For those of us involved in military justice, these are exciting times! Among lots of other military justice/sexual assault debate, the battle over the future of Article 32 continues during the amendment bonanza that is the National Defense Authorization Act of FY 2014. On Monday, Sen. Barbara Boxer introduced SA 2081, an amendment to the NDAA that would substantially change Article 32, UCMJ. The amendment is similar to her bill, which we covered here and is currently referred to committee, but with some important changes.

First, the amendment backtracks some from the requirement that the IO be of equal or greater rank as counsel and must be a judge advocate. Under the amendment, the IO may be on officer other than a judge advocate “in exceptional circumstances.” Additionally, the amendment makes the equal or higher grade a requirement “wherever supportable.” For those who have accepted that Article 32 is probably not going to come out of the legislative session unscathed, this is a common sense and welcome adjustment.

Second, and more concerning, the amendment makes an important change in this new concept of witness unavailability. Sen. Boxer’s bill stated that:

A victim of the offense may not be required to testify at the preliminary hearing. A victim who declines to testify shall be deemed to be not available for purposes of the preliminary hearing.

However, the language of the amendment says:

A victim may not be required to testify at the preliminary hearing. A victim who declines to testify shall be deemed to be not available for purposes of the preliminary hearing.

This is a big deal. Under the language of the bill, it’s “a victim of the offense.” Under the language of the amendment, it’s simply “a victim.” That means any victim, of anything. And if you don’t believe me that it’s an expansive definition, just look at the most recent language that the Marine Corps is using to define a victim for the purposes of providing victim’s counsel:


MARADMIN 583/13 . I’m not sure how military would be in a position to construe the amendment language less expansively. So your buddy stole your Playstation two years ago? Guess what, should it come up you never have to testify at a “preliminary hearing” if you don’t want to. For life. That’s the plain reading of the statute right? There are no meaningful restrictions on it.

I understand that the Article 32 is a strange beast to understand for those outside the military justice system, even those who have been civilian prosecutors. But I would think it would also be difficult for those same people to understand, as one commenter has noted on several of these posts, that the accused can be sent away to jail for the rest of his natural born life by four out of five people on a general court-martial panel. Yet no one seems at all concerned about that. So as we erode one protection for the accused, we are doing nothing to balance that anywhere else. Protecting victims of crime is good and the right thing to do. But that must always be balanced against the rights of those who are innocent until proven guilty and who stand to lose the most from the process. The text of SA 2081 is available here.


19 Responses to “MILJUS Legislation Watch: The Race to Reform Art 32 Continues”

  1. ResIpsaLoquitur says:

    Hmmm.  The amendment might have made more sense if it’d said “A victim of a crime involving sexual injury” or somesuch.  Not that I like that any better.  One of my chief concerns with the SVC system is that we’ve created a “class” of victims separate from all other victim types.  So a purported victim who’s suffered sexual injury–to include a one-time buttocks grab–is eligible for their own counsel, but the victim of severe domestic violence that doesn’t involve sex is not.  Nor is someone who’s the victim of a severe theft–say, a car or an expensive firearm.  They might want counsel to guide them on restitution or protecting their own privacy, but this is excluded.
    I do have reduced concerns about the “Playstation scenario” given that I doubt a minor theft would go beyond an SPCM, which wouldn’t require an Article 32.  I do agree that it could lead to an absurd result in a GCM with a lot of minor specs wrapped up in it–maybe a weird case where the accused is charged with rape, murder, and theft of a Playstation, and now E-3 Snuffy is on an equal playing field with the rape accuser.
    Lastly, I wish the amendment would ditch the word “victim” and replace it with “accuser.”  Were I a defense counsel, I’d be really tempted to argue that the Amendment creates an unreasonable presumption that the accuser *is* a victim, and ipso facto, the accused is guilty.  A criminal conviction passing the beyond a reasonable doubt standard is required to make the accuser a victim, so neither the government nor the SVC will be able to establish the accuser as such for Art. 32 purposes. 
    …of course, that’ll never happen.  I can’t imagine a court doing anything other than reading “victim” as synonymous with “accuser” for judicial purposes.  Grrr.

  2. Richard Stevens says:

    The endless rhetoric and attempted changes to the military justice system are exhausting.  Why don’t they have the integrity to simply state their true intentions – that they want to change the system to conform with a presumption of guilt and to make it much easier to prosecute and convict (and get harsh sentences and no clemency)? 
    It is laughable when they make comparisons to the “civilian system” to attempt to sound reasonable in their justifications.  In the civilian system, does the state appoint an attorney to represent a competent adult complainant?  Is the military defense system now going to be provided with their own investigators?  Their own pot of money?  Subpoena power?  Are military prosecutors now going to be required to prove their case beyond a reasonable doubt to a unanimous jury of 12…instead of a majority of a panel of as few as five (for GCMs)? 
    Of course not, the only tinkering going on is to make it easier for the “successful” prosecution of these cases…

  3. johnny says:

    @RS, if you switch to unanimous jury verdicts, then you also lose the largest benefit of the military system.  In your example of a five member panel, I only need to convince two members to vote no and my client walks forever.  Combined with a voir dire process designed to be pro-defense, this system is not tilted as much to the government as you describe.  Not to mention that the government would be able to bring as many trials until they receive a unanimous verdict.  It would not be surprising to me that more people get convicted in the long run.  One thing I am glad has not gained traction as of yet is mandatory minimums.  Based on my experience, my MJ clients spend much less time in jail than any comparable civilian client.  One MJ client was sentenced to two months for child porn possession.  He was looking at a mandatory minimum of ten years in the civilian world. 

  4. Richard Stevens says:

    Johnny, my comment was that all suggested changes to the system are meant to benefit the “successful” prosecution of these cases.  They aren’t suggesting any changes to be “more like the civilian system” when it comes to protecting the rights of the accused.  In any case in which your client has “walked,” do you believe that if the prosecution had been required to prove that case unanimously to 12 that your client would have been more likely to be convicted??  I understand that unanimous juries may result in some cases ending in mistrial vs full acquittal, but if tried again after a mistrial, why would the chances of convincing all 12 jurors go up?  Wouldn’t the prosecution have to decide whether to try again or give up like they do in the civilian system?  For all you know, in those cases where your client has walked, you may have had a unanimous verdict of not guilty behind those deliberation doors.  That military panel of as few as five members are, year after year, receiving constant messages and briefings that the military justice system fails when cases are dropped or acquittals happen…
    In any event, my comment is that no changes to the system are being suggested based on fairness to the accused, due process, confrontation, etc.

  5. stewie says:

    Of course, usually it’s more than 5, and juries usually have at least 6 and you only have to convince one, so 1/6 seems substantially better than 2/5 to me.  I think that’s a fairly significant advantage to the government.  I think the ability of juries to vote and reconsider repeatedly versus the military system that says vote once and that’s it is often an advantage to the government in the military system.
    There are some advantages to the accused.  I think military sentencing is heavily weighed towards the accused compared to the civilian system, which is good, but only partial help to the accused who would have been acquitted had a unanimous verdict been required.

  6. Richard Stevens says:

    And I’m not trying to turn this into a discussion simply about the merits of the numbers game of panel vs jury.  I’m saying that the suggested changes to the system are meant to be detrimental to the accused and the defense…

  7. KJRMiller says:

    Check out HR 3360 – Congressman Turner’s Article 32 Reform Bill.  HR 3360 clearly defines that the “complaining witness” (which would include victim) limits the right to decline testifying only to a victim of a charge or specification being investigated and must be named in one of the subject specifications. This language should take care of the concerns Sam identifies above with the Boxer amendment opening up protections of the provision to victims of any crime.
    The additional language in Boxer’s amendment regarding the “exceptional circumstances” exception provided for the IO also closely resembles language from HR 3360. This is a positive sign that the necessary and correct language will get worked out at conference and end up in the NDAA, should Boxer’s amendment make it into the NDAA.
    Rep Turner’s HR 3360 also establishes a governmental discover requirement which would provide the defense with a mechanism to receive certain evidentiary documents prior to the Article 32. 

  8. Tami says:

    Stewie, your math is incorrect.  If there are six panel members, then only 4 are needed to convict.  Which means the defense must convince 3 members, not 2.

  9. stewie says:

    I was comparing the minimum for a GCM with the minimum you generally find in states (2/5 v. 1/6).
    I wasn’t comparing 6 and 6.  So, my math survives (but anything over 6 does get shaky).

  10. johnny says:

    @stewie, you say “would have been acquitted had a unanimous verdict been required.”  Well, whether it is 1/6 or 1/12, it does not get you an acquittal, it gets you a mistrial.  In today’s environment there would be a lot of pressure to just conduct another trial.  In addition, that system depends on the one member holding out against other members who may outrank them, and an O-6 MJ repeatedly encouraging them to reach a unanimous verdict and avoid mistrial.  Although I would hope every member possesses the persistence of “Juror No. 8”, I find that unlikely given the military mindset to reach a decision efficiently.  Better to have one secret ballot to encourage the best result for my client.  Juror No. 8 certainly did not have the benefit of remaining anonymous. 
    @RS, it is of course possible that all the members agreed on the verdict.  It is hard to know except maybe an honest assessment of the gov’t’s case.  I will say, though, in the acquittal cases where the gov’t had a good case, I have heard through the grapevine the panel members’ thoughts and the discussions did not favor defense to such an extent that I would have been comfortable as a DC allowing deliberation until a unanimous verdict.  Maybe someone else has a different experience/insight? 

  11. Richard Stevens says:

    Johnny, setting aside this discussion on juries/panels, as an identified defense counsel, are you in favor of the changes (or proposed changes) to the military justice system – such as the involvement of the SVC, the chances of any Article 120 client getting clemency granted from this point forward being 0.00%, and the possibility of not being able to question an Article 120 complainant under oath at an Article 32 hearing?  That is the real issue at hand. 

  12. johnny says:

    @RS, no, I am not in favor.  And you are certainly right that there are not now (nor will there be) any changes intended to benefit an accused.  Actual effect is a different story.  I think you would be hard-pressed to find anyone involved in the MJ system in favor of changing it to the extent proposed.  I would prefer Article 32 stay as is, but I would not say that Article 32 as written is required to counter-balance what some commenters seem to think is otherwise an unfair process when compared to the civilian system.  I would just say that people who advocate for other changes that in their opinion “make up for it” (e.g. switching to 12 member panel that requires unanimity) are misguided. 

  13. stewie says:

    with respect, I think you are being contrary.  You are effectively saying there is no difference really between needing to turn one person out of 12 or 5 people out of 12.  And you can’t believe that.  I have no idea how things would be vis-a-vis a mistrial as to what percentage would result in re-trials, but first, it wouldn’t be 100 percent, not even in this climate, and second, mistrials rarely favor the government.
    I think the Art 32 “makes up” for a lot more than just the differences between panels and juries (and it’s about more than just the number needed to convict), it also makes up for the climate that has cases in the military that wouldn’t go to trial in the civilian world (and again, not to beat a dead horse, goes back to the panel issue, that they are privy to those pressures, and that they are selected by the CG who is really feeling those pressures), I think it makes up for the fact that in many places CID is, quite frankly, incompetent, and I felt that way as much, if not more, on the government side as I ever did on the defense side.
    We’ve changed the law twice to make it easier to get convictions, we’ve made multiple changes that favor one side over the other, so to say that getting rid of the 32 doesn’t increase that imbalance does not make sense to me.

  14. Ed says:

    Query whether the present voting rules on panels without 32 and CO review passes constitutional muster.

  15. Ed says:

    Query whether present panel rules without 32 and CO review pass constitutional muster.

  16. johnny says:

    @stewie, it is not my intent to be contrary.  You are right that re-trials would not be 100%, but you can bet in SA cases they would be extremely high.  My only point is that switching our system to unanimous verdicts would not necessarily prove defense-friendly given the nature of military decision-making and the self-selection process of military service (especially those of high rank).  I believe if I have reached those five out of twelve that I have a better shot with one up or down vote rather than 100s of votes where the panel members initially conviced will not have an opportunity to remain anonymous.  Your other comments seem to indicate you really do think that the system as Ed says “does not pass constitutional muster” even with the 32 as is.  Especially since it is not at all clear how the problems you identify are adequately addressed by an Article 32.   

  17. stewie says:

    Extremely high? Not so sure about that. More than 50%? Probably. More than 75%? I’m not so sure. Ostensibly, we would be talking about the fact that one or more folks couldn’t vote for conviction, but not enough to make it an acquittal.  If the government already knew the case was difficult, and if the victim said “I’m not going through this twice” (which I suspect would happen more than you might think, particularly with victim counsel) then I think you’d have a pretty sizable number of cases not go to a re-trial, even in this climate.
    I think it would absolutely be defense-friendly in comparison to the current system.  It may not be 100% defense-friendly, but it would be MORE defense-friendly. I do think the system passes constitutional muster “as is” but only because the areas that are government-friendly are balanced by areas that are defense-friendly.  That they are not the exact same areas is not something that matters as much to me as the fact that I believe overall as the system currently stands, a military accused gets enough of a fair shake to pass the bar.
    I think you keep removing the things that are defense-friendly from the system, you make that less and less true.

  18. AFSVC says:

    @stewie, johnny et al…as a JAG (not as an SVC), I’m on the fence about the panel issues discussed and I thus make this comment in support of neither side of that debate. As an SVC, I’m not sure what anyone “might think” of the frequency of the victim coming back after a hung jury to go through the court-martial process again, but I can say that Stewie is correct: the frequency would be low.
    That said, the gov’t could use the former testimony (if…big IF…they could figure out how to have the victim declared unavailable).

  19. John O'Connor says:

    Ed says:
    Query whether present panel rules without 32 and CO review pass constitutional muster.
    I will say the answer to your question is yes, and easily so.  See, e.g., Parker v. Levy, 417 U.S. 733 (1974).