amelia [alleged rape victim] comes by the precinct after word of the arrests [of those she accused]. Just as she begins to open up about the female hazing that takes place on the base, several officers barge into the office, arresting Amelia for fraternization, disorderly conduct, and adultery. They drag her out of the office. Shocked, Liv doesn’t understand how they can charge her with adultery when she’s single. Barba explains that since Lipitt is her junior, he won’t be charged. What’s more, now that she’s been charged, the charges against the men will be dropped. The next step will be an Article 32 hearing — which is like a grand jury, except that they can ask anything they want. As if a grand jury wasn’t traumatizing enough.

And there are multiple stories about an apparent shift (and who didn’t see this coming) in the focus of effort to “reform” the military justice system. From this Stars and Stripes story:

“We’re considering focusing the amendment on sexual assault and rape in response to some suggestions by undecided senators,” Gillibrand, who chairs the Senate Armed Services personnel subcommittee, told reporters. “We already have a majority on our current bill. … We may need 60 (votes) and we’re looking intently to undecided colleagues about what makes the bill stronger.”

Emphasis added. The story also notes:

Military officials said setting up the new independent office would cost about $113 million a year, including salaries for about 600 attorneys and support staff.

Finally, in news from the Naval Academy, the Associated Press got their hands on a copy of the Investigating Officer’s report in the former football players sexual assault case. An excerpt from this Washington Times story:

“As difficult as it would be for the government to prove beyond a reasonable doubt that (the alleged victim’s) professed lack of memory at the time Midshipman Graham engaged in sexual activity with her was due to her being substantially incapacitated, the government’s task becomes extremely more difficult, if not impossible, due to the heavy damage done to (the alleged victim’s) credibility at the Article 32 hearing,” Cmdr. Robert Monahan, the investigating officer in the case, wrote in his report to Miller.

The story continues with a comment from Susan Burke:

Susan Burke, an attorney for the alleged victim, said military prosecutors in the case are inexperienced and said officials should at least add more prosecutors to the trial team.

“There is no effort to get a win here — none,” Burke said.

Someone please help me out. What does Ms Burke consider to be “a win?” Because last I checked:

The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.

Berger v. United States, 295 U.S. 78, 88 (1935).

Hey. Why are you laughing?

5 Responses to “Military Justice News for November 15, 2013”

  1. ResIpsaLoquitur says:

    Wow.  If a court-martial wasn’t such a traumatic event for both the accused and the (alleged) victim, I’d push for Susan Burke to be appointed a special prosecutor in the Academy case.  “Ma’am, you’re so smart–here’s a copy of the MCM and the Naval Rules of Professional Conduct.  Good luck getting your win.”

  2. phil cave says:

    Wait, wait, wait.
    This was a 32.  The prosecutors don’t have to win.  All they have to do is show reasonable cause, sufficient to get a CA to refer charges.
    Um, didn’t the CA just do that.  Sounds like a “win,” even if we cynics will believe that a 32 is a mere roadbump on the way to trial.
    RL, I think that you are right, for the moment it is in the RCM, something about reasonable cause which we all generally refer to as probable cause.  Although apparently according to Congress we are wrong in how we interchange probable cause and reasonable cause as the same thing.  O hum.  Although I have in fact heard some say that reasonable cause is a lower standard than probable cause.
    I do believe if we look at some of the legislative history to Article 32, they refer to it as “probable cause.”  See e.g. p.997, report of 7 March 1949 meeting of the House Subcommittee on Armed Services.

  3. k fischer says:

    Echo PC.  A ‘win’ for the prosecution would loosely mean the referral of the case.  Seems like there was an effort in that regard and a ‘win’ resulted, although it seems like the result was more likely due to CYA than reasonable cause…..

  4. Morpheus says:

    Where are you getting the term “reasonable cause”?  I thought RCM 405 called it “reasonable grounds.” 

  5. k fischer says:

    Morpheus, 
     
    I stand corrected; I meant to use the term “Probably Grounds.”