A number of folks have sent me tips with news reports, including this story from the Los Angeles Times, about a major review of the UCMJ in progress within the Pentagon. This is old news.

Back in November I wrote that SECDEF orders comprehensive review of the UCMJ. This Secretary’s review is actually one of two separate ongoing reviews of the military justice system (the other is being conducted by the Response Systems to Adult Sexual Crimes Panel, created by Sec. 576 of the FY13 NDAA).

Both reviews were discussed by the Joint Service Committee representatives at the 2014 Code Committee meeting. My notes from the meeting (and a scan of the JSC’s slide deck that was provided as a handout) are in this post from March.

Notably, the JSC reported that the folks conducting the review ordered by the SECDEF are called the “Military Justice Review Group,” and that Senior Judge Effron of CAAF will direct the Group (a fact contained in the LA Times story).

27 Responses to “The old news comprehensive review of the UCMJ”

  1. Brian Bouffard says:

    So, just out of curiosity, is there anyone you’re aware of involved in this inquiry who can be reasonably trusted to support and defend the Constitution?  Somebody who understands that individuals have rights, and accused individuals have Constitutionally enshrined rights?  Somebody who’s not a politically-motivated statist government hack who thinks all allegations are true?

  2. phil cave says:

    Judge Efron.

  3. Zachary D Spilman says:

    Phil beat me to it. Judge Effron for sure.

  4. Brian Bouffard says:

    I hope so.

  5. J says:

    Someone pondered the other day when this became the blog of the Defense bar. A question like Brian’s makes me think the answer is “a long, long time ago.”

  6. Tami a/k/a Princess Leia says:

    J,
     
    This concern has nothing to do with being a “defense hack.”  It has everthing to do with practicing law and seeking justice by both sides.  Congressional efforts to change the rules to favor victims and “improve prosecution” of sex offenses are intended to stack the deck against the accused, and have come dangerously close to crossing the line of encroaching the accused’s constitutional rights.  Some provisions I would argue Congress has crossed the line, such as punishing an accused who exercises his right to demand a trial with an automatic DD/dismissal if found guilty, but a BCD for pleading guilty.  EVERYONE should be concerned about this!
     
    We all know “improving prosecutions” = “making it easier to get convictions.”  Thank God for judges, current and former, who have the moral courage to withstand undue Congressional influence in ruining our military justice system.  Hoping all panel members will follow Judge Effron’s lead.

  7. k fischer says:

    J, 
     
    As a former trial counsel at Ft. Benning between ’02 and ’03 who “represented the United States,” I never lost sight of the fact that the accused Soldier on the opposite side of the v was included in those “United States.”  As a civilian counsel who still represents Soldiers accused at court-martial, I have seen a lot of, as RK3PO (catch that, Stewie?) would put it, Congressional “tinkering” with the UCMJ solely aimed at obtaining convictions and eroding the constitutional rights of the Accused.  And, there are Judge Advocates, TC’s and SJA’s included, who appear to proceed as if all allegations are true and believe that it is the Defense’s job to find the exculpatory evidence.  This betrays the TC’s job, which is to ensure that justice is done, both with accuser and the accused.
     
    When I see training videos that were made with my money like this training video of CSM Guerra :
     @ 3:45-4:07.“As a Command Sergeant Major, I completely understand…taking care of the organization as a whole is the most important process, even if it means holding someone accountability for their actions whether or not there’s a sexual assault victim, I think that’s very important for all organizations to understand.” @4:07-4:50.
    “The advice I would give to victims is: report it and then trust the process.  What CID can investigate are something entirely different, and while they might not be able to get a perpetrator on sexual assault for instance, rape or attempted rape, what they can get them on is something else, and because we can add charges that are different than what the civilian court can hold them accountable for as far as standards of conduct we expect in our profession.  So, I think the Army does a very good job from my experience.”
     
    The first quote IMHO translated is, “Look, we need to send a message and it doesn’t matter if the victim is lying or not.”  The second quote IMHO translated is, “Look, if you want to report it, report it even if it isn’t true because we can hold someone who is innocent of rape accountable for fraternization and still get them kicked out.”
     
    This is the thought process that is infiltrating the UCMJ and those charged with enforcing it.  This is why people like Brian Bouffard make the statements they do.  And, if you think there is a defense slant to this blog, then why don’t you contact the people that run it and ask them to allow you to be a contributor so you can counter the pro-Defense speech with pro-Government speech.
     
    And is this kind of thinking making its way down into those who try cases?  So, I had a court-martial last week where I was arguing that a record had been destroyed, which could have proven my client’s innocence.  It comes out during testimony to the surprise of all the attorneys at trial that there were additional records that some other office had, so during a break the lead TC asks me if I would object to a person being a witness if she went and got the other records.  I told him I certainly wouldn’t object for late notice if a record existed to prove my client’s innocence.  So, the assistant TC pipes up and says, “Don’t do it.  What if it hurts our case?”  I about lost my everloving mind and said to her, “Oh, so if there is a record that proves my client innocent, then you would prefer that nobody knows about it, so an innocent man gets convicted?????”  To her credit, she immediately changed her position and said, “Yeah, you should definitely tell her to bring all the records down here.”  It just so happens that the record completely destroyed the argument that I was making and was actually good for the Government!  I told the lead TC, for whom I have a deep respect, that the assistant TC is going to make a great SVP. 
     
    Client was partially acquitted, but got convicted of a false statement, and got a reprimand given from the bench without deliberation after sentencing arguments.
     
    I expected as a Government counsel that the Defense would not tell me about inculpatory evidence, or exculpatory evidence for that matter, that they had in their possession.  I was okay with the deck being stacked against me because that makes our system stronger in the long run.  But, when you have Government counsel and investigators acting like Defense counsel, and you have Defense counsel advocating that the Government should obtain evidence, then you have what we have today with the UCMJ.  I’m not a big fan.  In fact, it’s a little scary.

  8. J says:

    Maybe I’ve been out of the courtroom too long (2 years-ish), or maybe I just had a lucky break in my assignments, but I thought that 99% of the time, everyone involved in the system (TC, DC, SJA) were ethical folks. As both a TC and an SJA, I advised CA’s to kill cases where I didn’t think the evidence supported a conviction. Of course, I never accessed a MJ’s personnel records to recuse him either, but I’ve always gotten the sense that those types of things were outliers. Am I wrong?
    When I hear the announcement of a group met with a question of whether any member will be “Somebody who’s not a politically-motivated statist government hack who thinks all allegations are true?”, it makes me question the person asking, not the membership of the group. But that’s just my viewpoint, perhaps  it’s really law west of the Pecos now and I’m just behind the times.

  9. J says:

    Tami (Your highness?),
     
    I have admittedly not read all the proposals swirling around this debate, but from my state court time I remember a system without rights of confrontation at a pre-trial hearing (defense counsel weren’t even allowed to be at the grand jury) and mandatory minimums for convictions (that were often lessened for those who pled guilty). This sounds a lot like that. Not unconstitutional, just more like every other system in America.

  10. k fischer says:

    J, 
     
    No, you aren’t wrong.  Those stories and the Judge Advocates in them are outliers.  I happen to agree with the Government voire diring the judge in that case to which you make reference, but I don’t agree with accessing the records.  They really could have made the same point without the records.
     
    I don’t think that you had a lucky break in your assignments; I think it is more possible that I had a really unlucky break in my assignment as a TDS counsel and that particular office was an outlier.  My first two SJA’s, Deputies, and COJ’s were rock solid.

  11. Tami (a/k/a Princess Leia) says:

    J:
     
    There was a stirring debate yesterday about which female Star Wars character’s name I should assume.
     
    If we are truly going to make the MJ system “like any other system in America,” then those changes need to be made in favor of the accused as well as the Government.  Whether it’s a grand jury or a preliminary hearing, if the outcome is “no indictment” or “no probable cause,” then that’s the end of the case.  Not so with an Article 32 “recommendation,” which is simply a “recommendation” that can be disregarded.  In the civilian system, a unanimous verdict is required in all cases, so why should we not change our system from 2/3 to unanimous?  Will you hear any Congress man or woman argue for these changes?  I think not, since they favor the accused.
     
    As far as a DD being a “mandatory minimum” punishment, that’s laughable because there is no punitive discharge worse than a DD.  Currently the only thing that triggers an automatic DD is a sentence of death.  So are we going to say that having sex with someone who’s “too drunk to have sex” but not passed out drunk deserves the same punishment as killing someone?  That’s not right.  Even worse, the punishment is more severe for challenging the Government to prove its case.  That is what’s unconstitutional. 
     
    Many of us have had clients who didn’t receive any kind of punitive discharge as part of their sentence, those same clients would now face automatic DDs/dismissals for what they were convicted of.  If you look at the rules and the case law, and read the Benchbook instructions, a punitive discharge is the worst punishment there is, more severe than confinement.  the reasoning is that once you complete confinement, when you’re done, the punishment goes away (unless you are serving life without parole).  But a punitive discharge stays with you for your entire life, and you lose ALL benefits with a DD.  A convening authority can commute a punitive discharge into confinement, but not vice versa.
     
    In today’s politically-hot environment, it would be extremely rare for a CA to “kill” a sexual assault case upon advice of the SJA, I would argue (and I think many agree) it would be career suicide.  LTG Franklin taught us that much.  Look at the Sinclair case and the Naval Academy case.  The Sinclair case should not have gone forward as a sexual assault case, and the Naval Academy case shouldn’t have gone forward at all.  An Air Force case that got “investigated” TWICE has been referred to court-martial, it has no business going forward.  All for the sake of appeasing Congress.
     
    I’ve seen the full spectrum of TCs–those who did justice by fighting hard but fair, to those who had no business being lawyers because they wanted the conviction at any cost.  I’ve dealt with TCs that I outrank who actually yelled at me and called me unethical in front of my paralegal.  I dealt with other TCs who actually showed child porn to defense witnesses in child porn cases, because they were testifying that even knowing the clients downloaded child porn, they would still serve with and deploy with them.  Other TCs thought it would be a fantastic idea for a company commander to conduct an Article 15 hearing in the courthouse because that Soldier was told to stay at the courthouse to testify instead of returning to the company. 
     
    The worst TC I had the displeasure of fighting with, he accused my subordinates of unethical practices and threatened to court-martial them, accused a CID agent for “colluding with” a DC to “falsify” a client’s statement because the CID agent recognized the alleged rape case for the BS that it was, refused to turn over exculpatory evidence, harassed defense witnesses on the eve of trial by placing phone calls to their hotel rooms at 0400, had units PCS witnesses out the day before an Article 32 hearing so that they would be “unavailable,” and suborned perjury.  So in the biggest and most expensive case of his career, it was especially gratifying to hear those 2 glorious words:  “not guilty.”
     
    While these TCs were in the minority (hopefully still are), they are hardly “outliers.”

  12. J says:

    “Currently the only thing that triggers an automatic DD is a sentence of death.  So are we going to say that having sex with someone who’s “too drunk to have sex” but not passed out drunk deserves the same punishment as killing someone?”
    Well, no. In the latter case, the accused is also executed.
    I think (maybe) we can all agree that there are a variety of cases where a DD might be reasonable. Congress may wish to extend that to sexual assault cases. Do I agree that all such cases deserve a DD? No. Is it unconstitutional? I don’t think so.
    I agree with you regarding the idea of making a 32 binding. I’d also like to give prosecutors some actual discretion (I think most want the ability to kill some of these awful cases). I’m not sure I agree WRT the 2/3 majority, because the flip side is that 34% means an acquittal, not a mistrial for my client (though I understand reasonable minds can disagree). I’d love to see some changes like that which would benefit both sides, hopefully the politically-motivated statist government hacks on the panel agree.

  13. J says:

    I apparently can’t figure out how to break up my paragraphs…
     
    All that being said, I’m rather shocked by the horror stories here (and also by the fact that on the eve of trial the TC had enough spare time to make prank phone calls). Did you consider filing an ethics complaint?

  14. stewie says:

    I would still say the things you describe are outliers Tami.  I concur it’s not just shameful, but quite frankly, the attorney you mention should be reported to SOCO and his bar.

  15. Brian Bouffard says:

    J, clearly my initial comment got under your skin.  But I stand by it.  The atmosphere is overwhelmingly pro-government and anti-accused (the word “accused” meaning “alleged to have committed a crime”) among the leadership, and whoever disagrees with that simply hasn’t been paying attention.  Wrestle with the Heritage Brief and similar issues, and the judiciary’s non-response to obvious unlawful command influence, and you’ll probably understand why it can make you hot when you’re fighting for someone facing an allegation.  I have also known good TCs – many, many of them – but I hear “this is a weak case that I’m being forced to try” far more often than I wish I did.  We now live and work in an environment where every CA who refers a sexual assault case to trial can be reasonably suspected as being an accuser – someone with an interest other than an official interest in the outcome of a case.  They’re rightfully afraid for their jobs, whether they want to admit it or not.  Ask Gen Franklin or Gen Helms what following your conscience will get you.
    So, you can whine about CAAFLog being “the blog of the Defense bar” based on my comment expressing well-grounded skepticism that this process is going to be actually fair… or you can inhale deeply and maybe smell a whiff of coffee.

  16. J says:

    The blog of the defense bar bit was actually someone else’s comment the other day, I was just expressing an answer.
     
    As someone who has no skin in this game (I’m out of the miljus arena and have no part in any review of the UCMJ) I absolutely disagreed with your “well-grounded skepticism” (a little bit of an overstatement?), but that’s based on my experience that most people in this game take their responsibilities seriously. May

  17. ArmyTC says:

    As far as CAs not killing cases, am I the only knucklehead that recommends the SPCMCA dismiss the case after the 32 and NOT send it to the GCMCA? I mean, that’s one very easy way to kill a bad case where the 32 doesn’t recommend going forward or the case is just otherwise not worthy of a court martial. And as far as Tami’s allegations…that sounds like one powerful TC…which is a lot like a unicorn. Seriously though, if a TC is pulling that BS the call should be to SOCO and their CoJ.

  18. DCGoneGalt says:

    Comments such as Mr. Bouffard’s are made by people who have watched case after case after case of drunken sex get preferred and referred to trial due to nothing more than political pressure.  The referral rates and numbers of the last four years bear this out.  IMHO, to say that the political pressure has not influenced the CC decision making process (so far it does not seem to have done so to members and the MJ) is to be removed from reality.  A pessimist would say that due to a desire to change member /JA opinions DoD and Sexual Assault, Inc. have stepped up their briefings to now cover Minority Report pre-cognition identification of predators as well as counter-intuitive behaviors and the neurobiology of victims in a general sense when such counter-intuitive behavior/neurobiology is highly fact specific and in many fact patterns would not be admissible under Daubert.
     
    I would enthusiastically concur that unethical conduct among JAs i(to include SVCs and SVPs) s highly unusual, but in my limited time I have personally seen SVPs who play games with discovery of information and an SJA and JA that actively tried to hide MRE 412 information. 
     
    I second Tami’s thought on thanking God for the fact that MJs, while seemingly reluctant to find even a hint of UCI and shift the burden, are willing to stand up and face down the pressure. 
     
    As to Mr. Bouffard’s comments about wanting someone who believes all allegations to be true:  I do not believe CCs believe all allegations to be true . . . but they sure brief you and act as if they believe this.  The beloved 2% statistic and its constant appearance in biased and factually inaccurate briefings shows leads to the appearance that they believe all claims.   If you take the Sexual Assault, Inc. briefs at face value it would be hard not to believe all allegations are true.
     
    In addition to thanking God for MJs, I thank God for leaders like (Ret) Maj Gen Charles Dunlap who speaks truth to power and pulls no punches.  His memo:  http://www.caaflog.com/wp-content/uploads/Dunlap-Memorandum.pdf where he calls out the Air Force’s “BELIEVE THE VICTIM” posters, the adversarial nature of TJAGs stance on Art 120 litigation, the politics of prejudging cases by providing the “victim” label to any complainant regardless of the facts, etc. is like walking into an oasis of truth in a world gone mad.  His commentary on the politics and judgments behind the very name of the Special “Victim” Counsel and whether DoD would have an issue if defense counsel started referring to themselves as “Counsel for the Wrongfully Accused” would be denounced by most in leadership positions as a comment only worthy on a “blog of the defense bar” but it also points out a finger at the double standards and politics that risk poisoning the military justice system and undermining respect for leadership who continually brief and make decisions on information that everyone knows is taken out of context or untrue based on political pressure that everyone pretends doesn’t influence the process.

  19. k fischer says:

    ArmyTC, 
     
    What if the COJ is a TC?  Or the SVP is the TC?  I’ve seen some pretty powerful TC’s who fulfilled those roles.  
     
    And, I was a pretty powerful TC, meaning that my Commanders 99% of the time listened to me, and my SJA and COJ had very little involvement in speaking to them.    Of course, that was way back in the old Army (’02-’03) and I used my superpowers for good and gave the defense an offer they couldn’t refuse on cases that warranted a BCD and a few months in jail with a guilty plea at a Summary and a board waiver for a 14-12c admin sep.  And, they had to move quickly before the Battalion Commander sent it to the Brigade Commander for a referral recommendation to the CG.  That allowed me to (1) move small cases quickly and (2) gave me time to focus on the real crimes where Soldiers should have gone to jail like drug distro, sexual assaults, six-figured embezzlement, and murder.
     
    But, complaints to SOCO, the SJA, and the COJ have very little value when the SJA and COJ are just as bad.  Usually, an out of control TC has been mentored by an out of control COJ or SJA.  I’ve seen two shops like that at Benning since ’02, which means four shops were well above board. 

  20. phil cave says:

    One of my daily reads.
    http://www.cotwa.info/

  21. k fischer says:

    ArmyTC, 
     
    I think you are the only knucklehead doing it right.  I have only seen one TC or RJA who advised the SCMCA to dismiss the charges and not send it up to the GCMCA.  I believe that usually the SJA’s through the TC’s and SVP’s advise the Command to send it up to the GCMCA so they can decide whether or not to refer it.  But, I think that is UCI if the Brigade Commander agrees with the 32 Officer’s report, but sends it up anyways.  
     
    I filed a motion for UCI against an SJA after the Brigade Commander told me that he was going to do a FG 15/admin sep for a 2 year AWOL, but the SJA convinced him to send the case to the GCMCA, so the “CG could approve a Chapter 10.”  It went to a GCM, and the Government offered a one-year deal only if my client waived the 32.  I told the Government to GFT, then filed my Chapter 10, which curiously got disapproved.  Then, after filing my motion for UCI, the Brigade Commander forgot what he told me, although he was getting kind of old…….and was perhaps suffering from dementia……So, my client took a 6 month deal and waived all motions.

  22. ArmyTC says:

    My whole time as a TC I personally brief the BDE CDR/SPCMCA after a SCMCA received the charges and forwarded them to the O-6 for disposition. I always reminded them that until the 32 was complete (or they chose to forward for referral to a BCD Special) the case was at THEIR level and that NO ONE could instruct them on what to do with it. I told them that anything I said was merely a recommendation and I would always tell them if the SJA felt differently (I was always encouraged to give my commanders my independent opinion,  at times the commander would want the SJAs opinion too and they would want to have an O-6 to O-6 conversation with him). This resulted in a lot of things, to include cases I thought should die dying and cases I thought should go forward being Article 15s. It also meant that some cases I wanted dead would go forward. Most of the time though, the commanders listened to what I had to say and followed my recommendations. Yeah, there were times where I had to explain to one of my technical superiors why my SPCMCA killed a case, or dismissed a specification and preferred a lesser charge. There were times where I had to explain why I was putting a 112a for weed and a 32 day AWOL on the SJAs desk for a referral, when the dude who had 3 coke hots and got caught stealing 50lbs of jerky from the PX (don’t ask) was chaptered. No one was ever mad. If anything, they were happy that my advice had commanders making independent decisions and considering each case based on individual merits. 
    By and large, I can say every command I’ve worked in has had that type of climate. I’ve seen commanders who will ALWAYS send cases to the CG, while I’ve met others who are more than willing to dismiss a charge without hesitation, and a lot in between. I can see merits to all approaches. What I can vouch for, as a TC who has been in MJ for over three years (and a little under one to go) who CAN’T WAIT to get out MJ, is that despite what the defense bar might think, my perception is that the commanders I work with aren’t so concerned with Congressional pressure. In fact, I don’t think they care much at all. Dunno…maybe I’m lucky.

  23. ArmyTC says:

    Whoa…sorry about the paragraphs there. Mobile typing.

  24. Zachary D Spilman says:

    Well done ArmyTC. This sort of competent advocacy is exactly what I was talking about in my piece in The Baltimore Sun

  25. Tami (a/k/a Princess Leia) says:

    Maybe I have a different idea of “outliers,” as in 1-2 over my entire career.  And the TC I referenced, multiple discussions were had with his superiors, not much happened, then he PCSed to a new SJA office when the rape trial was finally scheduled to happen.  He was allowed to return TDY for the trial, and he got the comeuppance he deserved. 
     
    His attacks on the CID agent backfired, the MJ shut him down on cross-examination and yelled at him, everyone in the courtroom (including the panel members) laughed at him when he started yelling at our client and our client asked the MJ if the TC had to yell at him.  We exposed the complainant’s family’s Tricare fraud (they were claiming she wasn’t mentally competent, she was 22 years old) for what it was–her psychiatrist admitted to an exaggerated diagnosis to “help” the complainant with various things, including continuing to be a “dependent,” getting into college, and of course the Army continued to pay for her medicine, health care, etc.
     
    Several of us considered filing a SOCO complaint, but were worried that it would look like sour grapes if the client got convicted.  His acquittal was satisfying enough for us, and humiliating enough for the TC, that we felt that was sufficient.  Plus it was hard to prove he “knew” the complainant and her mother lied.
     
    @J, if you saw the kinds of sexual assault cases we blogger participants have seen, I think you’d understand more our skepticism.  We have seen the most ridiculous cases get sent into court.  There was a case in Korea back in 2005/2006, an underage woman who got drunk accused a Soldier of raping her in a bathroom stall in a club.  There was a WITNESS, who said she went into the bathroom to check on this young woman, knocked on the stall door but got no response, so she went to the next stall, climbed on the toilet, and looked down into the stall they were in, and was shocked to see them having sex, and it didn’t look like rape.
     
    I also dealt with a case, as a CoJ, where a Soldier was titled for rape under the theory of “psychological coercion.”  I’m sure you are all wondering what that coercion could possibly be.  According to HER story, they were making out, she said stop (so he stopped), then as she was leaving, he said “please baby, don’t leave me hanging.”  So she went back and had sex with him.  The legal opine was “no probable cause” for rape, but did that stop the titling?  No.  And of course no legal opinion is referenced in the report.  So now this guy has a criminal record for 40 years that says there was sufficient evidence to tag him for rape.
     
    The prosecutor in the Wilkerson case was the same JAG who, as a military judge presiding over a sexual assault case, ruled Article 120 was unconstitutional and declared 100 monkeys with typewriters could have done a better job writing the 2007 revisions to Article 120.
    It’s cases like these that make it really super hard to have confidence that those in charge of our MJ system will do the right thing.
    The SPCMCAs aren’t the issue, it’s the GCMCAs, who can ignore the Article 32 IOs’ and SPCMCAs’ recommendations and send the case to court, thereby ruining the “wrongly/falsely accused’s” life.

  26. ResIpsaLoquitur says:

    Tami,
    Oh, come on….if you’re going to take a Star Wars name, you need to go against the grain and choose one from the Expanded Universe.  Not Mara Jade; that’s overdone.  I’ll suggest “Marasiah Fel” for relative obscurity.

  27. k fischer says:

    ArmyTC, 
     
    Mad props and you have major street cred with me, which with $7.50 will get you a triple decaf skim white chocolate iced mochachinno at Starbucks, although everyone knows that real men only drink fully leaded black coffee or eat a coffee packet from their MRE and chase it with a slug of water from their canteen……..
     
    Tami, the spelling of your name is a little spacey and geektastic.  I think they should name a Star Wars character after you.