A few weeks ago, Zach posted a link to the latest edition of the The Reporter, the Air Force JAG School’s magazine. In that edition, there were two articles dealing with the Special Victim’s Counsel program. One of those articles, The Scope of a Victim’s Right to be Heard Through Counsel by Major Christopher J. Goewert, USAF and Captain Seth W. Dilworth, USAF, got me thinking more about what discovery rights an alleged victim might have.
In the article, the authors tease out what the scope of an SVC’s representation might be in light of LRM v. Kastenberg. As an aside, Maj Goewert was one of the appellate counsel arguing on LRM’s behalf in the appellate courts and Capt Dilworth was LRM’s SVC. The article was thought-provoking, particularly toward the end in a section titled “What Information Should be Provided to an SVC.”
This is an interesting section because, as the title indicates, it is almost entirely prescriptive rather than descriptive. In other words, it seems to be making arguments for what evidence should be provided to an SVC, but does not really discuss what evidence is legally required to be provided. It got me thinking about what requirements, if any, exist right now for production of evidence to an alleged victim. Before we proceed though, let me say that I certainly don’t have all the right answers. This blog post is essentially me thinking through a portion of this article. If I’m wrong on something, please set me straight in the comments. This is as much a learning experience for me as anyone else.
The article proposes four possible levels of discovery:
(1) no disclosure; (2) disclosure of that information which is provided to the court; (3) provision of all evidence that directly relates to the victim; and (4) access to all information that is discoverable to the parties.
I think the pros and cons of each of these levels could be separate blog posts, and maybe that’s something I’ll undertake in the future. However, I want to address the premises from which the authors begin this discussion and some of the implications of these premises. The authors begin their discussion by stating that:
It is patently unreasonable for the government to provide a victim’s attorney with no evidence, as the victim would then be represented by counsel that has been rendered ineffective. It is equally unnecessary for victims’ counsel to receive all the evidence in a given case as they are not a party entitled to discovery.
It’s not clear to me whether the authors are saying that providing a victim’s attorney with no evidence is “patently unreasonable” in the status quo or whether they are advocating a position for future changes to the law. To the extent that they are arguing that it is unreasonable in the status quo, I would take issue with that conclusion. I take issue with it for the exact same reason that the authors conclude it is unnecessary for a victim’s counsel to receive all the evidence. Namely, the victim is not a party entitled to discovery. If they are not a party entitled to discovery, then it’s not unreasonable to provide them with no discovery.
Further, appeals to effective representation of victims are not helpful to the authors’ position. I don’t mean to be callous here, but if providing the SVC with no evidence renders him or her ineffective, so what? That speaks more to the quality of representation provided by the SVC than a fault of the system. The authors’ conclusions here starts from two flawed premises: first, that an alleged victim is entitled to effective assistance of counsel and second, that effective representation is contingent upon the government just handing stuff over to the SVC. Or, at the very least, that it is a best practice for the trial counsel to “play nice” and just hand over certain things to the SVC.
Looking at the first premise, while I could be wrong, I’m not aware of any requirement for an alleged victim to receive effective assistance of counsel, whatever that means for an alleged victim. Certainly, to the extent the authors are analogizing to a Sixth Amendment type right, their argument is incoherent for obvious reasons. A good starting point is what CAAF has to say about an alleged victim’s right to counsel:
Furthermore, M.R.E. 412 and 513 do not create a right to legal representation for victims or patients who are not already represented by counsel, or any right to appeal an adverse evidentiary ruling.
LRM v. Kastenberg, 72 M.J. 364, 371 (C.A.A.F. 2013). So, we learn from CAAF that there is no judicially recognized right to representation for an alleged victim. The unspoken corollary is that there is no constitutional right to representation. While the Congress and the DoD have elected to provide all alleged victims with access to SVCs, those statutory and regulatory rights do not necessarily create a right to effective representation.
The correct analogy here is to legal assistance services rather than defense services. It is equally nonsensical to say that a legal assistance client is entitled to effective representation by a legal assistance attorney, as it is to say that an alleged victim is entitled to effective representation by an SVC. If legal assistance screws up your will or your divorce paperwork, you will not escape the repercussions of those mistakes simply because your counsel was ineffective. You might have a civil malpractice claim under FTCA (frankly, I don’t know if that’s even possible for legal malpractice), but the fact that your counsel was ineffective doesn’t help you get out of the legal issue you were facing. Similarly, if an SVC were to be negligent or ineffective, or whatever word you want to use, in representing an alleged victim, the result would most certainly not be that the case is re-tried. Therefore, I would argue that when we think about an alleged victim’s discovery rights, or really any victim’s rights, it is helpful if we dispatch with the idea that an alleged victim is entitled to effective representation. Certainly that’s something good to shoot for, but I don’t see how it’s based on any valid legal argument.
The second premise here, that an SVC’s job is dependent on the trial counsel providing them with certain material, is equally problematic. As I alluded to earlier, the more troubling part of this premise is the underlying idea that it is a “best practice” to play nice with SVCs. Let’s start by talking about who is the trial counsel. I don’t think it’s a stretch to say that these words apply to a trial counsel equally as they would to an AUSA:
The United States Attorney 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. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.
Berger v. United States, 295 U.S. 78, 88 (1935). While I know I’m running the risk of getting preachy here, I think this quote drives home, in an indirect way, one of the most salient points about the SVC program. That point is that we must resist the notion that the SVC and trial counsel are on the same “team.” They are not. The trial counsel, as the representative of the United States, has a single aim – “that justice shall be done.” Doing justice is not the aim of an SVC. An SVC’s role is to advocate, within the bounds of law and ethics, for his or her client’s position. That may lead to justice in some cases and it may not in others. The main point though is that the SVC and the trial counsel are not on the same “team,” even if their interests may align at times. Indeed Capt Dilworth is very aware of this truth, because he argued it at the trial level in LRM:
Initially during the arraignment hearing, Capt Dilworth indicated that he did not intend to argue at any future M.R.E. 412 or 513 motions hearings. Later during the same hearing, Capt Dilworth argued that there may be instances where LRM’s interests in the motions hearings were not aligned with the Government, in which case Capt Dilworth asked the court to reserve LRM’s right to present an argument.
LRM v. Kastenberg, 72 M.J. 364, 366 (C.A.A.F. 2013).
The trial counsel is under no more obligation to make the SVC’s job any easier than he or she is to make the defense counsel’s job any easier, and trial counsel should treat both counsel the same. The trial counsel should follow the law and only provide the SVC with what the law requires, the same as the trial counsel would do with the defense counsel. If the only way for an alleged victim to obtain certain evidence or court documents is for him or her to file a FOIA request for those documents, then guess what? The DoD has provided the victim with an attorney who can assist him or her in doing just that. If there is no mechanism for a victim to receive certain documents, then their SVC can file a motion arguing for some new interpretation of the law. But, what a trial counsel must not do is just go along to get along with the SVC.
I hope to post more on this subject. While at present I’m at a loss to think of any legal requirement to provide an alleged victim with any evidence from a court-martial, there may be some arguments to read such a requirement into certain statutes. I would encourage all MilJus practitioners though to read this article if you have not already and think about the implications for how we can legally and ethically incorporate this new program into the military justice process.