Via Reuters, and the Associated Press, and the Washington Post, and the New York Times, Midshipman Joshua Tate of the Naval Academy was acquitted of sexual assault today, after a bench trial before a military judge.

However (and I’ve never seen this before), various sources confirm the AP’s report that:

In addition to the sexual assault charge, Tate also faced charges of lying to investigators. The judge did not decide those Thursday, however, returning the decision on what to do to the head of the Naval Academy.

59 Responses to “Tate’s acquittal”

  1. Vetty says:

    Disappointing that perps, once again, are incentivised to seek out drunk people as victims. Comments by the Judge seem to indicate he thought it was morning after regret- yet another example of “slut shaming” elevated to harmful stereotype.

  2. DCGoneGalt says:

    So they can still throw him out of the Academy for lying to investigators . . . you know, the same thing the complainant asked him to do during the investigation. 
     
    Susan Burke never ceases to disappoint as she continues to blame a “failed investigation and prosecution of this case”.

  3. Defense Hack says:

    What is this about him lying on behalf of the victim?!?!?

  4. DCGoneGalt says:

    Vetty:  The evidence leads one to believe the Accused did not see her as a victim but saw her as a willing participant who later blacked out that evening.  The issue of mistake of fact as to consent makes an examination of her behavior and what the accused saw/heard very relevant.  What you, and the military leadership, seem to see as “slut shaming” is an objective examination of the facts and reasonable conclusions based off that examination.   

  5. DCGoneGalt says:

    Defense Hack:  From the Washington Post link –
    “The accuser did not want to report the incident initially but was forced to after another student threatened to. She then refused to cooperate for nine months and even tried to get the defendants to lie to investigators in an effort to make the case go away. The probe was then halted in December 2012.”
    No sure what the specifics were but during the “non-cooperative” phase she asked them to lie. 

  6. k fischer says:

    From the WaPo:

    The alleged victim was not in the courtroom Thursday, but through her attorneys she said she was disappointed by the verdict. “She was appalled by the lack of accountability but hopes that her coming forward will result in meaningful reforms of the military justice system,” Ryan Guilds, one of the attorneys said.

     
    Well said! I am also appalled by the complaining witnesses’ lack of accountability drinking and having sexual intercourse with three men, then telling them to lie.  It really affects victim blamers like me who listen skeptically anytime a female says she was raped under circumstances that sound sketchy.  It’s her fault I am the way I am: a victim blamer.  I’m glad that she has the introspection to look in the mirror and recognize that, as Jack Nicholson says in “As Good as It Gets,” she lacks logic and accountability.  Hopefully, this process will teach her to not drink so much, and when she does, only have sex with one man per night, and if she fails at that, that she does not counsel her multiple paramours to lie about the affair.
     
    She is so insightful about the effect this court martial should have on the UCMJ, too!  I hope that her case leads to changes in the UCMJ, as well, to take the prosecution decisions out of the hands of those who are too concerned about their promotions and refer cases against the advice of their SJA’s.  You see, had the convening authority followed the unanimous recommendations of the investigating officer, prosecutor, Region Legal Service Office commanding officers, and the staff judge advocate, then perhaps this case would not have gone forward.  Had the system been in the judge advocates’ hands, then this case would not have gone forward.  So, she’s absolutely correct that this case should change the way the UCMJ is handled, i.e. wrest it from the Commander’s hands and place it in the Judge Advocates.   In fact, this statement is so insightful that I would gladly write her a FLEP recommendation, so that she could go to law school.
     
    I need a drink……

  7. Vetty says:

    “Reasonable conclusion” and “objective examination” are colored by ones personal experiences and bias, which in our society tend to have different standards for women and their sexuality, and many are all too eager to make excuses- i.e. “boys will be boys”. Hence the idea that rape can so easily be “objectively” and “reasonably” seen as “morning after regret”- we live in a society that has little true objectivity and understanding of predatory sexual behavior. These “mistakes” are hardly a mistake. http://onlinelibrary.wiley.com/doi/10.1111/acer.12356/abstract

  8. DCGoneGalt says:

    Vetty:  It is not an idea of seeing it as morning after regret and therefore reflexively dismissing the allegation.  It is a matter of examining the evidence available and reaching a conclusion based on the law.  An accused and a complainant are not numbers in a statistical social (i.e. pseudo) science study that seeks to quantify things like “sexual aggressiveness”, “sexual invasiveness” and “unwanted persistence” that essentially leave it up to a researcher to come to any conclusion they want and then cloak it in flowery academic language.   Panel members, or military judges, take all of the facts into account in reaching their decisions. 

  9. Vetty says:

    We validate “mistake of fact” in rape cases yet do not require that both participants actively seek out and obtain consent to the sexual activities engaged upon. This makes “mistake of fact” a convenient excuse for rape and sexual assault while we do not additionally require that an actor even attempt to ascertain the “fact” (consent) in question. This is not an objective and reasonable landscape, it’s just the status quo. It is basically “F*ck first, worry about consent later”. Don’t fret though, advances are being made that will increase the number of rapists that spend time in jail. Can’t we all agree on that outcome?

  10. k fischer says:

    Vetty, 
     
    I agree.  A month back, I had a client hit the Platinum Club with about 10 large in $5 dollar bills.  He rolled into the club, and after several shots of Woodford neat he blacked out.  So the next morning he wakes up in his barracks room, not knowing how he got back in.  So, he asks one of his battle buddies at the bar what happend, and he learned that he walked up to the stage like ‘lil Wayne and with that stack of $5 bills, he started to make it rain.  He went through all his money, but you should have seen those girls running out onto that stage covered with a pile 5 dollar bills. His buddy told him it was like some fool throwing bread to a flock of seagulls at the beach.  Those strippers ran out onto the stage and took all his money.
     
    So, he comes to me for legal advice and I say, “Man!  We need to sue the club for conversion!  You were too drunk to consent to give up your money.  They got you drunk so they could take advantage of you and steal your money.  It is not relevant that you spent money on other strippers and you go there every weekend.  We can keep that out.  That’s just victim blaming.”  We filed suit, but lost the case for exactly for the reason you said.  When women get men drunk so they spend money on them, they are stealing, but society sees so “objectively” and “reasonably” as “morning after regret.”
     
    Such an injustice.

  11. DCGoneGalt says:

    Vetty:  So then advocate that Congress change the legal standard for consent to the “affirmative consent” standard.  That is not the law, where mistake of fact is.  Affirmative consent in many cases will still allow a case to be determined by what two people say occured.  A complainant will say she (or he) did not affirmatively consent and an accused will say otherwise (or say nothing).  I can agree that sending rapists to prison is a good outcome.  However, from your posts it seems the “advances” you are so proud of are the politicized intimidation of military commanders and the psychological brainwashing campaign of military members, which I fear will lead to many accused of sexual assault being convicted who are innocent under the law as it currently exists.  This is not a good thing, it is a witch hunt that makes a mockery of the military justice system (which most of the time gets the right result in the end).  After reviewing the facts of the two high-profile cases that ended today, I believe General Sinclair was guilty of what he pled to and innocent of any sexual assault crimes (unless you personally, not under the UCMJ, define sexual assault as based on a rank/power structure) and that his sentence was low based in part on the fact that the Army allowed him to be subjected to a public beating based on sexual assault charges that just didn’t stand up to the light of day and the Naval Academy case was just lurching its’ way to an inevitable acquittal.

  12. Bill Cassara says:

    Vetty:  The playing field is slanted against the accused. If two service members get blotto drunk and then have sex, and one claims she was too drunk too consent, her drinking is held against the accused, who should have known she was too drunk too consent.  His drinking is also held against him, as voluntary intoxication is not a defense. 

  13. Vetty says:

    k fischer, thank you for making my point about how little society understands rape and sexual assault. If this is what others beside you picture as an apt analogy, then it is easy to understand why so many rapists go free. Do you also drive a cab? I heard this exact story from a cabbie driving us from base to….a strip club.

  14. DCGoneGalt says:

    Vetty:  Thank you for educating us on your opinions on what rape and sexual assault should be.  However, much like social science, it is your opinion just like I have an opinion.  Arguments can be opinion when they are reasonable extensions of the facts and law.  However, the law clearly (well, with Art 120 that may be a stretch) defines what sexual assault is and it requires an examination of the facts of each case.  While you call this victim blaming, I call it a trial. 

  15. RJ says:

    CA can withdraw those Art. 107 charges from the court-martial at any time before the MJ announces findings per RCM 604, and until the MJ determines findings he is under no pressure to “promptly” announce them per RCM 922. Is that about right?

  16. af_dc says:

    Vetty,
    It sure would be nice if people affirmatively sought clear and unmistakable evidence of consent before intercourse in the form of unambiguous verbal exchanges. (“Want to have penile-vaginal intercourse?” “Don’t mind if I do, if we can throw in some consensual sodomy!” “It’s a deal!”) As a defense lawyer, I’d ideally like to have the agreement on paper and signed and witnessed by a neutral third party. In triplicate.
    Unfortunately none of that is going to happen any time soon. Humans do not interact, or have sex, that way. That’s why, in putting forth a mistake of fact defense, we rely on non-verbal clues — flirting, head-tossing, lip-licking, innuendo, moaning, participating in the act itself cheefully, etc. Because that is how homo sapiens tend to figure out if we want to have sex with each other. Without the mistake of fact defense in a fairly typical he-said/she-said case, an accusation becomes an unrebuttable fact. That is, if we’re not there already.

  17. stewie says:

    Vetty, I have two questions.  1, it appears to me that you believe that all drunk sex (or most of it) is the result of “predatory behavior.”  Can you clarify for me if that’s what you believe? If so, it’s difficult to take you seriously.  Certainly I could agree it were predatory behavior if a sober, or near sober person takes advantage of a drunk person…but having done this for awhile on both sides, most of my experience has been that both parties were inebriated to some extent (the devil being in the details).  If not, then how would you propose dealing with two drunk partners engaging in sex? Automatically place all onus on the male by default (which is the current standard).  Or something else?
     
    2. In the present case, it is my understanding that there is at least some evidence that the alleged victim admitted to a third person at some point that she wanted the sex.  If true, wouldn’t that make it more likely that the accused cannot be convicted “beyond a reasonable doubt?”  Given the beyond reasonable doubt standard combined with the fact that most of these cases boil down to a complaint without witnesses, do you not concede that it can be difficult to get a conviction under that standard?
     
    Guess that’s technically 3 questions, maybe 2 and a half.

  18. Mike says:

    CID standard is erection equals consent so no matter how drunk he is he is liable.  
    Drunk people have sex all the time; it’s called HS, college, life… Right or wrong it is what it is since booze was invented
     
    vetty. Have u seen cold mtn? What about the hillbilly scene when she takes advantage of him?

  19. DCGoneGalt says:

    Mike:  That CID standard is ignorant, don’t they know that a penis can engage in counterintuitive behavior?

  20. Richard Stevens says:

    I honestly thought Vetty was being sarcastic with that first post.  Why is it that if a drunk guy has sex with a drunk girl, he is automatically a perpetrator and she is automatically a victim?  And why is it that a military judge considering the evidence and testimony at trial could not reasonably, and legally, conclude that the complainant was not telling the truth or that the prosecution failed to prove the case?  And why is that when there’s an acquittal or dropped case, the system is broken and has failed?  You want to talk about worn out and incorrect messages…see these.

  21. stewie says:

    Mike, there are degrees of course.  Two drunk people having sex is different to me from a less than drunk guy with a drunk woman.  Doesn’t necessarily equate to rape (drunk is not a very accurate word, or the legal standard)…but it depends on who is, and is not impaired by alcohol. 

  22. af_dc says:

    I would also say that I find the complaints coming from so-called “victim’s advocates” like Rep. Speier and “Vetty”, above, enraging. Their complaint was, I thought, that the military didn’t refer enough cases to trial. Well, the military referred Tate to trial, and after a full and (probably) fair hearing, at which the putative victim was represented by her own counsel, Tate was found not guilty. No one can possibly complain about that outcome. From anyone and everyone’s perspective, justice was served. Once again, justice is a process, not an outcome.

  23. stewie says:

    Again though, if you believe, as I suspect Vetty and Rep. Speier do, that only 2% of rape claims are false reports, then you view the only possible good outcome as a conviction, 98% of the time.

  24. DCGoneGalt says:

    Oh, the mythical power of the 2%.  See http://ncfm.org/libraryfiles/Children/rape/greer.pdf for a law review article detailing the dubious origins of the 2% number.  It seems Susan Brownmiller, quoting a NYPD Lt, quoting an unscientific and unsourced study, was the outbreak monkey of the 2% plague.

  25. Carrow says:

    Vetty–
    In this case, the facts are that the complaining witness put her hands in the pants of MIDN Tate.  He didn’t ask for that but went along with it.  It seems here that she is the perpetrator of the sexual assault.  

  26. Mm says:

    How were the remaining charges sent back to the convening authority? 

  27. DMZ says:

    After this and Sinclair, the lessons seem to be that when cases get this messy, the evidence this dodgy, the politics and meddling this intense, it is offically OJ-level circus and seems to this caveman lawyer that acquittals and hung juries are a fair and reasonably predictable outcome.  To expect convictions as a matter of course is to demand kangaroo courts.  I don’t like seeing perps walk, but I need to be reasonably convinced that the accused is a perp, not told by outside observers and agenda-driven meddlers that the accused must be presumed to be a perp.  Again, as a caveman lawyer, presumptions shouldn’t go that way.

  28. Zeke says:

    @Vetty: You complain about the “mistake of fact as to consent defense” as if it is something optional, and unjustly applied to rape allegations.  The truth is that allowing evidence of a mistake of fact as to consent is not truly allowing the presentation of a true defense.  It is allowing the accused to demonstrate the failure of the government to prove an essential element of the crime – mens rea.  We don’t “let” men or women raise mistake of fact as to consent as a defense so much as we allow them to hold the government to its burden to prove, beyond all reasonable doubt, that the accused not only had sex with an unwilling person, but that they also *knew* that person was unwilling.  This is because, in our legal tradition, we don’t punish offensive acts alone, we punish acts that are offensive and *intentional.*  It also bears noting that an accused and complaining witness are not equals in a criminal proceeding.  The accused is presumed innocent, which necessarily requires some skepticism to be directed towards the government’s accusing witness.  It’s not to be presumed that the accused actually had the criminal intent the complainant attributes to him.

  29. Tami says:

    Vetty, do you even live in the United States?  Our system worked the way it was supposed to work, even with all the meddling from no-nothing Congress-people.  In this country, under our Constitution, an accused is innocent until proven guilty.  That is a Constitutional right NO ONE gives up by virtue of joining the military.
     
    The bottom line is she wasn’t “too drunk” to have sex.  “not remembering” what you did the night before is not the standard for determining “too drunk.”  “She wouldn’t have had sex with Tate if she was sober” is not the standard.  The ability to make “good” decisions isn’t the standard.  The ability to make decisions is the standard.  Did she know what sex was?  Did she know what the consequences of sex are?  Could she have said no or pushed him away, or anything physical, if she didn’t want to have sex?  If the answer to these questions is yes, then guess what, she wasn’t “too drunk” to have sex!
     
    At this point, I think guys are going to have to do a preemptive strike by reporting themselves as victims of sexual assault.  Then if they are the ones prosecuted, I think they have a good case for selective/vindictive prosecution, retaliation, discrimination, etc.  Very sad that it’s gotten to this point. 

  30. RKincaid3 says:

    @Vetty:   We are all tracking your agenda. Since you don’t like to let the facts or the law get in the way, you will do well, with that agenda, running for and serviing in Congress.   
    @Everyone else:   Amen. 

  31. Charlie Gittins says:

    So, the prosecutrix stonewalls the investigation initially.  Then she hires my law school classmate Susan Burke to take her public and make a complaint that she was raped.  A criminal investigation ensues, where she gets every benefit of the doubt and no critical questions questioning her veracity.  She asks the guys she had sex with to lie.  One or more do, showing just how stupid they are in dealing with female midshipmen.  An Article 32 hearing is held before a dead end COmmander former Military Judge with nothing to lose by calling it as he sees it and recommends dismissal.  His recommendation is concurred in by the Regional Legal office and the CA’s SJA.  The case is nonetheless forwarded to trial by general court-martial, where the Chief Judge of the Nay-Marine COrps judiciary — a Marine, not a squid is presiding.  The accuser gets her day in court and is exposed as a liar, a woman of, well, let’s just say poor sexual characyer and judgment; who can’t remember jack squat and who made some damning statements to friends indicating no non-consesual acts.  The Mid is acquitted of sexual assault and some one in COngress is surprised and disappointed?  Really?  These Senators must be mentally challenged.  This is why we have trials.  The accuser was subjected to the greatest engine of truth ever devised — cross-examination — and she came up small, despite army of lawyers representing her personal interests.  The rest of the evidence was supportive of the accused.  ANd the num-skull members of Congress have a problem?  If so, it has nothing to do with process, it is all about their clear bias and stupid adherence to some antiquated old saw that women never lie about sex, or do stupid things when they drink.  Ask all those women picked up on ST Paddy’s day for DUI why they shouldn’t be held responsible for their voluntary decisions to drive while drunk, even if they don’t remember driving. 
    I recognize it has been a while since I was a midshipman.  But we had a name for mid-ship-chicks who were promiscuous.  They were called “Duty Judies.”  This prosecutrix is the poster “Duty Judy.”

  32. D Wright says:

    What is the deal with “The judge did not decide those Thursday, however, returning the decision on what to do to the head of the Naval Academy.”  How do you do that?

  33. anon81 says:

    @Mm: it was reported that there was a pretrial agreement that the government would withdraw and dismiss the 107 in exchange for MIDN Tate resigning from USNA.
    @Charlie Gittins: the Tate 32 IO is not a dead-end CDR former MJ. He’s a current MJ who just became one in 2013. Also didn’t realize you were classmates with Susan Burke; a curious coincidence? Interesting nonetheless.

  34. DCGoneGalt says:

    His behavior was nothing to write home about, but in the end he did nothing more than the complainant.  The complainant will graduate and be a star in the New-age Navy.  Revolting.

  35. Ed says:

    Would you want to serve with her.

  36. DCGoneGalt says:

    No.

  37. DCGoneGalt says:

    Mr. Cave:  Thanks for the link.  I have seen a few horror stories of the “judicial boards” comprised of social science “rape culture activists” that college campuses have initiated to deal with these allegations. 
     
    Since:
    1) pressuring commanders to take everything to court isn’t working to ensure convictions (but give the messaging campaign some more time, and they surely must know that
    2) giving the cases to JAGs will only lead to less cases being referred with a transfer of where the pressure is focused and
    3) that giving these cases to DoJ would lead to a very small minority ever going to trial;
    I truly believe that the next wave of “solutions” will include a special group of Sex Crimes Prosecutors culled from the SVC community with quarterly member panels named for the sole purpose of hearing sex cases that will be hand-picked by Flag Officer leadership.  It may be as close as they can get to college “judicial boards” without running afoul of Constitutional muster.
     
    Or for all I know with another couple of months of fact-based acquittals Congress could push the “Allegations!?! Burn Them At The Stake Act of 2015”.

  38. DMZ says:

    So once the parade of Congressional changes to the UCMJ begins, I’ll wait for the inevitable reexamination of Parker v. Levy on the question of what level of process is due in military courts-martial.

  39. SeaLawyer says:

    @anon81:  No PTA.  Apparently the MJ told TC to withdraw 107 and let USNA deal with it or he’d dismiss the charges under a theory of selective prosecution/UCI. 
    @Vetty:  To piggy-back on Carrow’s point – just a few minutes before putting her hands in Tate’s pants, she ASKED Graham for sex (which he politely declined), so she GAVE him a blow job instead.  Then she told Graham to find Tate for her…  Even if you believe she was blacked out (which I think there’s at least some evidence that her memory loss may have been convenient), and even if you further believe that she was “substantially incapacitated” (of which even the government’s expert forensic psych wasn’t convinced), her actions communicated a willingness, nay, eagerness to participate in sexual acts with multiple partners.  That’s mistake of fact.  I’m sure these guys, in the future, will get written (and video-taped) consent with specific details as to exactly which sexual acts she’s interested in engaging in during a particular liaison, perhaps notarized or sworn to under oath prior to actually engaging in the proposed sexual acts, but the law certainly doesn’t require that…

  40. k fischer says:

    SeaLawyer, 
     
    So, Graham was prosecuted based on a too-drunk-to-consent blow job????  Are those the facts as alleged by the complaining witness????  That she GAVE him a blow job, but she was too drunk to consent to her putting her lips around his member and moving her head up and down????
     
    This is why my head explodes.  Everyone has been shamed into not “blaming the victim” so much that these facts, if true, don’t come out.  And, if a woman in a voluntary drunken state gets on top and screws some guy (US v. Brandon Wright), or gives someone head (US v. Graham), then the accountability rests with her.  Then, you have kool-aid drinking true believers like “Vetty” who probably receive federal grant money to run rape crisis centers for a rape epidemic that is manufactured by kool-aid drinking true believers like “Vetty.”
     
    And, if I read one of you anonymous Government hack jacklegs point out that Midshipman Graham wasn’t technically “prosecuted” because his charges were dismissed after the 32, please save the keystrokes because it makes you look like you lack courage, credibility, and accountability.
     
    This is of course assuming that she GAVE Graham a BJ.  I wasn’t there, so I’m assuming SeaLawyer knows what s/he is talking about.

  41. DCGoneGalt says:

    k fischer:  True believers like Vetty are not just attacking from the outside, they are within the JAG Corps as well.  I have spoken with SVCs (and trial counsel) who openly share these views and honestly believe fact patterns such as these should result in convictions.  They are celebrated by leadership and will end up being SJAs/trial judges someday.  Let that one sink in.

  42. SeaLawyer says:

    I’m a “he”.  :)  Graham actually was prosecuted based on his admission that she gave him a blow job.  He initially lied to NCIS about having seen her at the party.  Unsurprisingly, NCIS neglected to read him his 31(b) rights, so his case went away.  She claimed not to remember…  Bush’s charges were dismissed, post-32.  I should note – all of the facts I cited came from the public domain, not from my time at USNA.

  43. k fischer says:

    This is an interesting article from Anne Hendershott, a professor of sociology from a some college in……wait for it……Steubenville, Ohio.  Notwithstanding her locale where a city allegedly covered up a train-type rape by two high school football players, she kind of hits the nail on the head, doesn’t she?

  44. ArmyTC says:

    You know a case is messed up when even I agree with Mr. Gittins.

  45. k fischer says:

    DCGG, 
     
    I know the type. I’ve shared this before, but you seem to be fairly new.  You have got to listen to this.  Here’s one of them I caught on a recording having an ex-parte with the IO during a break in the 32.  I was out interviewing an MP when this was going down.  My client, Garner, came in and told me that the TC, who was also the SAUSA, and the IO were talking, and I shrugged it off thinking that they certainly wouldn’t be talking about the case.  Little did she know that the 32 Recorder left the tape recorder running.  Little did she know that as a TDS attorney, I went around her to get a copy of said tape to refresh my recollection of what the witnesses testified to and prepare for trial.  When I heard this I went ballistic.  
     
    The facts of the case were that Carden, a blackhat NCO, got caught with an automatic Beretta AR70 with an Airborne trainee on a DUI stop where he was driving.  So, Carden says he has a machine gun in the truck and admits that he brought it back from Afghanistan.  He thinks he’s getting a DUI in Federal Court and an Article 15 for the machine gun.  When the JAG office caught wind of this, they pulled the DUI and Article 15, then preferred charges.  When the charges were read, Carden fingers Garner and says Garner brought back the gun and gave it to him to sell.  Carden cops a plea, gets a light sentence from the MJ who feels sorry for him being taken advantage of by an officer, so the OSJA decides they want to fry an officer. So, I show up to the 32 with a packet that slams Carden, but I have nothing on Garner.  In front of the 32 IO before the hearing started, I made it pretty well know to the Government how disgruntled I was that I didn’t have a single shred of evidence that indicated my guy had a machine gun, except for this lying NCO and that I was not really prepared for the 32. The ex parte conversation starts by the IO saying, “You guys need some evidence.”  The “gang rape” to which she refers in the recording actually resulted in two acquittals for rape and one guilty plea of rape.
     
    She also was credited with such hits as, “Oh, I think the victim is very credible.  When she lies, she lies, but when she’s telling the truth, she tells the truth.”  I’m sure she’ll be an MJ or SJA soon enough, if she is still in the JAG Corps.

  46. k fischer says:

    You know that the Army is in trouble when it takes a case such as this to make an Army trial counsel agree with an esteemed civilian defense counsel on the direction the military is going on sexual assault prosecution.  Charlie’s been the voice in the wilderness speaking of things to come for quite some time, now, and oh how have they in full force.  Thankfully you’ve got the perfect storm of Sinclair (Army), Tate (Navy), and Wright (Air Force) all hitting the news cycle at once.  Why?  The only conclusion I can draw is that Convening Authorities are worried about their next promotion.  Anybody else want to venture a guess?

  47. phil cave says:

    Having listened Kyle, I find this incredible and very disturbing that any lawyer, even an inexperienced one, could even think about doing this.  Was this GR ever the subject of an ethics complaint?

  48. Charlie Gittins says:

    Phil:  Even if there was an ethics complaint, the Ethics counsel have no credibility and the process is a joke, and saying that insults jokes.  I have wasted time, oxygen and paper with ethics complaints wrapped up in gift wrapping and they go no where.  The lawyer discipline process in the military is beyond broken, it is corrupt.

  49. k fischer says:

    Phil,
     
    No.  I reported it my boss and she reported it to the SJA.  As far as I know this particular TC/SAUSA got promoted to Major and went to the Grad Course.   All the attorneys at the TDS office where I served all should have received Meritorious Service Medals and our SDC should have received a Legion of Merit our time in the trenches.  I don’t push ethics issues to SOCO.  I’ve always just filed motions with facts that show ethics issues and let the MJ’s decide if they should report it.
     
    I merely asked for a new 32 in this case verbally with her COJ.  He was arguing how I wouldn’t get one, and I told him to listen to the tape.  Fifteen minutes later I get a call, and he says, “We’ll give you a new 32.”  They got a Reserve Judge Advocate LTC to do a new 32, and he recommended a number of charges be dismissed for lack of evidence.  Of course, the SJA recommended to the CG that all the charges be referred.  So, at that point, I filed an MTD for misconduct for that and the ex parte.  The COJ took over the case.  The MTD got denied.  The Government dismissed all the assimilated USC charges regarding the machine gun, and we tried the case for all the military related offenses allegedly surrounding the incident.  He got fully acquitted.
     
    So, the COJ calls me about half an hour after the acquittal and says, “I’m going to get myself appointed as a SAUSA and we’re going to indict your client in Federal Court on all the machine gun charges.”  I said, “Major ********, perhaps you should go home, have a nice glass of chardonnay or a pina colada or whatever your poison is, and consider whether having this LT who has a bronze star with valor in the Army is a good thing.”  So, my client gets indicted, gets a civilian attorney for whom I provide all the assistance I can, and gets acquitted in Federal Court unanimously.  See US v. Kirk, 2010 WL 3544577 (A.C.C.A. 2010).
     
    STILL, this OSJA can’t let it go, so they try to put a GOMOR in the LT’s fiche, and I heard from the late Patrick Bush (RIP) that COL Klingaman sent the CG an e-mail and said, “I think this LT has been through enough, Sir,” and the GOMOR was dropped and the OSJA never got its white whale.  

  50. Advocaat says:

    Great article by Prof. Hendershott, k fischer, thank you.  There needs to be a lot more peer review of that shameful anonymous poll and its unholy spawn.

  51. ArmyTC says:

    @K fischer, I should have been clearer. I normally disagree with Mr. Gittin’s editorializing on these boards. In this case I happen to agree with this particular post in an editorial sense, especially this part of his post “This is why we have trials. The accuser was subjected to the greatest engine of truth ever devised — cross-examination — and she came up small, despite army of lawyers representing her personal interests.”
     
    I normally find him to be a little too cynical for my taste. Mr. Gittins is a hell of an attorney and one of three who I would recommend if one of my loved ones ever needed an experienced defense counsel for a CM. That being said, I rarely agree with his assessments of motivations behind cases. Until today. I happen to agree with him (and a lot of you) in saying that the direction we are going in is a bad one. That being said, my beliefs are as follows: Military cases should be prosecuted by military courts appointed by military commanders. Congress should stay the hell out of our way.  I’d be happy to elaborate, but this response is intended to clarify what understandably could be percieved as an overzealous prosecutor drinking the kool-aid. It’s not.

  52. Anon2 says:

    Col Daugherty and Col Pohl got it right.  Very proud that the MJs held the line and demonstrated that they follow the law regardless of political pressure.  Unbelievable that Graham and Tate will lose their commissions while this “victim becomes a naval officer.  
     
     

  53. Charlie Gittins says:

    Army TC and KF:  First, I appreciate the kind words of KF.  But I spent 25 years representing clients. I always said what was on my mind and have no apologies for doing so.  I was willing to take the hit to make the point for the client.  I got in trouble for that plenty of times, too.  I challenged judges when they needed it and took my spankings like a man, but it usually benefitted the client in the long run.  Whatever was required within the bounds of the law and the rules of ethics, I never hesitated to put my toe right up on the line.   There are times I was over the top rhetorically, including on this site, but I have to say, I believe those days  in court were less frequent as I became one of the older hands, but perhaps more frequent now that I don’t have to worry about pissing off a judge or every judge on a CCA.  
    The Stewart case was my first experience with the new 120 and, given my 50-70 cases under the old 120 (and 1 conviction under old 120), I found the experience to be, well, stacked against my client.  The problem with that is I knew Nick personally, having spent many weekends with him training him to skydive.  I knew his character and I knew the BS that was being slung by the Ps and the so-called accuser (it was her parents, not her, that made the complaint to the USMC, after all, after Fairfax County declined to investigate).  we still went to trial after a Marine Colonel IO and Commonwealth’s Attorney for VA recommended dismissal.  
    My second experience with what I perceived was a broken system was SGT Boz’s capital case.  A clear effort by the CA to stack the panel — I have never seen anything like it; CID witnesses who lied under oath — yes, this is true — the Judge ordered the members to disregard a fingerprint expert’s ENTIRE testimony because it was “not accurate”  — i.e., a euphemism to the members because she had lied under oath about whether she had ever made a mistake on a QA exam when she knew she had and the documents demonstrated it (when they were finally produced on my motion after a reporter tipped me off).  The Government made a show of asking her if she was tested and had ever failed — yet another mistrial motion denied, after we showed the prosecutors had mislead the court.   (Interestingly, the last time I checked, a few months ago, Boz’s ROT still has not been authenticated 2+ years after the fact).  Prosecutors who bordered on unethical by failing to disclose Brady material — we took a two day recess to investigate that issue . . . .
    Then my former Law School classmate, Susan Burke, stuck her nose into military law, something she only read about — she couldn’t tell the difference between a LT and a LT colonel –, and off we go to the current Salem Witch trials.  That is why I got out.  I can deal with strident prosecutors who are aided by Government hack MJ’s, which I expected and planned for in advance — I always felt good about an acquittal when I overcame the TC and his assistant sitting on the bench.  But once you undertake to taint the entire jury pool of members with crap like CMC’s prostheletyzing (SP) that 80% of sex assault allegations are true, it is no longer justice; it is the Star Chamber.  These couple of days with the USNA case and the wholly BS case of Sinclair were a good kick in the junk for the Kool-aide drinkers and the ass-wipes in Congress trying to change the system to be less about “justice” and more about outcome — i.e., convictions.  You couldn’t pay me enough to be involved in trying cases under these conditions.  Bravo Zulu to you that continue to toil in these trenches.

  54. ExTC says:

    I normally never ageree with Gittens either but I do this time with one caveat – his comments about the Tate IO.  The IO for the Tate case was not a passed over or broken MJ.  He is a new MJ, Naval Academy grad, LEP, multiple DC tours and XO tour.  In todays world It took guts to call it what it was at the IO level, we need more of it. Glad to see his recommendation vindicated. 

  55. Tami says:

    I worked with CDR Monahan a few years ago–very intelligent and thoughtful.  Couldn’t have had a better IO.  I think he earned his crystal ball.

  56. Charlie Gittins says:

    I may have been thinking of a different CDR Robert Monahan.  I was thinking of a guy who screwed up a Tailhook prosecution — Samples v. Vest.  My apologies for the confusion, but I still applaud the courage shown by this IO.

  57. k fischer says:

    This is an interesting letter to the Baltimore Sun.  The writer raises a good question.  Why isn’t Susan Burke pitching a hissy fit about the Anne Arundel DA, a woman, not prosecuting?  Why isn’t Claire McCaskill calling up that DA onto the carpet and telling them that she is going to cut funding for their county’s SVP program if they are just going to let rapists walk?
     
    Is it because their real agenda is not to find justice for the alleged victim, but it is solely focused on making the military look bad?

  58. Siddartha says:

    Charlie, u r spot on save CDR Monahan…it is the Star Chamber.  These couple of days with the USNA case and the wholly BS case of Sinclair were a good kick in the junk for the Kool-aide drinkers and the ass-wipes in Congress trying to change the system to be less about “justice” and more about outcome — i.e., convictions.