In last Friday’s news, I noted that Senator Gillibrand announced that her “Military Justice Improvement Act” legislation would come to the Senate floor for a vote this week. And earlier this week Sam discussed a competing proposal from Senator McCaskill. But it seems that Senator Gillibrand’s announcement was premature. The legislation doesn’t appear among the Senate’s votes from this week, and the Senate will meet only in pro forma sessions from now until the afternoon of Monday, February 24 (according to a unanimous consent reached during Wednesday’s session).

Sergeant Hutchins has been arraigned, trial is set for August, and the military judge denied Hutchins’ motion for him to recuse himself, according to this NBC San Diego story from Thursday that includes the following:

Hutchins claims that the judge and the defense attorney appointed for him cannot fairly participate in his case because they are unduly influenced by the Secretary of the Navy, who has publicly commented about Hutchins’ guilt.

In an interview after today’s hearing, Hutchins told reporters that any judge or defense attorney appointed by the Defense Service Organization is compromised because “they don’t want to go against the Secretary of the Navy.”

In the Naval Academy football players’ case, an Associated Press story details a major hurdle for the prosecution:

The judge, Col. Daniel Daugherty, asked prosecutors to tell to him how they plan to prove their theory of the case against Joshua Tate of Nashville, Tenn., who has been charged with aggravated sexual assault and lying to investigators. Prosecutors will respond in writing by the end of the week. Daugherty suggested he would then rule at some point next week on a motion by Tate’s lawyers that he dismiss the case for lack of evidence.

Various media outlets are closing in on command investigations addressing some of the circumstances surrounding Staff Sergeant Bales’ massacre of 16 Afghan civilians (for which he was sentenced to confinement for life without the possibility of parole after pleading guilty):

After Bales’ court-martial, The News Tribune and KUOW submitted FOIA requests to the Army seeking what is known as a command climate investigation. The Army carried out that inquiry to assess whether senior soldiers around Bales could have prevented the crimes.

Finally, a sexual assault case that Air Force Lieutenant General Franklin dismissed after an Article 32 investigation, leading his superiors to remove the General from the case, is now being re-investigated:

Wright faced an Article 32 last year to determine if there was enough evidence to proceed to court martial. But Third Air Force commander Lt. Gen. Craig Franklin elected in August to drop the charges, while refusing the alleged victim’s request to meet with him.

The unusual do-over that began Tuesday at Joint Base Andrews was ordered by top Air Force officials concerned with decision-making by Franklin. The general, who announced he would retire last week, became a lightning rod for criticism of the military’s handling of sex crimes after he overturned the sexual assault conviction of a fighter pilot last February.

His decision was a key rallying point for legislators, victim’s advocates and others who want to change the Uniform Code of Military Justice to strip military commanders of control over prosecutions. The Pentagon and the service branches, however, have argued such a move would hurt military order and discipline.

Outside the hearing this week, the accuser’s special victims counsel — an Air Force attorney who works specifically for the victim’s interests, rather than for the prosecution or defense — said the previous Article 32 was biased against the woman, and featured badgering questioning from the investigating officer.

31 Responses to “Military Justice News for Friday, Feb. 14, 2014”

  1. k fischer says:

    Re: Redo of the 32 in US v. Wright at Joint Base Andrews
    RKincaid3, read this article.  THIS is the case you should use:  An Airman First Class is accused of raping a female NCO who invited he and a Senior Airman to her apartment for watching movies and drinking.  She said that the Airman pulled her ON TOP OF HIM and raped her.  Moreover, there is a witness who was in the room who said that the female cuddling with Wright under a blanket, and later from another room in the NCO’s apartment, he heard giggling, and moans of pleasure.  
    [According to the SVC,] the previous Article 32 was biased against the woman, and featured badgering questioning from the investigating officer.
    “It was very clear to us where he was going,” said Capt. Maribel Jarzabek, who wrote a 12-page complaint about the hearing that helped spur the new Article 32. The new investigation, expected to conclude in several weeks with a recommendation from the investigating officer, has a very different tenor, she said.
    I would hope that the “badgering” included the questions:  Why, as an NCO, did you invite two male Airman over to your apartment and drink with them? Did you cuddle with Wright under a blanket?  How did you place yourself in the position of being pulled on top of Wright?
    As a defense counsel, I don’t want Congress to take away the Commander’s authority to convene a court-martial because they may or may not grant clemency.  I want them to take it away because Congress has made it clear that they will twist sound decisions based on rhetoric into a questionable dismissal and drive fear into the heart of any Commander who exercises sound discretion.  I notice that the story made no mention whether the dismissal of charges was against the recommendation of the SJA. Anybody know the answer to this?
    When I used to give Article 137 briefs to Ft. Benning basic trainees, I advised them that they could avoid a conviction by a court martial in a sex assault case if they met three standards:
    1.  Make sure she is at least 18
    2.  Make sure she is not drunk.
    3.  Let her be on top. 
    That sage advice might need to be changed to: don’t ever allow yourself to be alone with a female unless you are (1) living in a one party consent for wiretapping jurisdiction and (2) secretly recording every conversation with her.  
    Anyone know if there are facts in this case positive for the complaining witness that the S&S are leaving out?  Seems like 12 pages is a lot of issues.  ‘Twould be nice if they put that document in the reading room.

  2. k fischer says:

    Color me a jealous taxpayer who misses his days in the JAG Corps, but I would like to point out that none of the usual posters are commenting on this article on this day, the 1st of a 4 day weekend……. 

  3. DCGoneGalt says:

    Gen Franklin followed the advice of his SJA not to refer.  (See the Reuters link below)  Based on the Stars and Stripes prior “fair and balanced” reporting on this topic it is none too surprising they have felt free to continuously omit this fact.
    k fischer – Here are some facts I am sure were not in the SVCs memo:  Per a prior article in the AF Times [linked below] (which also criticizes Gen Franklin while not mentioning that he followed his SJAs advice): “Wright’s defense suggested the female staff sergeant had a motive to lie about the events of the night because she was drinking alcohol with subordinate airmen, for which she has never been punished. The defense also pointed out that she received an expedited transfer back to the U.S., where her fiance and daughter were living.”
    The AF Times article below also quotes a former Navy JAG who says that “Part of the problem here, too, is Franklin refused to meet with the victim. I think that was a blunder on his part. If he was leaning toward not prosecuting, he should have at least met with her. Some say that is required.”  Perhaps a bluncer in the political sense but if some would say that was required then they are confusing the new NDAA provisions with what was required at the time Gen Franklin made his decision.  Thus, that person would be completely ignorant of the law, and also seemingly fully qualified to be consulted as an expert by the Air Force Times.
    The manner in which this case has been handled, and the reporting on it, has been disgusting.
    k fischer – I have also noticed the lack of comments on this “red meat” article by the regulars on this site who are employed by the gubmint. :)

  4. Dew_Process says:

    @k fisher – I think the “perfect storm” of a long weekend as well as the weather conditions to include widespread power outages may have some bearing on this.
    But, I agree, there’s a significant lack of “facts” here, but I suspect it is the “new” way of doing things in military justice.

  5. Charlie Gittins says:

    I agree with K Fisher on his three rules.  I had a rape case at Barksdale AFB a few years ago.  The accused looked like Ricky Martin’s twin brother and, accordingly, he had plenty of attention from the AD females — officer and enlisted.  So, Captain with Captain; they go to a unit function, both dressed to the nines; they have a couple of drinks, but he was still good to drive according to her and she could have driven too she says.  He invites her back to his house and gives her a tour, which, unsurprisingly, ends up in the bedroom.  She testified that he raped her, but omitted from her statements and direct testimony that she was on top (I honestly don’t think the prosecutors know that juicy fact before I started cross). 
    My cross, of course, focused on the femal superior position, her changes from facing him to facing away from him and just exactly what motions she was making with her hips, etc. while she was on top.  Yup, I don’t think the members were buying it, once they heard she was on top and were provided my leading salacious details (courtesy of my client).  Give the Government their acquittal, for crissakes.  Shove it right up their . . . .  Let the new CA, COS, and SecAF explain to Congress how the case came out as it did.   You just can legislate or order people not to be stupid.         

  6. DCGoneGalt says:

    – Mr. Gittens:  As to your “give the government their acquittal” comments – The fear is that given the constant messaging, some may even go so far as to call it an attempt at brainwashing, regarding the topic of sexual assault that it is harder and harder to trust you will get a fair panel when these cases inevitably go to trial.  I would say this is especially true with a panel of career-focused (rather than mission or justice, i.e. truth, focused) officers that are hand-picked from the DC area, as in the Wright case.  The problem is that the pressure to refer cases to trial that “should” result in an acquittal sometimes results in a conviction, and this possibility is even more likely given the “messaging” constantly received from the chain of command.  This is why I believe it is imperative to provide a military accused with something more closely resembling a civilian criminal jury.  If good order and discipline cannot be served with unanimous verdicts due to the potential for mistrials (and the lengthy process involved with a re-trial) then keep the 2/3 requirement for a guilty verdict but make the 12 the minimum number of members for General Courts-Martial involving Art 120 offenses. 

  7. k fischer says:

    Or, how about this case?  How many of the taxpayers dollars are being wasted because the Government wants to hammer Poppa Panda Sexy Pants?  Sounds like his little Panda’s story is unravelling…..  Anybody know why LTC Helixon is withdrawing?   

  8. k fischer says:

    So, did the term “reverse cowgirl” ever come up in your cross or closing statement of that female officer?  
    DCGoneGalt, the more and more I think about it, I am beginning to think that Gillibrand’s concept of taking away the Commander’s authority to prosecute is better.  Instead, we have the McCaskill plan, which is to keep it in the hands of Commanders, so they can hold a failure to obtain convictions over their heads and hold up promotions.  Haven’t defense counsel for years complained about UCI?  Well, place the authority to prosecute in the hands of the OSJA and we don’t have to worry about that issue, unless Commanders start pressuring their subordinates to vote a certain way or gigging them on their OER/NCOER’s for acquittals or convictions, for that matter.  JAG’s will have all the power and Congress can push the bellybutton of 5 GO’s who are Judge Advocates, instead of the Hundreds of GCMCA’s who will be drug into a court-martial if they say things that show an inflexible disposition towards sex offenses.  
    And, I actually think it will be easier to get acquittals because panels will not longer think, “The old man sent this case to us, so this guy must be guilty otherwise he wouldn’t be wasting our time.”  With virtually every acquittal I’ve gotten, I’ve been able to subtley make it look like it was JAG driven or a CYA move by the GCMCA.  That is the one hurdle that is common to every court martial from an AWOL to a rape to a murder:  Inherent UCI.  If you are going to get an acquittal, you have to explain to the panel very delicately why the old man sent it to them if your guy is innocent.  There’s (1) the wink wink, nod nod, the CG is just covering his ass reason, there is (2) the OSJA is out of control and driving the train reason, and there is (3) the Brigade Commander that all the other Commanders hate is out of control and wants blood on this stupid case reason.  There could be other reasons, but those are the 3 I’ve experienced.
    And that “messaging” includes the use of terms such as “victim-blaming.”  That IO was not asking poignant questions, he was “badgering.”  “Oh look, the Defense Counsel is asking her if she provided alcohol to the Airman, as if its her fault that he got drunk and raped her!”  “Oh, so look at Mr. Gittens blaming this poor female Officer who went back to his place, as if that gives him license to rape her!”  “Then he asks embarrassing questions about sexual positions that the accused forced her to be in because he is just trying to make her look like a harlot.  All he is doing is classic victim blaming.”  Panel members start hearing things like this over and over again, and then they start feeling guilty that they, too, wonder why she behaved the way she did.  Then, their valid concerns giving them reasonable doubt goes out the window because their doubt is based on facts that make them victim-blamers when they, in very good faith, consider them.  
    This Wright case is a case about a female NCO whose actions indicate that she possesses neither logic or accountability, and unfortunately for this country, the Air Force is bending over backwards to appease her.

  9. stewie says:

    K Fischer, I think the answer will be that it will, as it usually does, depend.  Some cases will be easier acquittals for the reasons you state…some though might turn into convictions for the reasons others state.  The vagaries of panel make-up.

  10. DCGoneGalt says:

    Courts are about a logical discussion of the facts and the application of the law to those facts.  The “messaging” from the command is that this is victim blaming.  
    I like your style, k fischer.

  11. Charlie Gittins says:

    DCGone:  I actually prefer the one vote rule with 2/3 concurrence required.  I used to spend alot of time explaining to members why they are only allowed to vote once on each specification and to work on the acquitters to hold their ground in deliberations and do what they believe is right, not what they believe the command may want them to do.  I had it work out for me on a single spec rape case at Shaw AFB– members deliberated for 11 hours.  They split 3-3 and acquitted my client.  
    KFish-  yeah, reverse cowgirl came up in closing argument.   I am sure that my questions, which demonstrated the absurdity of the complainant’s allegations, would not subject me to all kinds of complaints about re-victimization.  But all I was doing was asking questions about the facts; the facts that just happened to not support a conviction.  I thought that was my job, at the time.   Now it appears that DCs are supposed to be part of the victim support network and not put them to the crucible of truth by cross-examination.

  12. Ed says:

    Check out this mornings New York Times article on General Sinclair.

  13. k fischer says:

    Ummmmm, you were being sarcastic when you said that “Courts are about logical discussion of the facts and the application of the law to those facts,” right?  I agree that somewhere between sometimes and most times that standard is upheld.  However, the same reason is why I will take a civilian jury in Muscogee County any day of the week over a Court Martial Panel, you have a better chance with one that one is inclined to acquit while the other is inclined to convict for reasons that are not contained within the jury instructions and evidence.  
    But, I completely agree that panels probably are not going to be convinced solely by an SVP who shrieks “victim blamer!’ But, if they have heard the Command use that term for the past 5 years, then it might cause them to look at the defense counsel in a much negative light when they hear it coming from the SVP.  Do you know an SVP who is thinking of going Galt?  ‘Twould be nice to know what Big Army is training them to do and the tactics they are teaching them. 
    Charlie, in addition to the DC’s duties, you should add that the duties of the IO now s to maintain a tenor that is much more favorable to the complaining witnes……sorry, I meant “victim,” even when the words coming out of her mouth make no sense and you believe that she is committing perjury.

  14. DCGoneGalt says:

    No sarcasm, facts and logic are what attract me to the law.  I still believe in the independence of panels in my service, especially enlisted panel members.  As for military judges, their consistent “not a hint of UCI, nothing to see here” rulings leave no doubt where most of them stand.  I agree on your comments regarding civilian juries but the truth is that the transfer of Art 120 cases to civilian jurisdictions will not happen.  The DoD would fight it to the death and the politicians surely know the vast majority of military sexual assault allegations  would never make it to trial.  Therefore, they are left with tinkering with the UCMJ and targeting the jury with constant messaging.  
    I await a it a retired General going Galt.  

  15. Some Army Guy says:

    re: NYT article on Sinclair
    Considering all of the “facts” came from the defense, I’m very skeptical of the alleged reasons for LTC Helixon leaving the case.

  16. charlie gittins says:

    SAG:  I am less skeptical because prosecutors don’t quit cases unless they see a personal disaster in their future.  The only other case I have seen of a P quitting a case was during the Navy Tailhook court-martials where a P quit because he did not believe the  evidence would support a conviction beyond a reasonable doubt.  Of course, he was right, but he was still relieved.  He is among my heroes of military justice along with Judge Vest who called the CNO and SecNav liars, in a polite way (given the mountain of evidence contrary to their testimony), of course.

  17. k fischer says:

    Interesting article from the Marine Corps Times: “Sex assault and the pressure to prosecute: why some Marines fear justice is no longer blind.”  That’s the first time I’ve read the justification of Gillibrand’s changes is to free Commanders from UCI, so they can talk tough on sexual assault.  

  18. DCGoneGalt says:

    k fischer:  Could not read the link due to subscription lock but if the Marine Corps Times continues to run stories like this they will be banned from all installations rather than just being banned from checkout lines.  They need to run stories like the AF Times’ SAPRO story today that discusses the wonderful 2-8% false claims study and that there is too much examination of a complainant during an investigation/court case. 

  19. k fischer says:

    I went back and tried to reload it, and it gave me an option to access premium articles for 24 hours if I watched an ad from their sponsor.  So, I checked yes, and a Victoria’s Secret popped up.  Awesome!  Do you have a link to the AF article?  Maybe they’ll have a Carl’s Jr. ad showing some model eating an enormous hamburger……
    Here is the part, to which I was referring: 

    The most significant point of concern for many victims’ advocates awaits action in Congress: the Military Justice Improvement Act, sponsored by Sen. Kristen Gillibrand, D-N.Y., would transfer from military commanders to senior military prosecutors the decision to prosecute crimes punishable by a year or more in confinement.
    That legislation, said Greg Jacob, policy director at the Service Women’s Action Network, would give alleged victims and the accused the best protection possible under the law, while allowing commanding officers to speak freely on topics such as sexual assault without interfering with defendants’ due process.
    The parties in a case would be protected, he said, because they wouldn’t have to worry that a decision to prosecute was colored by the commanding officers’ knowledge and opinion of the accused or their fear of negative career repercussions for failing to prosecute a case.
    “It would allow leaders like Amos and the president to get out in front of this issue and say, if you do this, we’re going to fry you,” Jacob, a Marine veteran and former company commander, said. “They could say those things and take a really strong leadership role without having to worry about undue command influence.”

    And another great quote from Eugene Fidell:

    “Do we really think there are people who have not heard these gusts of wind outside the barracks window? Do we think that anyone missed the point when they read about Lt. Gen. Helms having her promotion to four stars blocked or Lt. Gen. Franklin forced into retirement?” Fidell asked. “When you put all these things together, you’d have to believe in the tooth fairy to not think these things affect the climate in which these decisions are ultimately made.”

    I’ll have to remember that tooth fairy line the next time I am discussing a counter-intuitive victim behavior expert’s testimony, although ‘willful suspension of disbelief’ is more accurate….I just can’t bring myself to use the latter term because of the context in which it was made…..

  20. DCGoneGalt says:

    k fischer:  Thanks for the ad-watching tip.  It seems much of the military trial judiciary are secret believers in the Tooth Fairy.

  21. Lieber says:

    question:  If the Accused is obviously innocent in a given 120 case, but the DC is concerned about implicit UCI on the panel, why not go JA?  methinks you protest too much.

  22. RKincaid3 says:

    K Fischer:  Thanks!  Sorry for the silence…I have been out on leave since last week adn negligently failed to log into CAAFlog and thereby failed to remain current.  I am now catching up and will jump in once I have caught up!  Also, I am tracking that I owe you and Stewie an answer on another post-almost done drafting that.

  23. RKincaid3 says:

    Let me jump in on these two quotes (even though I have not totally caught up) from the discussion above:

    Therefore, they are left with tinkering with the UCMJ and targeting the jury with constant messaging.


    News Article: Sex Assault Pressure: Why some Marines fear justice no longer blind

    UCMJ= Uniform Code of MANIPULATED Justice???  Is that what Congress has given us???
    Alas, I fear that it is, and if so, the word “justice” does not properly belong in the title.

  24. k fischer says:

    Who says I haven’t?  I have gone MJ alone who acquitted my client in a rape case before.  But, it really depends on the MJ.  I have been in front of Military Judges who have never met a complaining witness who ever lied and those who TDS nicknamed the “3d chair trial counsel.”  I would rather roll the dice with a panel than with those particular judges.  
    My point is not that every panel is so inundated with UCI that they will not acquit.  The one hurdle common with every panel is inherent UCI, the heighth of which depends on the panel.  I would agree that most panels have a very low inherent UCI hurdle, which does not effect the verdict.  But, it always helps if you can have something in case inherent UCI attacks, which you won’t know until you speak to a panel member after the court martial.

  25. RKincaid3 says:

    Okay, having read the various news articles being discussed, and having read the various comments on CAAFlog on these most recent issues, my concern is this:
    Many folks, both within the military and without, seem to be missing the big picture: the simple fact of the matter is that commanders have a goal (mission effectiveness/combat readiness) that NECESSARILY means that they do not give the appropriate amount of weight to other considerations, such as the “needs/concerns” of the victim and (not “or”) an accused, which are as divergent from each other as they are from the needs of commanders. 
    “Justice” requires much more than “discipline,” and while some might erroneously believe that the latter can be measured by conviction rates;  under no circumstance can the former be measured by the number or convictions, or the number of acquitals. 
     Justice is a process, not a result.  Until we get that through our thick skulls, we will continue to rearrange chairs on a ship that is sinking.  Morale is likewise sinking, and that will affect retention and recruitment.  Congress needs to start paying closer attention to the real problem (THEIR unwise, politically driven tinkering and their failure to remedy a dysfunctional “system” by removing the source of the dysfunction–the commander instead of a prosecutory) or Congress will have to resort to a “military draft” in order to field a military force in the future as people refuse to volunteer to be abused–either as an “accused” or as a “victim–” by joining the military. 

  26. Lieber says:

    K fischer:  that’s fair.  and there are judges that are notably defense friendly too.  but it seems to me that if the government can’t come close to factual sufficiency than going JA would usually make sense.

  27. Charlie Gittins says:

    KFish:  I can only remember 1 rape case where I went judge alone on the merits.  It involved a recruiter who had sex with two prosepctive recruits.  He was charged with rape of both, but the facts were very bad for the complaining witnesses and pretty good for my guy.   It was under the old, old, old Article 120, which required both force and lack of consent, and the Judge was Tom Cumbie, who I always found to be a logical, by the book, apply the law to the facts guy.  Had I not had prior experience with him, I would have gone panel.  The prosecutors wouldn’t accept a plea unless it included G plea to the rapes.   My instrict was right; he aquitted on both rapes and found my guy guilty of the several orders violations involved in a recruiter-prosective recruit relationship.  No sex offender registration, a few months in the brig, and back to his wife and kids.  The prosecutors lost a doubkle rape case they charged and had to explain that to their CA.  Made me smile.

  28. k fischer says:

    So, are you trying to say that the UCMJ prosecution should be lawyer driven, instead of command driven because the lawyers would be much less biased regarding victims and accuseds?  Because that is what Senator Gillibrand is trying to do, but I think it will result in less prosecutions, more acquittals, and less UCI compared to the Sen. McCaskill plan, which will change very little about the current system, except to make it more difficult for Commanders to provide clemency.
    What do you mean in your last paragraph in the parenthesis by “the commander instead of a prosecutory?”   Do you mean that the commander being in charge of the UCMJ causes a dysfuntional system of justice or that Congress is unwise for attempting to remedy the dysfunction by removing the commander?

  29. k fischer says:

    Sometimes I like to submit a deal anyways to the GCMCA when the lawyers tell me they can’t recommend their support to the CG, so (1) he can see what he could have gotten had he not listened to his JAG attorneys and (2) so I can hear the lawyers cry out, “But we told you we can’t support that deal!” and I can reply, “Yeah, so what’s your point?”  Then, when the GCMCA hears about the acquittal, he can ask ask his SJA “WTF happened, Judge?”

  30. RKincaid3 says:

    K Fischer:  I mean both.  The system is dysfunctional because the commander necessarily has interests in mind that don’t include serious consideration of the following competing interests: implementing and executing “justice;” vindicating the needs of the victim; and meeting the due process needs of the accused.  One need only examine the numerous reports from around the world, drawn from the military services’ own offical records, to conclude that commander’s are failing MISERABLY at executing “justice” and are instead only engaged in “discipline.”  The results are disheartening, not comforting and are a significant reason for this debate.
    The system is also dysfunctional because of Congress’s inability to set up a “justice” system, having chosen instead to allow the current ad hoc, vestigial, hybrid monstrosity that conflates King George’s Rules of War with modern concepts of “Justice,” which falls well short on both counts in application.
    No system will be perfect.  Prosecuting lawyers will make mistakes, as do commanders.  But to paraphrase a quote from the appeal in United States v. Sickels, No. 20110110 (A.Ct.Crim.App. Jul. 23, 2013):

    Because of [the] breakdown in the adversarial system, necessary to ensure a reliable sentence, and despite the seriousness of appellant’s offenses…”

    …the UCMJ must necessarily be allowed to evolve into the next level.  It must complete the journey to become a true “justice” system where the needs of any one party are not necessarily superior to the needs of any other party, and the outcome is trusted and relied upon as true and just–no matter who is happy or unhappy with that outcome.
    And that requires the Congress to quit tinkering and make substantive revisions that direct the courts to actually implement “justice” (such as removing commanders from the prosecution chain) and quit constantly defering to Congress’s virtually plenary authority to do what it wants with the military.  So long as Congress relies on Congress’s failure to provide them specific statutory guidance on the purpose of the UCMJ, the courts will continue to defer to Congress’s rules–no matter how misguided, inane, unwise and dysfunctional.