That’s the theme of my opinion piece published in today’s edition of The Baltimore Sun.

32 Responses to “A failure of military legalship”

  1. RKincaid3 says:

    ZS:
     
    Congrats on getting your op ed published! I respectfully disagree with your point of view on the need for maintaining the commander’s “prosecution” role in the UCMJ (no surprise, there, right?), but I agree that inevitably, whenever one exercises discretion, some will be unhappy with how that discretion was exercised.  And so, yes, swapping a JAG for a commander in deciding whom to prosecute and when won’t cure or reduce the scourge of perceived “abusive discretion” in charging and prosecuting MJ cases.
     
    However, in my view, the discretion issue is not really even a small part–not the substantive part–of the larger problem.  The main problem is that the UCMJ is not set up to effectuate justice–regardless of who has the discretion to prosecute.  It is an “ends justify the means,” outcome based satisfaction system where the definition of success is whether a commander, or now, the victim, is/are subjectively satisfied with the results of the trial and trial process.  That is “outcome based justice,” which is not and cannot be “justice.”  True “justice” is blind to the outcome as true justice looks only at the objective fairness of the process–and it cares nothing for the subjective satisfaction someone may have with the results of a fair trial under law.
     
    But, hats off to you on raising the visibility of this important issue!  Well articulated, too!

  2. k fischer says:

    Zach, 
     
    If the lawyers were running the show, don’t you think it would be easier to get acquittals?  Without all that UCI?  And the panel would hate the TC’s.  
     
    There would still be political pressure.  But, it would only be on the lawyers prosecuting.

  3. stewie says:

    As always well-written Zach, but a couple of disagreements.
     
    1. Not sure I agree this was simply about poor prosecution or presentation.  I think an SJA/JAG would feel less pressure to “look out” for a CA if they had the decision themselves.  So, the decision would be more of a legal call for a JAG making this call than it is when an SJA has to advise a CA.  These were both weak cases, so not sure there was much the TCs involved could have done to get a better result. 
    2. I don’t think your examples support the conclusion of a “scandal-plagued legal system.”  The example of the appellate judge isn’t really tied to sexual assault litigation.  Sure, it was a mistake, but it’s not something that’s rampant.  I don’t think this is an issue of military lawyers “can’t get the job done.”  I just don’t see where that argument is valid.  Every legal system has great, good, mediocre, and bad lawyers.  I see no reason to believe our system lags behind any other system in America in that respect.
     
    3. Your thesis presumes that but for bad legal advice, these two cases don’t happen.  I don’t think that’s a valid presumption.  I think given the political climate, both cases happen even if the SJA had advised not going forward.  You argue that Article 34 gives a ton of power to the SJA, and that he is the gate-keeper.  However, the standard there is fairly low.  An SJA could have found in both cases that the bare minimum was met, but still recommended not going forward because of the weakness of the case.  Neither of these were situations with no evidence against the accused, they were simply cases where credibility of the alleged victim was a serious concern.
     
    I can agree with the idea that JAG control of the process is no panacea, but I think you go a bit too far in your characterization of JAG “incompetence” here.  That’s not the central problem here IMO.

  4. peanut gallery says:

    So, we shouldn’t have a “lawyer-centric” system for prosecution decisions, because some lawyers mess up.  I stopped reading at that point.  Where did you go to law school?

  5. Zachary D Spilman says:

    It’s a tough topic to get into 800 words.

    Stewie, I refer you to the text of Article 34, UCMJ (10 U.S.C. § 834):

    The convening authority may not refer a specification under a charge to a general court-martial for trial unless he has been advised in writing by the staff judge advocate that—

    (1) the specification alleges an offense under this chapter;

    (2) the specification is warranted by the evidence indicated in the report of investigation under section 832 of this title (article 32) (if there is such a report); and

    (3) a court-martial would have jurisdiction over the accused and the offense.

    “Warranted by the evidence,” it says. Not supported by probable cause or a good faith basis or political expediency, but warranted by the evidence. That’s an awfully flexible standard (either way).

    Had the staff judge advocate in either the Tate or Sinclair case decided that the sexual assault charges were not warranted, then “the convening authority may not refer a specification under a charge to a general court-martial.” 

    Of course, the convening authority could have referred the charges to a special (or summary) court-martial without violating the text of Article 34, but that’s where political reality comes in to the equation. Commanders rely on judge advocates to accomplish the military justice mission. When we fail to provide our commanders with the justifications they need to make politically-difficult but legally-correct decisions, we fail at that mission. 

    I’m reminded of something an O-6 judge advocate once said to me: “I’ve never had a commander not take the action that I wanted him to take.” That, I think, is what being a judge advocate is all about. 

    Now I don’t know if the sex charges in the Tate and Sinclair cases were warranted. There’s a big record in each case that isn’t public, and I can imagine good arguments either way. But what I do know is that the amount of time and money (and political capital and credibility) invested in these cases demanded a better return on investment. The fact that neither Prosecution could do better is a reason to be very concerned about the level of competency in the system (not the trial teams per se; the system). And incompetency is bad for everyone. That’s my thesis, Stewie.

    As for the system being scandal-plagued, I think the cases discussed on this blog over the past few years speak for themselves.

    Finally, your comment, k fischer, just sounds like trading the devil we know for the devil we don’t. UCI has been around for as long as there’s been military justice, and we have sophisticated legal mechanisms to identify and address it when it happens.

    Assuming, of course, that the attorneys involved know what they’re doing.

  6. stewie says:

    Yes, Zach…I looked up Article 34 before I posted.  I maintain that “warranted by the evidence” is not a very strong standard, and I’m not sure it’s much more than “the Article 32 officer said go forward” or “reasonable grounds” or “probable cause.”
     
    But please, correct me if I am wrong.  I don’t think you can say that either case, particularly at the time they went forward, didn’t even meet PC (or reasonable minds/attorneys couldn’t disagree).  Both passed the A32 hurdle, and in both cases I believe by either a MJ or a senior officer (or was it even a JA?) in Sinclair’s case.
     
    Sinclair’s case I believe had the perjury issue of the AV reveal itself post-referral.  So, taken together, the “warranted by the evidence” language isn’t particularly demanding/compelling/high.
     
    The role of the JA is to do two things: 1) tell the CA where the case stands legally (it passed the Art 32 PC hurdle (or not/shouldn’t have), 2) tell the CA a recommendation (go forward, don’t go forward).  Article 34 only applies to 1, not 2.
     
    As far as what your O-6 JA told you, I’ve heard/seen CA not listen to an SJA, and I’m sure it’s happened.  Even if it didn’t, it will in today’s climate when an SJA says there is enough to meet “warranted” but you shouldn’t go forward because of X.  Second, I’d again suggest, as others have, that situation would go away if the SJA/JAG is making the decision.
     
    You say you don’t know if the charges in those two cases were warranted.  That confuses me because you basically cite that point as a reason/cause for the failures of JAG leadership in those cases in your letter to the editor.  I concur the end state did not bear out the effort/cost.  However, I don’t see where that’s a fault of the JAGs…it’s the fault, IMO, of the current environment that basically sends anything that makes it past a 32 to trial.
     
    I think if you want to make an argument for scandal-plagued, you will have to do a little better than “it speaks for itself.” What does it mean to be “scandal-plagued?” Compared to what other cohort? Compared to a normal level of “scandal?” (I assume you don’t believe zero scandal is the baseline…that ignores humans being humans).
     
    Harder to have undue command influence if commanders aren’t part of the process wouldn’t you say?

  7. stewie says:

    Clarity Edit: Article 34 applies to 1 and 2, but the “power” of the SJA only applies to 1, 2 is just a recommendation.

  8. Zachary D Spilman says:

    Stewie- While R.C.M. 406 is vague on this point, the plain language of Article 34 is unambiguous. If the SJA says the specification is not warranted, then the convening authority may not refer it to a general court-martial. That’s a significant veto power for the SJA to wield, and a significant source of top-cover for a commander who wants to kill a case.

    You write:

    Even if it didn’t, it will in today’s climate when an SJA says there is enough to meet “warranted” but you shouldn’t go forward because of X.  Second, I’d again suggest, as others have, that situation would go away if the SJA/JAG is making the decision.

    I don’t know who started the whole business of saying that a specification is warranted but shouldn’t be tried, but I think they deserve a good butt-kicking. Talk about mealy-mouthed BS that paints a commander into a corner. Look at it from the vantage point of the commander, who gets a written legal opinion that says that a specification is warranted. If the commander stops that case, the broad meaning of the term “warranted” can be used to say that he’s failing to enforce discipline by dismissing a specification that his lawyer said was warranted.

    It’s really impossible to talk about the fine details of the Sinclair case without having access to all of the evidence. It certainly seems that there was an issue with the Captain’s testimony, but I don’t think we’ll ever know for sure. But my view is that you just don’t take a case like that to trial in this political climate and at the expense involved unless you’re positive that you have the evidence you need. Considering the light sentence (and you have to admit that it was an incredibly light sentence), I think it’s clear that they didn’t have what they needed.

    As for UCI, I can think of plenty of ways that a commander might exert improper influence over a court-martial convened by someone else.

  9. Zachary D Spilman says:

    And by the way, let’s not forget the practical reality of who picks the charges in the first place. 

    I’ve often cited to the following United States Attorneys Manual section on the Principles of Federal Prosecution:

    Except as provided in USAM 9-27.330, (precharge plea agreements), once the decision to prosecute has been made, the attorney for the government should charge, or should recommend that the grand jury charge, the most serious offense that is consistent with the nature of the defendant’s conduct, and that is likely to result in a sustainable conviction.

    This is referred to as charging “the most serious, readily provable offense.” It also looks like an easily-cited definition of a specification that is “warranted.”

  10. Angus says:

    I agree that “scandal plagued” seems a bit hyperbolic.   While the MJ system has imperfections and some notable fumbles (like any legal system), my disagreement with this otherwise interesting OPED is it takes a few examples and extrapolates from them broad trends.   In my opinion. this is the same faulty logic employed by Sen Gillenbrand et al.   Every day around the DOD, cases are successfully and ethically prosecuted and defended by dedicated professionals but that reality gets lost in the noise.  But perhaps my counterargument harks back to Angus complaining about nick name . . .  . http://www.funny.com/cgi-bin/WebObjects/Funny.woa/wa/funny?fn=C1KPL  

  11. RKincaid3 says:

    “If the SJA says the specification is not warranted, then the convening authority may not refer it to a general court-martial. That’s a significant veto power for the SJA to wield, and a significant source of top-cover for a commander who wants to kill a case.”

         That sounds great in a vacuum.  But the reality is that guess who writes that SJA’s performance report?  The CG who wants to get promoted and please a Congress that is increasingly abusing its authority over promotions to effectuate a political agenda based upon a myth–“rape culture.”  And, oh, by the way, the SJA also wants to get promoted by that same Congress.  The system, as evinced by the Sinclair, Wright and Tate matters, allows for sycophants to game what few protections are enshrined within.  As has been discussed on thise site far too often by far too many practitioners, there is no faith that the people charged with making the decisions are doing so for the right reasons and the positions they hold are far too uninsulated from either direct or indirect, actual or perceived UCI, to remove the specter of taint.  Discretion will always be suspected of abuse by someone, so the issue is not discretion or who wields it.  The issue is how to implement a system to account for discretion and its abuse when (not if) it occurs because it will occur because humans are involved.
     
    “Warranted by the evidence.”  What does that phrase mean?  It means different things to different people–some are looking at a subjectively satisfying outcome and saying “that was warranted by the evidence.”  Others look at the process and say “that was not warranted by the evidence.”  Clearly, those in the former camp do not favor justice.  Until the UCMJ is remodeled and moves into the 21st Century, what is “warranted by the evidence” will be problematic in a system with self-interest and politics so endemic to the structure. 
     
    Again, look at the Sinclair case, and the Tate cases, which clearly were not warranted by the evidence–and in one of those, the one prosecutor who attempted to stand up and live up the “legalship” standard–standing athwart the powers-that-be and say the evidence is incredible was removed for what may or may not have been personal reasons.
     
    Any failure in the Sinclair or Tate cases of both legalship and Commandship (are those even words?) is part and parcel of the system in which we operate–known as the UCMJ.
     
    Time for us all to grow up and effectuate justice.

  12. k fischer says:

    RK3, 
     
    “Warranted by the evidence” is a very subjective term.  Some people believe that an uncorroborated three year old allegation is enough to meet this standard.  Others believe that you have to have something to corroborate a statement because anybody, even three sexual assault prosecutors, could be falsely accused.  
     
    I would imagine that McCaskill, Gillibrand, Speier, Anu Baghwati, Nancy Parrish, and Ariana Klay all would agree that an uncorroborated stale allegation would meet this standard in every case and that the former three would block the promotion of any officer before them for disagreeing.  And, I would also bet money that if any one of those aforementioned individuals significant others or children were accused of sexual assault based on a stale uncorroborated allegation, then their tune would change.

  13. RKincaid3 says:

    KF: Amen.

  14. Brian lc says:

    ZS,
    I think you are too harsh on our system.  It was, uhmm, not the best week.  But, if you are going to measure a justice system by its results (disputable), in the last five years the Army got half of the LWOP sentences that have ever been given in all of DOD.   That doesn’t indicate systemic failure or broad-based incompetence (by prosecutors).  Some did not survive on appeal (e.g. for IAC by the CDC), but overall not an indictment of the system.  Even if you look at only high profile cases that earned the front page ink we’ve done OK (Hassan; Bales; Russel; Lakin).  And then there’s the big daddy.  Manning may have been the most complicated court-martial our system has ever tried (truck loads of discovery, politically loaded, UCI, real nuance in evaluating aiding the enemy, classified, and filled the bureaucratic politics of getting all the other agencies to play ball).
     

  15. J says:

    RK3: Navy experience here, but the majority of our GCMCA cases are conducted by the Region commanders, whose SJA’s are attached to RLSO’s. The JAG CO is signing the fitreps, not the Admiral receiving the advice.
    In terms of practical experience, I have never had a case where I said “this needs to go forward” and a commander said no. On the flip side, I have had multiple cases where I said “this shouldn’t even see a 32” where it went to one.

  16. stewie says:

    Zach, no the plain language is not unambiguous.  Warranted means what? You couldn’t define it, and the best we could come up with was probable cause, a very low standard.
     
    Your comment about butt-kicking is curious.  A case can easily have probable cause, or even preponderance level evidence, yet still have issues with the case that make conviction BRD difficult.  An SJA in that situation could easily say, yes it meets the legal standard for referral, but you shouldn’t because of this reason or that reason.  Thus the charges are warranted, but there is a reason for a dismissal recommendation.  Why do you think there are two parts in the rule?  One’s a legal line, and one is a judgment line.
     
    And no, the Feds definition does not resemble warranted at all.

  17. stewie says:

    RK3, not sure I agree that at the time of referral, those two cases were not warranted by the evidence. I concur that as the cases went along, a strong argument could be made that both weren’t, and as far as Sinclair, the government, belatedly, realized it, and took the plea deal.

    But the perjury happened after referral in Sinclair. I think that one probably met the minimal “warranted” standard. The other case a stronger argument against warranted might be able to be made.

  18. AF JAG says:

    I think Stewie’s interpretation of Article 34’s “warranted by the evidence” requirement is the far stronger interpretation.
     
    RCM 406 in effect implements Article 34 and gives you explicit guidance on what it means:  “warranted by the evidence” = prohbable cause.  The Discussion section (yes, its not binding, but it does provide strong persuasive authority) for RCM 406(b)(2) explicitly states:  “The standard of proof to be applied in R.C.M. 406(b)(2) is probable cause.  See RCM 601(d)(1).”  That’s pretty unambiguous. 
     
    Put it another way:  RCM 406 and 601 make clear that the “warranted by the evidence” requirement is legal not prudential.  “Warranted by the evidence” means probable cause to support the charges, nothing more.  The set up of Article 34 also supports this conclusion becuase the legal pre-requisites for referral are set out in Article 34(a), whereas the prudential advice about whether a “warranted” specification SHOULD in fact go forward to trial is a prudential recommendaiton only under Article 34(b)(2).   
     
    So Stewie’s point about the limitiation of the SJA’s “veto power” under Article 34 is valid:  the SJA can only “stop” a referral if he makes a legal conclusion under Article 34(a)(2) that the charges are not “warranted” by the evidence, and RCM 406 and 601 make clear that “warranted by the evidence” = “probable cause.”  Article 34 clearly sets up a situation where the SJA could at the same time, come to a LEGAL CONCLUSION that the charges are supported by probable cause (and therefore “warranted by the evidence” for Art 34(a)(2) and RCM 406(b)(2) purposes), while at the same time RECOMMENDING that the charges not proceed to trial becuase of the overall weakness of the case.  That LEGAL CONCLUSION on probable cause would be binding; the disposition RECOMMENDATION is not.  So the convening authority would be fully authorized to exercise his authority in such a case to refer under RCM 601(d)(1).  Now should he?  That’s a matter of his command perogative and prosecutorial discretion.
     
    So @Zachary Spillman, in answer to your rhetorical question:  “I don’t know who started the whole business of saying that a specification is warranted but shouldn’t be tried, but I think they deserve a good butt-kicking” . . . ummmm, that would be the PRESIDENT in his promulgation of RCM 406(b)(2). 

  19. Zachary D Spilman says:

    Well, I stand by my analysis of Article 34 (and I’m not persuaded by the “discussion” sections in the MCM, particularly after reading the first discussion section, in the preamble, where it disclaims any binding effect). 

    I also stand by my criticism of recommendations that find charges warranted but hard to prove, because I think that route is a cop-out. The commander needs an unambiguous recommendation that he can use as the basis for his action (and can rely on when his action gets criticized). A limp-wristed recommendation (for or against prosecution) is bad counsel for the commander.

    But the point of the piece wasn’t a fine-toothed analysis of Article 34, or of the Tate, Sinclair, or any other particular case. Rather, the point was that the many recent high-profile military justice failures, attributable to military lawyers, are a reason to reconsider the wisdom of giving lawyers even more power in the system.

  20. stewie says:

    So, you’re an SJA.  You believe that legally, the charges meet the probable cause standard.  However, you do not believe the case can be won (the AV has credibility issues, or there simply is not enough evidence to win BRD).
    So Zach, you are saying that even though the law says “warranted = probable cause” you’d tell a CA that the charges are not warranted in that scenario (effectively lying) because you don’t think the charges should go forward, thus legally binding the CA and taking the decision out of his or her hands?  That’s not counsel, that’s usurpation of power.  Everything isn’t black/white.
    It’s also an argument for JAGs taking control of the process: the power would lay totally with the SJA (or some equivalent) and the two-step process would shrink to one.

  21. RKincaid3 says:

    @ J: Thanks for the Navy perspective.  That is an interesting fact pattern on your JAG rating chain.  That is generally not the situation in the Army.  Your experience about commanders sending cases to hearings when they should have been sent is not unique to the Navy, I fear.  Thank you!
     
     
    @ Stewie:  I concur that preferral of Sinclair may have been warranted.  I say “may” only because the scuttlebutt (for whatever it is worth) indicates that the government was aware of many of the evidentiary weaknesses with the case were known long before referral, even if the complaining witnesses credibility wasn’t clearly destroyed (possibly) until after referral.  And ultimately, I concur that the plea was the correct result and I suggest that the punishment was proper, given the facts admitted into evidence.  As for the Tate matter, my info has me feeling that it should never have been preferred, period, given what was known at the time of preferral.  Thank you!
     

  22. Zachary D Spilman says:

    I think that Article 34 provides an SJA with a clear veto. If the SJA determines that the specification is not warranted, then the convening authority may not refer to a GCM. I’d imagine that these days, a convening authority would be overjoyed to receive a well-written memorandum from the SJA that finds a weak sexual assault allegation to be not warranted by the evidence. The convening authority would laminate that memo and carry it with him to congressional hearings (and it would be very useful during the NDAA-mandated review of non-referrals of sexual assault offenses). And he would certainly remember the SJA’s diligence and courage during the next performance evaluation season.

    Now, I don’t see any reason why Article 34 prohibits lawyer-shopping (i.e., if the SJA says not warranted, the commander can seek a second opinion). But I’d expect other lawyers to give significant deference to the first opinion. Lawyer-shopping is nothing new in the military, and I think the standard response is to stand with the first legal opinion unless an error is discovered. But assuming lawyer-shopping worked, I’d call that a failure of legalship and another reason we shouldn’t put the military lawyers in charge.

    But to your point, Stewie (which, again, wasn’t the focus of my piece), I think “warranted by the evidence” is a term without qualification. It means whatever the SJA wants it to mean. But you want to dig into definition of “warranted.” Well, so did I. Here’s what my pre-publication research revealed:

    1. I found no caselaw on point (understandable, considering).

    2. The original text of Article 34 made this a question for the convening authority to decide, not the staff judge advocate:

    (a) Before directing the trial of any charge by general court-martial, the convening authority shall refer it to his stfi judge advocate or legal officer for consideration and advice. The convening authority shall not refer a charge to a general court-martial for trial unless he has found that the charge alleges an offense under this code and is warranted by evidence indicated in the report of investigation.

    Article 34 (1951) (reprinted at Appendix 2, MCM (1951) (available here)). The congressional record indicates that this was deliberate, and that the proposed text was rewritten to ensure that the staff judge advocate was not the final judge during the pretrial process. See Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcommittee of the House Committee on Armed Services, 81st Cong., at 1006-1007 (March 25, 1949), reprinted in Index and Legislative History, Uniform Code of Military Justice (1950) (not separately paginated) (available here). 

    3. Notably, during the congressional hearings on the proposed UCMJ, Colonel Melvin Maas, National President of the Marine Corps Reserve Association, had the following exchange with Congressman Brooks and Congressman Philbin:

    COLONEL MAAS. On page 30, article 34, on line 23, after the word “evidence,” we suggest, that you insert “beyond a reasonable doubt.” We think it is just a little too broad the way it is now: The convening authority shall not refer a charge to a general court martial for trial unless it has been found that the charge alleges an offense under this code and is warranted by evidence.” We think the evidence should be beyond a reasonable doubt. 

    MR. BROOKS. The same term is used in civilian trials.

    COLONEL MAAS. Yes.

    MR. PHILBIN. It would not be. In civilian courts it would be prima facie determination.

    COLONEL MAAS. Well, you put no restriction or qualifying term on this one. You do not even call it prima facie evidence. You just say evidence. 

    Mr. PHILBIN. I think if you want to confrom it to civilian language you should make it prima facie determination.

    COLONEL MAAS. Well, we will leave that to you gentlemen to work out. We think there should be some qualification.

    Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcommittee of the House Committee on Armed Services, 81st Cong., at 712-713 (March 10, 1949), reprinted in Index and Legislative History, Uniform Code of Military Justice (1950) (not separately paginated) (available here).

    Obviously, Congress did not (then or since) add any qualification to the language of Article 34 (either requiring that it be warranted by evidence beyond a reasonable doubt, as Colonel Maas suggested, or by just a prima facie determination, or by some intermediate standard).

    4. But Article 34 was amended to the current language in the Military Justice Act of 1983 (Pub. L. No. 98-209, 97 Stat. 1393, 1395 (1983) (available here)). The congressional record reveals the following rationale for the change:

    Current law requires the convening authority, normally a layman, to assess the legality of prospective general courts-martial. This burdens line commanders with the need to make complex legal judgments, even though in current practice the staff judge advocate advises the convening authority on the matter.

    The committee amendment would require these judgments to be made by the staff judge advocate to relieve the commanders of an unnecessary task while fully protecting the rights of the accused.

    Note that this provision applies only to the general courts-martial, the highest type of military court, and not to special or summary court-martial.

    H. Rep. 98-549, at 14 (1983) (available here). 

    The authority to refer cases to trial is a fundamental responsibility of command- ers, and nothing in the amendments made by the Committee changes the convening authority’s role in this regard. Current law, however, requires that a commander, prior to referring a case to a general court-martial, must make specific legal determinations as to the legality of the charge, legal sufficiency of the evidence, and court-martial jurisdiction. These questions can involve complex legal determinations, and commanders normally rely on staff judge advocates for advice on such legal conclusions. The amendments to Article 34 will provide formal recognition of current practice, without any derogation of the commander’s prerogative to make a command decision about whether a case should be tried.

    S. Rep. 98-53, at 16 (1983) (available here). Now the last sentence of the Senate Report could be read to undercut my argument, but I think that a fair reading implies that a commander would not refer a charge if he was advised that it was not warranted (especially since that’s what the legislative text says). Still, I acknowledge that this one sentence is contrary to my argument (I’m just not persuaded by it). 

    5. The President has the power to prescribe rules for courts-martial (Article 36) and set maximum punishments (Article 56), but he cannot change the meaning of the Code. Notably, the text of R.C.M. 406 and R.C.M. 601(d)(1) are the same in both the 1984 MCM (available here) and the 2012 MCM, and I think both misrepresent the plain meaning of Article 34. Fortunately, the JSC is soliciting suggestions for changes to the MCM.

    6. The discussion sections are nice references, but have absolutely zero legal authority. In fact, the very first discussion section in the manual (in the Preamble, pages I-1 to I-2) states:

    The Department of Defense, in conjunction with the Department of Homeland Security, has published supplementary materials to accompany the Manual for Courts-Martial. These materials consist of a Discussion (accompanying the Preamble, the Rules for Courts-Martial, and the Punitive Articles), an Analysis, and various appendices. These supplementary materials do not constitute the official views of the Department of Defense, the Department of Homeland Security, the Department of Justice, the military departments, the United States Court of Appeals for the Armed Forces, or any other authority of the Government of the United States, and they do not constitute rules. Cf., for example, 5 U.S.C.§ 551 (1982). The supplementary materials do not create rights or responsibilities that are binding on any person, party, or other entity (including any authority of the Government of the United States whether or not included in the definition of “agency” in 5 U.S.C. §551(1)). Failure to comply with matter set forth in the supplementary materials does not, of itself, constitute error, although these materials may refer to requirements in the rules set forth in the Executive Order or established by other legal authorities (for example, binding judicial precedents applicable to courts-martial) which are based on sources of authority independent of the supplementary materials. 

    (emphasis added). 

     

  23. RKincaid3 says:

    “I’d imagine that these days, a convening authority would be overjoyed to receive a well-written memorandum from the SJA that finds a weak sexual assault allegation to be not warranted by the evidence.”

     
    Yes, except that under the new/proposed rules, courtesy of a Congress with an agenda (that is not about justice as a process), even when a CA gets that great SJA memo, BOTH of them will have their discretionary decision to NOT go forward be reviewed by the next superior CA/SJA in the chain of command.  And those senior reviewers “may” be more concerned about their own self-advancement (especially in the current climate); e.g.: they may still seek promotion to the next grade which, as evinced by the LTG Franklin case, and others, necessarily turns on the subjective approval of Congress with their decision, notwithstanding the CAs legal discretion, the SJA opinion or even the evidence.
     
    Again, these are reasons to doubt the propriety of the system–no matter who is exercising the judgment.  And these are reasons to doubt the integrity of the decisions–either pro or con prosecution in the current climate–which fuels the skepticism in whether “justice” or “retribution” is the desired outcome. 

  24. stewie says:

    My final thoughts since this dead horse is starting to stink and rot:
     
    1. I find it unlikely that “warranted” means “Whatever the SJA wants it to mean.”  If it does, it ceases to be a legal standard of any kind and completely becomes an SJA decision to veto based on whatever whim strikes him/her.  I highly doubt that was the intent of Congress, nor does it lead to consistent justice of any kind. You say the congressional record does not gives us a standard (even though it was discussed), therefore, it’s whatever the SJA wants it to be.  Couple issues with that.  First, they certainly envisioned the need for a standard for “Warranted” they apparently didn’t codify one, but they certainly never said “whatever the SJA thinks it means.”  Second, we know from other sources what the standard likely is because we know the standard at an Article 32 hearing, and we have the standard laid out in the UCMJ.  Granted by the President not Congress for the latter, but the fact is they are the same standard.  You can say “discussion is meaningless” but while technically true, practically it’s not as meaningless as you assert.
     
    2. If, as you say, the SJA was not intended to be the “final judge” (and I agree) then what is the SJA’s role? It goes back to, IMO, determining the LEGALITY of going forward (are the charges warranted aka is probable cause met?), with a secondary (but equally important) role of advising the CA on the issues/problems with the case (if any) and going forward.  Which you clearly cite in para 4 of your response.  Again, if the std is whatever the SJA thinks, then you have a dual “command” role where the SJA gets to kill anything he wants for any reason, while the CA only gets the decision-making power to go forward if it passes the SJAs whims.  I doubt that’s what Congress intended.
     
    3. You say it wasn’t the focus of your piece.  It absolutely was because in order for your argument to hold, you have to define warranted in a way that goes beyond what several here are arguing concerning the meaning of the word.  I see no evidence that it means what you say it means (which is to say, whatever the SJA wants it to mean) and plenty of evidence it means probable cause (or some other/similar LEGAL standard/line). And if I’m right, then blaming the SJAs in the two cases loses a lot of weight.
     
    4. Finally, you cite art 34 and say nowhere in there does it say what warranted means.  OK, it doesn’t define the word, and the congressional record doesn’t give us anything definitive either.  So let’s look at the rule.  34a says, in part, that the CA can’t go forward unless the SJA says the charges are warranted. Ok, got it.  But then 34b says the SJA should give recommendations as to what to do with the charges.  So, this again looks plainly to me like a two-step process, one legal, and one advisory which is exactly what the RCM sets up.  There is no indication that the standard to refer is any higher than the standard used at the Article 32 (although the new 32 standard might be lighter in some cases).  So we have multiple sources/reasons to believe that the std is PC, and no reason to believe it’s whatever the SJA thinks…but EVEN if it is, then what if the SJA thinks it is probable cause?  Is that an unreasonable belief? No.  It’s not.  It’s quite reasonable actually.  So in those cases, the SJA thinks it is probable cause, and finds it, but thinks it has issues and recommends not going forward, and we are right back where we started.  The only way your thesis holds is if an SJA thinks it’s some higher standard, and that’s unlikely to ever be the case.
     

  25. Zachary D Spilman says:

    I’m going to assume a few facts here.

    1. You’re the SJA in the Tate case. You find the sexual assault charges not warranted by the evidence, thereby preventing referral to a GCM. Your make this finding because the evidence shows that the alleged victim was a willing and even enthusiastic participant in the sexual acts but merely so intoxicated that she formed no memory of the events. You write a comprehensive memorandum explaining how intoxicated people can consent, and how there no evidence that would enable the Government to meet its burden to disprove consent. Maybe you recommend other charges of discrediting conduct or violation of some student honor code, but the sexual assault charges are stopped (and America likely then has a long-overdue national conversation about the ability of intoxicated people to consent).

    2. You’re the SJA for the Sinclair case. You find the sexual assault charges not warranted by the evidence, thereby preventing referral to a GCM. You make this finding based on the absence of corroborating evidence, the he-said she-said nature of the case, and the alleged victim’s motive to fabricate. You write a comprehensive memo explaining this, and highlighting how the non-assault charges appropriately characterize the accused’s misconduct. 

    But again, Article 34 isn’t the focus of the piece. More important than Article 34 is, as I wrote in the penultimate paragraph, the fact that:

    [C]ommanders do not make these decisions in a vacuum. Rather, they are advised by military lawyers who have a duty to convince them of the strength or weakness of a particular case. A commander might wrongly disregard the lawyer’s advice. But for that to occur often enough to constitute a crisis, then it is the lawyers who are failing, not the commanders.

  26. me says:

    Zach, you state:
    “Now I don’t know if the sex charges in the Tate and Sinclair cases were warranted. There’s a big record in each case that isn’t public, and I can imagine good arguments either way. But what I do know is that the amount of time and money (and political capital and credibility) invested in these cases demanded a better return on investment. The fact that neither Prosecution could do better is a reason to be very concerned about the level of competency in the system (not the trial teams per se; the system). And incompetency is bad for everyone. That’s my thesis, Stewie.”
    No.  Just no.
    The point of our criminal justice system is justice, not “winning” or “return on investment.”  There are plenty of cases, military or civilian, where proseucting the case is the right thing to do and allowing a jury to decide the result is justice.  We should never seek to prosecute cases for a return on investment.
     

  27. Zachary D Spilman says:

    There are plenty of cases, military or civilian, where prosecuting the case is the right thing to do and allowing a jury to decide the result is justice.

    And yet, a court-martial panel is no jury.

  28. k fischer says:

    Stewie/Zach,
     
    The valley that separates you is the definition of “warranted by the evidence” and “probable cause.”  Because these terms mean two different things depending on who you ask, then you two will never agree.  It seems Stewie could get by with just a statement from a vic that is actually contradicted by evidence, which a counter-intuitive victim behavior expert would say is perfectly normal, whereas, Zach would accept a finding that such evidence does not warrant an Article 120 charge.  
     
    As the assistant class leader of the Fighting 154th Army JAOBC, I can assure you that trying to get a consensus on the most insignificant of topics between 70 military lawyers, take for instance whether or not having your Dining-In at the Boar’s Head Inn is worth the expense, is impossible; someone, i.e. a cheapskate who can’t afford one day’s per freaking diem for the Cadillac of banquet facilities in the Charlottesville area, is always going to be butt-hurt about whatever decision is made.  So, when you take an emotionally fueled topic such as sexual assault prosecutions, I doubt that any efforts to revive this dead horse in an attempt to reach a consensus between a government-leaning Army JAG and a defense-leaning Marine Judge Advocate will ever be successful. You both make great points, you both are right, and, trust me, you both will never agree.

  29. stewie says:

    I lied…the horse twitched a bit. Zach, your final point requires that CA ignore SJAs enough to create a crisis. Said crisis doesn’t remotely exist. I also don’t think the duty of the SJA is to “convince” the CA of the strength or weakness of a case, but simply to inform them so that they can make a rational decision.

    kf, whoa nelly, not so fast. First, I might “get by” in finding a case being warranted solely by the AV’s statements, then again I might not. If I thought the AV’s statements were so overwhelmed by the other facts in the case that I disagreed with the IO’s reasonable grounds determination then legally I would say not warranted. I don’t think “warranted” and “probable cause” mean two different things by the way, I think they mean the same thing.

    Second, I don’t buy into counter-intuitive evidence and I don’t think panels do either. Thus, in cases with that kind of behavior (but say no direct contradiction of the AV’s accusation), I might find the charges “warranted” yet advise that the case is unwinnable BRD or even that a finding of BRD would be unjust and thus the charges shouldn’t be referred. The first hurdle is my legal obligation to determine, the second is my advisory obligation to the CA. the DECISION remains with the CA. Now if we switched to JAGs running the whole show, everything falls on me, and I would likely (like many JAs) not go forward on cases/SA charges simply because I didn’t see a path to conviction.

    Zach will agree with me or I will see him in Heck! (Sorry, excuse that last bit, lost control).

  30. k fischer says:

    But, I think your definition differs from Zach’s.  And I think that last blow opened up the dead horse, and perhaps killed a few of the maggots that were feeding on the carcass.  I think Zach would say that the SJA could veto any discretion that the CA would have to prosecute and say the charges are not warranted because she is not credible, she has committed perjury, she has changed her story, she reported late, etc.
     
    And, did you say, “Whoa Nelly” as if I were a horse?  You bastage.  You ruined my farkin’ life.  (What movie is that off of?)

  31. stewie says:

    Whoa Nelly seemed apropos to the equine theme.  Heaven forbid I kill maggots…they are just babies, with a whole life yet to live of days and days.  I agree that’s what Zach would say (about SJA power, not the untimely demise of fly infants). I just think that fundamentally doesn’t make sense in the context of the role of the SJA or the standard for an Article 32.  It leaves very little to the power of the CA. Why would the SJA also have to make a recommendation if warranted required only the strongest of cases to go forward? Why would the CA be given decision-making powers if the only cases that came to him were those with strong evidence to go forward? Sometimes, there are tough cases (often in the SA world) that are neither below PC nor slam dunk winners, in fact, they come with only the claim of the AV, and require a panel to make a credibility call.  Those are the types of cases in this large gray (or grey) area, and it isn’t “limp-wristed” to recognize that a legal line has been crossed but the “should you” line has not, and to communicate that to the person invested by Congress with the final call (unless/until Senator Gilibrand’s bill becomes law).
     
    Perhaps he or someone else can send in a suggestion that Congress specify the standard for “warranted.”  If they did, I strongly suspect that standard would look like a horse of the color probable cause. That last horse analogy might have come up a bit lame, might have to put it down.

  32. Zeke says:

    Zach,
    Your argument is not truly about promoting commander-driven prosecutions over JAG-driven ones.  It is about promoting civilian jurisdiction over military.  Your piece does so by eviscerating JAGs for not stopping unwise command prosecution decisions.  Was that your intent?  Do argue against UCMJ jurisdiction altogether?