Today’s New York Times has this article about the Sinclair case on the front page. Here’s a teaser:

During a Jan. 7 pretrial hearing, the sole witness to accuse Brig. Gen. Jeffrey A. Sinclair of forced sex — charges that could imprison him for life — took the stand at Fort Bragg to explain how she had only recently found an old iPhone that contained evidence of their three-year affair.

What might have seemed an innocuous discovery was, to General Sinclair’s civilian lawyers, a major opportunity: The witness, a 34-year-old captain, had kept text and other communications with General Sinclair on her computer and on another cellphone, some of which bolstered their contention that the relationship was consensual. They suspected this newly discovered phone contained similar messages.

As the lead defense lawyer, Richard L. Scheff, a former federal prosecutor, questioned the captain, she told a precise, detailed and unequivocal story about when and where she found the phone, and what she did with it.

But according to a forensic expert hired by the defense, her story was not true — the phone had been charged and restarted two weeks earlier than she had claimed. The military’s own experts reached a similar conclusion later.

After the hearing, Mr. Scheff said, he drew close to the chief military prosecutor, Lt. Col. William Helixon, and said, “You realize that you have a problem, right?” Colonel Helixon, Mr. Scheff said, agreed.

Thanks to reader “E” for the tip.

36 Responses to “New York Times article on how the Sinclair case “foundered””

  1. ResIpsaLoquitur says:

    Wow…even Slate (which tends to lean pretty heavily pro-victim) is pointing out how goofy the trial has gotten.  The only thing the Slate piece gets wrong is that Gen Sinclair would have an easier time in civilian court since the military-specific offenses (in-theater porn possession and unprofessional relationships) wouldn’t even be there.

  2. af_dc says:

    Though I expected as much, the comments on the NYT piece are incredibly depressing. I’m not even sure why I read through them. They exhibit a deep incomprehension of the the military, the military justice system, and even the civilian justice system. If this is how NYT readers — brigher on average, probably, than the average bear — think of military justice and how they perceive its problems, I have little hope that the public in general can understand what’s actually wrong here.

  3. RKincaid3 says:

    Part I:
    Like most of us, I have done much thinking about the national debate over military sexual assault and what some say is a “culture.” As far as I can discern, it is not a cultural issue, but a crisis borne of a leadership vacuum.  The vacuum created the current climate where Congressional accusations that the military fosters a “climate of sexual assault,” as demonstrably false as they are, are not met with in an impassioned and factual defense of the nation’s military service members by those responsible for defending them, the nation’s military senior leaders.
    Instead of combating the fallacy head-on, America’s senior military leaders surrendered their obligation to defend themselves and their troops, both male and female, by conceding the point–all to save their beloved and traditional commander-centric prosecution model of commingled discipline/justice.  In so doing, they have encouraged congressional tinkering of the relevant statutes to the point where the military is now suffering from an explosion of sexual assault allegations–many arising from non-sexual human conduct–which will inevitably affect the viability and combat effectiveness America’s all-volunteer force. 
    Rather than capitulate, America’s senior military leaders should have stood with one voice in defense of their fellow service members and rebuked Congress’s spurious allegation with courage and truth.  Instead, they joined in the alienation of their troops, simply to save their traditional and outdated role as the master arbiter of justice in the ranks.  Responsible military leaders would have told Congress, with all the leadership authority they possess, that:
    1)  Commanders are not guilty of fostering a culture of sex assault.  We are only guilty of exercising the discretion that Congress gave us; which discretion allows us to make decisions that first and foremost, enhance combat effectiveness and maintain the good order and discipline so necessary for victory on the battlefield.  And we do this based upon our military judgment and experience, aided by the advice of experienced lawyers and staff.  In accomplishing the mission, the subjective, individual interests of an accused and/or a victim are sometimes subordinated to the needs of the unit as a whole.  That is the traditional military model that has served us for so long and so well; and
    2)  Congress is not directly responsible for the lives, safety, health and welfare of America’s sons and daughters, or for leading, winning and dying in combat.  That burden belongs to us as Commanders.  So Congress should not complain and lecture about the manner in which we exercise the discretion they gave us, and which has been exercised professionally, responsibly and most importantly, effectively in combat; and
    3) The fact that commanders have exercised their statutory discretion differently than Congress would simply reflects the difference between the burden of our responsibilities as commanders preparing and leading our troops, sometimes unto death; and your responsibilities as politicians safely ensconced in the nation’s halls of power, well protected by us, the military; and
    4) One does not counteract a “culture of sex assault” by expanding the statutory definitions of rape and sex assault, thereby declaring a wider range of non-sexual human conduct to be sexual assault.  Such a statutory response inevitably results in more allegations of sex assaults, not less; and
    5)  One does not counteract a “culture of sex assault” by perpetuating or conceding a false hood.  America’s military is not full of rapists and sex assailants, nor is it full of rape victims and sex assault victims–to-be, or sex assault victims who have yet to report their victimization; and
    6)  Finally, for the good of the military services, we as Commanders hereby concede that the U.S. military has reached a point in its history where its need to accomplish the mission and maintain good order and discipline must be balanced with the needs and expectations of the best, brightest and most educated service members ever fielded–anywhere, at anytime.  Gone are the days when the average American volunteer will tolerate indifference or abuse couched as discretionary discipline comingled with justice.  As such, we must subordinate our own personal and traditional interests to the collective good of the modern American military and the nation we serve.  We therefore declare that the time has come to remove us from prosecuting criminals.  We must focus instead on our roles as disciplinarians while the lawyers and judges handle criminal prosecutions consistent with traditional concepts of American “justice” that are due to and expected by our service members.  For that to happen, the time has come for Congress to devise a statutory scheme that implements the necessary changes, without regard to subjective political agendas or military commanders’ personal thirst for the traditional trappings of military power and authority.
                    But this is not the end of the discussion.  Part II will discuss the others who have yet to be heard on the issue of failed leadership.

  4. RKincaid3 says:

    Part II:
    Part I addressed the leadership vacuum for which the nation’s military and civilian leaders are responsible.  Part II addresses the effect of that on the majority of service members–those of junior rank/grade.
    For their part, individual service members are essentially voiceless, being obliged as they are to simply obey all lawful orders.  But had they a voice that could be heard, I quite imagine it speaking loudly to America’s senior military leaders and Congress, as follows:
    1)  One does not counteract a “culture of sex assault” by adding a “check box,” re: supports the fight against sex assault, to our Efficiency Reports; and
    2)  One does not counteract a “culture of sex assault” by requiring service members to sit through hours of mind-numbing SHARP training wherein we must endure lectures ad nauseam about what bad examples of human beings we are; and how we must quit being ourselves, or even human, because our natural state is so criminally unprofessional. We are products of 21st Century American society and we reflect the values, attitudes and behavior of that society.  If the nation’s modern political and military values do not reflect the American society we represent, and our political and military leaders prefer to destroy that which makes us Americans, then we may soon decide to quit volunteering to serve a system so out of touch with American society; and
    3)  One does not counteract a “culture of sex assault” by forcing service members to sit through repeated showings, in some cases up to five or six times, of “The Invisible War.”  Leaders do not force subordinates to sit through a biased, lop-sided, propaganda film that is long on anecdote, emotional drama, and short on facts.  It does not reflect the vast majority of us and it distorts the real conditions and value of our military service.  As a microcosm of 21st Century American society, some of us are unprofessional, disrespectful and engage in criminal conduct.  Still some others of us make false allegations.  Both the accused and the accuser should be brought to the bar of justice, not discipline, to resolve the dispute in the traditional American way–with the benefit, protection and burden of judicial due process.  Do not forget, though, that those of us who behave that way are by far the minority, and the rest of us resent any implication, much less the direct accusation, that the majority of us are as bad as our Congress has asserted and senior military leadership has conceded; and
    4)  One does not lead troops to victory by maneuvering them into a circular cross-fire.  We are modern, educated Americans and we volunteered to serve and die for our nation, but we will not tolerate the ignominy of losing our livelihoods and reputations due to mere allegation, as is the current practice.  If senior leaders such as Generals Franklin and Helms who lost their livelihoods for no greater offense than exercising their statutory discretion contrary to the whims and caprice of a fickle Congress, and who were then denied the support of their fellow senior military leaders (who also fear that same Congressional whimsy), what chance do ordinary, junior service members like us have to be treated fairly, professionally and justly by that same system?  The system is even now turning its back on the special prosecutors responsible for fighting sexual assault as both the Army and the Marines have very publically gone after their premier, top-notch lawyer warriors, based upon simple allegation.  The toxic environment in which we currently operate has us dreading the day that one of us stands in the shoes of General Sinclair, or Airman Wright, for we know that we cannot expect justice following an allegation, only administrative, non-judicial or administrative retribution.  We serve voluntarily, but demand and deserve the justice we have grown up learning about, or we may soon volunteer no more.
    As can be seen from history, concession and coercion, falsehoods and extortion only yield further concessions, falsehoods and extortions.  Today’s Congressional allegations that America’s military is an undisciplined, unruly force–un-rebutted as they are–will lead to still more congressional tinkering, which will be performed as it so often is without even a modicum of the necessary insight, skill, experience or knowledge of the military or the military justice system on the part of Congress. This will beget further erosion within the military of the concepts of “cohesion,” teamwork,” “justice” and “innocent until proven guilty.”  And, unless the nation’s leaders stand up and lead by strongly disputing the utterly false and offensive paradigm that our military is a hotbed of hedonism, the cycle will continue until America’s military force has been rendered hollow and combat ineffective from within.  That shall be discussed further in Part III.

  5. RKincaid3 says:

    Part III:
    Part I of this Op Ed discussed the leadership failures of both Congress and America’s senior military leaders.  Part II discussed the hypothetical thoughts of the voiceless subordinates comprising the nation’s volunteer force.  Part III addresses the predictable consequence of Parts I and II: which is a loss of combat effectiveness.  How will such ineffectiveness occur?  Because Congress claims that the military harbors a “culture of sex assault,” and because senior military leaders failed to challenge that myth and have in fact conceded it by inaction on their part, here is where the nation’s forces now stand, in my opinion:
    1) Every service member should fear and be suspicious of every other service member as it is just a matter of time before they are each victimized by sexual assault; and
    2) Every service member should fear that every other service member may make an allegation, each against the other, sometimes with insufficient (or even no) evidence to support the allegation; and
    3) Every service member should fear that the consequence of mere accusation will result in a rapid and direct termination of the career, ignominy, financial ruin and the utter destruction of their (and their family’s) way of life, either administratively, non-judicially or judicially, under rules that Congress has tinkered with to guarantee a particular result, but not “justice;” and
    4) Every service member should fear the day they face administrative or UCMJ action, for their fates will be determined by every consideration but the facts, the evidence, the law or even basic decency.
    In his 1954 response to the “Red Scare” and McCarthyism, CBS News reporter Edward R. Murrow bluntly told America that “[w]e will not walk in fear, one of another.”  And yet, here in the 21st Century, every service member is each looking at each other with an institutionally wary eye and a healthy lack of trust, destroying the very fabric of good order and discipline within the ranks.
    Mr. Murrow also stated that “[a]ccusation is not proof and conviction depends upon evidence and due process of law.”  And yet, here in the 21st Century, America’s service members are watching the best and brightest among them humiliated and losing their careers as a sacrifice to politics and the fear of mere accusation; the facts, evidence and due process be damned.
    Two days before Murrow’s program challenging Senator McCarthy aired, Mr. Murrow, was confronted by his staff’s concern that because their names would appear on the show’s end credits they would be targeted by McCarthy’s House Un-American Activities Committee.  He stated bluntly that “[n]o one can terrorize a whole nation, unless we are all his accomplices.”  And in deciding to air the story, Murrow bluntly stated “[w]e are going to go with the story because the terror is right here in this room.”
    Given the terror that is right here in this nation’s armed forces, which America has allowed, I personally know of very few who will continue to volunteer to serve when one’s service is presumed to be self-serving, salacious, libidinous or criminal; nor will there be volunteers when one’s service is simply the first step to the apparently inevitable rape and/or sexual assault at the hands of peers that is the current political message.  Nor will American’s volunteer if they will be denied the benefit of being an American–due process of law before imposition of punishment, or their protection by their senior military leaders in the face of broad, glaring untruthful allegations about their character.
    All service members deserve and must be treated with the basic respect and due process rights that are the birth right of every American.  That includes not being presumed a criminal and/or a victim in waiting.  This includes not being punished to any degree without a trial.  In this regard, Congress and America’s senior military leaders have failed the one true principle of leadership–service before self.  They have abandoned their subordinates by putting their personal political agendas, ambitions, careers, promotions, power and authority ahead of the collective and individual interests of the very Americans who not only voted for the politicians, but who must also follow the senior military leaders into combat and possible death.
    Where is the leadership we are so oft told to demonstrate?  If we lack it here and now, in peacetime at home, it will be missing when needed most–on the battlefield overseas.
                  It is time for leaders to stand tall because America needs a strong military, and we may not soon have one if it continues to turn on itself.

  6. DCGoneGalt says:

    RKincaid3:  I love you.

  7. RKincaid3 says:

    DCGG:  Shhhh!!!! Please don’t tell my wife!  :)

  8. k fischer says:

    That was an unwanted sexual act.  CID will be knocking on your door soon as they have obtained your IP address from the NSA. RK3 if you need an SVC, I will represent you pro-bono.
    Your leadership vacuum part of your part I post, is interesting.  Why is their a leadership vacuum?  Perhaps its because Commanders cannot say something about sexual assault without the defense bar filing all kinds of motions, which they should, for UCI.  The POTUS can’t even say that someone convicted of sexual assault should receive a dishonorable discharge without hundreds of motions being filed.  Can anyone really argue with the logic that someone who is convicted of rape should be given a DD?  So, there is your leadership vacuum.  Don’t forget the Heritage Brief, too.  Too some people that’s good leadership, but to others it’s UCI.
    I still do not know the system that you would use to fix it, so let me try: JAG driven system with a Jury Commissioner.  So, if you let it be a JAG driven system with prosecutors being a part of a stovepipe organization, then certainly that would allow Commanders to lead, instead of worrying about violating Artidle 37, UCMJ.  Then, Commanders wouldn’t be the bogeymen the vics use to explain why they can’t report, and the Defense attorneys won’t file their motions because what they saywon’t be illegal, and the military judges wouldn’t have anything upon which to dismiss charges, except for prosecutorial misconduct.
    Could Claire McCaskill still hold up the promotion of TJAG of each respective service?  Yes.  But, I think a lawyer would be better able to explain much more eloquently why a case had no merit and did not warrant a Court martial, than some non-lawyer Commander.  You see, Senator McCaskill knows this and wants to bully Commanders into taking charges by making them worried that if they don’t refer every allegation to a Court martial, then they won’t get promoted.  It’s easy to bully Commanders, but its far less easy to bully lawyers who are governed by bar rules.   Also, if she doesn’t promote a Judge Advocate because of his or her prosecution record, then he or she can retire and get a civilian job easily enough.
    But, the easiest fix is to get Commanders out of the prosecution business.  Most of them rubberstamp what their attorneys tell them anyways.  I was a TC for 7 full bird Colonels at Ft. Benning between ’02 and ’03.  After I got my bearings (about five months experience), my Commanders pretty much, except on two occasions (one GOMOR and one adsep board), did what I advised.   I know there are some Commanders who are diffficult and want to control military justice, but the vast majority of them would gladly hand the UCMJ and sexual assault tar baby off to their service’s TJAG.
    So, even though Gillibrand’s logic is faulty, her idea is the best.  It is certainly better than McCaskill’s plan to make every Convening Authority into Mike Nifong.

  9. DCGoneGalt says:

    k fischer:  His emoticons are a sure indicator of consent.  And his mention of a wife is all the motive for a false allegation I need.  He is clearly a part of the 2%’ers.

  10. dyskolos says:

    ¡Ay, caramba! RK3, let it all out, just get it out of your system. 

  11. Jolly Roger says:

    The problem, of course, is that we have civilian masters, by constitutional design. If they say we suck at something, what do we do if the underlying facts are false (or at least unsupported by the evidence)? If the first sergeant says to go get the left-handed smoke shifter, but you know he needs the right-handed smoke shifter, you might check if maybe he doesn’t mean the right-handed…. But then you’re going to to say hooah and double time to get the left-handed smoke shifter. Our senior leaders made some tepid objections, but then they saluted smartly and moved out. It may have been moral cowardice, but not necessarily. GEN Dunford just testified (to an empty room) that Afghanistan will fall into chaos if all US troops are removed any time soon. But, having said his piece, if Congress says to get them all out he will get them the hell all out without saying more. I wish senior leaders had said a bit more, but at some point saying too much starts to look like disrespect of one’s masters, a la GEN McChrystal and Rolling Stone. There can and should be a pull toward not even allowing such an appearance. The founders made commanders fear for their jobs at Congress’s whim for good reason. Fortunately, Congress is slow and deliberate, and can’t do anything too drastic without decent evidence, since a wayward congressman has to convince his colleagues and keep his own job. Things like that systems response panel are likely the bear out the truth. That it sounds better coming from them than possibly self-interested commanders prevents anything too stupid from happening. The recent reforms are dumb and harmful, but not overwhelmingly so.
    I can’t see how Part I 1-5 lead to 6. Seems to me 1-5 lead to the opposite conclusion. The part about everyone worrying that their battle buddy will accuse them is legit though.

  12. Tami says:

    Oh my gosh, the conversation between DCGG and RK3, I feel sexually harassed!  Hostile work environment, my eyes hurt from reading their conversation.  Just kidding.
    This case HAS become a joke, although I do appreciate that COL Pohl found a way to send a message to Congress to stop stacking the deck against the accused and let us do our thing.  Sexual assault was a fairly easy crime to deal with before Congress mucked up Article 120 back in 2007.
    As IF a 3-star needs a captain to remind him Congress is watching his every move.  Where on earth did the prosecutors get the idea that the SVC was supposed to be on the Government’s side?  Ridiculous.  The SVC represents the alleged victim, doesn’t “align” with the government or the defense.  Perhaps the CPT’s word choice was poor, but the message is the same, and is a legitimate argument–what’s the impact on good order & discipline if you let this GO walk away with a slap on the wrist after 2 years of litigation?

  13. Advocaat says:

    Comments re the failures of our senior military leadership resonate the most with me.  Rather than crafting a sensible strategic approach to sexual assault, they have been in reaction/appeasement mode for the last few years.  There has been no mission analysis to define the problem and its scope (DoD’s misleading, misquoted anonymous survey has only obfuscated the issue), a deafening silence about preserving the right to a fair trial, and utter cowardice in standing up to Congress for all that is right with the military justice system.  I can only infer there is no overall strategy, core constitutional rights are not a primary concern, and service leaders have surrendered to the path of least resistance.  In that context, the tactical arc of US v. Sinclair is unsurprising. 

  14. Johnny Ringo says:

    Tami and Advocaat do an excellent job concisely summarizing everything that has gone wrong in this arena since ’07.  There seems to be a misguided effort to form an ever-changing response that will somehow make all of our critics, whether reasonable or unreasonable, happy rather than an effort to come up with a defensible strategic plan.  Those who have spoken out to compare sexual assault within DoD to similar populations in the civilian world or to compare our methods of prosecution with civilian systems are quickly silenced by the powers that be.  As someone who has prosecuted and defended on the outside and seen the average service underfunded and overwhelmed civilian public defenders are able to provide, I’ve been a huge advocate of our MJ system.  Given the ridiculous bows to outside pressures, it’s tough to maintain that position.  I’ll still take our system over most others when it comes to the fairness of court proceedings, but the referral process is tough to defend right now.

  15. Defense Hack says:

    RK3: Nailed it! af_dc: Stop reading the comments on the NYT or other news sources. People say crazy crap online because the anonymity of the message board gives people what can only be described as “internet cajones.” These “internet cajones” enable people to spew absolute crazy with little to no understanding of the facts of the individual case or human nature at large.

  16. af_dc says:

    Defense Hack: Sure, I’m well aware of the effect of anonymity on the average person’s willingness to be a jerk. I’m just thinking that if these people — readers of the national’s Paper of Record, who furthermore are actually engaged with the issue — if this is what THEY think, what must the average ignoramus or the person who is even less well informed think? Depressing.

  17. Defense Hack says:

    af_dc: Gotcha. In fairness, even if you are an attorney familiar with criminal practice and procedure, the MJ system makes little sense, and it makes even less sense now then it did twelve months ago. Unfortunately, The Invisible War was the most educational film on the MJ system since A Few Good Men. Unless you are in the trenches, defending or prosecuting these cases that would never see the light of day in a civilian court room, our problems are hard to understand. Truthfully, a good number of commanders do not have a firm grasp on MJ, mainly because their focus remains on closing with, and killing the enemy. I think (IMHO) that the root of the problem is that nobody has asked the practitioners what the problems are and how to fix them.

  18. RKincaid3 says:

    …the root of the problem is that nobody has asked the practitioners what the problems are and how to fix them.

    Amen, Defense Hack.  Amen.  The people still actually in the court rooms, both the government and defense lawyers, would change this conversation completely since actual practice results are so far removed from the stated policy aspirations.

  19. rob klant says:

    Do tell.
    What would the people in the court rooms suggest?

  20. af_dc says:

    rob klant, I’ll bite. I think most of us can agree that the current solution, which is to investigate absolutely everything and to take to court 99% of all cases, is bad. It puts innocent people at risk of a federal sex assault conviction and lifetime sex offender registration. It forces prosecutors to go to court with terrible evidence. It often forces unwilling victims into court. It also takes cases of what many of us would characterize as inappropriate behavior — butt slapping or what have you — and turns them into said federal conviction and sex offender registration. I will not argue that butt slapping is good behavior, but I think even people who completely swallow tripe like The Invisible War would nevertheless be aghast at the case of my client who was convicted of a sexual offense for touching another service member’s clothed buttock, once. That member now has to register as a sex offender for the next 15 years at a minimum, depending on where he decides to live.
    One of the things that is probably good about the current system is the SVC program. While I think it’s complete BS that an SVC should be able to write to, and influence, a CA with threats as in the Sinclair trial, I think that giving alleged victims an opportunity to say what they want and what’s important to them can be helpful for everyone involved, including defendants. As a defense counsel I’ve found that a lot of the time the victim just wants an apology or something like that from the accused.  Unfortunately there’s no mechanism for that to happen at this point in our system. The problem is that, in the military right now, we’ve taken every sexual offense of every kind, and even many things that are not sexual behavior, and are investigating and prosecuting nearly all of them. We take cases to court that the civilians would laugh out of the room. It’s a terrible waste of resources and it’s unfair to everyone involved. I think lower-level sex assault cases, instead of heading automatically to trial, should instead  be looked at by some sort of board as part of a pre-trial diversion program. The board should be able to assess the evidence against the accused, his or her record, and the severity of the alleged crime, and then give the accused a choice. Maybe that choice is to participate in a treatment program or some kind of training in exchange for not being prosecuted. Obviously one drawback would be that innocent people might feel compelled to take the pre-trial diversion, along with the ding to their service record, to avoid a court-martial, much like the 15 process works these days. But that’s a choice I’d be happy for my clients to have.

  21. RKincaid3 says:

    R Klant:  You are not new to this web site, and as one with experience as a Military Judge, surely you have some observations to make that would assist those on capital hill.  If not, in response to your request that we “do tell,” kindly go back and check out the comments to all the articles on CAAFlog over the last year dealing with changes/amendments to the UCMJ being pushed over the last year; the issues are all out there.  MJ practitioners from both sides have commented over and over again on the history of the UCMJ, the challenges, and the need for it to evolve into the 21st Century.  The people in the courtroom (including judges) need to be the ones testifying on capital hill because they are the ones dealing with the practical fall out from the legislative changes, many of which are ill conceived or contradictory (e.g., commanders are best suited to prosecute cases and yet, if they decide not to prosecute, their judgment must be second-guessed by their superior commander, just in case the subordinate commander didn’t make the right decision in not prosecuting) or result in denial of minimal substantive due process, all due to a tradition of “deference” by the fed courts to Congress’s codification of so-called “rough justice.”

  22. Ed says:

    its a good thing your client didn’t touch her hair. He may have gotten 30 years. The way these nonsense cases are handled makes Erdogan’s justice preferable. I used to really enjoy advising young college graduates to join the military Now I will not do them that which I would never want myself exposed to. A system that accedes to the perverse values of the Barbara Boxers of the  world and cares little about how it affects the military’s fundamental mission.

  23. Defense Hack says:

    af-dc: In today’s Army, there is no such thing as a “ding in one’s career” these days. Just doesn’t happen. If the Government can’t prove their case at court martial, they administratively separate the Soldier. Nobody is interested in pretrial diversion. You are either great, with nothing wrong in your file, ready to go to war tomorrow, or you are just waiting for a court martial or admin discharge. Most justice systems tend to factor in rehabilitation, however, in today’s climate, with the draw down, a Soldier that needs rehabilitation is wasting space.

  24. af_dc says:

    Defense Hack, the AF is no different — you’re either awesome or a piece of crap. I suggested the pre-trial diversion knowing full well the consequences. Still better than a sex assault conviction and SOR.  I personally would take it any day.

  25. k fischer says:

    Rob Klant,
    Tell me what you think about the panel that convicted a Soldier raping a Navy female while they were in Savannah on St. Paddy’s day where they gave him a BCD and 30 days hard labor without confinement?

  26. rob klant says:

    RK3, I’ve seen and made plenty of comments on what’s wrong about the various proposals for “reform”, but I was really wondering if current practitioners have any positive suggestions on what, if anything, should be done instead.
    I appreciate af_dc’s take on how giving victims a voice through assignment of an SVC might result in the better disposition of allegations of this nature.  It seems somewhat counter-intuitive at first, but I could see how the interests of a CA and a victim might be more closely aligned than the interests of a prosecutor and a victim are.
    For KF, where do I start?  In the end, I suppose I can only say that the system worked as it was designed to work.
    But, the result raises a point about court-martial sentencing that seems to have escaped the attention of the reformers so far.  Apart from the CA, there’s no virtually no other participant in the court-martial which has such largely unfettered discretion as members on sentencing, aside from the relatively rare or limited mandatory minimum provisions.  So, of course the members in the case you describe could also have lawfully adjudged a sentence of “no punishment.”
    While it seems to have been a long-standing feature of courts-martial in our history, it certainly makes us an outlier now.   There’s no other federal system — and only a handful of state jurisdictions the last time I checked — which provide for sentencing by the jury and even the sentencing authority of most other judges is much more closely restricted.   Personally, I suspect it’s only a matter of time before sentencing by members comes under attack, based on results like the one you describe above.
    Other than that, I’m beginning to think there is no good “fix” for the military justice system.   Currently, the most vehement criticisms being offered are precisely of those features which, in my mind, have been the strongest argument for its continued existence, e.g. the active and extensive involvement of CAs and other non-lawyer participants due to the need to maintain good order and discipline.
    FWIW, I’m leaning now towards abolishing the system altogether, leaving crimes to be prosecuted wholly by DOJ or state/local authorities.   As to discipline, maybe some sort of hybrid NJP/administrative separation board would be enough do the trick. 

  27. stewie says:

    The only thing that last bit gets us is out of Congress’ cross-hairs, otherwise, with all due respect scrapping the system and dumping it on the civilians is no solution.
    It doesn’t result in a better situation for alleged victims, or help curb sexual assault in the military.
    It doesn’t necessarily result in a better situation for accused either, although it would reduce the number of cases that went to trial which obviously that helps an accused, but the ones that did go trial would take twice as long, and as much as folks lambaste military panels, one can only imagine the vagaries of the civilian jury system.
    I suspect if we went to a civilian CJ system, a lot of folks would be quickly administratively discharge the moment an accusation was raised…because Congress would make sure those rules were in place.

  28. RKincaid3 says:

    R Klant:  I concur with Stewie.  Surrendering the whole MJ mission to civilians will be as ineffective as it is unworkable.  For example, to whom shall the military turn to handle deployed justice matters where the witnesses to war crimes are located?  The DoJ is currently unwilling to take many of the cases within their jurisdiction arising out of military service in the states, despite their clear ability to do so.  I therefore predict its unwillingness and inability to take cases in deployed combat environs. 
    Additionally, given the current state of Art 120 and its “catch-all” scheme for criminalizing all manner of human conduct as sexual assault (even conduct that is in no way sexual), I do not see how reducing the role of panel members will improve the process (even if only in sentencing) given the pervasiveness of congressional UCI down through the chain of command and through the CG pining for Congressional approval, through Art 25 and right into the deliberation room.  At least the current scheme allows the reluctant service member on a panel to appease the politicians’ voracious appetite for vengeance by imposing a conviction and sex offender registration and then easing their own guilty conscience of participating in that scheme by imposing little or no actual punishment (beyond the life-long Scarlet Letter of being a registered sex offender).  That is some-what of a check and balance upon a statutory scheme that is wholly out of control.  I don’t like it, but it is one way of examining things.
    It seems to me that the hardest part of UCMJ reform (aside from getting the politicians out of it as much as is constitutionally possible) is identifying a scheme for delineating offenses amenable to disposition through commander “discipline” and those that are best suited to judicial remedy.  Clearly the traditional felonies belong exclusively to the judicial process, and clearly the traditional “military specific” offenses belong in the disciplinary arena.  But that distinction is not as easy as one would think.  I have been wrestling with this issue of late, along with other “ideas,” as part of another project in this area on which I am working.  Alas–I have not made much progress.  This is too big a project for one mind.  We need a Cox Commission on steroids.
    Unlike AF_DC, though, I see no reason, historical, fairness or otherwise, for introducing retribution and vengeance into the two-party criminal system by giving witnesses standing to litigate the case.  There are only two parties to a criminal cases–the government and the accused.  All others are witnesses.  The criminal law is a vindication primarily of a crime against society, and human history (outside of “an eye for an eye” theories) reveals that it must necessarily be so limited.  To allow otherwise institutionalizes the concept of a private justice and the concept of private retribution/vengeance–this time aided by government.  The clear history of civilized society has rejected such concepts.  Additionally, the practice complicates the criminal matter, further strains limited judicial resources and worst of all–treats sex offenses differently from all other offenses involving victims.   Indeed, to be sure, if we are to confer upon sex assault victims special standing before criminal proceedings, why are we excluding the victims of aggravated assaults and attempted murders? Do they surely not face the same withering cross-examination and humiliating endoscopic background checks to fully measure their credibility in a case with competing evidence without extraneous support–the proverbial “he said-she said case?”
    Yes, there is much to be fixed in the UCMJ.  But the answer does not include surrendering entirely the military’s responsibilities to those who lack the interest, inclination or the necessary understanding of the military to do it right.  In fact, such a remedy will likely simply mimic and exacerbate the problems recently created by Congress’s failure to understand that with which it tinkers.  Change for the sake of change is not the answer.  Only appropriate change with a predictable range of acceptable results–even if some of those results are unpopular (such as not guilty verdicts, or even a failure to prosecute)–tempered by concepts of “justice” vice “retribution”–are going to be worthy of the sacrifice of those who volunteer to serve in such a system–the American citizen.

  29. rob klant says:

    Respectfully, what I believe scrapping the military justice system will accomplish is the widespread and still growing perception that the system lacks all legitimacy and that its primary actors themselves are wholly corrupt or, least, inept. 
    No matter how unreasonable the perception is — or, perhaps, precisely because it is so irrational — no amount of tinkering over substantive or procedures provisions can fix it, I’m afraid. 
    Against this background, even legitimate and effective reform will be subject to being dismissed cynically by various quarters as an attempt to insulate military/civilian leadership from accountability and responsbility, or to railroad the accused, or to blame victims. 
    Scrapping the system isn’t about the military “surrendering” its responsibility.  It’s about the military finally accepting the situation it seems we’re in.   I agree change for the sake of change is not the answer; but, neither is preserving the status quo at all costs.

  30. RKincaid3 says:

    I agree change for the same of change is not the answer; but neither is preserving the status quo at all costs. 

    R Klant:  Amen.  

  31. stewie says:

    From my POV the status quo was working, in 2007.  I think this involves some patience and a bit of a wait it out mentality.
    Sooner or later this is going to drop off the radar screen somewhat.  Might take 5-10 years but eventually this hyperfocus will lessen.
    If I could magically return us to 2007, I think our system would be just fine (yes RK3 I know you disagree)…not perfect, but fine.
    Obviously, it might be awhile before we get back there, but I think with patience eventually we will.  Gotta keep up the offensive.

  32. RKincaid3 says:

    Stewie: I concur that Art 120 worked better in 2007 as part of a justice system.  My only disagreement is in the issue of whether the UCMJ was a “justice” system prior to 2007.  Even the federal courts agreed that it was not and was instead only a disciplinary system with an eye towards “rough” justice.  
    Indeed, much of what has caused the problems about which we on this website have discussed (UCI from Congress on down through the chain and reckless statutory tinkering) were still a problem prior to 2007, but at least back then we had a Congress that largely left things alone except for the occasional tweak to keep up with the times.  But going back to 2004 really Congress started perpetuating the myth that the military was a sanctuary for the worst of society to prey upon each other.  And so I view that as when Congress started becoming enthralled with its own ability to effectuate change–often for the sake of change and in the name of political agendas.  Now the tinkering is so often that we hear of new amendments almost weekly now.  Until Congress reigns itself in, the UCMJ will remain a total mess.
    But we can always hope for cooler heads after the next election cycle.

  33. Tami says:

    Here’s a link to the picture of the sailor kissing the nurse in Times Square, upon hearing the news of Japan’s surrender.
    Under the law back then, this was perfectly acceptable.  Even today, common sense would indicate this was acceptable conduct, under the circumstances of the excitement that WWII was coming to an end.  In fact, there is a statue of this.
    Nowadays, under current law, this would be “abusive sexual contact.”  If he didn’t receive a Captain’s Mast (which would probably include a reprimand, which MUST go into his OMPF now), he would certainly face court-martial.  His statement that he saw this nurse smiling at him would be considered an “admission,” and we would probably hear expert testimony about the dangers of “victim-blaming,” SWAN, protect our defenders, etc., would be shouting all over the media that he blamed her because after all, she smiled at him.  The media would be flashing this picture, showing he MUST have assaulted her, look how he has her bent backwards?  Look at her left hand–can’t you see she is trying to push him away?  But she can’t because he has his left arm around her, crushing her neck!  Unlawful force!  She didn’t tell him yes before he kissed her!  Obviously he is guilty of a crime and should go to jail and get kicked out of the Navy with a BCD or DD.  Then he’ll have to register as a sex offender.  And what of the people in the crowd, smiling and laughing?  How dare they just stand there, smiling, and do nothing to help her!  They’re aiding and abetting him, they are also guilty of abusive sexual contact!  String them up!
    Congress, do you see how crazy this has become?  STOP the madness!

  34. Tami says:

    Here’s a link to the picture of the sailor kissing the nurse in Times Square, upon hearing the news of Japan’s surrender.   Nowadays, under current law, this would be “abusive sexual contact.”  If he didn’t receive a Captain’s Mast (which would probably include a reprimand, which MUST go into his OMPF now), he would certainly face court-martial.  His statement that he saw this nurse smiling at him would be considered an “admission,” and we would probably hear expert testimony about the dangers of “victim-blaming,” SWAN, protect our defenders, etc., would be shouting all over the media that he blamed her because after all, she smiled at him.  The media would be flashing this picture, showing he MUST have assaulted her, look how he has her bent backwards?  Look at her left hand–can’t you see she is trying to push him away?  But she can’t because he has his left arm around her, crushing her neck!  Unlawful force!  She didn’t tell him yes before he kissed her!  Obviously he is guilty of a crime and should go to jail and get kicked out of the Navy with a BCD or DD.  Then he’ll have to register as a sex offender.  And what of the people in the crowd, smiling and laughing?  How dare they just stand there, smiling, and do nothing to help her!  They’re aiding and abetting him, they are also guilty of abusive sexual contact!  String them up!   Congress, do you see how crazy this has become?  STOP the madness!

  35. stewie says:

    While I don’t think he should have been court-martialed for it or registered as a sex offender, let’s be clear, that kiss very well could have been an assault.  By all accounts, she was ok with it (apparently, or at least never registered otherwise) but I think Tami you’d not like it if, during some celebration, we were both on the same street and I just walked up and planted one on you.
    Different time, different rules/mores, and I’m not certain better in this instance.  I concur the sexual contact stuff is getting a little ridiculous so don’t mistake my meaning, it’s just I think we use this example solely because it is so iconic (and beloved), not because it’s necessarily a good example.

  36. Zachary D Spilman says:

    Tami & Stewie-

    Old news. See: A sexual assault Rorschach