CAAF decided the Army case of United States v. Kearns, No. 13-0565/AR, 73 M.J. 177 (CAAFlog case page) (link to slip op.), on Friday, March 21, 2014, finding that Appellant’s conviction for transportation of a minor for illegal sexual activity, in violation of 18 U.S.C. § 2423(a), is legally sufficient, and affirming both the findings and the published decision of the Army Court of Criminal Appeals.

Judge Ohlson writes for a unanimous court (and it’s his first opinion of the court).

Appellant was convicted in absentia, contrary to pleas of not guilty entered on his behalf, by a general court-martial composed of officer members, of making a false official statement, aggravated sexual assault of a child, wrongful transportation of a minor through interstate commerce, and a general disorder, in violation of Articles 107, 120, and 134, UCMJ. He was sentenced to confinement for four years, reduction to E-1, total forfeitures, and a bad-conduct discharge.

Judge Ohlson’s opinion provide a succinct summary of the facts:

During the relevant time period, Appellant was a twenty-two year-old soldier stationed at Fort Bliss, Texas. In both November and December of 2009, while Appellant was home on leave in Pennsylvania, he had sexual intercourse with K.O. K.O. was fifteen years old at the time and Appellant knew she was a minor. When Appellant returned to Fort Bliss, Appellant and K.O. stayed in contact via text messages and phone calls.

At some point in their relationship, K.O. falsely told Appellant that she had been sexually assaulted by a family member. Thereafter, in January 2010, Appellant paid a female friend to transport K.O. from Pennsylvania to Texas. However, before the friend and K.O. (along with another minor female) reached the Fort Bliss area, they were stopped by Texas law enforcement for a traffic violation. The police determined that K.O. and the other young female were minors and possible runaways.

Slip op. at 2-3. The defense asserted at trial that Appellant “facilitat[ed] K.O.’s travel across state lines [in order] to remove her from a sexually abusive environment,” and not for the purpose of illegal sex. Slip op. at 4. On review, the Army CCA considered various formulations from the federal circuits of the intent required to violate  § 2423(a). In a published opinion, the court concluded that “as long as the illegal sexual activity is a purpose of the transport and not merely incidental to the travel, the requisite intent is met.” United States v. Kearns, 72 M.J. 586, 587 (A.Ct.Crim.App. 2013) (link to slip op.). The CCA found that Appellant had such intent based upon Appellant’s prior sexual activity with KO, the fact that KO had romantic feelings for Appellant and sent him a sexually suggestive picture, and Appellant’s initial denials of his role in KO’s transportation to Texas and their prior sexual contact.

CAAF granted review to determine:

Whether the evidence was legally sufficient to prove that Appellant had the intent to engage in criminal sexual conduct with KO, a minor, when he facilitated KO’s travel in interstate commerce and was found guilty in Specification 1 of Charge III of violating 18 U.S.C. § 2423(a).

Judge Ohlson begins his discussion by explaining that § 2423(a) states, in pertinent part:

A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce . . . with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life.

Slip op. at 8.

This statue has a specific intent element, but Judge Ohlson explains that “there is no requirement under this statute that the intended unlawful sexual activity actually occurred. Rather, all that is required is that the mens rea of intent coincided with the actus reus of crossing state lines.” Slip op. at 9 (marks and citations omitted). And CAAF agrees with the CCA that the element is met if “the illegal sexual activity is a purpose of the transportation across state lines, and not merely incidental to the travel.” Slip op. at 13 (emphasis in original). In reaching this conclusion, Judge Ohlson considers and rejects reasoning of the Second, Third, Fifth, Ninth, and Tenth Circuits, all of which have added to the intent requirement in some way. Instead, his opinion concludes that “§ 2423(a) is clear on its face, and thus we decline to graft additional modifiers onto it.” Slip op. at 13.

With the ACCA’s decision on the intent element affirmed, CAAF need not remand the case for a new factual sufficiency review (where the evidence is not viewed in the light most favorable to the Government). Instead, Judge Ohlson makes quick work of the question of legal sufficiency, concluding that:

The record in this case shows: that Appellant had sexual intercourse with K.O. on at least two occasions in the two months prior to the point when he orchestrated her transportation across state lines; that Appellant went so far as to climb in the second-story window of K.O.’s bedroom in order to have sex with her; that shortly before the trip K.O. sent Appellant a photo of her naked breast and Appellant did not object to this action; that Appellant paid a stripper with whom he had a sexual relationship a substantial sum of money to transport K.O. to Texas; and that Appellant planned to have K.O. live near him. These are all facts that the panel could have considered and relied upon in reaching its decision that Appellant transported K.O. across state lines “with intent” to engage in illegal sexual activity with her.

Accordingly, we hold that there was sufficient evidence for the panel to conclude beyond a reasonable doubt that Appellant facilitated the transportation of a minor across state lines with intent that she engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a).

Slip op. at 14.

Case Links:
• ACCA opinion (72 M.J. 586)
• Appellant’s brief
• Appellee’s (Government) brief
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

55 Responses to “Opinion Analysis: United States v. Kearns, No. 13-0565/AR”

  1. peanut gallery says:

    decision is fine, but mentioning “stripper” as if it’s relevant is silly

  2. Christian Deichert says:

    Well, you have to admit, it does paint a slightly different picture than if he had paid a kindergarten teacher to go get her.

  3. peanut gallery says:

    actually not at all.  that’s the whole point.  both perfectly legal professions and stereotyping strippers as promiscuous etc. is bs.

  4. k fischer says:

    PG,
     
    Seriously?????????  I think that stereotype is a fair one.   So, Is that what they are teaching at SVP school?
     
    But, yeah I could see a group of kindergarten teachers renting a limo for a bachelorette party in which my buddy was driving in Orlando and after servicing each other and him asking him to call all his friends to participate.  (No, I did not participate.  It was 1 a.m. I had finals the next day, and I hate to “stereotype” but but while hooking up with six strippers might seem like a fun time when you were 25, I’m pretty sure it would’ve turned into a Kool Moe D song and three days later, I’go see the doctor…..)

  5. Lieber says:

    having dated a stripper or two in pre-Army days….sometimes stereotypes exist for a reason.  actually, I’d say that most (but not all) strippers have exchanged sex for money.  unlike most kindergarten teachers (I have, however, known some promiscuous kindergarten teachers)

  6. DCGoneGalt says:

    I can see where it is relevant only if there are additional facts to back up a reason for considering it.  In this case, perhaps some tie to the alleged planned sexual activity with the minor.  Standing alone it says nothing about her other than she engages in a legal profession that is slightly more on the up-and-up than being a member of Congress.  However, I have never heard of anyone making it rain in a kindergarten teacher convention at 3am.

  7. k fischer says:

    PG,
     
    You wouldn’t happen to be the SVP on the AF case of US vs. Brandon Wright, would you?

  8. DCGoneGalt says:

    SVC and defense counsel for the Wright case are public via AF Times/Stripes.  http://www.airforcetimes.com/article/20140122/NEWS/301220012/Case-shows-impact-year-old-special-victims-counsel
    http://www.stripes.com/hearing-begins-for-airman-whose-case-was-removed-from-franklin-1.262007
    http://www.stripes.com/news/do-over-of-rape-investigation-shows-complexities-of-military-sexual-assault-problem-1.262515
    And here is a Stripes article where the SVC worries that complainant advocacy will have an adverse effect on her career.  Hard to imagine considering it is the No. 1 priority of the military at present, is routinely celebrated by flag officers, and is given the Congressional stamp of approval.  If the SVCs are worried, I can only imagine what the defense counsel are feeling.
    http://www.stripes.com/news/air-force-program-a-rare-bright-spot-in-military-s-sex-assault-fight-1.269628
     
     
     
     

  9. k fischer says:

    DCGG,
     
    I have a theory based on the experience of representing men with divorce and false rape allegations that a woman who has an immense amount of selfies, pictures of herself by herself, pictures with cleavage, and pictures with her tongue sticking out typically has snakes in her head and a yellow warning light should go off for any man who wants to bond with her.  
     
    Ironically, this crazy case of US v. Wright, where the theory is being forwarded that a female NCO got pulled on top of a junior enlisted and raped because she “froze,” is really being championed by the SVC who has a very unique name and is easy to facebook and see all her pictures……cobras………yellow warning lights……..danger, Will Robinson……danger…………then again, I could be wrong and my theory unproven……….

  10. DCGoneGalt says:

    k fischer:  I see there is also a picture with Gen Dempsey and have heard she recently met face to face with the new SECAF. Wish we all could be so worried for our careers.

  11. afsvc says:

    @kf: I get your problems with Wright at least as the facts have been reported. That said, does this kind of personal innuendo really advance anything other than serving as confirmation of what a lot of the policymakers seem to think a lot folks think? I.e. most women who claim they are assaulted are crazy and apparently so are those who (as part of their assigned duties) advocate for them. Criticize her actions with respect to the court if you want, but basing it a subjective appraisal of a Facebook page seems a bit bush league.

  12. k fischer says:

    Speaking of stereotyping and profiles of people, I wonder what the Air Force will use to determine who a potential predator is:
     

    James said the service is also studying how to prevent predators from entering the Air Force. This includes looking at private-sector research to “come up with a better knowledge about the profiles of people, to recognize people in advance.” The Air Force is also looking at changing the questioning of new recruits to try to “root out predators.”

     
    Praytell, what kind of question might they ask a recruit in order to “root out predators” so they can recognize predators in advance?  Because if being a stripper transporting a 15 year old across state lines for your ex-john lover doesn’t equate to a strong likelihood of a loose woman transporting a young girl across state lines for sexual purposes, then I can’t imagine how one would ascertain through questioning how someone is a predator. 

  13. k fischer says:

    I recognize the fallibility of my theory, afsvc, that’s why I said my theory could be wrong.  I actually had a convo with my paralegal how many of the people who are a little on the cray cray side have a large number of selfies, she agreed that it was a good initial indicator, but I agree that it is not a dependable test, yet, as it should be subject to peer review.  
     
    I guess I will keep my other theories to myself regarding (1) the propensity of left handed people to become criminals because their life has been tougher and they failed to assimilate since, let’s face it, it is a right-handed world, based on my observation as a TDS attorney that an inordinate percentage of my criminal clients signed their guilty pleas with their left hand, and (2) the subplot of the movie Top Gun being Maverick struggling with his own homosexuality, so that I am no longer accused of being “bush league,” on a blog by some anonymous poster named “afsvc.”  (And, if you imagine this last paragraph being read in the voice of Sterling Archer, then you might take a break from riding your high horse).

  14. AF JAG says:

    K Fischer,
     
    Better to be riding a “high horse” than to be down in the gutter.
     
    I have to say, your casting personal aspersions against some AF Special Victims Counsel in U.S. v. Brandon Wright becuase she might have (I don’t know, I haven’t seen her Facebook account, nor do I know who Airman Wright’s SVC is) pictures that are less than professional on her PERSONAL Facebook page is the epitome of BUSH LEAGUE. 
     
    Does Wright look like a weak case?  YES.  Are you free to say so?  YES.  Are you free to point out that perhaps this case does not get referred in an earlier time before Congress turned up the heat on sexual assault cases (with what appears to be an agenda to obtain a maximum amount of alleged sex assaults referred to trial)?  YES. 
     
    But NO, you should NOT be taking out your venom against a SVC who is only doing her job in the Wright case.  She’s advocating for her client just like you would be for yours.  So unless you want to be ridiculed for doing your job, why not refrain from unwarranted, and I must say, just flat out rude personal attacks against this SVC.  Do better.

  15. TC says:

    AF JAG,
    To be fair, K Fischer’s paralegal did agree with him.

  16. DCGoneGalt says:

    afsvc:  I understand, and concur, with your concerns with personal remarks.  However, your reference to “at least as the facts have been reported” is interesting because those facts that have been reported on Wright are enough to cause concern.  And what has been reported is only the tip of the iceberg.  I almost wish there was a live stream the week of 5 May so that case could be covered in real time rather than having to go through the AF Times/Stripes filter that I am sure will ensure the command/former TJAG involvement and the absurd nature of the facts aren’t covered in their entirety.  One thing that truly drives me nuts is that the media refuse to run with the complainant name (no problem with that in and of itself) while having no issue running with the accused’s name or the witness who walked in and saw what he believed to be consensual sex.  Apparently privacy interests are not worthy of consideration when they concern witnesses who testify that a claim is seemingly false.  Here’s to hoping against hope that this is finally the case that the Air Force realizes things have gone too far and begins to step back and reconsider what is being done to the justice system. 

  17. k fischer says:

    Well, that escalated quickly.  And to be fair, my paralegal agrees with the Top Gun theory, too, but gets a little offended about the left-handed theory, probably because she’s left-handed……….I should calendar a quarterly criminal background check on her as it is only a matter of time before she becomes a felon………..
     

  18. af_dc says:

    The seas must be boiling and cats and dogs must be living together, because I find myself in agreement with the government hacks (no offense, AFJAG and afsvc). I think we should leave the SVC in the Wright case alone. She was assigned to represent her client; she’s doing that. That’s it. I think the case is BS and I hope Wright’s attorneys stomp all over it in court, but no attacking the SVC for stuff on her private FB page. It’s dumb and, as a defense attorney, it doesn’t help my clients any.

  19. stewie says:

    I agree kf, a little too far on the personal attacks on the SVC.  Although, I also agree it isn’t “cray-cray” to think a stripper may not be the most chaste of individuals.  Shouldn’t matter at trial as it isn’t relevant, but in the general sense, it’s not bs either.
     
    I will give bonus credit for anyone who does an Archer reference though, even if the current season is a tremendous disappointment.

  20. DCGoneGalt says:

    af_dc:  Agreed, however I think it is fair to comment on the fact that someone says to the media that they are concerned for their career because of speaking out on behalf of a complainant when that is so obviously at odds with the truth of where the politics of the military justice system, and the military, is at today.  It is the defense counsel that are doing their jobs and risk being punished for it.  I think the picture of the SVC with General Dempsey is fair to comment on with respect to that point.

  21. DCGoneGalt says:

    Archer is terrible.  Why do people like that show?  Am I crazy? 

  22. af_dc says:

    DCGG, I will buy that for a dollar.

  23. DCGoneGalt says:

    af_dc:  That’s a quote from RoboCop . . . I do not get Archer.

  24. af_dc says:

    DCGG: Right, I was referring to your comment about the supposed career implications of being an SVC. I have no opinions about Archer.

  25. stewie says:

    Are you crazy for not liking Archer?  Yes…yes you are. Although I will agree the current season is “Meowschwitz” bad.

  26. DCGoneGalt says:

    af_dc:  Aaaaahh, I see.  I have yet to meet an ADC who gets visits from CJCS, SECAF, and personal thanks from TJAG (for the Wright letter).
     

  27. Zeke says:

    Criticizing an SVC for zealously advocating for their client is unhelpful and unwarranted.  Ad-hominem attacks against that lawyer are unprofessional.  The problem is that SVCs haven’t been given competent direction by leadership as to what their proper role is in our system.  Our justice system does not exist to give anyone their “day in court.”  It isn’t even intended to punish offenders.  It’s purpose is to weigh the strength of our government’s accusations against its citizens, to promote good order and discipline maintained in the armed forces, and, where the government’s accusations are borne out beyond a reasonable doubt, to ensure the offender suffers the minimum amount of punishment necessary to satisfy the public interest.  We haven’t structured the SVC program to help its lawyers interact with the system in a way that is respectful of those purposes.  Instead, they’ve been told to push for their client’s interest in a prosecution (or not), without regard for the reason for the system’s existence, in the same way a defense counsel advocates for the accused.  They shouldn’t have been told to engage in that sort of practice, but since they have, they can’t be blamed for doing their job.  It’s a failure of leadership, not a failure of any individual SVC.

  28. stewie says:

    While I think the SVC program is a bad idea for a myriad number of reasons, IF you are going to have it, then I don’t see how you do it without zealous advocacy.  I also don’t get how you expect “leadership” to direct them with that professional responsibility requirement in such a way that protects the purposes of the system.
     
    Of course they are told to push their client’s interests, that’s exactly what an attorney is supposed to do.  The problem isn’t the SVCs or the leadership as much as the very program concept itself.  PR does not allow them to have “regard for the reason of the system’s existence” and basically you are saying that SVCs should be “sorta zealous” but not too much.  Unworkable.
     
    The best result at this point is that MJs keep the SVCs to written submissions, and that SJAs counsel CAs about the other side of the coin when an SVC submits matters (or alternatively allow/encourage more DC interaction with the CA prior to referral).

  29. k fischer says:

    Okay, all kidding aside, I expected a response to be, “Hey KF, I know this SVC and your theory is wrong.  She is actually way above board.”  Instead, curiously, I am accused of “attacking” her, being in the gutter, and being “bush league,” WTF ever that means.  
     
    So, then, just trying to figure out my left and right limits, when would somebody’s Facebook page be fair game to comment on a blog? (This is all hypothetical) What if on an SVC’s facebook page, she had a video of her at a shooting range taking all her Ken dolls from when she was a little girl, and shooting them in the area where the penis should be with her Walther PPK with the title of the video being “Cathartic, isn’t it?”  And, what if the same SVC had an older post saying that she was adopting a male puppy, so she could neuter it, like all men should be.  And, what if in an even older post, an SVC had pictures of her newly born son with the statement, “How long do I have to teach him not to be a rapist?”  Could I comment on that, or would that be off-limits, too?   Again, this is a purely hypothetical scenario, so I can know my right limit on commenting.
     
    Social Media, whether anyone considers it professional or not, provides really good intel on a number of things.  Is it unprofessional to look at a panel members personal facebook page to see what his or her likes are and determine what voire dire questions I should ask or what closing arguments I should make?  So, should I stop doing that?  Is it unprofessional to look at a complaining witnesses facebook and myspace page to see what they post, so I can use it in cross-examination?    
     
    And as far as “attacking” goes, perhaps my skin is quite thick from the scars of battle, i.e. COJ almost hitting my co-counsel in the face after an acquittal while pointing at me and screaming at the military judge in a bridge the gap that I was unprofessional, even after I warned him that it was going to be embarrassing for his TC if the case went forward (US v. John), an embarrassed TC filing a bar complaint against me after a full acquittal of 8 specifications (US v. Banks); a victim who stood by my truck parked outside the courtroom after a full acquittal after I showed the panel he and his female friend were liars (US v. Smajda), so I really did not see how my observation, while kind of a joke, should have caused such hard feelings.  It’s not like a screamed at a military judge about this SVC, filed a bar complaint against this SVC, or threatened this SVC with physical harm.  
     
    What if I were an alcoholic and a DUI attorney who went drinking with my clients at the bar on a Friday night where I took a cab home and let them drive home, so they could get another DUI.  Would it be fair game for someone to call me on that, or is that too personal?  I think it would fair game.
     
    So, would it be fair game to comment on an SVC who posts on her Facebook page, something like this: 
     

    I love this job and the powerful, smart people it brings me in contact with, including civilian lawyers advocating for a victims’ privacy rights!!!
     

    What if this comment was made by the SVC in the Sinclair trial or the Tate trial?  Or, what if you were an accused in a court martial today in which it is pretty clear that these civilian victim advocate lawyers have Senators in their hip pockets and are applying political pressure to convening authorities to move forward on bs charges?  What if you were an accused and you had already gone to a 32 and the charges were dismissed, then a new convening authority breathed new life into them because an SVC claimed that the 32 officer badgered a female NCO complaining witness who said the junior enlisted accused pulled her on top of him and raped her, and you found out the SVC made this statement?  What if you are the convicted in this case, and you find out that shortly after your trial, your TDS attorney became the Executive Director of Protect our Defenders and never conducted an investigation into UCI during a period of time in which UCI is rampant?  Would you perceive the UCMJ as fair?
     
    You see, I’m all for getting along, but I’m not seeing how it puts a stop to BS 120 cases.  So, when an SVC crosses her personal Facebook page with her professional job in a post on March 14, 2014, where she brags about hobnobbing with powerful civilian advocates, who are probably calling her and fawning over the recent news that her client’s bs case got referred to court marital, then I think her Facebook page becomes fair game and someone should start referring to the efforts of these civilian advocates and their military advocate slap-dummy counterparts as “bush league,” (and now back to my regular jovial good humored self) no pun intended.
     
    BTW, I’ve reviewed my pictures on Facebook and realize that I should change them.  I have pictures of deer I killed, fish I caught, and me riding my horse, so I am afraid someone might attack me personallly and compare me to Vladamir Putin……..oh wait, I would actually take that as a compliment in comparison to…..nevermind………I was about to go into a zone……….of danger……….you know……danger zone?

  30. afsvc says:

    @kf:
    Per Merriam-Webster.com:

    bush-league: 

    : of very low quality : being of an inferior class or group of its kind :  marked by a lack of sophistication or professionalism

    I appreciate and respect that you’ve been through some battles with other attorneys that were clealy behaving badly and that’s given you a thick skin; nevertheless, I (as well as quite a few others here whose opinions I’m guessing you respect more than that of a slap-dummy) still disagree with the post in this forum. I’m not going to change your mind from my perch on my high horse though, so I’m not going to waste everyone’s time trying.
     
    Finally, I like pop references to the classics…even if you are a lousy f’ing softball player, KF.  

  31. stewie says:

    You lost me at taking comparison to Putin as a compliment to anyone.  But we digress.  I don’t think that Facebook post compares to all the slings and arrows of outrageous fortune you list before it, or the hypos you list after.  Apples and oranges in kind, and not comparable in degree even if they did share the same fruit genetics.
     
    The fact that folks did bad things to you doesn’t then mean the opposite is open.  That SVC didn’t do those things to you.  I will agree that particular posting on FB certainly seems very immature, and not the most professional thing she could have done.  But that’s about it.  I think you could have merely posted that, commented on the impropriety of it, left it at that, and been fine.
     
    You did just a wee bit more than that.  As for your theory about the mental health of those who post a lot on FB/social media? Based on the rock-solid foundations of hard social science? About something most of the 1st World planet is partaking in?  I’m somewhat…skeptical.

  32. stewie says:

    afsvc, the “zone of danger” wasn’t a Top Gun/Tom Cruise movie reference, but an Archer reference (referencing Top Gun).  Refception?

  33. afsvc says:

    h/t @stewie
    You got me; haven’t gotten on the Archer train yet.

  34. k fischer says:

    Selfies, Stewie.  It’s an inordinate amount of selfies that indicates narcissism, not merely posting, as this posting would indicate narcissism.  And, I also heard that selfie theory from one of my shrink experts, so you might want to check your Facebook page.
     
    As usual, you’re right, I should have merely posted that March 14, 2014 post without the cray references, but then I wouldn’t have gotten the backlash, and I wouldn’t have gotten all flustered, read some of the posts, and authored the last post, which would have earned me the nickname of “double-down Fisch” from aspiring lovesick out-of-work comedians in L.A.  (reference that one, afsvc).  I admit that I don’t know her, and she has done nothing to me.  Perhaps, it was a little bush league, and I’m not as offended since apparently that term is not an aspersion on our former CINC or an insinuation that I am somehow involved in a feminist group.  Lesson learned.  And AFSVC, your horse isn’t that high, although you should capitalize your moniker because I have a theory that people who use all lower case letters have low self esteem…….
     
    Refception?  Admittedly, it took me a while, but I saw what you did there….

  35. stewie says:

    Don’t have a FB page, and never posted a selfie (fear of camera-breakage).  I’m just not down with the “kids today” mode of thinking.  Anyone under the age of 30 posts selfies…are they all narcissists? Shrinks is an apropos moniker for a soft science field that has some utility, but not nearly as much as it thinks it does. I’m counting the days until the DSM-VI when they reverse half the stuff they changed in the DSM-V.
     
    But you like Archer kf so you are alright in my book…low self-esteem or not.

  36. DCGoneGalt says:

    Now that everyone has made up Kumbaya style . . . Archer is still lame.

  37. stewie says:

    I think we’ve identified the Cyril Figgis of the group ^^^^

  38. k fischer says:

    I was thinking more like DCGG is a Rush fan who nailed YYZ, but then I realized I was mistaken because Neil Pert stands alone……
    Also, I noticed he uses 4 out of 10 capital lettesr in his moniker, which indicates a healthy amount of self esteem.  I can imagine a member of generation Y not finding Archer funny, as most of the references are from the 80’s.  

  39. Zeke says:

    @ stewie-

    While I think the SVC program is a bad idea for a myriad number of reasons, IF you are going to have it, then I don’t see how you do it without zealous advocacy. 

    Lots of legal work done by lawyers everyday involves no advocacy – it involves advising only.  An advocacy role for SVCs only exists because leadership (Congressional mostly, but also within the services) wills it.  
    Aside from that, advocating lawyers regularly operate within limits that respect the integrity of the system they are working in.  Lawyers are, for example, prohibited from having ex-parte communications with judges, and they are precluded from having any off the record conversations with members at all.  Certainly doing so might be “zealous advocacy” on behalf of their client, but we have not found restricting that sort of conduct to be unworkable.
    Leadership could place similar restraints on SVCs and preclude ex-parte communications with convening authorities who are, after all, performing quasi-judicial functions at various stages of the process.  Leadership could remind SVCs that they are working with witnesses who just happen to be clients.  Their lawyer-client relationship does not serve to make witness tampering less illegal.  An SVC that counsels his client in such a way that he reasonably believes it will influence their testimony in such a way as to make a conviction more likely commits obstruction… Leadership could be cautioning its SVCs of that danger and the resulting limits of their client relationships.  That is not happening.
    All in all the SVC program is a symptom of Congress and senior military leaders forgetting what a criminal justice system is about.  IT is not about punishing offenders or vindicating victims.  It is about constraining government power to take life, liberty, or property unless it can prove to a jury/panel of citizens/members, beyond a reasonable doubt, that the accusation it has made is true.  The courts are not a reflection of our societal distaste for criminals or sympathy for victims, they are reflections of our distrust and fear of government unchecked.  If leadership truly understood that, they would see that there is no place in a courtroom for victims advocates.  Even a most seriously aggrieved victim cannot justify loosing the chains we have placed upon the government.

  40. Javert says:

    @k fischer, I’m racking my brain to figure out why “I love this job and the powerful, smart people it brings me in contact with, including civilian lawyers advocating for a victims’ privacy rights!!!” is something you consider so unprofessional.  As best as I can tell, this is nothing more than zealous advocacy within the bounds of law and ethics.  
    I too question the role of having what is essentially a victim’s government-funded private attorney have a role in the courtroom, but it’s hardly unusual or unprecedented in the civilian legal world for victims or other witnesses to have their own attorney to advise them and represent their interests to the Government and Defense. 
    And so what if this particular SVC wants to meet with Susan Burke or other civilian attorneys?  That doesn’t mean the full-on character assassination you’re engaging in is appropriate.  

  41. stewie says:

    But they already had advisers, victim advocates (and still do).  And the courts (and Congress) have said they have more than an advisory role, so you propose leaders should tell SVCs to ignore that?  Again, what you argue goes up against PR.  Be zealous, but don’t be TOO zealous because you have competing concerns to the desires of your client.  That doesn’t work.
     
    Now it’s always possible to go too far in zealous advocacy…talking to an accused, or going too far in dealing with the media I suppose, but that’s not what you are talking about.  I don’t see a lot of “witness tampering” going on.  I’m sure leadership counsels about not obstructing the same way with SVCs as with TC and DC.  They do get training and they do get told about some things they can’t do, so you are wrong that “that’s not happening.”
     
    At the end of the day, the problem lies with the program itself, not the folks trying to effectuate the program IMO.

  42. Zeke says:

    @ stewie:

     And the courts (and Congress) have said they have more than an advisory role, so you propose leaders should tell SVCs to ignore that?  

    Of course not.  I’ve never proposed an all or nothing approach to SVC representation.  I’ve merely pointed out that the extent to which SVCs are permitted to engage in advocacy at all is a leadership (Congressional, military, or court-derived) prerogative.  

    I’m sure leadership counsels about not obstructing the same way with SVCs as with TC and DC.  They do get training and they do get told about some things they can’t do, so you are wrong that “that’s not happening.”

    I disagree.  In fact, I think the Wright case is a good example of inappropriate advocacy that leadership could, and should, have prevented.  The SVC in that case not only had ex-parte communications with a government official (convening authority) performing quasi-judicial functions (referral), but then asserted in her 12-page memorandum to that official that he was required to keep that communication confidential.  I would say that the communication seeking a different case resolution, using the language for obstructing justice in Article 134, was intended to “influence the due administration of justice.”  However, if it had been done in the open, giving both the government and the accused (the parties to the dispute) the opportunity to respond, then I wouldn’t find that communication to be “wrongful.”  However, in Wright, by attempting to hide it from the parties, in order to prevent them from having input into how their own case should be adjudicated, I think the SVC crossed the line.  But, I think that’s a leadership/training failure, derived from leaders who have a fundamental misunderstanding as to the nature of the criminal justice system itself;  I don’t blame that individual SVC, who undoubtedly was doing as she had been trained.

  43. DCGoneGalt says:

    Zeke:  The issue with SVC contacts with a convening authority are when it becomes inherent UCI.  For instance, in the Wright case regardless of who the memo was addressed to it made it to the highest JA and CC levels and then filtered down through the chain of command.  I do not have any issue with the ex-parte communications.  For instance, as a defense counsel I certainly have no obligation to tell the SJA or trial counsel if I wish to meet with the convening authority.  It is the political nature of the current environment that leads to unfairness as convening authorities are unlikely to meet with defense counsel in the same way they would, and now are required by law, meet with complainant/complainant counsel.
    Do you have the memo?  Is it publically available?  If the SVC was advising the convening authority, or the Aviano CC/USAFE CC/SECAF/TJAG (because they all got the memo), that it was confidential then that shows a truly shocking misunderstanding of what is privileged.  I find it hard to believe that this was the case because that would be something that would seem to put the SVC in with the (to use a phrase of this thread) bush-league shenanigans of the Government on this case.  This would be much different than the victim counsel that I have dealt with in both a government and defense capacity.
    One training issue that I would like to discuss with SVCs is whether they engage in what defense counsel would commonly refer to as client control.  In my experience it appears that many times a complainant will say that they want a case to go to court (in addition to the immunity from any misconduct and/or false statements, PCS/retraining/etc.) and there never seems to be a discussion between the client and SVC that the allegation and the facts really do not match up.  Reality being what it is, I wonder if there is fear on the part of some SVCs that such a client control discussion could be taken as victim-blaming (what factual discussion nowadays is not taken that way?) and they could eventually find themselves on the receiving end of a Sexual Assault, Inc. press conference.  I say this because it appears that in some cases the Art 32 or court-martial cross-examination truly is the first time a complainant seems to have the facts laid before them.  And I don’t think that having the truth laid out in an adversarial manner in a public hearing is in their best interests, because it is painful to watch.  Then again, SVCs may be reluctant to have that discussion laying out the facts for the same reason defense counsel may be reluctant, i.e. not wanting to taint subsequent testimony (although it is harder to avoid for defense counsel with the accused sitting through an Art 32 and all of the witnesses).
     

  44. stewie says:

    Not tracking why ex-parte contact with the CA is somehow wrong. The accused, should they want it, can also contact the CA, without the alleged victim being there.

    I don’t find your example very compelling. We already know that Congress is mighty fine with it after trial because they changed the rules, so they are likely fine with it before trial too. Again, this is a problem with the SVC program even existing, not with what SVC are doing once it’s put in place IMO.

  45. RKincaid3 says:

    I mistakenly posted the following response to another post.  Sorry for the confusion and the delay.
    SVCs are simply doing their jobs-which are no less disgusting in some cases than DCs who do their jobs. So the personal attacks on them are quite unprofessional. As, by the way, are many of the comments I have noticed lately on some of the more recent posts. We should all avoid making statements that pretty much are unworthy of a professional website utilized by professionals in a very public setting.As for SVCs doing their jobs, that being said, though, there shouldn’t be a job known as an SVC. There are and should only be TWO parties to a trial: the government and the accused. All others are witnesses and non-parties.If the SVC program should exist at all, it should exist across the board for ALL VICTIMS of all crime–or it should exist not at all. After all, what makes sex assault victims any more or less victims of crime than any other victim of crime? And what about that distinction gives them more standing (or others less standing) to intervene in determining what evidence is discoverable and appropriate for use at trial? Nothing but politics and the inane agendas driving the politics.Zeke is correct. The justice system is supposed to serve SOCIETY at large (in the civilian world) and MJ is supposed to serve good order and discipline in the military society (right now, I am only addressing the current system–not abandoning my historic opposition to a conflated and abusive justice/disciplinary system). What this SVC system has done is create classes of victims–some worthy of certain protections, services and legal standing to intervene in a prosecution where others are not so worthy. It has increased the abusiveness of the MJ system systemically–only aggravating the need for wide sweeping reforms of the UCMJ. And complete reforms–no more tinkering by those who lack either the experience or education (not to mention the judgment free of political taint) necessary to evolve the UCMJ into a more just justice system.The SVC program is the antithesis of the MJ evolution–it is tinkering towards a certain effect without regard to the overall consequences of the tinkering–it is devolution where we substitute the subjective approval of the commander in the outcome of the trial for the subjective approval of the victim (and/or their political lobby) in the outcome of the trial. Such subjective measures of success are antithetical to accepted civilized concepts of justice, such as the fairness of the process to the two parties in a trial. As I have oft stated previously, justice is a process, not a result. And when we forget–for political or other reasons–we as a society fail to serve ourselves the very justice we deserve as Americans–and we likewise get what we deserve in return.By creating an SVC program, we have institutionalized retribution and undermined the primary role of a true justice system: to mete out an appropriate punishment in those cases where the government has met its legal burden under law. Giving a victim of any crime the legal resources and ability to intervened (more like interfere) with the process–especially regarding discovery of potentially exculpatory evidence–the system is out of balance as a reasonable observer judging the system will see a 2 vs 1 tag-team wrestling match where all that matters is winning–the justness of the results (or the process) be damned.Make no mistake, my objection to third-party intervention in criminal trials (outside of amicus briefs on appeals) is not about sympathy for an accused. It has everything to do with a system that is breaking right in front of us for no better reason than politics–and our collective willingness to accept further the erosion of the utterly minimal concepts of justice currently part of the UCMJ that provide barely minimal confidence in the results of a trial as part of a civilized society. With the development of SVC interevenors, we are heading in the wrong direction, folks.

  46. RKincaid3 says:

    Doggone it!  Where are my paragraph separators?  They were there when I cut and pasted!  Aargh!!

  47. k fischer says:

    Stewie, I agree that “ex parte” is a little out of place, but I think the gist of DCGG’s issue was the SVC saying that the 12 page memorandum was “confidential.”  Certainly, it is as discoverable as the SVC’s memorandum that constituted the appearance of UCI in the Sinclair trial.
     
    Javert, 
     
    What if I were Jerry Sandusky’s attorney and I successfully got his trial moved to Dearborn, Michigan (Yes, I know that I could never get this type of change of venue across sovereigns; its a hypothetical), and with my theory of “women are for breeding, boys are for pleasure,” I gained an acquittal by a jury nullification. Later, it turns out that I liked NAMBLA on my Facebook page and I had many pictures of me and young boys posted.  I wouldn’t get hysterical if someone pointed that out on a victim advocate’s blog by stating perhaps I was a little too close to the Sandusky case or accuse someone of assassinating inappropriately my character.  I would probably make my Facebook page private.
     
    And, three things:  
    (1) She seems to be taking my admittedly (see above) bush league comment in stride by taking another selfie and making a joke that she is left-handed, which is a splendid reaction to my stupid theories, so kudos to her…..although, that doesn’t change my distrust for my southpaw paralegal, as it is only a matter of time;
    (2) the 14 March 2014 post is no longer there…….winning………(great, so now I’m quoting Charlie Sheen…who’s “cray cray,” now?); and,
    (3) is your real name “Javert,” because if it’s not, then I find it interesting that you chose a moniker for someone who committed suicide by jumping from a bridge after wasting his entire life chasing some dude who stole a loaf of bread.  I would advise you to choose something different, but I won’t out of fear that you will change it to something like “Cobain” or “Hemingway.”
     
    b/t/w, since you are obviously a Les Mis fan, I have a theory that there is some sort of hidden Top Gunesque bromance going on, ala Javert is to Maverick as Iceman is to Valjean with their couple name being “Valvert” or “Jajean,” which I don’t prefer the latter as it sounds like I have a stutter when I say it.  Send me your e-mail address; I’d be happy to discuss it with you.  

  48. k fischer says:

    Stewmeister,
     
    Sorry, that was Zeke with the point about ex-parte, not DCGG……

  49. DCGoneGalt says:

    RK3:  Sorry if there was confusion, I didn’t consider SVC contacts with the convening authority to be ex-parte but was instead referring to Zeke’s comment.  Just like defense counsel they should feel free to go to the convening authorities, but unlike defense counsel they must be careful to avoid the appearance of UCI because of their unique position.
     
    As for the note for posters to behave,for my part it is received and will heed.

  50. RKincaid3 says:

    DCCG:
    Not a problem—I am far from perfect myself.  Just look at all my mistakes–typos, grammar and the most flagrant: misposting my SVC responsive comments last Saturday (thanks to KF for notifying me).
    These are indeed interesting times–passion abounds and mistakes are an inevitiable part of passion!

  51. k fischer says:

    Here is an interesting article regarding the SVC in the Sinclair case, particularly the response COL Lacey had regarding the SVC and “her god.”  
     
    Also of note is her boss’s supporting her actions 100%.  So, wasn’t the SVC’s letter to the CG credited by the MJ for sending the case to a new convening authority to consider the previous offer to plea?  So, the person who is running the SVC program supports SVC’s committing what Judge Pohl considered apparent UCI?  So, is that going to be an issue everytime a Convening Authority receives a recommendation for dismissal from a 32 IO and/or the SVP?

  52. stewie says:

    I seriously doubt that came from the leadership though (confidential) but from her own, mistaken, belief…and one hopes that’s what the SJA is for to make sure the CA understands it isn’t confidential.
     
    kf, you are totes cray-cray.

  53. DCGoneGalt says:

    Is totes cray cray another Archer reference?

  54. RKincaid3 says:

    Upon information and belief that i have learned recently following the SVCs conduct in the Sinclair case, there is no official SVC policy (at least in the Army) on whether the actions of the SVC in Sinclair are being officially encouraged or discouraged.  And that actually makes sense since whether SVC conduct can or should equate to UCI is entirely subjective to the MJ based upon the facts of a particular case, as it did in the Sinclair matter.  But the lack of an offical policy guiding SVC conduct certainly reduces the existance of “other evidence” of “intstitutional UCI” beyond that from Congress and the chain of command.  But that missing guidance also leaves the individual SVC to “go it alone” in uncharted territory–and since they are mostly junior Legal Assistance attorneys–SVCs are truly swimming in deep water without floaties. 
    And that is not good for the SVCs or the Miltary Justice system.

  55. k fischer says:

    DCGG, 
     
    No, that is just an awkward way the kids say, “totally” nowadays.  
     
    Curiously, Javert does not want to discuss les Miserables with me.  I guess s/he will never hear my passionate piano rendition of “I Dreamed a Dream” or my haunting rendition of “Castle on a Cloud” that I sing with my index finger like Danny from The Shining uses when talking in the voice of the little boy in his mouth a.k.a. “Tony.”