“The sexual assault trial of a former football player at the U.S. Naval Academy has been scheduled for March 14,” reports The Washington Post.

According to this press release from Senator Gillibrand, the Senate will vote on the “Military Justice Improvement Act” next week. The text of the bill is available here, and includes this limitation:

(4) Requirements and limitations.–The disposition of charges pursuant to paragraph (1) shall be subject to the following:

(A) The determination whether to try such charges by court-martial shall be made by a commissioned officer of the Armed Forces designated in accordance with regulations prescribed for purposes of this subsection from among commissioned officers of the Armed Forces in grade O-6 or higher who–

(i) are available for detail as trial counsel under section 827 of title 10, United States Code (article 27 of the Uniform Code of Military Justice);

(ii) have significant experience in trials by general or special court-martial; and

(iii) are outside the chain of command of the member subject to such charges.

The Associated Press reports the results of its own review of sexual assault courts-martial (alternative version of the story here), and it’s predictably haphazard:

The records, obtained by The Associated Press through the Freedom of Information Act, open a rare window into the opaque world of military justice and show a pattern of random and inconsistent judgments.

The AP analysis found the handling of allegations verged on the chaotic, with seemingly strong cases often reduced to lesser charges. In two rape cases, commanders overruled recommendations to court-martial and dropped the charges instead.

Even when military authorities agreed a crime was committed, the suspect was unlikely to serve time. Nearly two-thirds of 244 service members whose punishments were detailed in the records were not incarcerated. Instead they were fined, demoted, restricted to their bases or removed from the military. In more than 30 cases, a letter of reprimand was the only punishment.

Finally, over at the Commissions there is new pressure on the chief prosecutor, General Mark Martins, for his public comments about the commissions process. The New York Times reports:

The defense team lawyers for one of the five Guantánamo Bay detainees charged with aiding the Sept. 11 terrorist attacks are seeking to muzzle the chief military commissions prosecutor, saying that his comments defending the tribunals system — including in a recent “60 Minutes” interview — are unethical and that they are undermining their client’s right to a fair trial.

13 Responses to “Military Justice News for Friday, Feb. 7, 2014”

  1. phil cave says:

    http://www.military.com/daily-news/2014/02/06/gillibrand-loses-key-support-on-sex-assault-bill.html?ESRC=eb.nl

  2. Tom Booker says:

    I want to make sure I have the “military justice improvement act” straight.  One need not have one of these “super prosecutors” (whoever and wherever they may be) weigh in on referring Spying, which has a mandatory penalty of death, to trial, but if the accused should happen to steal a vehicle, or a knife from a galley, then all bets are off.  Additionally, the statute excludes order violations (which could include, for example, sexual harassment and retaliating against whistle blowers) from the purview of these supermen.
    Note, too, that the statute actually does not require that the O-6 or above be a judge advocate.  Per Article 27, any commissioned officer may serve as a Trial Counsel at a Special Court-Martial; additionally, an officer who has served on panels or who has convened courts-martial could be said to have “significant experience” in general and special courts-martial, at least as much as an international law attorney who happens to be an O-6.
    I can see a time when we concentrate the trial of the real target offenses, viz., violations of Article 120, 120a, 120b, and 120c, in the hands of a very few convening authorities, much as we do national security cases.  Look at King and Manning as examples of how efficiently that process runs.

  3. RKincaid3 says:

    Sigh.  Congress simply does not know what it is doing. The members therein are tinkering for short-term political gain and doing so without regard to the second, third and fourth order effects thereof.  Even to the extent of disincentivizing young people from joining the military.  And that is a national security consequence.
     
    Are the readers of this blog tracking that last week (around 5 Feb) a Fort Polk SSG with 19 yrs of service was convicted under the new Art 120 for “rubbing a girl’s shoulders with the intention of committing a sexual act?” 
     
    The accused never touched her genitalia or breasts; never asked her to touch him and didn’t have or make her touch him. The charges were based on what the alleged victim thought would happen next IF he hadn’t stopped and left her room.  A Special Victim Prosecutor that I know praised the result as the great work of an aggressive prosecutor.  I say…who needs Tom Cruise’s Minority Report–welcome to the world of PRE-CRIME prosecutions—where actual conduct is not punished, rather potential conduct is punished!! 
     
    To give you more facts.  The accused was the NCO in charge of the barracks the unit uses for incoming soldiers until their permanent quarters are assigned.  A female private arrives and is assigned to a room. 
     
    Later that night, the SSG used a master code to enter the PVTs room uninvited.  He is in uniform.  He turns on the lights, calls out her name and made no attempt to disguise himself.
     
    She claims that at first she pretended to be asleep on the bed.  He sits on the bed and begins rubbing her shoulders and back while whispering her name.  At some point, her phone buzzes and she sits up and claims to have said “you don’t have to do this”.  She asserts that he responds by saying that he needed something to keep him up, to which she says that she is tired.  Upon hearing this, the SSG doesn’t say anything, gets up and leaves her room. 
     
    The Special Victim Counsel prevented the Defense from pre-trial interviews with the accuser which shielded from discovery the fact that the alleged victim had previously made similar allegations when she was younger.  So much for the truth of the allegations being tested by challenging the alleged victim’s credibility.
     
    When the prior allegation incident started to come out at trial, during a 39(a) session, the Defense asked the alleged victim if the SVC knew about her prior allegations.  Before the alleged victim could answer, the SVC interjected by invoking the Attorney/Client privilege.  The Defense’ motion for a mistrial on the issue was then denied.  The “intent” element was “proven” purely through inference based on what could have happened—not what actually happened.
     
    Even if one agrees that the Soldier wasn’t there to just rub her back, that he probably was up to no good (and on those facts—how can one NOT draw that conclusion?), it is simply preposterous that Art 120 was written so broadly that one can be convicted of committing a sexual offense and being labeled as a sex offender for the rest of his life for giving a back rub with no further conduct.  Assault consummated by a battery, sure.  And other appropriate charges, too!  But a sex offense and lifetime sex offense registry requirement (and let’s not forget the virtual lifetime haunting known as “titling” by MCIOs based upon credible information vice probable cause)?  Anyone else thinking “cruel and unusual punishment?” 
     
    Regular readers will recall that I warned of this kind of absurd travesty in the comments section to a post on 20 Jun 2013 on CAAFLOG.  See http://www.caaflog.com/2013/06/20/sen-mccaskills-latest-well-informed-comments-on-sexual-assault/.  Anyone else thinking “void for vagueness?”
     
    Some will also recall that in that same 20 June comment, I also warned that the military’s way of tracking military justice actions left itself open to Congressional allegations that it was unable to truly combat sex assault as the statistical records show an ever-escalating rate of sex offenses being committed (due to an ever-expanding panoply of prohibited conduct–much of which is more battery or hazing, but not sex) while there was an inverse rate of punitive prosecutions as there are so many other ways of resolving such allegations other than by court-martial.  Especially when since the charging is and can be so ludicrous and wild-eyed as in the Ft Polk case that one would expect veteran servicemembers on a panel to reject such ludicrous and wild-eyed charging.
     
    Boy, was I wrong in one regard.  I was incorrect in predicting that the most ludicrously charged Art 120 cases (like the Ft Polk case) would be stopped by diligent, conscientious panel personnel (despite their selection by a CG pining for congressional and presidential approval and future promotion).  Because, at the end of the day, Congressional or Presidential UCI is endemic and it flows from the top down, from D.C. to the DoD to the individual CG and down through Art 25 and into panel member selection and finally, filling the court room.  But it is so effectively insulated from scrutiny by appellate court guidance on the burden for establishing it and fixing at via voir dire, that it is nigh impossible to identify it as a problem at voir dire.  And the appellate courts are so quick to saving courts-martial trial results at all costs—see U.S. v. Easterly— (http://www.caaflog.com/2014/02/10/some-thoughts-about-the-nmccas-opinion-in-easterly-and-the-continuing-legal-impact-of-the-heritage-brief/#respond), that it can now be truly said that the inmates are running the asylum.  A fair trial will be hard—if not impossible—to achieve.
     
    I wish it were true the crazy “back rub” sex assault cases that actually make it to a panel would result in some kind of punishment that would not be reported statistically—such as when no discharge or no confinement is adjudged—in addition to GOMORs and other such actions that are statistically invisible until some discontented alleged “victim” somewhere complains to the media or their congressional rep about how the perpetrator got away with the crime.  Such a statistical anomaly is far preferable to the injustice being meted out thanks to Congress’ inane way of doing things—starting with keeping commanders in charge of prosecutions.
     
    And, since resort to the SCOTUS is barred unless a case is first accepted by CAAF for review—which are very few cherry picked cases—the vast majority of court-martial convictions containing such “back rub” absurdities will not be considered by independent, justice-minded experts on higher appellate courts—and simply for jurisdictional reasons having nothing to do with the merits of the case.  Why so isolate the process to avoid scrutiny upon your own conduct, Congress? 
     
    So, once again, Congress is writing rules that both hamstring the quest for justice—for both victims and accuseds; Congress then uses those rules to vilify the military for being so hamstrung; service members worldwide continue to suffer; and Congress continues to say “what’s wrong with the military” even though the military is following and applying the rules Congress drafted.
     
    Well done, Congress.  Well done.  You have effectively made things worse while: giving yourselves new pillories upon which to play politics; denying justice to those who sacrifice to serve—both victim and accused; and isolating from scrutiny the entire process, including your own role and responsibility in the outcome.
     
    But what do I know.

  4. k fischer says:

    RKincaid3, 
     
    Ft. Polk anecdote is pretty creepy.  NCO with 19 years uses master to code to break into Private’s room?  Did he have the authority to do so, since he was the CQ?  Did the Private have a curfew?  Did he knock first with no answer, and check to see if she was there in her room?  If not, then he definitely committed the act of Housebreaking under Article 130, as it strongly appeared that he was attempting to commit a violation of Article 92(1).  
     
    I can somewhat see your point about this pushing the envelope regarding the spirit of Article 120.  But, let me ask you: if that was your daughter fresh in from the world who was getting her shoulders rubbed from an NCO with 19 years in who used his authority to gain access to her room so he could get a little something to “keep him up,” would you be really chapped that he had to register as a sex offender?  
     
    To me, I stop feeling sorry for him when he uses the master code to get into the room.   Not cool.  And, if he shouldn’t have to register as a sex offender, then I suppose one of my old male client shouldn’t have to register as a sex offender either where he pleaded guilty to entering the unlocked barracks rooms of many male Soldiers and watched them sleep until the urge took over and he had to tweak their nipples a little bit ……
     
    Rather than engage in a lengthy Vincent/Jules-like debate on the sexuality of a back rub, I will simply say that many trips to the realm of coitus started with a late night back rub………….

  5. RKincaid3 says:

    k fischer:
    Concession to your points: 
    Concur that Ft Polk offense is creepy.  REALLY CREEPY.  And his conduct warrants proper charging and conviction for violating any number of offenses–none of which are sex assault related, much less sexual offender eligble.
    Concur that no one should feel sorry for the accused at Ft Polk.
    Concur that your old client should no have to register as a sex offender for the offense if giving his fellow Soldiers a “purple nurple.”
    You asked:

    But, let me ask you: if that was your daughter fresh in from the world who was getting her shoulders rubbed from an NCO with 19 years in who used his authority to gain access to her room so he could get a little something to “keep him up,” would you be really chapped that he had to register as a sex offender?

    My answer: Yes.  But my subjective view and beliefs are irrelevant.  That is why we don’t look at subjective results to determine the success or failure of a “justice” system.  We look objectively at the process to determine whether justice is meted out.  Congress has failed to objectively examine the process and keeps tinkering with little regard for what they actually are doing.
    Finally: this is NOT a lengthy Vincent/Jules debate–this is much, much more than “an intriguing McGuffin” as Taratino calls that debate.  This is substantive due process, to my mind.  And it harkens to much, much more than simply do we like the results of trial or don’t we.  The issue is whether justice, as a process, not as a result, has been served.
    Just my thoughts…
     

  6. k fischer says:

    Old client was also giving a couple tugs on some of the sleeping soldiers.  As evidence of his need to register, he did the same thing at an apartment complex three months after his release.  He got 3 years with the civilians; I got him 8 months….
     
    As far as Subjectivity goes with justice, just remember that PFC was somebody’s daughter.  I don’t see the problems with this verdict where the NCO breaks into the room.  I would look for another case to be the flag carrier for why the amendments to the new article 120 are bad.

  7. RKincaid3 says:

    Just my opinion, but Congress should be worried about implementing POLICIES which effectuate uniform justice, not specific results. There are charges that are appropriate to the misconduct, and there are charges which are not.  Art 120 should not apply to back rubs without more.  And yet Congress says it does..and that is Congress’s failure.  And ours, as voters, for letting Congress get away with it.
     
    Yes, the PFC was someone’s daughter, but so too was the SSG someone’s son.  Forgive me, but I am not moved by the argument that because one likes the results, then that necessarily means that justice was done.  Such subjective value judgments are absurd–no matter whose perspective one chooses to side with.  Justice occurs despite the subjective approval of the results–50% of which are from unhappy people emerging from the courtroom.  Remember the blindfolded Lady Justice?  Well, it ain’t the UCMJ!
     
    I am not looking for cases to be the flag carrier for the problems with the new Art 120—my criticism goes beyond Art 120.  I am concerned about the entire UCMJ as both a system and a process.  And I am greatly disappointed in the failure of real world practitioners to appreciate those failures as they are foisted by Congress upon those who volunteer.  It is sad that so many view the issue only through the lens of whether their client (the government or the accused) are more or less hamstrung by Congress’s collective failures in this area.

  8. k fischer says:

    A buck rub without the breaking into the room certainly is questionable.  If that were my son, then I would more likely question wth was going through his head.  Maybe I’ve seen too many cases like this but, just like an alcohol induced rape with a victim who vomited before or closely after, cases where someone breaks into a room usually do not end well for the accused.  So this isn’t a simple case where a guy rubbbed a woman’s shoulders without her consent.  You have to also consistently  mention the entering of the room if you want to make an intellectually honest argument.

  9. RKincaid3 says:

    Regarding intellectual honesty, there are charges that cover entering the room.  And there are charges that cover unconsensual touching of a person.  And there are other charges that can and should apply.  What one cannot ever intellectually and honestly argue is that Art 120 was an appropriate charge for his conduct.  What was punished was NOT the conduct of an accused (no matter how heinous) since no true sex act occured.  Art 120 in this case allowed a Soldier who DID NOT commit a true sex act to be charged with a sex offense.
     
    We are discussing policy and when discussing policy, there will NEVER be an accused who is an acceptable or suitable representative of the class of individuals wronged by the statute simply because they are convicts under the statute.  It is a despicable use of “post hoc ergo proptor hoc–” because he is guilty under the statute, he is therefore not worthy of being the basis of reconsidering the constitutionality or the propriety of the statute.
     
    And the system, as it is currently set up, is designed in such a way as to isolate the cases from significant, independent appellate supervision–greatly reducing the odds of second-guessing for justice reasons–review by appropriate legal authorities.  But the system is designed to serve commanders, NOT JUSTICE, which is why it is the way it is. 
     
    That does mean that we as practitioners need to simply shrug our shoulders and say “oh well” and “C’est la vie!”  We have an obligation to let the powers-that-be know where their pontificating from on high is falling short of both the principles and aspirations of the hallmark of America–its justice system.  It is the 21st Century now, and the system acceptable to past generations is simply unworthy of the men and women who sacrifice their time, energy and lives for their country.  And if Congress doesn’t get that, then it is time to replace them with fresh blood and get rid of those who pander and cater to the incessant need for discipline at the expense of the Soldier-both accused and victim, or who simply desire vengeance or retribution vice “justice.”
     
    Again, just my thoughts. But what do I know?  I am just one guy who has to deal with the junk that passes for legislation now–no matter how well–or ill–intended..

  10. stewie says:

    You are arguing two things.  You don’t like the charge, and you really don’t like the sex offender registration for the conduct.  I can possibly agree with the second.  SO Registration is something that needs significant examination because I think it goes too far too often.  Of course, it’s a collateral consequence so other than charging decisions, we have little we can do about it.  As to the first?  He assaulted her in order to get her to sexually respond to him (all while in the sanctity of a locked barracks room he effectively broke into).  How is that not a sexual assault? (or to use technical terms an abusive (or wrongful depending on the date) sexual contact).  I can get saying “were it me, I wouldn’t charge it that way.” I don’t agree with it being illogical or dishonest to argue it’s not wrongful/abusive sexual contact.  It is definitionally that.
     
    I don’t think the problem is that the crime doesn’t fit the offense, but the problem is questioning whether or not this is a SO registration type offense.  I’m not sure, I can see both arguments…it’s on the edge.  But as k fischer says, this ain’t the case.  There are other cases that might better argue for systemic problems, but this one ain’t it.

  11. k fischer says:

    RKincaid3, 
     
    While Stewie rarely agrees with me, rest assured that when he does, whatever I have said must be correct.  
     
    I am a simple man and not too proud to admit that you use a lot of words to which I know not the definition.  So, forgive me for asking, what kind of system do you want?  It sounds like you are not happy with the status quo.  So, do you want (1) to go back to the pre-Article 120 amendment days before Congress began tinkering with the UCMJ, or do you want (2) a Gillibrand type system where lawyers run military justice, or do you want (3) a system where the civilians handle all non military offenses at the USA and DA’s offices and allow the military to prosecute all “military offenses” such as AWOL, Disrespect, etc.  
     
    I prefer option (1).  I like the concept of SVP’s without amending Article 120.  I do think that the Army used to allow inexperienced TC’s to prosecute complex sexual crimes.  I know because I was one of them.  I think having a separate SVP who has more experience to prosecute sex crimes and one who can put pressure on the CG and SJA to refer a case would have provided adequate cover from the perception that the military is soft on sexual assault.  The only problem is that since 2008, the template for prosecuting sexual assault has been so fluid and inconsistent because Congress has failed to “allow the cake to set” by tinkering with the statute, with their proposals, with blue ribbon panels, with debates, and with the definition of “sexual assault.”  Nobody knows whether something is working because it is constantly changing.
     
    The problem I have with Gilliibrand’s proposal is that it implies that the problem with sexual assault prosecutions over the past 30 years is that Commanders have been making their own decisions without the advice of counsel.  Giving an independent lawyer the decision making authority is not going to solve the problem of the perception that the vast majority of valid cases do not go to court martial, particularly where Commanders, more often than not, disregarded their SJA’s advice and actually referred charges, rather than dismiss them.  The reality is that Commanders follow the advice of their SJA to hammer an accused virtually every time.  So, giving an SJA the independent authority might actually decrease the amount of valid cases going forward.  Then, the good Senator can find a different bogeyman to blame for the military’s approach to sexual assault prosecution.
     
    Anyone advocating option 3 fails to understand that the military needs the UCMJ because of its unique obligations to defend this Nation across the globe.
     
    If there are other options out there, then please (in language an 8th grader can understand) enlighten me.  But tell me what your system would look like.

  12. RKincaid3 says:

    Stewie/k fischer:
        I am working on a response to your thoughtful queries.