As discussed by No Man on Tuesday, the House and Senate Armed Services Committees (HASC & SASC) have reached a compromise National Defense Authorization Act (NDAA) for FY14. The compromise bill contains significant modifications to the military justice system. Considering the composition of Congress, I consider passage of this compromise legislation very likely.

The complete text of the 1105 page compromise bill is available here, and a 532 page joint explanatory statement is available here. From these I’ve pulled out just the military justice provisions into a 97 page document containing the legislative text, and a 24 page document containing the explanatory statements.

The compromise legislation contains 38 sections addressing military justice issues. The highlights include:

Section 531, removing the prohibition on officers who retire after 20 years of active service being appointed as judges at CAAF, and permitting their appointment after a 7-year cooling off period.

Section 1702(a), completely rewriting Article 32, changing the nature of the hearing from an investigation to a “preliminary hearing,” explicitly granting a victim the right to refuse to testify, and mandating that the hearing be recorded by “a suitable recording device.” These provisions will take effect one year after enactment.

Section 1702(b), significantly rewriting Article 60(c) to eliminate references to “command prerogative” and “sole discretion of the convening authority,” prohibiting a convening authority from disapproving findings of guilty to all but minor offenses, and significantly restricting a convening authority’s ability to grant sentence relief absent a pretrial agreement or recommendation from the trial counsel. These provisions will take effect 180 days after enactment.

Section 1703, eliminating the 5-year statute of limitations on the offenses of sexual assault (Art. 120(b)) and sexual assault of a child’ (Art. 120b(b)), effective on the date of enactment.

Section 1704, requiring, if requested by the alleged victim, the presence of “trial counsel, a counsel for the victim, or a Sexual Assault Victim Advocate” whenever “defense counsel” interviews an alleged victim of sexual assault. The section also states “defense counsel shall make any request to interview the victim through trial counsel.” There is no stated effective date for this provision (so, at enactment).

Section 1705, establishing a mandatory minimum sentence of dismissal or dishonorable discharge for the offenses of rape (120(a)) or sexual assault (120(b)), rape of a child (120b(a)) or sexual assault of a child (120b(b)), forcible sodomy (125), or attempts to commit these offenses. The section also limits jurisdiction over these offenses to general courts-martial. These provisions will take effect 180 days after enactment, and apply only to offenses committed on or after that date.

Section 1706, modifying Article 60 to allow the victim to submit matters for the convening authority’s consideration before action on the results of trial.

Section 1707, repealing the offense of consensual sodomy.

Section 1708, requiring deletion of the non-binding commentary in the discussion to R.C.M. 306 that suggests that a commander should consider an accused’s military service and character when making a decision on initial disposition of charges.

Section 1714, expanding the protections of The Military Whistleblower Protection Act (10 U.S.C. § 1034).

Section 1716, adding a new section to 10 U.S.C. § 1044 (the legal assistance statute) addressing special victims counsel.

Section 1744, requiring creation of Service-level policies for the “review of decisions not to refer charges for trial by court-martial in cases where a sex-related offense has been alleged by a victim of the alleged offense.” This section also requires forwarding of cases in two scenarios: Forwarding to the service secretary for review any case where a staff judge advocate acting under Art. 34 recommends referral of sexual assault offenses and the convening authority refers no charges to trial; and forwarding to the next superior GCMCA for review when the SJA recommends against referral and no charges are referred.

Sections 1751-1753, stating the sense of Congress regarding command climate, disposition of certain sexual offenses at forums lower than courts-martial, or by administrative separation in lieu of trial by court-martial.

61 Responses to “Military Justice Reforms in the FY14 Compromise NDAA”

  1. CAAFlog fan says:

    Its concerning that the DC must now go through the TC to interview the alleged victim, another witness in the case (I’ve got no issues requiring the DC to go through the victim’s counsel if one exists).  However, I have seen cases dismissed after DCs speak candidly with the victim before the motivated TC (exercising no prosecutorial discretion) has had a chance to intentionally/unintentionally “set the testimony.”   My experience has been that many (but not all) military sexual assault cases involve drunken “he said she/he said” stories with a victim whose motive for coming forward is something other than holding a predator accountable.  The other motives might be:  revenge against a scorned lover, retaliation against rumors about one’s chastity/orientation, or because the victim is subject to UCMJ violations themselves (hence why its a sad day that Article 32s will no longer be investigative hearings).As others have noted before on this site, what instead needs to happen is:  unanimous verdicts required before guilty findings and a true jury of peers chosen independently by the judiciary as opposed to by a possibly politically/rank motivated commander who is referring charges in order to “protect the command.”  Or, maybe we should go Germany’s route and eliminate SPCMs and GCMs all together and instead just refer actual misconduct to US attorneys/state DA’s for consideration (before someone groans about the lack of speed and expeditionary nature of that proposal, ask yourself when was the last time we saw a speedy court martial conducted in a war zone?).  Everything else not deemed prosecution worthy could be handled by formal counseling, CAPT’s mast or a separation (plus, the military would save a lot of money and avoid the adverse PR of not being tough on its own).  As for practical steps while we have the system we do; every DC should file an “unequal access to evidence” motion that requests dismissal of the charges for lack of constitutional due process.  The motion would challenge the 1.  unlevel playing field established by making DC go through TC to talk to the victim and 2. also challenge the lack of a unanimous verdict required before guilt (as required by the Federal Code of Criminal Procedure) and the 3. the fact that the members are hand selected by the person directing the prosecution.  Yes, I know–no military judge will ever grant this motion, but if enough DCs file variations of this motion, eventually it will receive CCA/CAAF/USSC appellate review and real change might be possible.

  2. John O'Connor says:

    Re Section 1702(b), the restriction on a CA’s power to reduce the sentence absent a recommendation from the trial counsel.  Yeah, that will work.  SJA calls TC and says, “hey, why don’t you recommend reducing the sentence.”  TC says, “what a good idea, yes, sir.”
     
    TCs aren’t really in the business of cabining the powers of the CAs they serve, nor should they be.  Though I do remember a time where we did a contested court-martial, got a conviction, and the DC tried to con the CA and legal officer with the idea that, “you offered him a PTA, why should he be punished for pleading not guilty.”  We told the legal officer that we’d set him up a field desk in the office so he could try the battalion’s special courts-martial. 

  3. DCGoneGalt says:

    The coordination of complainant interviews through TC is a surprise.  Will convening authorities, who are interested in the truth, now approve and fund defense requests for investigators since defense counsel are, for all practical purposes, prohibited from speaking to complainants because of SVCs, and are now, for all practical purposes, prohibited from speaking to complainants under oath prior to trial and before they have been thoroughly coached in their testimony via trial counsel? SVCs are legal counsel for the complainants so ethically you must coordinate requests for interviews through them.  How in the world must you coordinate complainant interviews through the opposing party to the litigation in a criminal case where the trial counsel does not represent the complainant? 

  4. RKincaid3 says:

    I am barely into this compromise bill and I have to ask….have any of the people collaborating on this “compromise” actually thought through the consequences of each of these provisions?  Some of these are simply ludicrous.  This is an example of shoving as much gunpowder into the chamber as one can and hoping the gun doesn’t explode form overpressure upon pulling the trigger.  Who are the people advising the drafters on these thoughts–are they throwing words together to sound like they know what they are talking about?  If so, in application the words used in the compromise bill, in actual application followed through, are fraught with problems.  If the advisors on this issue wanted to improve the justice system, they need to focus on “justice” and quit keeping at all costs an eye on requiring commander involvement beyond as an advisor.  I suspect that whomever is responsible for this are so focused on maintaining that commander-centric endstate (commander client’s intent??) that justice concepts are still missing from the sight picture at the time the trigger is pulled.

  5. jwow says:

    Section 1744 is offensive.  Who is the check or the balance on the Assistant DA in every town in America reviewing his/her decision not to prosecute a sex assault case?  The military justice system has so many gates on the road to court-martial as it is which is why truth be told, there are more “hard cases” taken to trial than not; cases that frankly, would have been entirely disregarded in a civilian jurisdiction.  Someone needs to do a documentary on the American Justice system to show that the Invisible War is a reality….but not in the military.

  6. Defense Hack says:

    Next higher GCMCA must review cases not to prosecute? I’ll go ahead and begin drafting my shell UCI motions now….Also, victims have their own lawyers. Trial Counsels should act as surrogate victim’s counsel. TCs and GCMCAs need to make decisions based on the facts of the case, but section 1704 creates a relationship (or at least the appearance thereof) that the TC works for the alleged victim. This is really, really disappointing. Furthermore, this complete guts the “equal access to witnesses” mandate.

  7. Tami says:

    The 100 monkeys with typewriters came back with reinforcements.

  8. John O'Connor says:

    If amendments to the UCMJ provide for unequal access to witnesses, then there is no “equal access to witnesses mandate.”  Similarly, if Congress statutorily provides for some oversight on a CA’s decision not to prosecute, there is no UCI.  The “U” stands for “unlawful,” and it’s not unlawful if mandated by statute.  Unless, of course, there is a constitutional basis for the right, but I wouldn’t hold my breath.

  9. Charlie Gittins says:

    JOC:  Due Process? 

  10. Neutron73 says:

    DCs having to go through TCs is the height of lunacy; So now, the TC is the victim’s counsel and works for the victim?  I thought the TC works for the USG?  Not anymore it seems.And the Article 32 change is a complete joke.  If the alleged victim can refuse to testify, then what sort of check will there be for the IO to say, “Well, there is no way to judge the credibility of the alleged victim due to her refusal to testify, and the evidence appears problematic at best. Therefore I recommend not referring these charges to a GCM/SPCM.”  Or is this a way for the victim’s to turn the justice system on its ear and basically shift the burden onto the defense to prove innocence?

  11. D Wright says:

    Interesting OP-ED on the Krusinksi trial by a retired AF GO. http://www.airforcetimes.com/article/20131211/NEWS01/312110003/Op-Ed-Keep-commander-authority 

  12. stewie says:

    So good military character defense survives for now intact?

  13. Zachary D Spilman says:

    Stewie – We do seem to be clear of the good military conduct-pocalypse.

  14. RKincaid3 says:

    My criticism of the current UCMJ (and now these ridiculous interim changes) is that regardless of which side one is one in the debate over whether commanders should or should not be involved in the prosecution process (beyond offering a recommendation), it remains wholly improper, in the American system, for anyone to be prosecuted or not be prosecuted simply because of political pressure, or because someone wants to get promoted, etc..  Whether a commander is pushing a prosecution to vindicate “victims” or declining to prosecute to spare the “worthy” Soldier, in either circumstance, it is an improper exercise in any system that is supposed to be a “justice” system. 

  15. RKincaid3 says:

    The OpEd by the retired AF GO was interesting.  Thanks for the link.  Alas, I was dismayed (but not surprised) with its defense of the status quo when the author stated: “So, why would we allow a couple of legal but controversial decisions by commanders [to] (sic) convince us we should undermine the authority of commanders that has served us well for more than 200 years?”  Probably since it is now the 21st Century is the answer.  The concept of “justice” in the military actually now no longer includes summary executions or a lack of substantive due process that was so heavily a part of the system “…that has served us so well for more than 200 years.”  The very changes that should be effectuated (especially by removing a commander’s unilateral authority and control over something as complicated and important as a “justice” system) are considered to be “basic” in any nation allegedly subscribing to the concepts of “due process” and “rule of law.”  The bottom line is that our current system fails to execute those concepts–despite how much and how often we as a nation criticize and lecture other nations for that same failure.

  16. John O'Connor says:

    Due process challenges to MilJus legislation have not fared well

  17. RKincaid3 says:

    I agree.  But only because of the historical deference the courts have allowed the military given its unique mission as allowed by Congress under its Constitutional authority to regulate the military. However I am not talking about due process challenges to the system through Courts, but am advocating that Congress use its authority to change the system to conport to the basic notions of due process belonging to all Americans.  Once those changes are implemented, the Courts won’t need to exercise as much historical deference in the event of the occasional due process challenge as the Congress will have (by removing the commander and implementi g basic due process) united, essentially, the military and civilian justice systems, nullifying all but the basic evolutionary challenges which arise over time and affect both legal systems.  Hey, I can dream, right?

  18. John O'Connor says:

    Gene, I thought you were against pseudonymous posting!

  19. RKincaid3 says:

    I am not Gene.  

  20. RKincaid3 says:

    Thanks for the compliment, though. 

  21. Lieber says:

    I’m curious as to why you’re all missing by far the biggest change as far as Judge Advocates are concerned:  the mandate that all Article 32 IOs be Judge Advocates.  that’s huge…and will have a likely impact on our promotion rates and endstrength numbers as well.

  22. Tami says:

    Having to go thru a TC to interview the complainant is absolutely ridiculous.  Not only does it affect my client’s 6th Amendment right to effective assistance of counsel, it also presents an ethics problem.  As a defense attorney, how can I interview this person without exposing my strategy? Am I reading the mandatory minimum punishment section correctly, that if a client is convicted after a contested trial for sexual assault, that the client must be sentenced to a DD, BUT if he pleads guilty, he can get a BCD?

  23. Lieber says:

    I’m curious why (ok I know why) folks think that changing certain aspects of the UCMJ system to be more in line with the civilian world violates due process.  You do realize that in federal court there is requirement that witnesses agree to an interview with the defense with or without the government present.  That’s right, the defense can’t make them be interviewed at all.  Defense counsel have had it good in the military system for quite a while now.  (and yes I support going to unanimous verdicts…)

  24. Lieber says:

    that should read “no requirement”

  25. RKincaid3 says:

    The 32 officer is an interesting development. But it only means the the recommendation will be more legally correct and thorough, but no less non-binding upon the commander, who will still be free to ignore the recommendation if the commander believes their decision is best for their command, or is best for them personally (because Congress and/or his commander are watching and the commander needs their blessing to get promoted), or is best for the Soldier or it is best for the victim.  But absent from all those competing pressures/ considerations is any significant consideration of the needs of “justice” as a process–as such is owed to all Americans–victims and accused’s alike!

  26. Lieber says:

    I meant that the 32 IO thing is the most interesting part for Judge Advocates because it means probably at least 30 extra field grade jobs (wild guess).  but yeah, it might actually cause me for the first time to pay attention to what the 32 IO recommends…I never cared before….so the 32 IO’s recommendations may carry a little more weight now.

  27. RKincaid3 says:

    Regarding, the recording equipment at 32’s, when I was in TDS in Korea, I purchased recording software and separate USB microphones for my laptop.  I recorded multi-channel MP3 files of my Art 32 hearings and had a microphone in front of every person with a speaking part at the hearing.   I resorted to this because of the government’s failure to provide proper recording equipment or trained operators.  In one case the government wouldn’t give me a copy of the Art 32 tapes unless my client provided the blank tapes for dubbing.  In another, the tape recorder was across the room and could barely pick up the testimony, but it picked up all the “clicking” and “clacking” of the paralegal’s fidgeting with the plastic cassette tape case.  The paralegal who was running the record was closer to the microphone, so all that fidgeting drowned out the distant testimony, so in the end, the tapes were largely useless.  Oh, and let’s talk about the waste of paper prepared by the government after a 32–called the “summarized transcript.”  They are worthless!  Any substantive reform needs to include proper recording equipment (which is in the latest improvements) and verbatim transcripts (which are not included in the latest improvements).  These are more steps towards a truly professional military justice system which is actually designed to effectuate the execution of  “justice” consistent with the history and tradition of that word in the Anglo-American tradition.  Our current system fails miserably in that regard. 

  28. stewie says:

    Not sure it will mean more FG jobs. I also know that the military has never required a victim to talk to DC but it hasn’t interposed the tc in this way before and neither does the civilian system

  29. RKincaid3 says:

    Hmmm…interesting statement:  “…it might actually cause me for the first time to pay attention to what the 32 IO recommends…I never cared before….”  Dare I ask if that statement is from a current or former commander and not a JAG hiding behind the pseudonym for the famed Law of War-icon Francis Lieber?” (You don’t have to answer that!)  If so, this is a bold (and courageous) statement in that it could be considered an admission from a commander that the decision to proceed to trial after a 32 is in fact driven by something other the facts of the case–and that is anathema to any system that claims to pursue justice!  That is a problem about which many over the years have been frustrated…that the 32 was largely a lot of procedural show sans real substance.  Yes, defense gets a sneak peak at the government’s evidence (and government got a glimpse of the Defense’s angles), and yes, they are great for client control which can lead to guilty pleas, but as part of a “justice” system, they are of questionable value.  If that statement comes from a commander, it is most telling and most dangerous to any assertion that the current UCMJ is more than a “justice” system in name only. In the years before congressional scrutiny of sex assaults, 32s were used by commanders to dispose of cases they didn’t want to address–they relied on the results of the 32 to have  easy “out” by saying “look, I took action and send it to a 32.  The 32 officer deemed the allegations incredible.”  In the last 10 years, as Congress stepped up its scrutiny of sex assaults, commanders went the other way, ignoring Art 32 recommendations and prosecuting cases that not even civilians would prosecute (consider cases such as the CM at Fort Campbell following following state trial acquittals involving a questionable homicide case from Rineyville, KY, or numerous sex assault cases that civilian prosecutors declined to pursue).  Great discussion!  Although, I am still awaiting the substantive changes from Congress…heck…I am still awaiting substantive anything from Congress of late!

  30. ExTC says:

    The Navy long ago abandoned the use of line officers as IO’s for 32s.  So have Navy 32 reports been gold for years since done by a Jag and Army worthless because done by a line officer? Hardly. The 32 change to a Jag IO won’t mean a large landscape change or an increase in end strength. It means IO’s become drilling Jag reservists or a Jag wholly unconnected to mil jus, who often have no business being an IO.   

  31. John O'Connor says:

    RKincaid3 says:
      

    I am not Gene.  
     
    ———
     
    It was a joke, as in “Queen . . . to make it funny.”

  32. Advocaat says:

    Here is an example from the AF Times op-ed (above) as to why commanders aren’t the best conduits to justice:  “…because the accused is active-duty military, the Air Force has several options.  It can retry the case, administer nonjudicial punishment, separate [the member] from service short of retirement or, if he is allowed to retire, retire him at a lower grade, greatly affecting his lifetime earnings.”  Commanders thankfully do not have the authority to execute any of these COAs (SecAF approval is required) but more to the point, the man was acquitted by a jury of his peers.  The op-ed author, a former MAJCOM/CC, seems to suggest he would take a second bite at this apple.  Commanders are good at acheiving clear objectives, not the “murky” administration of justice.  I no longer believe commanders should play a central role in judicial proceedings (for very different reasons than the provision’s sponsor) and I was sorry to see that was not part of the NDAA.

  33. RKincaid3 says:

    Ummm…okay.  I get it.  Ha.  I think. :)

  34. SomDC will tell them not to talk to DC> says:

    I don’t think a requirement to go through TC to interview the complaining witness will amount to much.  It is offensive but in the end it means nothing.  What complaining witness will talk to DC, with TC present or not, when the TC tells them they don’t have to and their own VLC tells them not to.  

  35. stewie says:

    TCs already tell them they don’t have to, and I hope a SVC is not advising them not to but merely telling them they don’t have to.At the end of the day, the alleged victim has always had the right to refuse to speak to the defense, just like defense witnesses have the right to do so to the government.At the end of the day, all of this is just going to leave TC less information about their case and their victims and it’s going to mean the very first time that anyone remotely challenges the alleged victim is on the stand at trial.  I can’t imagine that will go as well as the advocates of this change think it will for alleged victims.

  36. Charlie Gittins says:

    Stewie:  I think this is one of those circumstances where a motion for deposition would likely be granted.  Equal access to witnesses under Article 46 means the opportunity to prepare for trial.  I had a MJ order a witness to undergo a 2 hour interview before the McKinney trial; if she refused, judge told me to come back with my depo motion and he would grant it.  She cooperated and spent 3 days on the stand being cross-examined with the result that all allegations of assault resulted in acquittal.

  37. DCGoneGalt says:

    Mr. Gittens makes an excellent point on MJs enforcing the “equal access” protection by ordering depositions.  If TC has to answer that they have had access to the witness then any fair MJ will grant the defense an adequate interview, or if the complainant refuses, a deposition.  Stewie:  Do you really think losing the ability to collect prior inconsistent statements via an Art 32 is outweighed by the chance to test a complainant’s credibility for the first time at trial?  I concur with the above comments desiring transcripts/recording of Art 32s as all too often Art 32 IOs (even JAG IOs) take copious notes on direct and then sit back and listen on cross.  Then when the summarized testimony is sent out there is very little from the cross included.

  38. stewie says:

    All things being equal, I’d prefer the status quo, my point was simply that I think there are several things that mitigate this to the point that I think the effectiveness on actual convictions is going to be fairly low:1. The ability to request and get depositions.  And as we all know, at a depo, you can object but there is no power to bar questions like at a 32.2. The ability to use the lack of cooperation with defense on cross at trial.  I don’t think panels are going to ignore that.3.  As government, I found value in the 32 in testing the alleged victim in an environment that was a lot less intimidating and critical than the trial itself.  I think you don’t really know fully what you have on either side until after the 32.  I think TC are going to be at a disadvantage thinking they have a strong case and a good victim going in and not prepared to deal with things as well when they go less well than expected.  I recognize that the defense may lose access to info that allows them to fully take advantage and again I’m for the status quo.  But, I think all-in-all, these changes won’t change things all that much…and my fear is that the powers pushing this will use that as an excuse to civilianize the system completely which I think a bad idea, for victims and accused because our system quite frankly is better for both IMO.

  39. RKincaid3 says:

    Ah yes, maintain the status quo–does it bother anyone else that prosecutions under the UCMJ can be so easily affected by congressional scrutiny?   Whether one finds the current system too protective of the “worthy” accused or the “innocent” victim, the fact that prosecution numbers can be driven up or down simply because someone is watching how commanders handle the cases should cause everyone concern.  Justice is a process, not a result.  The current congressional scrutiny is caused by a lack of satisfaction with the results of the process and so changes are taking place to make the results more satisfying to someone, which necessarily requires someone’s dissatisfaction.   That is hardly blind justice.  That is tinkering with the rules to give justice a peak under the blindfold in favor of one side or the other.  That changes the system to the point where one side has the upper hand under the rules, not simply an upper hand because one’s lawyer has a better grasp of the rules and how to use them. Arguably,some of these changes are creating a Uniform Code of Retributive Justice, not a justice system to which Americans have become accustomed and are owed. And especially owed to Soldiers, Sailers, Airmen and Marines.

  40. stewie says:

    Well, no, not in and of itself.  Who else would affect it other than Congress?We tinker with rules all of the time.  It just so happens this round of tinkering overall most of us think is a net negative.  Other times, it’s been a pretty good positive (like the creation of the UCMJ).Restorative justice has its strengths, particularly in juvenile justice…but it also has its limitations.  The system we had before the 07 changes wasn’t broken.  It was a pretty happy medium.

  41. RKincaid3 says:

    “Restorative” justice or “Retributive” Justice?  The UCMJ has NEVER been a justice system except in name only—but with the adoption of appeals, independent military judges, a discovery code and independent defense counsel, it has evolved towards that goal–and all of those steps necessarily resulted in the diminution of the commander’s role.  And all those individual steps were fought by the military chain of command every step of the way–using the exact same arguments that are being made today.  And in every instance, those improvements were just that–improvements to the system–implemented rules that necessarily create a true Anglo-American justice system.  I am advocating that Congress complete that inevitable evolution by implementing the next steps–all of which again require the commander’s minimization in–if not outright removal from–the military justice process except as a witness or recommending official.  The Congress must remove the final obstacles that are holding the system back from being a true justice system…one that is not AS susceptible to the ever unpredictable political winds of commander’s lifting the blindfold for a peak at taking those actions that will meet with Congress’s approval so they get promoted, to hell with basic due process and rule of law concepts.  My criticism of this system is the same I have with elected judges–justice is missing anytime a critical component of the system has an eye on anything but the evidence and the rule of law.  What I am tired of is the blind obeisance to military tradition–even when outdated for any so-called society in the 21st Century–and Congress’ general inability to govern.  But that is another debate entirely.

  42. stewie says:

    if your goal is to make it look exactly like the civilian system then there’s not point in having a military justice system.Send all crimes to the civilians, and treat military crimes administratively.  Have boards for AWOLs or 92 violations or the like.I think most of us don’t want that.  There’s a place for commanders in the system, and again, it worked pretty darn well before we started screwing with it.

  43. RKincaid3 says:

    For a so-called “justice” system, the system did not–and has not–“…worked pretty darn well before we started tinkering with it.”  And that is my point..it is too easy to tinker with based not upon justice concerns, but upon political dissatisfaction with the results.  It worked well only to the extent that we were comfortable with it–knew it–and as such–today we like it and defend it.  Even to the point of ignoring what we know to be its weaknesses.  If it worked well at all, it worked well for the era when it was created.  A time when the world was different and societal expectations were different.  It worked and works well for commanders but hasn’t and doesn’t work well for those appearing before it–either as accused or victim–as if it were a true bar of justice.  Change is difficult and uncomfortable.  Any change will carry some unintended consequences, but implementing true justice concepts into the UCMJ will at worst, implement the same unintended consequences that frustrate the civilian justice system, such as jury nullification and mistrials and politically motivated DAs.  But DAs actions aren’t compounded by an appellate process that still considers the commander’s needs over the law’s needs.  And those civilian problems have arguably not been so rampant as to undermine the health of the entire system.  Yes, 50% of the people walking out of a courtroom are unhappy and believe they have been denied justice.  And the other 50% believe they received justice because they won.  But such subjective beliefs are anathema to a justice system which is and should be based upon the process, not the result.  Such subjective beliefs are retribution or vindication based.  Such subjective feelings are criticism and nothing more substantive.  And we certainly don’t measure the success or failure of any justice system by any measure that at best carries a 50% success/failure rate.  Those subjective criticisms certainly aren’t a threat to the health of the overall system like the problems with the UCMJ are a threat to the future of the all volunteer force.  The UCMJ that we (and Congress) have tolerated for oh-so-many years has been tolerated out of deference.  But that is a deference that most civilized societies have eliminated by minimizing the commander’s role to no more than that of witness or recommending official–the same role any of us might play in any true justice system.  And it is a deference that even our traditional society has in the past curtailed when systemic and legal evolution was inevitable and appropriate.  The time is now or later.  Given that fact…I choose now.  So, why fix tomorrow what you must, of necessity, fix today?

  44. RKincaid3 says:

    Yes, there is a place for the commander.  Dealing with disciplinary matters, not crimes.  Or testifying or making a disposition recommendation.  The lines between disciplinary offenses and crimes are already fairly well delineated in current UCMJ practice with the designations “military-specific” offenses and “crimes.”  A commander’s disciplinary purview is Article 15s, adverse admin actions, separations, etc.  But under no circumstance does a commander have a legitimate or even modestly complelling need to impose a federal conviction as part of disciplining their troops.  If a revision of the UCMJ were to actually occur, all these details would be easily worked out and in the end, I submit that most Americans and most Servicemembers would be happy with the details.  This isn’t rocket science–but it does require the courage to change when change is best for the system as a whole.

  45. stewie says:

    yeah, it did work pretty darn well.  It may not have worked exactly as you think it should have, but there was a good balance between the demands of justice and the rights of the accused.  Better than in the civilian system for sure.  The world was not THAT different in 2005 and 2006.  If the appellate process was so concerned with the commander’s needs we wouldn’t see so many guilty pleas sent back where the accused obviously wanted to plead guilty and the commander obviously was on board with it.  Obviously, it was concerned with something else there.I get that you think the whole thing needs to be shaken up, and that’s fine, but other than fairly vague allusions to a restorative justice system, which is nowhere the only or even main system and is mostly used either in the juvenile system or on the fringes (and will never be initiated here), and calls for the commander to be taken out (which won’t result in much since the JAGs will ALWAYS take the commander’s needs into account), I don’t really see where you’ve called for anything in particular that leads me to a fundamentally better system.Taking the commander out is not going to fundamentally change anything.  It might do some things on the edges, but it isn’t going to produce a sea change.  We had a system that was developed over time, ameliorated and moderated by case law, and that everyone understood.  We had a system that was relatively free of UCI in the sense that no one was pressuring commanders to increase convictions.  That changed in 2007, and we’ve been on the roller coaster every since.  The genie/milk won’t go back into the bottle, but that was a time when yes it was working pretty well, as well as any human system can work, which is to say, full of flaws.

  46. RKincaid3 says:

    Great arguments for….doing nothing.  But they are also not new arguments.  Every change to the UCMJ was met with the same or similar arguments.  And the changes happened anyway.  Like it or don’t…the UCMJ will change as it always has and always will.  The only question is “when?”  I am on this bandwagon now becuse the issue is ripe at both local and national levels.   I don’t want silence to equal approval of the status quo which is woefully inadequate as justice systems go.  And my only goal with all this online debate is to  encourage the continued evolution of the system so that people will hear (and hopefuly consider) all the issues, not just the endless litany of “leave us alone” and “we are fine” defenses of the status quo.  The current system doesn’t work as a “justice” sustem is contemplated.  It operates more as a hybrid between a “disciplinary” system (as the Articles of War were) and a “justice” system (as the American civilian systems do).  The UCMJ bridges the gap between the Articles of War and the civilian world but it is at best a transitional state. And that is why its evolution is inevitable.  Eventually it will–it must–evolve into a justice system. Until that happens, we who are in it will get buffeted around by those who are not and judge it by its results–those who believe that the ends justify the means.  And when they are unhappy with the ends, they are then unhappy with the means.  And so they blindly tinker hither and thither with partial fixes to results problems to their hearts’ collective content and without any clue to the consequences of thier tinkering (as is the case with case this current NDAA bill).  Then, when the latest cure is put into practice and once again it is proven to aggravate the original ailment, we will endure another wave of political outrage followed by more tinkering and more half-steps which then become more mis-steps.   We should just skip all that experimenting and implement the final fix.  Implement a “justice” system and be done with it. 

  47. Charlie Gittins says:

    The problem is that the Congress tinkers without meaningful hearings.  No “experts” provided real analysis of these proposed changes at a real hearing.  It was all done by a bunch of legislators and their nincompoop staffs with little or no knowledge, less experience, in military law, justice, procedure, etc.

  48. RKincaid3 says:

    Concur…whether one likes or dislikes the current system, the tinkering that is going on at Congress is mindless wilderness wandering with no ultimate destination in mind beyond the result they hope to get.  Whether it was the silly and unconstitutional double-burden shift in 2007 or the monstrosity that is the latest version of Article 120, they are wandering without a road map, or they have a road map but can’t seem to find magnetic north because they are only looking at the landscape in front of them and not looking at the compass.  The compass directs towards implementing a true justice system but they can’t see it because they are too focused on the political soup of the day.  And we here in the trenches are too busy defending the status quo against the silly piece-meal changes than taking the opportunity to speak up and tell them what they need to hear–whether in this forum or elsewhere (such as at the ballot box).  What we have with this latest round of tinkering is more of what we usually get from Congress….nothing substantive.  But we keep voting for them over and over and over again.  So, any injustice in the UCMJ is our fault.  Which is why I am beating (probably needlessly) this drum.  I hope someone else will join in and take the LONG view by no longer looking at the landscape in front of them–be it a commander’s landscape or a accused’s landscape or a victim’s landscape–it is time to look at the compass and figure out where we as a society expect ourselves, our Servicemembers and our military and political leadership to be in 1, 5, 10, 15 or 20 years.

  49. stewie says:

    All those words and I still have no idea what you mean when you say “implement a justice system.”What exactly would you change? Besides “get rid of the commanders” because that wouldn’t change much at all.

  50. RKincaid3 says:

    Apparently you haven’t been reading “all these words.”

  51. stewie says:

    yep read em all. Twice.  And all I see so far is:Get rid of the commanderBetter recording equipment at 32s plus verbatim transcripts

  52. RKincaid3 says:

    Sigh.

  53. Tim Keane says:

    One issue/problem I have is that protecting a “victim” before any crime has been proven in the manner required by these changes seems to be getting way to close to dismantling the presumption of innocence.

  54. RKincaid3 says:

    Ok, for better or worse, here are more words. The “protect the victim” standard is just one of many problems.  Whether one considers the “victim” to be a female or the commander’s authority/unit or the government, when the system is so easily manipulated by politics from on high, or insulated from scrutiny by a tiered level of appeals that effectively shields some cases from scrutiny (or yields appellate results of questionable effective deterrent value–to both the government and the accused) there is a problem.  Judges can avoid appellate scrutiny of their decisions (including their failure to apply the rule of law) by simply keeping the punishment below six months of confinement and not kicking a Soldier. And in the case I am thinking of,  if the judge had followed the law and applied the 4th Amendment suppression rules, the evidence would have been suppressed and there would not have been a conviction.  And no SOR requirement. But the law wasn’t followed and the Soldier was convicted and denied an appeal because his sentence was less than six months and there was no kick. This meant the government (read: the commander) got the desired punishment imposed while the Soldier is now carrying both a conviction and a SOR Scarlet Letter.  Judges are human and make mistakes, but that is why there are appeals–to check those mistakes (or institutional errors).  Sunlight is the best disinfectant and any true justice system injects sunlight wherever possible instead of resting on hollow assertions or beliefs that people will do the right thing always just because they happen to be officers, NCOs or judges. The mere conviction alone should trigger an appeal (except in a guilty plea), not just when a certain level of punishment is imposed.  There is a constant and recurring murmur within my peer groups that judges who are not hard enough on merits findings don’t get another 3-yr tour of duty on the bench.  Ignoring the law  (by not suppressing evidence seized in violation of the 4th Amendment, for example) to keep a conviction rate up while levying minimal punishments to avoid an appeal (and denying an accused the opportunity for substantive appellate relief) may be that perception in practice. That doesn’t say much about the true independence of judges, which is a true hallmark of a true justice system.  And the “car salesman” way TCs lack “settlement authority” in plea negotiations is unprofessional. When I was practicing insurance defense in private practice, we had settlement authority at all negotiations, even (especially) those involving multi-million dollar settlements. If we didn’t, it was a waste of time for both sides and no meeting would occur. The practice of having an accused permanently waive something of value in exchange for a TCs “promise” to convince the SJA and the CG that it is a good deal (which usually doesn’t happen until the second or third volley) is no different than a car salesman shuttling offers back and forth to the sales manager for approval.  Another problem that arguably protects the victim, whomever that may be, is panel member selection.  That is a problem even acknowledged by the Cox Commission and is more than a perceived problem.  The panel is not a true cross section of an accused’s peers.  A panel is loaded with successful Soldiers whereas a true cross section of a Soldier’s peers would include everyone (e.g., failures and drop outs in the civilian system), not just those who the CG believes possess his “judicial temperament.”  The current selection system stacks the panel with successful personnel in key leadership positions who are all being rated (and judged, if you will, on whether they still have the appropriate “judicial temperament” after the trial) by the very CG who appointed them. That lack of diversity–and leverage on a career after the trial–stacks the deck with people inclined to be judgmental, not necessarily independent thinkers, much less understanding.  But even if the system works as advertised, panel selection opens the door to criticism that undermines the integrity of the system as a whole.  Revising this one article would do wonders for America’s faith in merits of the system just by removing a critical vulnerability to confidence.  As a drivers license is the only requirement for amenability for selection to perform jury duty in the civilian world, in the military, the trigger for amenability for selection to perform panel duty should simply be that one is in a Title 10 status and part of the Accused’s assigned post’s military population.  All members should be selected randomly (like the military does for urinalysis testing) and without any input from the CG or the SJA.  Again, change is tough…needed change is tougher.  So Congress should break some eggs, speak with the SMEs who actually practice in this area and some who understand what justice is (and isn’t) and then a true “justice” system worthy of both the name and the people appearing before it might actually be implemented. 

  55. stewie says:

    Taking one at a time:1. Protect the victim.  Depends on which part.  Being able to transfer, and having someone they can report to (VA) doesn’t affect the accused at all IMO or justice.  Having an SVC on the other hand, obviously has seriously issues for justice unless it’s extremely limited.2. Appellate “cut-offs.”  I’m fine with extending appellate review either for all offenses regardless of the sentence, or making a more limited exception for offenses which result in SOR regardless of punishment.  I’m not sure a single use that results in a couple of months at a SPCM with no kick needs appellate review, but also not vehemently opposed to it.  I do agree that SOR is such a serious result that all cases where it results should be reviewed by the CCAs.3. You say “except in a guilty plea” and I disagree there.  But you seem to go a bit too far IMO in insinuating that judges are routinely and consciously trying to help the victim at the expense of the accused.  I’m sure out there somewhere is a judge like that, but the vast majority i think are trying to be what they perceive to be neutral.  Doesn’t mean they are of course…everyone thinks they are fair (and everyone thinks they are in the top half)…some are government hacks, some are defense hacks…but that’s different from what you seem to be insinuating.4. Can’t disagree more on the idea of giving TC blanket settlement authority.  Every TC I’ve had has been an outstanding officer and attorney, but I’m sure they would all agree (even begrudgingly) that they don’t have the experience to make those final calls.  Heck, not sure I’ve got the experience to make those final calls.  If/When we move to some sort of career litigator track where folks specialize in crim law, maybe then senior trial counsel can be given that kind of power, until then, I see no reason why we’d give it to junior attorneys and officers who’ve been doing the job for 6-12 months and are maybe two years out of law school.5. Panel Selection is a mixed bag.  There is nothing inherently great for an accused by a random panel.  Being made up of humans, just because a panel is random doesn’t mean it’s any more free of bias than one selected by the CG.  And having been a part of several panel selections, my admittedly limited experience is that it ain’t all that far from being random.  Having said that, we all recognize that there is great potential there to stack things particularly with a CG with great knowledge of who he supervises and an SJA who also knows all the players.  That’s obviously problematic too.  I just don’t know that going random solves anything, nor do I have a solution although to me this would all be mitigated if military judges were more open to allowing counsel to have more leeway during voir dire.None of this is sea change stuff though.

  56. charlie gittins says:

    I think revision of the panel selection process is something that needs to be undertaken.  In the run of the mill case, I am sure it works fine because the CA is not really invested in the outcome.  When the CA gets invested in the outcome, then things get interesting.  In the SGT Boz case in 2011, the CG picked as his first group of members all people he rated or senior rated.  They included staff members and commanders who reported directly to him.  CSMs were senior rated by him.  It was a DP case, the CA had made a DP referral and he wanted a DP outcome.  We were mostly successful getting that hand-picked killer jury blown up (I think we voir dired 63 members to seat 13), but the second group was similarly “packed” with staff and CG senior rated soldiers.  By the time we busted the panel 4 or 5 times, we were down to less “reliable” choices.  But if our judge — who was trying her first DP case at the time — had not applied the liberal grant mandate, as some judges are want to do, we might have been stuck with a fait accompli — the killer panel.  I think it will be interesting to see who gets selected to the USNA rape trial as members.    

  57. RKincaid3 says:

    Great recitation to actual practice problems. Thanks. I wish there were more of those candid revelations. My suspicion is that if Congress actually heard from the people on this website and heard first hand how the UCMJ worked in actual practice (instead of only hearing from those who haven’t been in the court room for years but who want to maintain the status quo–subject, of course to the ridiclous, politically driven sex assault mods) there would be much more support for a complete revision of the UCMJ.  Then Congress might actually implement some revisions that will be the final evolutionary steps necesssary in any true “justice” system, as originally contemplated by General Ansell in his 1916 proposal.

  58. stewie says:

    I can’t imagine any judge on a DP case not applying the liberal grant mandate.  That would be akin to knowingly filling your car with napalm.  I’d say in the vast majority of cases it works fine, but what you can do is simply mandate one way to pick a panel that’s uniform across the military and that is designed to minimize tinkering post-selection.

  59. charlie gittins says:

    All I can say is that in the 15 or so years that the liberal grant mandate was on the books while I was in practice, I saw many judges pay lip service to the concept and then ignore it.  We set aside several weeks to do jury selection in Boz’s case — I am not sure that had we had a less flexible schedule that the liberal grant mandate would have been so liberally construed, but prior planning in scheduling went a long way to helping with the good outcome for the client.   

  60. Zeke says:

    My read of the provision requiring DC to coordinate victim interviews through TC/SVC/VA is that such a requirement kicks in only after TC has given DC written notice of 1) the victim’s name and 2) the government’s intent to call the victim at a 32.  Unless both of those triggers have been pulled, I see no statutory prohibition on DC proceeding with business as usual.  I’d also argue that any sort of purported notice by TC pre-preferral would be ineffective on account of being premature and speculative.  First, before a case is preferred, no TC legally exists.  I think before a court-martial case is actually created/preferred, DC is bound only by the same anti-harassment laws applicable to anyone else who wants to talk to any other human being about sensitive matters.  I don’t see the government having a say in how a lawyer pursues their client’s interests prior to a legal case actually coming into existence, aside from the bar’s basic rules of ethics and professionalism, of course (and importantly).
    Given that, I don’t think this changes the practice that much.   I see this as akin to TC’s ethics and professionalism requirement to coordinate contact with an accused through counsel one notice of rep has been given, and a government investigators’ requirement to coordinate though counsel to schedule interviews with an accused post preferral.