As shown in this record of votes, after a lively floor debate (that you can watch here, beginning at 2:06:30), the Senate failed to invoke cloture on Senator Gillibrand’s “Military Justice Improvement Act” (S. 1752) (link to Thomas). However, the Senate unanimously voted to end debate on Senator McCaskill’s “Victims Protection Act” (S. 1917) (link to Thomas), and it scheduled a vote on the bill for 5:30 p.m. on Monday, March 10.

The bill’s current text does not make any changes to the UCMJ. Unfortunately, it does seek to eliminate the general defense of good military character:

[Section 3:]
(g) Modification of Military Rules of Evidence Relating to Admissibility of General Military Character Toward Probability of Innocence- Not later than 180 days after the date of the enactment of this Act, Rule 404(a) of the Military Rules of Evidence shall be modified to clarify that the general military character of an accused is not admissible for the purpose of showing the probability of innocence of the accused, except that evidence of a trait of the military character of an accused may be offered in evidence by the accused when that trait is relevant to an element of an offense for which the accused has been charged.

I’ve written about this proposal before (in this post), and if it becomes law I’ll write about it again. But for now I’ll just note that one criticism of the defense of good military character – that it “advances the perception that one of the privileges of high rank and long service is immunity from conviction at court-martial” (Elizabeth Hillman, The “Good Soldier” Defense: Character Evidence and Military Rank at Courts-Martial, 108 Yale L.J. 879 1998-1999 (available here)) – isn’t actually addressed by the elimination of the ability to present evidence of general good character. Quite the opposite actually, as the high-ranking accused can just sit at the defense table wearing his good military character on his chest. It’s the junior accused who needs to present evidence of his character to convince the finder of fact that it is “unlikely that he would be guilty of the particular crime with which he is charged.” Edgington v. United States, 164 U.S. 361, 363 (1896) (link).

23 Responses to “Gillibrand bill filibustered, McCaskill bill scheduled for vote Monday evening”

  1. Phil Cave says:

    And as I have been arguing for a while.  So long as the military charging decisions include adultery and a variety or arguable deminimus Art. 134/133 allegations, there is a way to present the Good S defense -it goes directly to the good order and discipline element.

  2. Charlie Gittins says:

    I think there is a Supreme Court case that holds that evidence of good character (and I don’t care that it doesn’t mention military character by name) is admissible in criminal trials as a matter of due process.  Been a while since I have actually had to dredge up a character case that was understood by all to be relevant in a criminal case, but I’ll work on it.  I think McCaskill’s effort to deny due process to a military accused in defense of criminal charges is DOA, regardless of what our “supposedly competent” ( and I do not subscribe to that factual assertion) legislators say.

  3. RKincaid3 says:

    Something to ponder.  Now that the senior Army JAG Sexual Assault prosecutor is under investigation for allegedly sexually assaulting one of his sexual assault prosecutors at a sex assault training conference, I wonder if Gillibrand will re-introduce her bill yet again.
     
    Gawl-darn-it!  I hope he didn’t do it.  But this development doesn’t help the defenders of the status quo.

  4. k fischer says:

    RK3,
     
    Yes, it does!  The status quo wants to leave UCMJ in the hands of Commanders.  Gillibrand wants to put it into the hands of lawyers, which will stop sexual assault in its tracks……….until…….the chief Prosecutor for sexual assault is accused of sexual assault……..
     
    I hope that he is falsely accused by a fellow TC, but that he becomes soured by the aggressive push towards sexual assault and shares with everyone all the dirty peccadillos of the SVP program as retribution being sold down the river………
     
    He can be the star of my documentary: “The Invisible War II: Collateral damage in the War on Sexual Assault”

  5. charlie Gittins says:

    Someone, hopefully the LtCol’s counsel will really drill down and do a thorough, critical and searching inquiry of this allegation.  I NEVER accept at face value a prosecutrix’s allegation because I have seen in cases too numerous to list here that female accusers often have motive AND DO fabricate, or alternatively, claim lack of recall due to voluntary intoxication.  I have said this before and will say it again and again . . .  if a woman cannot escape liability for a DUI charge because she was voluntarily intoxicated, there is no rational basis for excusing her choice, while intoxicated, from engaging in sexual relations, of whatever sort.    The Kool aide drinkers of SVP have failed completely to explain how a woman who voluntarily may drive intoxicated cannot consent to sex (or such express or implied consent should be ignored) after she has consumed alcohol.   

  6. Brian LC says:

    Ummm, did anyone notice that this allows military character evidence when it is “relevant.”  Relevance is a pretty low threshold.  Evidence that is not “relevant” is already prohibited under MRE 401-402.  So, does this change anything?  Now, what the intention of the bill was probably to overturn military case law that says military character is always relevant, and perhaps that is how it will be interpretted, but there’s an argument out there.
    PC, I am unsure, however, that military character evidence is more relevant in 133/134 cases.  Character evidence is evidence that the accused didn’t committ the offense, its not evidence that the conduct doesn’t constitute an offense.  Imagine two sailors, same rank, both commit the same act, with the same mens rea.  it seems a crime was comitted or it wasn’t.  I can’t imagine that the undecorated Sailor is guilty of a crime, but the decorated Sailor is not. 
    In other words, whether conduct is prejudicial to good order and discipline shouldn’t change based on the record of the accused.  But, military character evidence may tend to show they never comitted the act, or had an innocent mens rea.
     

  7. Lieber says:

    In federal court, evidence of the character of the accused with reference to a specific offense is always admissible (i.e. evidence of truthfulness for a perjury charge, reputation for peacefulness for an assault charge, etc.)  All this does is bring us in line with the civilian system.  It has always seemed ludicrous to me that our case law says that you can argue that because the Accused was a good mechanic he therefore couldn’t have battered someone etc. That is all that’s going away. The good soldier defense is not grounded in the Constitution but is rather a quirk and artifact of military law. Relevant character evidence will still be admissible. 

  8. RKincaid3 says:

    k fischer:  I understand why you say it helps the defender’s of the status quo–because of the alleged premise of Gillibrand’s bill–that it will stop sex assaults. 
     
     
    But I say it doesn’t help them for that same reason.  Because the premise/purpose of the bill is wrong, any conclusion that measures a reduction in sex assaults (under an Art 120 that ever increases the possibility that just about any human conduct is a sex assault) are just as wrong.  Her bill won’t stop sex assault.  But it will improve the way justice matters are handled and move the military into the 21st Century. 
     
     
    Prosecutors can be sex assailants just as can any other human in any other career field.  So this isn’t a case of the proposed changes to the UCMJ being perfect or imperfect.  The proposed changes are just better for the system, imperfections and all.  It is part of the system’s evolution…which is long overdue.
     
     
    My main concern at this point is how the system will handle this kind of case with this kind of political, top down pressure in an environment where the military’s leadership is fighting to save the status quo and the politicians are demanding results that don’t evince justice, but evince results of questionable value to the system.  Will we see allegations that a prosecution is going forward despite the merits of the case–political pressure?  Or will we see allegations that the prosecution is not going forward despite the merits of the case—circling the wagons to protect our own? 
     
     
    An independent prosecutor removes the specter of UCI in favor of or against an accused in situations such as this case, the Sinclair case and all cases.  It cleanses the process of questioning the motives behind a decision to prosecute as they are fact driven decisions by those trained to deal with facts and the rules.  Which commander’s aren’t.  And, keeping disciplinary matters out of court and in the hands of commanders while simultaneously keeping only crimes in court, will go a long way towards inserting “justice” into the system.  Even if that insertion doesn’t end sex assault–which is physically impossible given that humans are involved–and given that Art 120 is such a monstrous mess (which, as drafted, probably will result in an ever-expanding rate of alleged sex assaults, as I originally noted here in CAAFlog on 20 June 2013. http://www.caaflog.com/2013/06/20/sen-mccaskills-latest-well-informed-comments-on-sexual-assault/
     
     
    And that is why I say this latest development guarantees that Gillibrand reintroduces her bill.  And, from my POV, it also proves why her bill, in one form or another, should pass despite the fact that it will not result in a reduction of sex assault allegations.
     

  9. charlie Gittins says:

    Will we see allegations that a prosecution is going forward despite the merits of the case–political pressure?  Or will we see allegations that the prosecution is not going forward despite the merits of the case—circling the wagons to protect our own? 
    Yes, political pressure.  Ask General Helms and Gen Franklin about political pressure. 

  10. RKincaid3 says:

    CG:  My point exactly!

  11. John O'Connor says:

    I will shed no tears over the demise of the good military character defense (and I do think this change is constitutional). 

  12. Zachary D Spilman says:

    An independent prosecutor removes the specter of UCI in favor of or against an accused in situations such as this case, the Sinclair case and all cases.  It cleanses the process of questioning the motives behind a decision to prosecute as they are fact driven decisions by those trained to deal with facts and the rules.  Which commander’s aren’t.  

    There are so many fallacies in these words that it’s hard to know where to begin.

    The notion that a uniformed judge advocate can be an “independent prosecutor” is preposterous. The influence of rank transcends billet, and a lawyer dictating a commander’s actions is the tail wagging the dog. The specter of command influence would be no less present, and unscrupulous commanders would continue to try to control the results of the process (rather than accept that the process is the result).

    Moreover, commanders are most certainly trained to “deal with facts and the rules” (nevermind the screening, selection, and evaluation they undergo), though there is obviously a quality spread. I’ve seen more than my fair share of bad leaders in uniform, but the good ones are cerebral, curious, critical, and quickly acknowledge when things aren’t right so that they can get everyone focused on fixing the problem. They also earn the trust and confidence of their subordinates (and are horrified by the notion that a sexual assault victim would be afraid to report the crime). 

    I heard many senators make outstanding comments during today’s debate, and I look forward to the transcripts. One common theme was the fact that the charging decision (preferral) and the processing of the charges (referral, trial, etc.) are very separate parts of the system. After all, anyone subject to the code can prefer a charge, but convening a court-martial to prosecute the charge is, always has been, and always will be a function of command. Otherwise, what’s the point? Article III courts haven’t gone anywhere…

    Today the Senate recognized that with the reforms already enacted, charges will be preferred and commanders will process them in a way that is more transparent and accountable than ever before, and more so than any other system in the nation. For sure there will be further refinements (some good, some bad), but the sort of fire-sale change proposed by Senator Gillibrand is unnecessary, unproductive, and unwise.

  13. RKincaid3 says:

    J.O.:  Ditto.  I don’t care how good a Soldier, Sailor, Airman or marine one is, if one commits a crime, one should be found guilty and punished as appropriate under facts and the law.
     
    The “good soldier” defense should only be relevant in a disciplinary proceeding outside the courtroom or on sentencing in a courtroom. 
     
    After all, outstanding service members can still commit crimes.  Being great at something shouldn’t be an affirmative defense or justification that excuses all conduct. 

  14. stewie says:

    To your point Zach, who rates the SJA?  Who works for the SJA? Unless you are going to completely remove the prosecutor function and the JAGs that do them from any kind of contact with the command in some sort of analogue to the TDS structure, the notion of an independent prosecutor in the military is pretty nebulous…and even then, they are going to return to the “real world” at some point.

  15. Charlie Gittins says:

    RK:  I have no idea of your experience or education, but a life of good character for a military member or civilian, supported by appropriate opinion testimony is admissible, means something, and the Supreme Court has said so and determined that a jury should be so instructed.  Since you have not identified yourself or education with any particularity, I must accept you ignorance of the law and reject it.
     

  16. RKincaid3 says:

    C.G.:  I was not making a statement of law, or out of ignorance. I was making an observation as to why, IMO, the GS defense is ludicrous and should not be allowed on the merits.  The fact that the courts allow it is a different discussion entirely.  I am a lawyer (and a JAG) and am in fact possessed of some relevant education.  
     
    And since you so graciously accepted my alleged ignorance of the law in rejecting a point that I didn’t in fact make, I return the favor by accepting your ignorance of my background as the reason you couldn’t tell the difference between an observation about what the law should be with a statement about what the law actually is. 

  17. RKincaid3 says:

    P.S.: Nice.  Will have to try it!  But I won’t call you in the morning.
     
    Z.S.: 
     

    The notion that a uniformed judge advocate can be an “independent prosecutor” is preposterous. The influence of rank transcends billet, and a lawyer dictating a commander’s actions is the tail wagging the dog. The specter of command influence would be no less present, and unscrupulous commanders would continue to try to control the results of the process (rather than accept that the process is the result).

     
    Fallacy?   Hmm…it has worked very well with TDS and the Trial Judiciary.  Sure, they still have rank and are subject to influence, but their stove-piped chain of command that is separate and apart from commander’s doing the prosecuting keeps them pretty insulated.  In fact, I still have a copy of an e-mail that a Commander sent my RDC when I was a DC in Korea stating that because I was interfering in his disciplinary processes (duh–what is a DC supposed to do?), he had instructed his TC to prepare charges against me.  It went nowhere, obviously.  I have also received a draft LoR drafted by a commander while I was a DC in response to a tactical decision in a CM, and it went nowhere fact, too.  So, I see no reason to believe that an independent prosecutors branch couldn’t be likewise so insulated from a commander and as effective in serving “justice.” 
     
    Don’t get me wrong–commanders are the very best at what they do.  I respect them for what they do.  And they do things that I arguably could not ever do.  But not even the world’s best commander is as good in the courtroom as a trained lawyer.  They attack first to implement the mission and deal with the fallout later.  That is not often an effective strategy in the court room…especially when the rules of evidence and procedure so effectively limit the weaponry available.  Again, this isn’t about attacking commanders.  It is about doing what is best for the military.  And a military that is treated justly will be disciplined and effective.
     

    Today the Senate recognized that with the reforms already enacted, charges will be preferred and commanders will process them in a way that is more transparent and accountable than ever before, and more so than any other system in the nation. For sure there will be further refinements (some good, some bad), but the sort of fire-sale change proposed by Senator Gillibrand is unnecessary, unproductive, and unwise.

     
    As far as fallacies go, this is a good one.  I respectfully disagree, and while doing so, I hope your faith proves true.  History, however, tells me otherwise.

  18. Advocaat says:

    Character is an unlimited canvas.  Traits such as respect for women, deference to authority, peacefulness, honesty, truthfulness, adherence to the law/regs/tech orders, punctuality, sobriety, etc., can be relevant depending on charge and if so, are essential to a fair trial.  I don’t disagree that GMC’s relevancy can vary greatly according to the facts, but to eliminate it completely does not comport with the special status all military members have earned by virtue of their service.  By making defenders parse out several different traits (I never used GMC alone b/c it is so vague), the irony of this proposal is that character evidence will be used more effectively to sow the seeds of reasonable doubt.  Ah, the unintended birth of “specific military character.”

  19. Tami says:

    Zach,
     
    I couldn’t agree more with your comment that the idea of an “independent prosecutor” is preposterous.  JAGs are just as much under the thumb of Congress as convening authorities when it comes to promotions.  I dislike the idea of Senator Gillibrand holding up the promotion of a good officer simply because he/she had the moral, ethical, and professional courage to throw the BS flag and not prosecute a sexual assault case.  I am talking about not only those cases where the accuser is lying about the SA, or admits to lying, but also to those cases where the facts as alleged by the accuser simply don’t fit the law of sexual assault.  Several cases where the alleged accuser says, “I was saying no in my mind,” yet did not say or do anything to let the accused know consent was not there.
     
    Furthermore, if “independent prosecutors” referred all sexual assault cases to court-martial (which seems to be Congress’ expectation), the conviction rate would decrease, which would infuriate Congress even more.  What is the next step then–do away with our MJ system entirely?  Do they change the Constitution to say all men accused of sexual assault are presumed guilty until they prove their innocence?
     
    Military judges are always telling the attorneys that in order to be credible, you have to do your search and know what you’re talking about.  What is the rule that gives you the authority for your argument?  If you get it wrong, you have no credibility.  Note that the NDAA will soon require military judges to act as family court judges by appointing guardians for minor victims of sexual assault?  What authority do MJs have to do that?  None.  It’s obvious Congress doesn’t “get it” on how our system works.  Therefore, the men and/or women who inserted this into the NDAA (along with mandatory DD in contested cases) lost all credibility with me. 

  20. RKincaid3 says:

    ALCON:  please do not make the mistake of thinking that I support Gillibrand’s bill because it will reduce sex assault.  It won’t.  And anyon who thinks it will is a fool, especially given how screwed up Art 120 has become so that practically any human conduct may constitute a sex assault. 
     
    I think her bill is an improvement over the status qup in that it is simply the next inevitable evolutionary step of the UCMJ becoming a true justice system.  It will be yet another of General Ansell’s suggested improvements coming to pass. 

  21. k fischer says:

    Tami, 
     
    I ended up wanting Gillibrand’s bill to pass because there is too much UCI.  As I said, I would prefer a system where the JAGs in a stovepipe organization prosecuted sex offenses and Commanders stayed out of it, rather than where JAGs prosecuted sex offenses that Commanders prefer, refer, and send to a panel that the Commander hand selects in today’s environment.  The acquittals will be a little more difficult to come by, IMHO.

  22. Zeke says:

    The notion that a uniformed judge advocate can be an “independent prosecutor” is preposterous. The influence of rank transcends billet, and a lawyer dictating a commander’s actions is the tail wagging the dog. The specter of command influence would be no less present, and unscrupulous commanders would continue to try to control the results of the process (rather than accept that the process is the result).

    I disagree.  I think judge advocates generally give reasonable advice to convening authorities.  I think charges are generally reasonable as a result.  The problem comes when you have politically sensitive topics – I.e. Sexual assault.  Then, judge advocates, knowing the convening authority is sensitive to the perception that he or she might not be meeting expectations in that regard, are more likely to give advice that is more … Daring, or perhaps involves an unreasonably optimistic view of the evidence.  I think independent judge advocates, knowing that they won’t have to sell a hyper-sensitive commander on the need to exercise discretion to not go forward, will not be inclined to be as daring or optimistic.  If we were to make those prosecutors accountable to the civilian public in some way, say by working directly for someone appointed to that position by an elected official, as AUSAs are working for a publicly appointed US Attorney, then their exercise of prosecutorial discretion would be even more tempered.  I.e., they would be legitimate representatives of the United States.