Catching up on prior news, for those that missed it, here (pdf) is a report from Heritage Foundation Fellow, Cully Stimson on “Sexual Assault in the Military: Understanding the Problem and How to Fix It,” from Nov. 6, 2013.  Also covered at Lawfare.

18 Responses to “Heritage Report on Sexual Assault in the Military”

  1. stewie says:

    Fully, wholeheartedly, and emphatically concur with the career litigation track proposal.  Also, I’m in favor of it.

  2. Lampwriter says:

    “The ultimate remedy for any commanding officer is the power to immediately refer a suspected criminal in the chain of command to a court-martial.”It is surprising to see Mr. Stimson make this incorrect statement.

  3. AFSVC says:

    (Disclaimer: I skimmed the report and a lot of what I am going to say has been said before in other posts) I agree that junior TCs are placed in tough spots quite frequently due to a lack of experience. This is less so of DC IMO in the AF at least as they will usually have had a 2-3 years of TC experience (quality of this experience still varies based on how busy the installation is though). What I didn’t see (or missed due to skimming) is how we are getting the misdemeanor-type experience for junior TCs when most of these issues are dealt with as 15s. In nearly 3 years at my first base-level assignment, I can count on 1 hand the number of non-sex, non-violent, non-112a cases the office (a busy one) prosecuted. There were a couple of large larceny cases and a tax fraud case (though I would not exactly call them simple). In the AF, drug cases have been the primary vehicle for training junior TCs but even those are becoming less numerous. First it was marijuana that was generally 15’d, now there are starting to be 15s for cocaine and ecstasy (not universal, but it is happening) and the idea is spreading that use/possession are not worth the trouble (EXPENSE) absent distro. To be clear, I’m not casting a value judgement on that line of thinking, I’m just unsure what low-level cases are there for junior TCs to cut their teeth on. With most CAs I’ve advised, I would think ‘training’ would be a fairly poor rationale for sending something to an SPCM when it could be disposed of cheaper (and far faster) by 15. Thus where does the analogous misdemeanor-type experience come from?

  4. rob klant says:

    AFSVC, I think one possibility worth exploring might be assignments as criminal SAUSAs (or, by MOU, even as local prosecutors?).
     
    When I was in PG school, the USAO in DC had a SA/DV task force supported by counsel from a variety of federal departments and agencies seeking trial experience, even those whose practice was otherwise exclusively civil.
     
    SAUSAs were trained first on misdemeanor (non-jury) cases — sometimes as many as 2-3 trials in a day — before graduating to jury and felony cases.   
     
    It was invaluable experience for me and I don’t think it ever could be replicated within the military justice system, given the numbers.
     

  5. stewie says:

    then alter it…you “cut your teeth” as second chair on more serious cases or even “third” chair.  I think the point is that we not only have a system where the junior prosecutors are inexperienced, but we also have a system where a large majority of the supervisors up to and including SJAs are relatively inexperienced on both sides of the aisle.You have COJs and SDCs who might have been a TC for 12-18 months and maybe tried a dozen cases total.  Of course, we don’t let the COJs in the court-room and they spend as much time on post-trial and admin stuff as crim law stuff but then that “counts” and we then later make them SJAs.Yes, the SVPs are hand-picked but even then there aren’t enough of them and it’s a band-aid solution.I’d also say there is some value in TC reviewing A15s.  They get experience by seeing how to properly put together charges, catching errors, etc.

  6. AFCapt says:

    FWIW, the AF has been trying to implement a lot of these suggestions already.  It brought back certification through experience (vice graduation from JASOC) and has switched to filling ADC slots on the basis of experience over location (vice simply choosing the most experienced ASJA already on base).  There is also a general policy against plea deals, which result in more fully litigated trials.  The result has been more experienced ADCs, and a lot of ASJA’s jumping on cases outside of their base in order to get experience.  Ultimately, I think it’s mostly a question of the base SJA and their relationship with the base commander.  If a base SJA wants to be aggressive (and can get the commander on board) there are lots of things they can take to summary instead of 15.  My first year we were the second busiest base for courts-martial and we wound up doing a good range of cases: plenty of 120 and 112a’s, but also thefts from the government and locals, an entitlements fraud case, a drunk driving, and a peeping tom.  Some were plea deals, some were partial pleas, some were fully litigated.  By doing all these summaries, specials, and generals all three of the new JAGs broke into double digits on cases before moving onto new assignments.  Is that a ton of experience?  Not necessarily.  But it’s definitely more than a little.Of course the flipside to all this is that the defense community (which I will be joining soon) tends to get pretty upset at these things.  They don’t like restrictions on plea deals, they don’t like 15’s going to summaries or summaries going to specials.  But I suppose that’s the natural tension.

  7. Anonymous Air Force Senior Defense Counsel with initial NM says:

    “Fully, wholeheartedly, and emphatically concur with the career litigation track proposal.  Also, I’m in favor of it”  Why do we assume that we need an environmental lawyer for sophisticated environmental problems, a labor lawyer for sophisticated labor problems, a contract lawyer for sophisticated contract problems, but any lawyer can do military justice?The AF does not have a career litigation track because we aren’t trying to grow career litigators, we’re trying to grow well-rounded SJA-types.   My limited understanding is that the Navy and Army both have litigation tracks already.  I know this report recommends the AF do the same thing, but I honestly don’t see how that helps “solve” the problem of sexual assault.  Has it helped to “solve” the problem in the other branches? I’m in favor of a career litigation track in the AF for other reasons.  I just don’t see that we need to load this issue onto the sexual assault bandwagon in order to garner support for it.

  8. ExTC says:

    Some good ideas in the report, but it ultimately fails b/c the military simply doesn’t have case load akin to civilians. With commands dumping cases to Art 15 and the admin board, young lawyers never get the experience with low level cases and building experience.  That will never change now. There is no way the military reverts to the system it once used – UA dives and small drug cases. That’s not a bad thing per se, but comparing the military to the DA caseload in the Bronx is not realistic. While the litigation track in the Navy is a start, you cannot get into the litigation track for the first six years. Who is going to wait six years to get into court and then not that much?

  9. Zachary D Spilman says:

    ExTC says:

    While the litigation track in the Navy is a start, you cannot get into the litigation track for the first six years. Who is going to wait six years to get into court and then not that much?

    I’m reminded of my notes from the 2013 Code Committee Meeting:

    The Navy JAG announced a new program for new Navy judge advocates: Their first two years on active duty will consist of four 6-month tours in the various practice areas. My notes include, in big block-type, “no detailed cases during this.” It seems that joining the Navy in order to get into the courtroom right out of law school is no longer an option…

    Can anyone say if this program ever got off the ground?

  10. stewie says:

    The Army most definitely does not have a litigation track and still heavily emphasizes being well-rounded and not a specialist.

  11. Mike "No Man" Navarre says:

    Zee–

    It did. And here are some observations of what I see:

    (1)  JOs walking around DSOs and RLSOs without a lot to do. 

    (2)  3rd and 4th year LTs working weekends and late hours to prepare for trials, on which I can’t really tell if they have a lot of help.

    (3)  JOs looking to get out of the JAG Corps because they’re bored with the practice of law after 2 years.

  12. Cheap Seats says:

    Zachary – the program got off the ground and is in full force.  Young Navy Judge Advocates now get to do admin boards and 32s (as second chair).  Other than that, they are junior associates.  See, http://jag.navy.mil/library/notices/COMNAVLEGSVCCOMNOTE_1300.pdf .

  13. Advocaat says:

    My favorite portion of the report:  “Congress’s Article 120 experiment was a fiasco, resulting in a four-year ordeal that unnecessarily disrupted military jurisprudence. Congress should learn from this unfortunate episode that the problem of sexual assault cannot be “fixed” by attempting to make it easier for the government to get and sustain convictions—because quick fixes to the military justice system can have substantial unintended consequences.”  Table 1 of App B was also eye-opening in terms of the disparity between members and judge-alone trials by service…can anyone shed some light as to why the Army has so many judge-alone trials?

  14. Lieber says:

    As Stewie noted, no litigation track in the Army.
    AFCapt: you folks have TC’s do summaries???
    As for Judge alone in the Army…mix of plea agreements and Article 85/86 cases. in Article 85 cases it’s pretty common for the defense to go Judge alone and naked plea to an 86…
    which is also where the Army has a better shot at actually implementing new TCs cutting their teeth on low-threat cases…we prosecute a lot of 85/86 cases in the Army…
    more drug possession/use courts-martial?  bad idea.  only falling further out of sync with society.  I can just see the headlines…”military won’t prosecute rape offenses but will court-martial you for smoking dope”…let’s not.

  15. Anonymous Air Force Senior Defense Counsel with initials NM says:

    Thanks Stewie/Lieber for clarifying the Army has no litigation track.  Sounds like all three branches could use some work on this in general.  But I still fail to see how it ties into “solving” the sexual assault problem.

  16. Christian Deichert says:

    The Army may still want well-rounded JAGs, but there is also still a recognized need for MJ experience, more so than what I saw in my three years working with the Air Force.  Just look at the grad course.  Army students can concentrate on admin and civil law, contract and fiscal law, military justice, or operational law (or have no specialty at all).  The handful of Air Force students who attend are told which specialty they must seek (usually contract and fiscal law), and they are not allowed to go for the MJ track.  There’s also no Air Force program like the Army’s military justice practitioner ASI.

  17. Lieber says:

    CD: in fairness the Army MJ ASI is meaningless.  It is not considered by PPTO for assignments and not considered by promotion boards.  So it has no effect.

  18. stewie says:

    I agree it probably isn’t used for promotion but I suspect it might be used to some extent for assignment purposes if there is a job that needs a certain level of military justice experience.Then again, I’d guess most of those jobs are filled based on reputation in the corps.