WARNING, this might be considered a defense oriented post.

How silly does it get. Across the transom today I received these linked documents.

http://www.caaflog.com/wp-content/uploads/LTC-Morse-v.-LTC-Biehl-and-COL-Agarl-order-granting-motion-to-withdraw.pdf

http://www.caaflog.com/wp-content/uploads/LTC-Morse-v.-LTC-Biehl-and-COL-Agar-writ-of-prohibition.pdf

http://www.caaflog.com/wp-content/uploads/LTC-Morse-v.LTC-Biehl-and-COL-Agarl-brief.pdf

On 23 April 2014, ACCA issued a Order in Morse v. Biehl and Agar, Army Misc. 20140294 (23 April 2014).

(Update:  the command rescinded the order to petitioner and his counsel.)

The Order granted petitioner’s request to withdraw the petition.  And yes, this is the sexual assault case of LTC Morse.  COL Agar is the SJA MDW if you didn’t know. So why all the fuss.  The attached filings may help understand the unfathomable.  I will liberally copy from the petition and brief in support and you may decide for yourself, and then decide if I have correctly titled this post. The brief begins:

In this case, the government has taken the extraordinary action of ordering the Petitioner and his assigned Trial Defense Service counsel to cease and desist in engaging in any investigation of the allegations against Petitioner, without a factual predicate of malfeasance, and simply at the behest of the purported victim.  (Emphasis in original.)

Assuming the facts to be true, the facts also document the biased and ineffective CID investigations all too common in sexual assault cases, and how effective defense investigations can develop helpful information ignored or unlooked for by “trained investigators.”  (See references to tunnel vision at this post.)

169 Responses to “In the theater of the absurd-maybe-maybe not? (Update)”

  1. DB Cooper says:

    So it has come to this.  
    There are days I look back on my service as a judge advocate with great pride because I knew that both the defense and prosecution bars within the JAG Corps were genuinely concerned about maintaining the procedural protections and fairness of the accused in the military justice system.  
    Today is not one of those days.

  2. Phil Cave says:

    I am told that one senior official who shall go nameless, referred to this as an existential threat to TDS, or words to that effect.
    The Jargondatabase.com has this definition:  

    Existential Threat Surprisingly NOT something one finds covered in a college philosophy textbook, this is regarded as a military or terrorist threat to the existence of something, usually the United States. Usually involves nuclear, chemical, or biological weapons.

  3. ArmyTC says:

    This is outright outrageous.
     
    “Hey guy, this isn’t fair. How about you stop preparing a defense. Right now.”
     
    This ain’t gon’ fly.

  4. Javert says:

    Holy cow.  And I thought I was a Government hack.  Ordering a defendant that *even his attorney* can’t talk to a witness? ? 

  5. DCGoneGalt says:

    This is shocking to the point of almost being unbelievable.  Because defense counsel would have simply placed the order in the garbage (where it belonged) the command forced the attorney’s no-contact order onto the accused?  In sexual assault cases it certainly appears CID/OSI/NCIS are prohibited from doing interviews/invesitgation that uncover exculpatory material such as confrontational interviews with a complainant (under most circumstances fair enough . . . except when certain aspects of the story appear to be fanciful . . . which is when the SVC understandably can seem to take protective role of an ADC), digging for character for truthfulness, and searching for MRE 412 information.  The defense in many cases has to get this on its’ own without the investigative resources that the Government has available.
     
    The defense investigation should be no concern of the command.  If the investigation is a concern of the complainant then they can address that with the SVC.  If the command and investigative agencies are concerned that defense counsel will start to run contemporaneous investigations then they should actually start to consider looking into these allegations in an unbiased manner. 
     
     

  6. Charlie Gittins says:

    I would have respectfully told the Battalion Commander to pound sand and that I will continue to do my job. And if he wants to take me on because I am doing the job I was assigned to do and was ethically required to do, go for it.  We’ll waive the 32 and get the case to a MJ  sitting as fact-finder as fast as is humanly possible.
    I actually had the Deputy Director JAD summon me to the Navy Annex to order me I could not do an interview with the press about an officer client who was accused of fraternization (the media had already contacted HQMC to get a spokesman to make a statement; I was just going to show that the spokesman was lying his ass off — by virtue of documents received in discovery).  I took a senior military lawyer over the JAD with me and we had a conversation with the Deputy informing him that his order was illegal and I believed it in the best interest of my client that I do the interview and I was going to do it. I did it.  Crickets after the interview.  Never thought of an extraordinary writ.  
    But this is nonetheless outrageous.  I hope the DCs are still doing interviews, although the withdrawal of the Petition suggests some adult who actually know something about the law got involved.   It sounds like this SJA and his Deputy need a law school refresher.  The motion at trial should be fun.
     
     

  7. Zachary D Spilman says:

    That was so worth the time it took to read to the end.

    But the brief discusses the role of the respondent SJA. It’s worth mentioning that military courts recognize the obvious when it comes to legal advisers who are alleged to have given bad advice:

    Human nature being what it is, the very fact of being called upon to condemn or countenance one’s own workmanship cannot create a healthy outcome and less so when the outcome concerns the accused’s denial of substantial rights.

    United States v. Goodman, 3 M.J. 1, 5 (C.M.A. 1977) (quoting United States v. Renton, 8 U.S.C.M.A. 697, 701 (C.M.A. 1958)).

  8. ArmyTC says:

    @Charlie, heh trial. Let’s face it. CID will find nothing, the command will be pissed about the publicity and their inability to nail LTC Morse, find some BS to reprimand him on, issue a GOMOR and put him to pasture.
     
    I’m embarrased. I certainly hope there’s a fellow TC out there speaking up and telling these people “Sir, this is a terrible idea.”

  9. mike says:

    This should be a pretty good wake up call that DoD has gone off the deep end when the professionals give this type of legal advice. I can understand the former truck driver turned CID agent botching the investigation or the commander referrering every bad case to trial for CYA reasons but this? Time for an azimuth check

  10. mike says:

    And I can’t seem to spell today

  11. Dew_Process says:

    This is an embarrassment to the profession in general and to the JAG Corps in particular. But, it is not surprising when the political winds waft over the weak-at-heart and where careerism trumps professional independence.  It reminds me of (and apologies to) Lord Tennyson’s lines:
     

    Not though the soldier knew
       Someone had blundered.
       Theirs not to make reply,
       Theirs not to reason why,
       Theirs but to do and die.
       Into the valley of Death
       Rode the six hundred.

     
    Theater of the Absurd, Redux:
     
    I might have been more shocked in times past, but the hysteria over victim’s “rights” appears to be a “war” on the defense as the Morse proceedings noted above demonstrate.  But, that is not an isolated matter.  I have an officer client as well, albeit not a JAG who has likewise found himself in the Kafkaesque scenario spawned by the Devil.
     
    After an officially sponsored “all ranks” event – where alcohol flowed freely – my client’s wife is “sexually assaulted” by an inebriated SSG, i.e., butt grabbing, boob fondling etc., whereupon she (a) slaps the NCO and screams; (b) a couple of people pull the guy off of her and “plant” him in a corner as they call the MPs; and (c) go get my client who is in the bar having a drink with a senior NCO he’d deployed with a year earlier.
     
    The MP’s morph into a full-blown CID investigation, the CG gets involved and “wonders” why (a) my client wasn’t there to protect the “honor” of his wife; and (b) why he was drinking / fraternizing with an NCO.  So the ever diligent CID opens a collateral investigation with my client as the named-subject, and when he is called in and read his 31(b) rights for “conduct unbecoming” and frat, at least says, “WTF? I want a lawyer,” and is dismissed, only to be relieved of his position for “not cooperating with an official investigation.” [which one or both, not specified].
     
    Meanwhile, the SVC is all over the wife, getting her a SANE examination, making an unrestricted report, filing notices etc. — ok, perhaps a tad overboard, but Garrison life I guess can be boring for some JAGs.  At the same time, a wise CSM suggests to my client that he hustle over to the TDS office, get a lawyer and try and nip things in the bud. Smart CSM (as most are), only there’s a problem.
     
    Apparently the TDS “charter” doesn’t provide for “representation” based solely upon a CID investigation — why, is a good question where he’s a CID target and has had his rights read to him, but he’s not, hence I get retained and after confirming the above, read Brother Phil’s post above and have a strong urge to abuse alcohol at the moment.
     
    The “irony” of course is that my client’s wife – a civilian – has an Army JAG SVC as “her lawyer”; my client, an Army Officer, can’t get a TDS lawyer!  And, the Flat World Society has taken over . . . . SMH

  12. RKincaid3 says:

    Ummm….OMG!  Where to even start?  I have been teaching a lot and out of touch with CAAFlog of late…but just heard about this and had to login despite a threat from my wife that doing so would jeopardize our evening together.  Sigh…
     
    I will re-read these and compose my thoughts shortly.  Suffice it to say at this time…shame on so many people for their decisions and conduct in attempting to order an accused to not defend himself.  The fact that senior leaders believe this was appropriate, legal or even remotely constitutional–well–it speaks loudly about the quality of either the legal skills/acumen or the leadership involved, or the courage of that leadership to be the “honest brokers” we are taught to be as young Captains.  And the fact that even more senior leadership had to step in and ORDER the senior leader issuing the illegal order to rescind the order…well that gives me faith that some still understand and respect the concept of JUSTICE.
     
    In either event, this is beyond bad and unprofessional, and it causes me to think about whether anybody–commander or JAG–has the required skills AND courage to lead in this area and prosecute a case with an eye towards a JUST result.  Perhaps both Gillibrand’s and McCaskill’s bills are bad simply because both require the leadership of either a commander or a JAG in the justice arena.  And apparently both are hopelessly infected with the taint of politics–which is probably completely unavoidable.
     
    That is where my thoughts will now go—what options are there given the well known failures of human nature and human politics.

  13. mycareerislongsinceover says:

    First they came for the communists, and I didn’t speak out, because I wasn’t a communist, then they came for the trade unionists, and I didn’t speak out, because I wasn’t a trade unionist, then they came for the Jews, and I didn’t speak out, because I wasn’t a Jew….then they came for the Chief of TCAP….and by then, there was no one left to speak out…..

  14. J.M. says:

    @Dew_Process: A question regarding your comment. Is a relief for not cooperating in a investigation allowed? When I was investigated by CID and invoked my 31 rights and asked for a lawyer, I received a relief for cause NCOER for the same reason. I didn’t worry about it too much then (had bigger things on my mind), but I’ve been curious about it ever since.

  15. Phil Cave says:

    MCILSOS:  I have actually cited Martin Niemöller’s admonition to those who fail to stand up in the face of a great wrong,in several UCI briefs.
    And now this litigation shows me I was not wrong to cite it – MDW has proven me right to some extent. It goes something like this in my motion:
     
    Facts and circumstances
     First they came . . .[1]
     
         Unwittingly, retired former deputy judge advocate Major General Charles Dunlap was channeling Martin Niemöller’s admonition to those who fail to stand up in the face of a great wrong.  Major General Dunlap was commenting on the refusal of Senator McCaskill to allow a vote on Lieutenant General Helms’ nomination.
     
    “Let’s see how many senators are prepared to vote against a women (sic) who is one of the most qualified officers’ on the planet for the job simply because she exercised her conscience as the law demanded her to do,” Dunlap said in an Oct. 24 email. “If people doing their job as Congress designed it are nevertheless punished like this, who is next? Judges? Defense counsel? Anyone in uniform?
     
    Jeff Schogol, Lawmaker sustains 6-month hold on 3-star’s nomination, Air Force Times, October 27, 2013, at 3.  This is a current article close enough in time to trial to be concerning.
         Here we are also concerned for those Major General Dunlap missed, also the panel members.  We know convening authorities are already a target.
     
    Of course we know how it went for the well qualified woman – permanent hold on billet assignment, and a retirement.
     

    [1] http://www.martin-niemoeller-stiftung.de/4/daszitat/a31
     
    “When the Nazis came for the communists, I remained silent, I was not a communist.
    When they locked up the social democrats, I remained silent, I was not a social democrat.
    When they came for the trade unionists, I did not speak up, because I was not a trade unionist.
    When they came for me, there was no one left to speak out.”
     

     
     
     
     

  16. Phil Cave says:

    Excellent question J.M.
    If you are a fact witness and not a suspect, then I think there is a legitimate issue surrounding a refusal to cooperate in an investigation.  But if you are a suspect, I think it a violation of Art. 98, 133, and 37, UCMJ, to punish someone for exercising their Art. 31 rights.  But these people are “good guys” and won’t be investigated let alone punished – J.M. sorry, but you just don’t get it son.

  17. Phil Cave says:

    Motion,
     
    The SJA and AA are disqualified from appointing an Art. 32?
    The SJA and CA are disqualified from doing a 34 advice and referral?  United States v. Caritativo, 37 M.J. 175 (C.M.A. 1993) – SJA generally acts with the mantle of command authority.
     
    Should not the SJA recuse himself out of an excess of caution and have MG Buchanan seek advice from another SJA?
     

  18. Horton hears a who says:

    The actions by COL Agar are the most disappointing, perhaps now it is apparent why some of us use pseudonyms.

  19. mycareerislongsinceover says:

    It’s too bad that Jay Morse is not a total dickwad hypocrite, because then the schadenfreude part of me would think this is at least poetic justice. Instead, we’re at the point where any allegation against anyone, no matter who, no matter how silly it may be on its face, throws the bureacrats into a gutless frenzy. What will he ever be able to do here to clear his name? Even if this is unfounded? And what will happen to “her.”? She’ll probably get promoted BZ to the next rank. I swear, I will never date another woman in the Army again, and sure as hell not another JA. Anyone who values his career should just become a eunuch.

  20. Dew_Process says:

    @ J.M. – I’m not blowing you off, only that the general rules of this blog and ethical restrictions on legal advice preclude me from answering a question that is very fact-specific, and I obviously don’t have all of the facts surrounding your scenario.  But, sarcasm aside, Brother Cave’s comments are spot-on.

  21. DC says:

    Did anyone else notice in the attachments to the brief that LTC Morse took, and passed, a polygraph? 

  22. Dew_Process says:

    @ DC – yep, but that doesn’t count for those Accused – they “know” he’s guilty!

  23. I.Have.No.Responsibilities.Whatsoever says:

    This case is permanently screwed.  I applaud the RDC for stepping up  and putting them in their place – while he was clearly right, it still gives anyone (in uniform) pause to make it clear the order will not be followed.  It’s a lot easier in the civilian sector to fly the Jolly Roger than it was on active duty.

  24. mike says:

    DC
    jeez. An exculpatory poly? Next u will tell me that a full retraction by the victim is evidence

  25. mycareerislongsinceover says:

    Him passing the polygraph just adds to the Kafkhaesque (is that a word?) nature to this all. I mean, what sin did he commit in this life or a past one for this to happen now? Imagine: one day, you’re the chief sexual assault prosecutor for the Army, probably shmoozing with outraged members of Congress on the “epidemic” of sexual assault in the Army….and the next, you’re a TDS client filing extraordinary writs with ACCA based on an allegation about some ass-grabbery at a hotel room from three years beforehand that seemed so insignificant at the time that you’re not even sure who’s making the allegation.  You’ve got to be asking yourself, “hey God…if you’re out there….what is the deal? Is the is like the trials of Job or something?” And….itt really scares the shit out of those of us with a past.  But like my screen name indicates, fortunately, I don’t think anyone is coming after me….

  26. RKincaid3 says:

    Yep.  But that fact doesn’t bother me as much as the SYSTEMIC disregard of basic due process–from CIDs failure to investigate fully the truthfulness of the allegations (which necessarily include the conplainant’s truthfulness); to the SJAs complete disregard for the law, truth, and both of his oaths of office: as a Soldier and as a lawyer; to the fact that when faced with a choice–the SJA for the GCMCA with UCMJ authority over the TDS personel involved, threw under the bus the Soldier (who is supposed to be presumed innocent under the law) and sprang eagerly to the defense of the complainant (by willfully interfering with a constitutional obligation and duty) who under the law cannot be presumed truthful as such a presumption conflicts with the accused’s legal presumption of innocence.  Fear is our enemy.  And at present it is winning.  
     
    Welcome to McCarthyism II, the 21st Century version. 

  27. Muswell says:

    Victim recantation is further evidence of the accused’s controlling and predatory nature.  OFFENDER FOCUSED ADVOCACY *swish*

  28. Phil Cave says:

    Colvert is one of the best and most honest polygraphers going. 
    But thought he’d retired. 
     

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

    I am utterly shocked and well….shocked!  I am so shocked I couldn’t think of the other word I intended to say.  Maybe it was “disheartened.”  COL Agar was the Great Plains Regional Defense Counsel several years ago, and there was no finer RDC than him.  He would’ve thrown the BS flag at LTC Biehl in a heartbeat for what is OBVIOUSLY an unlawful order, and probably would’ve even preferred charges against LTC Biehl himself for violations of Articles 98 and 133.  So to think that COL Agar supported this COA, I can’t even wrap my brain around that one.  I read everything, and I know what my eyes saw, but I still can’t wrap my brain around it, that’s how shocked I am.  It’s one thing to tell a suspect not to talk about the case with potential witnesses, but a whole different ball game to try to preclude defense attorneys from doing the same.  That’s a black-letter bright-line rule, and a good TC will ALWAYS counsel the commander not to include such a restriction on defense counsel, paralegals, etc.
     
    And the Senior Trial Counsel saying he wouldn’t recommend to CID to gather evidence favorable to LTC Morse?  WTF!  What happened to a trial counsel’s ethical obligation to seek out and provide evidence that is also favorable to the accused?  And let’s face it, without DCs investigating on their own, LTC Morse is facing a court-martial.
     
    Maybe LTC Biehl needs to face a court-martial himself–anyone can report an offense under RCM 301, and anyone subject to the UCMJ can prefer charges under RCM 307.

  30. RKincaid3 says:

    Tami:  good people do bad things for political reasons.  Especially when their personal future is at stake.  And Congress has made certain that every officer is aware that their futures are at stake.  So much for service before self. 

  31. Advocaat says:

    The effective assistance of counselProtects the Army’s worst scoundrels   So when a commander does something terrible   Like issue an order clearly criminalEven he gets the very best defense on EarthAlthough wouldn’t it be ironicIf he had to drink is own tonicAnd went straight to DB at Leavenworth?Cried he, “What, not one interview?”Said I, “Some moron ordered me not to!”

  32. mycareerislongsinceover says:

    Hey—can someone get a copy posted of the government’s response to the petitioner’s brief? I would love to see that one. I can just imagine the poor captain at GAD who had to work on that one. Lots of panic I imagine. And it’s not like he or she could have gone to the Ballston Sport and Health Club to blow off steam or stuffed his or her face at the food court to get deal with the ensuing panic attacks that come with realizing you’re having to defend the indefensible. I bet he or she promised to never look at internet porn again, or refrain from committing any number of misdeeds if Jay Morse’s “commander” would just revoke that stupid order. Oh, he did revoke it? Whew!!!! Halleleljuah!!!

  33. RKincaid3 says:

    This is devastating to any claim the Military Justice has anything to do with justice–rough or otherwise.

  34. Some Army Guy says:

    OMG
    YHGTBSM

  35. RKincaid3 says:

    Petitioner withdrew the writ application after the illegal order was rescinded. Too bad.  I think I would have liked to see the government respond–force them to either publicly defend the illegal order or concede its illegality.  That would have been great in this toxic climate. 
     
    And, I have it on good, credible authority that the ordering officer and conspiring senior JAG were ordered by the highest authorities to rescind their illegal order.  And that same good authority tells me that some responsible GAD officials were of opinion that the government’s position was indefensible, and many didn’t believe that they could legally, with the requisite good faith required by bar ethics, submit a response to the writ application.  Hence the sudden rescission of the illegal order and subsequent withdrawal of the writ application.
     
    I so hate it that fear and toxicity are so contaminating our profession.  

  36. mycareerislongsinceover says:

    Oh, that would have been one hell of an oral argument though!!!! Especially when the SVC demanded an opportunity to address ACCA on behalf of their “client.” 

  37. Some Army Guy says:

    But LTC Biehl would have ordered LTC Morse not to allow any of his counsel to argue the brief.

  38. mycareerislongsinceover says:

    Tami, there is no need to prefer charges against LTC Biehl. Just make him spend all day writing OERs on a bunch of captains on the HRC website….that will be torment enough….

  39. Some dude says says:

    So what did the JAGC learn in all this.  I seriously hope that after Sinclair and this embarrassment sometheng positive comes out. Outherwise we might as well go w Gillibrandt’s bill or turn things over to the AUSAs 

  40. J.M. says:

    @Dew_process: No problem, Mr Caves answer fits perfectly the what I had suspected and experienced myself.
    It’s a shame that LTC Morse will probably never be trusted by the government with a sexual assault case in the future. The old line about making surgeons undergo surgery comes to mind. 
    It is frightening to me, as a lay person and average Soldier, that the officers involved in this will be involved in the future prosecution of other sexual assault cases And no doubt end up advising members of Congress some time in the future. I hope that what I read about today is an anomaly in the UCMJ process, and not the start of a new trend.

  41. huskerjag says:

    I share Tami’s utter amazement with COL Agar’s involvement in this unfolding drama. I have known COL Agar for some time and I have always held him in the highest regard. I too share Tami’s perspective from his time as the Great Plains RDC, and in turn share her sense of utter disbelief. It is my hope that his warnings to defense counsel were solely limited to their client’s efforts to investigate his case by questioning witnesses (which I’m sure many counsel on this blog have noticed can be fraught with danger, and is better left to attorneys or trained defense investigators). That order might be defensible. It is my hope that LTC Biehl took his order too far and extended it to third parties without consulting with COL Agar’s office further. Again, that is my hope, which is in today’s environment small as it is.
    At the risk of repeating other contributors to this thread- defense counsel have an ethical duty to represent their client zealously within the bounds of ethics and the law, and the law provides no limitation to counsel’s investigation of the alleged offenses before preferral. At a minimum, defense counsel has just as much rights as a reporter investigating the fact surrounding an allegation (I would argue greater, in point of fact). 
    A curious question is to what extent an accused could be found vicariously liable for the actions of his counsel (or any other third person) absent a theory of aiding and abetting the commission of an offense under the code. If TDCs are truly independent from the chain of command’s authority, then LTC Biehl’s order represents nothing more than a direct assault on this construct. “Stop your investigation of these allegations or your client will risk the price of further charges,” is nothing short of such an assault, IMHO.
    Again, those of us who know COL Agar professionally have to be in stunned disbelief at this point. The Jimbo Agar I know is better at his trade than this order suggests.

  42. jack says:

    Nice to hear that COL Agar is a nice guy, but he is clearly operating out of his depth.  Forget recusal: why should he still be allowed to give advice to MDW at all?  Isn’t firing the right answer here?

  43. stewie says:

    I think there may be another side to this that is being missed because COL Agar is more than “just a nice guy,” he is an experienced criminal law expert who is not remotely a government hack.  As huskerjag says there could have been disconnect between his advice and what the BC put in the order, or there could have been things being done on the defense side that was beyond investigation or appeared that way.  Certainly, when you have an accused who is also an attorney, they might be even more prone to do self-investigation.  I don’t know that, but just suggesting that before folks run to immolate COL Agar as the epitome of all that’s unholy or label him a symbol for all that’s wrong, perhaps take a pause and admit we don’t know, and probably won’t know the full story here before we start throwing out “firing” someone with a very long, distinguished career on both sides of the aisle.
     
    Suffice to say, we all agree that defense counsel should always be allowed to get involved in questioning witnesses and allowed to investigate (particularly since we do not have defense investigators to balance the system, and because CID is so woefully inadequate at their job).

  44. J says:

    I wish I had thought of this back in my TC days. And why stop there? I’d also like to order DC not to cross-examine witnesses, or make any argument. Also, I don’t like responding to motions, so I’d like to stop them from filing any. Time to call my detailer! Back to the courtroom!

  45. Glass Joe says:

    HuskerJag:I note that if LTC Biehl changed the scope of the order to include TDS, then Col Agar may have had an opportunity to correct that error after receiving LTC Wells’ email but did not.  All very strange. Can’t wait to see how it plays out.

  46. DCGoneGalt says:

    Stewie:  Concur that we do not know the SJA COLs advice to the CC and should exercise caution in commenting.  While the emails do not look good, “at your own peril” could be the SJAs shot across the bow to let the defense know that the order will be more than a simple no-contact order, assuming the SJA had knowledge of the extension of the order to defense counsel.  However, if that was the case I would feel there was an ethical obligation  by the SJA to seek higher HQ JA assistance on the matter prior to the CC issuing the order because the  order is not only unlawful but also because the public embarassment caused by such an order coming to light greatly outweighs any benefit to be gained (I would hope that even in this environment such patently unlawful orders can not serve any career benefit to a CC). 
     
    Additionally, even assuming that it was the accused who was engaging in interviews that the SJA/CC/complainant deemed inappropriate then the avenue to address that conduct would be through the ethics complaint process because the accused would have been acting in an attorney capacity.  The complainant has no right to prohibit contact with witnesses other than themself.  Therefore, the complainant requesting an order that all contact with the complainant occur through the SVC is perfectly lawful (and once an accused is aware of such representation would be required anyway).  In this case, as in every case, an accused has a right to represent themselves and (though I have seen no-contact orders to an accused for witnesses in many cases) has a right to question all witnesses. If that witness refuses to speak with the accused then so be it but that does not appear to be the case here.  To order an accused and then by extension hold them liable for their counsel exercising their Constitutional right to put on a defense is simply indefensible.  I sincerely hope that the SJA only knew of the no contact order to the accused (which in my opinion is even a step too far) but did not know that the order extended to defense counsel.
     
    The prosecutor advising CID not to ask for exculpatory material is sad but not at all surprising.  The uncovering of exculpatory information pertaining to sexual assault allegations seems to have become the sole responsibility of the defense.  I would not attribute the lack of thorough investigations solely to incompetence.  I think it is an unhealthy combination of incompetence, policy prohibitions on engaging in anything that could be perceived to be “victim blaming”, careerism on the part of the investigative decision-makers, and the view of the investigation as part of an adversarial system rather than a fact-finding exercise

  47. jack says:

    @stewie:  Let us suppose that the thing is what it appears to be, and feel free to put the most charitable spin on it given the evidence we have (i.e., the attachments to the brief).  How does it become anything better than a gigantic screwup?  And why should the legal advisor not be on the hook for a legal screwup of gigantic proportions?  Would you as a commander have full faith in his advice going forward? 
    I’m not suggesting taking the guy’s retirement, but how about not leaving him in a position of authority, if only pour encourager les autres?

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

    COL Agar was much more than just “a nice guy.”  He knew the law, a zealous advocate, and the most caring leader a subordinate could ever ask for.  He was always about doing the right thing, legally, morally, and ethically.  Definitely not a government hack.  Great Plains Region TDS always took CID to task, I believe CID even changed (or tried to change) access to its regulation in response to TDS succeeding in convincing MJs to order CID to produce it in discovery, to conduct testing, etc.  That’s why this is all so shocking.
     
    I prefer to think this was:  (1) a misrepresentation to COL Agar about the scope of the proposed “order;”‘ (2) a misrepresentation to COL Agar about what DCs were doing, which LTC Wells corrected; (3) a rouge Senior Trial Counsel telling the BC to apply the order to DCs behind COL Agar’s back and the BC foolishly following the STC’s advice; or (4) an elaborate plan to undermine and torpedo this case so that it never sees the inside of a courtroom.  Which then means LTC Morse will probably end up with a GOMOR for a sexual assault, and thanks to those little-discussed, hidden provisions in the NDAA, will automatically go into his OMPF.
     
    I know I sound like I’m in denial.  It’s my personal preference to give COL Agar the benefit of all doubt and see how this plays out.  This development is very disheartening to me, because this situation makes a mockery of the integrity of the military justice system, and I honestly can’t believe COL Agar would actively support this.
     
    It also raises additional questions about the role of the SVC–don’t know if the alleged victim has an SVC, but I think these circumstances should trigger a discussion.  Not only does the SVC have a duty to zealously represent the client, I think there is also a duty to protect the integrity of the system.  If that means SVCs have to acknowledge and educate clients to understand that the Constitutional rights of the accused trump the statutory and/or regulatory rights of the alleged victims, then so be it.  The accused has the right to conduct an independent investigation into the allegations against him through counsel.  Client and expectation management are vital to the success of the SVC program.

  49. Lieber says:

    thoughts (in no particular order):
    1. wow.  I’ve always thought that no contact orders often go to far (partially for the reason DCGoneGalt asserts)…but this one takes the cake.
    2.  some of the most interesting discussion to me in the brief was the fact that ultimately the GCMCA for LTC Morse is the same as TDS and ACCA….you want to talk about UCI implications!
    3. I do not know the facts of the case (I was at that conference in 2011 but did not witness anything of note) and so this is speculation (somewhat of the reading between the lines variety)– you may not go anywhere near a 120 in this case without it still being bad for LTC Morse’s career.  If you note the 3 questions asked by the defense in their exculpatory polygraph, they’re all essentially variants on “did you make a pass on her over her objection” to which he answered “no.”  at the time, LTC Morse was the incoming head of TCAP…thus if he did indeed make a pass (unrequited or not), it may not have been appropriate for him to do so.  I’ve also heard two different names for the alleged victim, one of whom was married and one of whom was not….. 
    4.  LTC Wells needs to learn the difference between “discrete” and “discreet”…see his email to COL Agar and page 4 of the brief.

  50. stewie says:

    DC, I disagree that there is anything wrong in giving a no-contact order to the accused/suspected vice the alleged victim.  I think that’s just fine.  Obviously, giving it to the DC is a whole nother kettle of fish.  It is somewhat unusual (and we can debate the right or wrong of this) for a suspect to have assigned DC.  I think given the situation, it makes perfect sense why it was done here, but it’s not the usual situation.  We usually don’t have DC questioning witnesses before the end of the CID investigation.  Again, not saying it’s wrong for DC to do that, just that it’s unusual.
     
    We don’t know, as you admit and Tami states well, what COL Agar was advised on, what advice he gave, in what context, with what intent, and how that intent was, or was not, followed.  There are a TON of players in sexual assault cases.  The SVP, the TC, STC, COJ, SJA, CID, and CDRs.  One of them could have been rogue (or rouge–just teasing your highness).  Or a simple misunderstanding that went too far.
     
    I don’t think that’s denial.  I think that’s fairly logical given the players involved and knowledge of at least one of them.
     
    I concur prosecutors have no business telling CID to not look for exculpatory evidence. I know for a fact COL Agar didn’t teach/tell anyone that one, so the rogue part seems quite possible here.  Or simply, things simply did not happen as originally intended in the worst way possible.  Everyone needs to take a step back IMO.
     
    Jack, yes, I would in fact have full faith in his advice going forward.  He has way too long of a history of professional excellence and ethical conduct.

  51. DCGoneGalt says:

    Stewie:  I know from personal experience that it is not uncommon in other services for defense attorneys, when they are not inundated with docketed Art 120 cases, to speak to witnesses while the investigation is still open because:  1)  the investigation of Art 120 cases takes forever, 2) the investigation does not seek to uncover exculpatory information, and 3) that information seems to have a short half-life.  And I have been told that such questioning is interfering with an investigation and that I should cease doing so, advice that I disregarded and went about my way.  That is why the order in this case is so abhorrent to justice, it places a defense attorney in the position of having to potentially place their client in jeopardy. 
     
    Don’t know anything about the SJA in this case but I simply cannot imagine an SJA signing off on this order unless there was definite proof otherwise. 

  52. Some Army Guy says:

    It is hard to give the government the benefit of the doubt on the no contact order when the order was upheld, obviously with extensive legal advice, after the 138 complaint. 

  53. Phil Cave says:

    To be clear, I don’t have any objection to a MPO for the client.  Although I think it should be extended to ALL fact witnesses.  How many times do we find the fact witnesses (and often the CW) gossiping and discussing the case among themselves.  A fact witness MPO won’t completely stop that, but it ought to have some effect.  If the MPO is really to protect the integrity of the investigation, then there should be no objection to something that seeks to prevent or lessen fact witness collusion.  Or am I wrong about that.
    Any MPO to my client not to go investigating, talking to witnesses, etc., is merely the crust on my own very direct advice to the client.  That’s as it should be.
     
    SAG makes an interesting point.  Apparently lots of legal review here.  I wonder if it included TCAP and DAG?
     
     

  54. stewie says:

    Well, any halfway decent government counsel should be quite ready to tell an alleged victim that he/she is not to talk to any other witnesses too.  Witnesses too.  Investigators and counsel…that’s it.  I’m honestly not sure why we aren’t more forceful about it, because witness talking hurts the government as often as it hurts the defense in my experience.

  55. mycareerislongsinceover says:

    I somehow think that a certain senior civilian at ACCA, who has a deep southern accent, bellowing voice, and can strike the fear of God into people, probably “talked some sense” into the government on this issue and persuaded them that this would created more than a circus than it already has if they did not withdraw the order, post haste. Regardless, everyone should realize that if this could happen to someone as well-regarded and on his way to greatness as LTC Morse—then it can happen to anyone. If LTC Morse survives this ordeal, he can start an “Innocence Project” of sorts.

  56. ArmyDC says:

    This obviously doesn’t look right, but where is the bright line, if any? For example, LTC Biehl’s 14 Apr memorandum cites US v. Hatley, 2011 WL 2782023, where ACCA found no issue with an order to an accused to refrain from contact with other members of the unit under investigation. Is the distinction just that this order applied to the attorneys as well? Is the distinction that Hatley seemed targeted at contact with others under investigation, whereas this order seems targeted at contact with those associated with the accuser? How can the distinction just be the attorneys — after all, an accused has a right to participate personally in his own defense (see e.g. Faretta v. California, 422 U.S. 806). Someone please illuminate me on the line. I really wish CAAF had a chance to weight in.

  57. stewie says:

    I don’t think CAAF would have any issue with a MPO for an accused/suspect, unless that person were formally representing themselves without counsel.  Obviously, the universe of events which CAAF would not have a problem with blocking attorney access to witnesses is really, really small.  Although I can suppose extreme, harassment-type conduct by an attorney could qualify.

  58. Brawndo says:

    “Examples of obstruction of justice include wrongfully influencing, intimidating, impeding, or injuring a witness, a person acting on charges under this chapter, an investigating officer under RCM 406, or a party . . .”  “This offense may be based on conduct that occurred before preferral of charges.” 
    COL Agar – you’re not just out of your depth, you’re out of your mind.  In which state are licensed?  Perhaps you’re ripe for the Selective Early Retirement Board.

  59. DCGoneGalt says:

    Brawndo:  There is nothing in the facts to indicate what COL Agar knew about what was in the order.  And there is certainly nothing to indicate the advice given regarding the order.  Good name, it’s got electrolytes.

  60. k fischer says:

    If these actions are those of a well-respected former Regional Defense Counsel, then can you imagine how those who are not well-respected act?  Just as I was getting on team Stewie and personally conclude that the the vast vast vast vast majority of Judge Advocates are well above board, I get to read the enclosures 2 and 3.  I don’t think there is anything missing, Stewie.  We got a pretty clear picture for Well’s convo with the SJA.  I would imagine that if there was something incorrect, COL Agar would have called him on it.  This is troubling.
     
    Plus, you have TDS counsel completely cooperating with CID and the SJA’s office by providing witness statements, polygraphs, etc. This sounds a little like the Duke Lacrosse case where the defense counsel were providing DA Nifong with as much exculpatory evidence it could prior to indictment in an attempt to prove their client’s innocence.  So, what is the SJA’s response?  An order to stop investigating.  Great!  To quote Lt Cdr Joanne Galloway, that’s confidence inspiring.
     
    Since 2007, I’ve often times wondered if I made the right call by getting out of the JAG Corps with 9 1/2 years between enlisted and officer time.  I would be 3 years away from retirement and a LTC had I stayed in.  Today, I think I can say with confidence that I did make the right call.  This isn’t some SJA at Ft. Rucker, Ft. Polk, or Ft. Huachuca whose cowboying it on a remote Army post with little supervision or visibility.  This is the Military District of Washington where you are surrounded by some very important people, and this case is already in the press.  Think about the PVT Snuffy’s whose cases get short shrift.
     
    And LTC Wells hit the nail on the head when he discussed how CID has approached investigating cases since the political pressure has caused CID over the past few years not to thoroughly substantiate a victim’s claim by looking at her credibility.  So, the RDC has noticed a paradigm shift in the way CID investigates.  I’ve commented on this blog previously about my observations, which are quite similar to LTC Wells’ views.  So, think about those TDS clients who are not high vis or LTC’s.  Think about those rights advisements on 120 offenses who are told to remain silent and to come back when the Command prefers charges.  How many TDS counsel obtain sworn statements for their clients before CID finishes their investigation?  I would venture a guess at 1%?  I shouldn’t complain.  That’s why Servicemembers call civilian defense counsel.  That’s nothing against TDS.  They are quite busy defending bs courts-martial.

  61. Lieber says:

    I don’t have the foggiest clue who wrote that no contact order…but it was clearly written by an attorney.  Just saying…

  62. stewie says:

    I have my own team? And if so, shouldn’t it Team Solo? (I would also accept Team Han).
    I think we are missing information in this case, but I won’t disagree about CID.  CID in all of my time on both sides of the aisle, is absolutely ridiculously bad at doing their job.  I agree they are government focused, but the sad part is, they do such a bad job that they often miss government-friendly evidence, much less exculpatory evidence.  I don’t blame the agents, I blame the entire concept that you can take an E-4 or E-5, train em up for a few months, and turn them into an investigator.
     
    I also agree that it is rare in the Army for TDS to be involved pre-preferral.  TDS does start at a disadvantage.  We could, and IMO should, fix that by creating TDS investigators as part of CID.  Make it a requirement before senior assignment that a CID agent serve 6 months or a year as a TDS investigator.  Give them some balance.  Let them see it from the other side.  That alone IMO would help improve them a lot as investigators both practically and in having true neutrality.

  63. Lieber says:

    What Stewie said re: CID being mostly bad at their job and why.  (I don’t agree on TDS investigators at CID.)
    but taking junior enlisted and giving them tasks (and rote training) that are above their (average) education level is a military wide-problem (and a residue of the past draftee military)…PAO has the same issue, Intel (see the number one question raised by civilians re: PFC Manning, Bradley/Chelsea — how could have a private have access to all that stuff?), etc. etc….(and it’s not necessarily financially sound either…if if it takes 4 20-year olds to accomplish the same task that 1 30-year old with an M.S. could accomplish…we’re not saving the taxpayer any money).  If I had my druthers, all CID agents would be warrant officers (with the exception of the DST…which would be separate).

  64. jack says:

    ^^ what Lieber said.  Which means either the SJA advised the BC on the original order, which is what LTC Wells’s email strongly implies, or he at least OK’d the response to the Article 138 complaint (which, again, was obviously written by an attorney).

  65. Dew_Process says:

    Does anyone remember:
     

    THE PRESUMPTION OF INNOCENCE????
     

    Apparently a lot of folks in the hierarchy of things here, forgot that basic premise – something that has its roots in basic constitutional law [and apparently much of that was forgotten as well, e.g., Due Process, etc.].  Yet the “tail wagging this dog” appears to be that a complainant  can tell no lies. The Constitution’s Drafters obviously had a healthy skepticism about lying complainants, hence the inclusion in the Bill of Rights of such things as the right of confrontation, compulsory process for defense witnesses, and Due Process.
     
    And sometimes, a modicum of legal research may provide surprising relevant answers to thorny legal and ethical questions:
     

    A commander’s interference with access to witnesses by a military accused or his or her defense counsel threatens “the fundamental right to a fair trial and the Sixth Amendment right to compulsory process, and the right to confront and to cross-examine witnesses.” (citation omitted). Such interference also infringes on the right to counsel granted by the Sixth Amendment and by the Uniform Code, for a defense counsel cannot properly render assistance to the client when precluded from interviewing witnesses or obtaining their truthful testimony. Finally, the battalion commander’s conduct clearly transgressed Article 46 of the Uniform Code, 10 USC § 846, which mandates that the “trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence.”
     

    U.S. v. Gleason, 43 M.J. 69, 73 (CAAF 1995) [internal citations and footnote omitted].  What a novel concept . . . .
     
    But, hypothetically, what if LTC Morse had lawyered up with a civilian DC, who upon receiving the BN CO’s “command,” told them all to “pound sand?”  This whole scenario is ethically obnoxious.

  66. Brawndo says:

    DCGoneGalt:  “. . . wrongfully, . . . impeding . . . a party.”  Wronful?  Check.  Impeded?  Check.  A party?  Check. 
    I’m not saying it was COL Agar (or Admiral Akbar).  I’m just saying someone (or multiple people) did it.  COL Agar likely conspired to impede a party.  He’s doing what Congress craves. 

  67. DCGoneGalt says:

    Brawndo:  It certainly appears that way with the Art 138 answer and the email but I maintain that we have nothing as to the advice provided or the knowledge of what was in the order before it was given.  (Although I pity the JAG who drafted that Art 138 answer) 
     
    I suppose without additional facts we are in a “Electrolytes are used to make Brawndo.  They are used to make Brawndo becuase Brawndo has electrolytes.” circular debate from which there is no escape.

  68. jack says:

    @DCGoneGalt:  When you read the email from LTC Wells, it spells out exactly the issues with the order.  COL Agar’s response is: noted.  So either COL Agar advised the BC that it was good to go, or the O-5 BC acted against the advice of his O-6 SJA.  Presumably twice.  And got a TC to help out.  Stretches belief.
    The real question is–now what? 

  69. DCGoneGalt says:

    jack:  I agree the SJA email response does not look good.  But what do you expect him to respond with:  “My commander is going to issue a patently illegal order and I am going to try and tell him not to do it but he will probably do it anyway.”?  As an advisor he simply stated that the defense position was noted.  After that he has a responsibility to advise the commander and, if the commander insists on issuing an unlawful order, raising the issue up the chain.  My point is tha the filings do not show whether the SJA knew the order extended to the defense counsel at the time he responded to the defense email or when it was issued.  And that is the key issue to me.  On the other hand, whoever drafted that Art 138 response, and if they advised accordingly, is a whole different matter.  Regardless of the advice on that one the commander deserves to be sacked over that one and if anyone in JA facilitated it they should get the same.

  70. Paladin says:

    Hmm.  Some interesting thoughts.  I dislike jumping to conclusions but there are some troubling things here.  In all my time in uniform, I’ve never once seen a commander of any rank write anything, let alone an order, quoting case law (excluding the commanders within the JAGC).  The prose and citations would, in my opinion, indicate that the order was written by an attorney.  While not a foregone conclusion, wouldn’t that mean that someone in the OSJA wrote it?  If that is the case, who would be drafting letters like that without the SJA’s knowledge?  If that is going out and the SJA does not know of it, that is a very unflattering light upon that SJA and his office.  The more likely story,(although not a given) is that the SJA knew of and probably condoned the letter as drafted by the Chief of Justice or the DSJA.  Given the SJA’s history and reputation, one wonders how insane the pressure actually is from DC that produced such an out of character result.  The defense counsel probably reads this and in light of Sinclair, there will probably be a FOIA request for those communications from higher that directed the rescinding of the order.  Should be fun getting statements from them and why did that occur.  Also, if victims get counsel the second they make an allegation, then shouldn’t the accused get detailed counsel the second they are named in an allegation?  This has some great sound bites for legislators.  The voicing of commonly-held (but privately discussed) opinions regarding CID competence from very senior and highly experienced attorneys is interesting.  Trying to get CID to do a complete investigation that would not fall apart because they only got half the story was immensely frustrating.  I know that the discussion about turning everything to DoJ exists but is absurd when AUSAs rarely take anything that isn’t a slam dunk.  Given the plethora of problematic pinatas that are sex cases, can anyone intelligently argue that sex case prosecutions would not plummet?  Is using COL Agar’s reputation to disregard his involvement in this any different than using LTC Morse’s reputation to disregard allegations against him?  Or do their reputations have something to do with a good investigator looking more deeply to determine if there is something more?  Is anyone concerned that UCI, the “mortal enemy of military justice”, is occurring because Congress is subtly and not so subtly threatening senior leaders with their careers unless they go along with legislative pressure?  While I appreciate congressional oversight like I appreciate the 15 stabs for small pox (required but annoying and painful), I would appreciate timely and adequate appropriations much more.  What will the remedy be if this turns out to be a false accusation?  Hard to imagine senate approval of an O6 board that has LTC Morse’s name on it regardless of how this turns out.  Would a 1983 action for violating constitutional rights or a new and more effective claim that Feres should have more exceptions arise out of this?  Lots to consider but I’m deeply disturbed by the trend that seems to make an accused guilty until proven innocent.  I love going after bad guys but this is ridiculous.  If this trend continues, at what point does this nonsense create domestic enemies of the Constitution who are merely using the veil of authority and/or the tyranny of the majority to trample on rights? 

  71. RKincaid3 says:

    Regarding the ethics of this matter–here are my thoughts–When a client makes a serious mistake and wishes to continue to break the law, against advice, a lawyer does not continue to assist that client–if he can’t contradict the client publically, and he can’t assist the client with the illegality–he advises opposing counsel and his bosses that he is off the case and the wayword client is on his own. And if that principled and ethical act means discipline–so be it. Service before self–and the law–require it.  Just my opinion.

  72. stewie says:

    Brawndo is what plants crave.  I mean, I don’t know how you get past that.
     
    Anyways, there’s another bit to this here.  We’ve given so much power to the alleged victim, that a complaint from the AV motivates a whole lot of things to happen.  In fact, as may be the case here, things that actually end up hurting the case against the accused (and one would assume the interests of the AV).  By complaining, and having that complaint responded to so thoroughly and quickly, the AV has actually, IMO, almost guaranteed the ultimate result won’t be a conviction for any kind of sexual assault.  SVCs should start thinking about these things instead of just blindly advocating for whatever their client wants.  They have to advise their clients that sometimes, what they want ain’t good for them.

  73. afsvc says:

    @stewie, et al –
    I’ve never complained about defense investigative tactics (other than those occurring in my presence with my client); I have though complained about MCIO tactics when the feel the need to ask every person my client has ever met if/what she told them about the incident and thus tip off a bunch of previously uninformed folks about the (alleged) assault. While I would wait to hear what DC actually did before making final judgement, short of out right threats or bribery, I can’t conceive how this COA by the Gov’t would be defensible and thus it’s not ever something I’d request. I can imagine an SJA/TC asking an SVC how their client was doing and can imagine said SVC replying that the client was upset because DC had called her ex – bf and (fill in the blank); passing that kind of feedback along is a far cry from a direct request by the SVC for the Gov’t to engage in something like what appears to have transpired here.

  74. mycareerislongsinceover says:

    There are a lot of great comments here. K fischer’s in particular. If these kind of shennanigans are happening in a high profile case like this, then imagine how many Private Snuffies are getting crushed out there. I for one think that it’s time to make TDS and the other service’s defense organization into a separate service, like the Public Health Service.  I mean, seriously, are Warren Wells and Jim Agar going to be able to work together or for one another after all this is over? It’s great that we go back and forth and get well-rounded, but at what cost? We need an organization that is truly independent. Can you imagine if an AUSA gave some kind of order like this to a Federal Public Defender? It could/would never happen.  Yet, we’re putting the fox in charge of the hen house with how we do things. In terms of letting the civilians prosecute them, yes, that’s exactly what we should do. Let the alleged victim in this case make a complaint to the Arlington County VA DA’s office that she was groped in a hotel room three years ago and didn’t report it until now because……. If the civilians don’t want to take the cases, then that’s that. If they happen on post, then let the U.S. Attorney’s office decide whether they want them. If you can get a federal grand jury to indict a service-member and a unanimous jury to convict on he/said she said drunk sex cases, then more power to you.  In the meantime, the military may be one place where abstinenance only is actually the smart policy.

  75. Brian Bouffard says:

    Paladin said: “Also, if victims get counsel the second they make an allegation, then shouldn’t the accused get detailed counsel the second they are named in an allegation?”
    This.  Exactly this.

  76. Dew_Process says:

    MEMO TO ARMY TJAG:     You may recall that some years ago, your counterpart, the Navy TJAG, found himself in the proverbial “hot water” over an order he gavei to the Chief Judge of the N-M CMR.  That didn’t turn out too well, especially when CAAF weighed in on things.  Its opinion in U.S. Navy-Marine Corps. Court of Military Review v. Carlucci, 26 M.J. 328 (CMA 1988), is worth the read.
     
    Now, this is just a friendly lawyer-to-lawyer thing, but the need for immediate “damage control” is quite obvious from the majority of posts above.  A “special master” could sort things out and make “Findings and Recommendations” and get your Corps back on track, because as a line from a famous Simon & Garfunkel song of Carlucci’s era goes, “Silence like a cancer grows.”
     
    May I be presumptuous and suggest the appointment of Lt Gen Dennis McCarthy, USMC (ret). He is a lawyer of exceptional ability – I went to law school with him – and he got re-called to active duty during Gulf War I. He retired as the Commander of the Marine Corps Reserve. Later, he served as an Assistant Secretary of Defense for Reserve Affairs.  Most recently, he was tapped to help out the Air Force (my branch) as the Chair of the National Commission on the Structure of the Air Force.  So he’s got some credibility and before being recalled to active duty, was one heck of a trial lawyer!
     
    If my memory serves me correctly Ma’am, you’ve spent some time in the TDS trenches yourself and thus, can understand why this mess needs to be contained ASAP.  Just a thought from someone still in the trenches.

  77. stewie says:

    I think that’s a bit hyperbolic with all due respect DP.  The order was rescinded, and goodness knows COL Agar is getting plenty of condemnation and heat.  So what’s the immediate need for damage control?

  78. Dew_Process says:

    @ Stewie – because I’ve got an officer client overseas and I wanted the TDS folks to interview 4 witnesses and they’re claiming that they can’t even talk to my client, much less the witnesses.  So, it’s not over.

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

    Having been able to take some time to collect my thoughts, I offer the following comments/observations:
     
    1.  Thank you Stewie for catching my “rouge” v. “rogue” gaffe.  Kind of like “discreet” v. “discrete,” but not as bad as “asses” v. “assess,”  as I’ve seen happen a couple of times long ago, in a galaxy far, far away.  :)
     
    2.  LTC Biehl’s memo does appear to be written by a JAG, but not by COL Agar.  The case law cited smacks of rookie legal research.  SJAs do not advise BCs–that is left to TCs, and sometimes COJs.  Senior legal officers with significant litigation experience do not rely on unpublished service court opinions unless there is absolutely no other option, nor do they ignore the wealth of case law in PUBLISHED opinions that are contrary to their arguments.  For example, U.S. v. Jeffers, 57 M.J. 13 (CAAF 2002) (lawfulness of order upheld because it was limited to “no social contact” with the Soldier he was having an affair with, and order did not interfere with ability to prepare and present a defense) (disclosure, I was the author of the Government’s appellate brief, though I’m no longer known by that last name); U.S. v. Aycock, 35 C.M.R. 130 (CMA 1964) (order prohibiting contact with CWs unlawful because it interfered with ability to prepare and present defense, even though order didn’t apply to the defense attorneys and even though CWs alleged intimidation); U.S. v. Wysong, 26 C.M.R. 29 (CMA 1958) (order to not talk to anyone in the company was unlawful).  The rookie legal research leads me to believe it was the STC who wrote that memo–the same STC who thinks it’s OK for CID to ignore evidence of the alleged victim’s character for untruthfulness.
     
    3.  LTC Biehl would have been better off relying on U.S. v. Nieves, 44 M.J. 96 (CAAF 1996) (order not to talk to specified witnesses about ADMINISTRATIVE investigation during investigation was lawful, as it didn’t impede ability to prepare and present defense in criminal case, commander would have allowed contact if coordinated through him, and there was concern Nieves was influencing witnesses not to talk about incident).  Though still not directly on point, way better than Hatley.  Even then, Hatley’s order didn’t apply to his defense attorneys.
     
    4.  I love these quotes to state case law in Aycock:
     
    a.  Pennsylvania:  “It is vain to give the accused a day in court, with no opportunity to prepare for it.”
     
    b.  Delaware:   “Of what avail is the defendant’s right to use compulsory process for the attendance of a witness if the defendant may not discuss with a witness in advance, the facts within the witness’ knowledge? We think defendant’s counsel had this right.”
     
    c.  Rhode Island:   “It would be a most unfortunate condition of affairs if a party to a suit, civil or criminal, should be permitted to monopolize the sources of evidence applicable to the case to use or not as might be deemed most advantageous. Such a proceeding in a criminal case would violate the provisions of the Constitution of this state.  “The defendant has the constitutional right to have compulsory process for obtaining witnesses to testify in his behalf. He has also the right, either personally or by attorney, to ascertain what their testimony will be.”
     
    d.  TEXAS: “If an accused is to be denied all opportunity to talk to a witness, then the compulsory process clause of the Constitution becomes in most part an empty and high-sounding phrase. If the state can prevent any chance of interview and opportunity to know in advance what such a one’s testimony will be, it is in effect a nullification of the salutary provisions of the Constitution. Such opportunity of interview would seem to be a necessary implication arising from the compulsory process clause. The right of reputable counsel to interview a witness has apparently been so rarely denied in American jurisprudence that we find very few cases on the subject.”

  80. SFC V says:

    This whole situation seems like someone stood up and said “I have a really bad idea” and someone else in the room stood up and said “let me tell you how to make it worse.”  Usually the commander doesn’t need any help from the OSJA in coming up with “good ideas.”  But in this case it seems apparent that the commander needed help and boy did he get it.
     
    At no time could this have seemed like an ok thing to do.

  81. RKincaid3 says:

    Nope. Far for over. SYSTEMIC PROBLEMS REQUIRE SYSTEMIC REFORMS. But that is not what we are getting from Congress. We get more piecemeal patchwork without any regard for the systemic consequences. 
     
    Apparently McCaskill was at FLW last week. She apparently met with the SVCs and SVPs and the MP School senior staff.  I understand that she admitted that Congress keeps messing things up.  But she (and Congress) are not trying very hard to fix it.  How can they fix it?   Not by only or just talking to the SVCs and the SVPs and the LEOs.  
     
    Until they start meeting with and speaking to TDS and the Military Judges (yes, I am tracking the potentil problems with those discussions) ALONG WITH the above, so that Congress gets the full story about how jacked up Art. 120 and the SVC and the SVP programs are, they will continue to only get part of the story and nothing will change since that part of the story is just fine and dandy.  
     
    Congress can’t fix what it doesn’t know is broken–especially since it is apparently only being told what it wants to hear–how wonderful the new programs are in practice when in reality they aren’t fixing anything and in fact are complicating an already difficult process. And I suspect that the results will further alienate congress, not appease it. 
     
    So, Congress needs better informed and a wider, more diverse field of advisors who are not politicians and who know what the hell they are doing. No more sycophants.  We apparently have plenty already. 

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

    Is it unusual for TDS to conduct an investigation during CID’s investigation?  Yes.  Is it illegal?  No.  Sometimes the best defense is a good offense.
     
    For what it’s worth, I share LTC Wells’ observation about CID conducting biased investigations, getting “tunnel vision,” ignoring exculpatory, mitigating, extenuating evidence, and doing the bare minimum to get to “probable cause.”  I know of only a handful of agents in all of CID who would actually include evidence favorable to an accused in an investigation (or would affirmatively point it out to TDS).  Let’s just say some not-so-good things happened when the end result was acquittal.  We will never get “defense investigators” because there will be no career progression for those who would serve in that capacity.

  83. charlie gittins says:

    Someone needs to put a stop to this.  Who on active duty has the stones to make a SOCO complaint to get this some visibility?  Who on active duty with a god in the fight has the stones to make a bar complaint to this SJA’s state Bar?   This is beyond the pale. ?   How about a bar complaint to CAAF.  This is not some really difficult issue of law.  It was a patently illegal order and an SJA gave advice to support it.  That he is practicing law is an anthema.  I don’t care how “good a guy” he was; he decided to compromisr his ethics for his career.  Now he should forfeit his career.  Sorry, but I have represented a brace of guys who had great records but made a mistake that cost them their career,  Because this dude is a lawyer should not make a difference — actually, it should be held against him since he is supposed to know the law and act accordingly. The Army has consistently made me question the ethics of military lawyers.  This is an exclamation point since this clown was assigned to a high profile SJA job.
     

  84. mycareerislongsinceover says:

    Charlie Gittins: you want to know who has the stones to do what you’re saying? Answer—no one probably. While we don’t have all the facts, LTC Wells’ emails are pretty damning. It’s understandable everyone here who wants to give COL Agar the benefit of the doubt. I just wonder what POSSIBLE innocuous other side to the story that might be though. Also, was this coming from COL Agar—or from someone higher than him? If it’s the latter, that’s particularly scary. How embarassing. And these are the “trained military prosecutors” that Congress wants to turn this mess over to.  I can just see how well that’s going to work out . . .

  85. mycareerislongsinceover says:

    RKincaid3 – why would Sen. Macaskill or any other members Congress want to meet with TDS or military judges?  They might interject something that challenges the narrative that Congress has perpetuated (with no help from the armed services I might add) that the military is just rampant with sexual assault. If these people had cared about the truth to begin with, they would have conducted a calm and deliberate analysis of the problem before creating new laws and pulling threads out of the tapestry of the military justice system with no regard for the second and third order effects that such changes would bring about.  You want to know when they’re going to want to talk to TDS?  I’ll tell you when. When one of their sons gets charged with a 120 offense for a night of drunken he said/she said sex with someone he had multiple sexual encounters with beforehand, but claims this instance was an assault (which occured the night before her new boyfriend was returning from deployment, etc.). Then Congress is going to be all the sudden shocked to learn that it only takes 2/3 of a hand-picked panel to convict, etc. etc. etc. . . . .

  86. DCGoneGalt says:

    I concur with “mycareerislongsinceover”.  There is no reason to meet with defense or judges since this is not an issue driven by the truth or facts.  It has always been a political wedge issue. that is driven by a false narrative.  Most involved, TC/DC/SVC/MJ/SJA/Investigators, do their jobs as they were intended to do in a manner that is designed to enforce justice but at higher levels of leadership in those organizations and in Congress it has always been and always will be a purely political issue.  Many who go along with the politics of the issue do not believe it is right (they have said so) but they want to “survive and advance” more than they want to preserve their integrity.

  87. RKincaid3 says:

    So what do we do? Ring our hands futilely and bemoan on this website life as it is?  Or do we individually (hopefully collectively) make suggestions–offer ideas–with an eye towards fixing the system?  It is NOT kay to give up, throw our hands in the air and just say “woe is us” the system is broken and with it we must live and bitch, moan and complain. 
     
    It is time to dig in, come up with ideas and suggestions for the the know-nothing politicians in military leadership positions and in Congress can maybe learn something and actually attempt a real improvement.
     
    Even if any changes only result from the public shaming on this website of those who are quite simply incompetent and/or have forsaken their oaths of office and forgotten the principle of justice and of duty before self, then we will have performed a valuable service by leading from the bottom. And those above us who are managers vice leaders will find themselves led by those who they previously disregarded as lacking political savvy simply because they served higher principles. 
     
    So let’s quit passing the buck whining.  This is our problem.  Let’s fix it–even if it means throwing out the bums every November. Make suggestions and come up with ideas send them in to the people who are supposed to be leaders.  And it they fail us–then there is a November every year. 

  88. k fischer says:

    RK3PO, 
     
    I really think using JAG’s as a voting block to throw the bums out of office is an exercise in futility.
     
    Here is a proposal, and one that I would offer support in doing.  But first, a Sunday School lesson:  In the book of Acts, we are introduced to a man named Saul who was from Tarsis.  Saul was an evil man who persecuted early Christians, for example, he authorized the stoning of Stephen.  However, on the road to Damascus, he was met by Jesus who by blinding him, opened his eyes to all of the evil he was committing against Christians, and he became “Paul,” the most devout evangelical Christian, and is credited with the spread of Christianity throughout the world.
     
    So, Charlie Gittens, Tami Leia, Me, DCCG, Dew Process, and all the other Defense hacks who comment on this blog who are borderline cray cray with conspiracy theories and regale you all with stories from dirty Government actors could, in fact, be correct regarding how pervasive the referring of unfounded cases that should never see the light of day in any courtroom are being referred to courts-martial left and right.  When the SJA for the Military District of Washington DC allows a Battalion Commander to order an Accused who is an attorney to cease and desist any investigation directly or through his counsel, and that any violation of this order is at the Accused’s “peril,” then the practice of law involving sexual assault prosecution in the Army has clearly jumped the shark.
     
    So, back to the Sunday School lesson, I think how this gets fixed is that Saul, or TCAP LTC Morse, needs to have some self reflection and realize that through the power of his office, wrongfully Accused Servicemembers have been persecuted in the Army, and he needs to convert to Paul, aka DCAP LTC Morse. Think of all the gray area ethical issues for which he is aware with counsel.   I am not impugning his integrity because I don’t know what he knows.  But, I would imagine that he is aware of which SVP’s would be an ally in uncovering the dirty underbelly of what happens in sexual assault prosecutions or SVP training that kind of went overboard, perhaps.  And, he can spend the rest of his career in what I refer to as doing the Lord’s work in training defense counsel.  Or, perhaps he could sit down with members of Congress and let them know what’s really going on.  Or maybe he collects all this information, e-mails it to me, and I call Reuters for an interview.

  89. stewie says:

    I’m not sure just because someone was or is on the government side, such as LTC Morse, even if that’s all he’s done, is required to do penance by forever going to the other side.  I’ve been on both sides.  You can do good work on the government side too, both for justice and for safeguarding the rights of the accused.  Wrongfully accused people are going to be tried or “persecuted” regardless of the power of the office of the Chief of TCAP.  The problem lies not within ourselves, but the stars (Congress).  It’s still a command-driven system, and the SVP is not the final buzz in the ear of the CA, the SJA is, but really, Congress is.
     

  90. RKincaid3 says:

    K Fischer:
     
     
     
     
    RK3PO????? I am not sure what that means. I am hopeful that it is not an insult…although I a comparison to an annoying walking, talking computerized droid in a galaxy far, far away somes to mind. And that might be an insult–given how annoyingly whiney C3PO is.
     
     
     
     
    As to your suggestion…not sure how to make that one happen. Yes, it is “pie in the sky” hopeful on my part that anyone in Congress would actually respond to the suggestions of those who know the system as we comment/suggest on this website. And voting them out obviously hasn’t worked recently. But, nevertheless, it seems to me that educating the powers that be is the only answer. So we should do more than just bitch, whine, moan and complain.
     
     
     
     
    Here are some additional thoughts about all the criticizing we do here: On this issue specifically.No, I have not met COL Agar and have heard wonderful things about him. But this doesn’t look good. And the fact that he is and has been targeted herein reflects simply that the system is broken, and Congress is the primary problem–the writ application paints a terrible portrait of him that doesn’t comport with his reputation. But the writ was a proffer to the court and without more, we must presume that the portrait is accurate–just as a court would. That being said, the feedback (from me included) has tended toward sophomorish insults and castigation.
     
     
     
     
    I recently received some constructive feedback about my comments from a person whose judgment I trust. They noted how hyperbolic my comments have become. A specific comment regarding this particular issue was specifically referenced. I stated that Military Justice–rough or otherwise–was unjust under these circumstances.My intent with that comment was to address how far some have gone, and how far others are still willing to go–to ensure certain outcomes–even to the point of limiting defense activity. It was not meant as a disparagement of the majority of the individuals who struggle everyday to do the right thing within the limiting rules governing the system–but that is the problem–the rules governing the system are ever changing so that justice is a particular result, not a process.
     
     
     
     
    So, my apologies to those operating within the system that I might have offended. We must all recognize that it is hard to criticize a system without the individual practitioners therein being lumped in with the criticism.While criticizing individuals generally is not my intent, it is sadly unavoidable since individuals comprise the very system being criticized. The fact that good people everyday are doing the best they can in a system that is facing its most monumental challenge since the 1950s doesn’t mean that the system’s problems shouldn’t be addressed for fear of offending those within the system–but our comments about the system’s problems should certainly be more academic, more neutral and less passionately caustic. These are, after all, fellow professionals who as humans–can and will make mistakes.

  91. mycareerislongsinceover says:

    I am sure that LTC Morse has has a Road to Damascus experience. I don’t think he was a government hack beforehand though. The problem is whether anyone is going to care what he has to say once this is all over. If he gets found guilty in any forum, his words will probably not be taken seriously. If he is completely vindicated, then anything he has to say may get attacked by the usual suspects as “perpetuating the rape culture, etc.”  While we’re on the subject, one of the stupidest things that I’ve heard over the years and that I continue to hear from the SVP Kool Aid types is how we don’t question victims of robberies, larcenies, etc. and challenge them and accuse them of lying, being mistaken, etc. and that just as you are not going to hand over your ATM card to someone you just met, or that we shouldn’t blame the victim for walking in a dark alley and say they deserved to get robbed, we should not do the same to sexual assault victims. Of course, that’s total nonsense. Human beings from time immemorial have had sex with strangers that they’ve just met in bars and elsewhere, including conferences apparently. It’s not human nature to give away money to people you just met, but it is to have sex with them. We have an animal nature, regardless how much religious guilt, societal guilt, or Powerpoint presentations we have to sit through. I bring this up, because this is a zero sum game. If LTC Morse is vindicated, then that means either: 1) nothing happened in that hotel room at all and the alleged vicitm made it up from whole cloth; or 2) whatever happened in there was consensual; or perhaps 3) LTC Morse thought it was consensual; or 4) the truth is somewhere in the middle.  Unfortunately, Members of Congress do not want to hear about any of these four options, because they do not comport with their narrative, which is that women are getting sexually assaulted indiscriminately, that the military has done nothing about it, and that all of these cases are black and white.

  92. LT Caffey says:

    AFSVC,
     
    You state that you have “complained about MCIO tactics when they feel the need to ask every person my client has ever met if/what she told them about the incident and thus tip off a bunch of previously uninformed folks about the (alleged) assault.”  My question is if you were an AF ADC representing an Airman accused of sexual assault, how many friends of the complaining witness would you interview before you called it good enough?  All…some…none?  Assuming you said something other than “none” why should an MCIO be held to a different standard.  Should we just wait and hope that friends that have been provided conflicting-perhaps even exculpatory-statements come forward?
      
     If two people at a party get into a fist-fight, isn’t every attendee a potential witness?  Is a party where a sexual assault takes place categorically different?  If the goal now is that every unrestricted report of sexual assault see a courtroom, it’s a foregone conclusion that “a bunch of previously uninformed folks” are going to become aware of the allegation at some point.  Granted, MCIOs often lack finesse in their approach, but then the solution should be the manner of the investigation, not the scope.

  93. stewie says:

    Good on ya RK3 for those comments. Takes a rare person to do that (apologize/admit wrong).  Even rarer for an attorney to do it. (Zing! I’ll be here all week)  I’m still working on figuring out my first mistake…(in the last half-hour). Seriously, I concur the name-calling is way out-of-hand.  It’s fair to think what happened was very wrong (I do too).  Another to say some of the nastiness that’s gone on in this thread about someone who’s done a lot of good things.
     
    I’m also pretty sure RK3PO was a term of endearment by kf.  He put it in all-caps so it must be.

  94. RKincaid3 says:

    Hooah, Stewie.  Thanks.  And, I am sure that KF was just being funny with the RK3PO comment.  I wasn’t insulted since at least he didn’t compare me to Jar Jar Binks–the only SW character more annoying than C3PO!

  95. af_dc says:

    LT Caffey, spot on. The bottom line is that sexual assault usually occurs between two people, alone, and often there is no physical evidence (particularly in the butt grabbing cases we now see often). So the credibility of the two parties is paramount. That means talking to the CW’s friends, exes, fellow LARPers, whatever, and possibility tipping them off to the fact of the assault. Does that suck for the CW? Yes it does. But if the alternative — hobbling the defense’s ability to do the most basic investigating — is unthinkable. I’m sorry that SA victims feel “victimized twice” by the process. I am. But I care less about their feelings than I do about making sure that people accused of SA can put on a comprehensive defense.

  96. RKincaid3 says:

    @LT Caffey/af_dc:  Yes, you are cboth orrect.  Another way to say it is as follows: 
     
    As a simple matter of law and logic, the accused cannot be presumed innocent under law (which he is) while at the same time the CW is to be presumed to be truthful (which legally she is not)–no matter how much the politicians and pop culture wish that could be the case.  In a case where factually equality exists and it is a true “he-said-she-said” (yes, I know that some Army Sex Assault instructors teache that “he-said-she-said” situations don’t really exist–but that training is just plain legally wrong) situation, then the accused’s legal presumption tilts the scales of justice in his favor–not hers.  And in our system–in that situation–the accused is and should be acquited–every time.  And that simple lesson from both legal and American history is not “rape culture.”  It is “justice” in the Anglo-American tradition.
     
    What the system can do to the worst among us, the system can do to anyone of us as soon as we fall outside the mainstream and are considered among society’s worst.  So we must object to any system which distorts or abuses or denies justice as applied to Satan himself if only to protect ourselves–and what it means to be an American.

  97. af_dc says:

    RKincaid3: Nicely said. Appropriating  for my next UCI motion. Your second paragraph, by the way, is exactly the same explanation I give to people who think that the Gitmo defendants don’t deserve lawyers or trials.

  98. k fischer says:

    RK3PO, 
     
    You were MIA on the day we chose characters from Star Wars.  Apparently, Tami is Leia, AF JAG is Vader, Zach is Obi-Wan, Stewie is Han Solo (I won’t comment on the masturbatory innuendo of that name, however, if I were a single male in the Army, I would probably be “Han Solo” too), and I chose the Jawa who tased R2D2.  Your name is a combo between R2D2 and C3PO.  Its actually quite the compliment because you have the knowledge of C3PO and the spunkiness of R2.  If you would like to switch to jawa who tased R2D2, then you can switch with me, but KF3PO doesn’t have the same ring as RK3PO.
     
    Stewie, we are missing the high five.  I am not saying that Morse needs to do his time in purgatory treading water at DCAP for his pennance.  What I am saying, and remember saying a while back, is that in order for someone in Congress to remember and turn the focus back onto the constitutional rights of the accused, then it is going to take some SVP to flip and expose all of the nefarious bs that goes into trying a bs sex assault case.  Morse could probably do that without flipping to DCAP if he shared with someone the most horrendous stories of sexual assault prosecutions in the military.  Morse could do that with this case and use his brief to ACCA and the enclosures attached as Exhibit A as to what an accused in a sexual assault court-martial is facing.  
     
    I agree with MCILSO that he will get castigated as a “victim blamer,” but that mindset is what is part of the problem.  But, nobody will listen to a criminal defense attorney.  And, any attorney that takes on McCaskill will have his or her promotion held up.  Since Morse will not see O6, then why not work for The Dark Side.
     
    And, perhaps there is nothing nefarious going on that Morse can blow the whistle on.  Perhaps at a recent court martial at Ft. Hood, the alleged victim who made a complaint of rape after a co-worker noticed a mark on her neck from the DOG COLLAR SHE WORE, really did get raped by the guy who had intercourse with her while SHE WORE THE DOG COLLAR.  Perhaps the poor sap who chose to engage in booty calls with this woman who liked ruff sex and previously made a false rape allegation was wrongfully acquitted of the charges, and the trial counsel trying the case really believed that he was a rapist and were doing their dog-gonest to keep evidence, which happened to be exculpatory, out of the panel deliberations because they really believed that it was inadmissible.  
     
    So what happens?  The complaining witness in that case files a SOCO complaint against the defense attorney because apparently the military judge slept through that trial and wasn’t catching all the ethics breaches the dirty TDS lawyer was committing.  And when that attorney is cleared, then who do you think the CW will point her paw……I mean, finger at next?  Probably the prosecutor.  I bet she says he or she took a dive, and that the TC was just doing a dog and pony show, which in her case it was…….literally……..pun intended………

  99. af_dc says:

    k fischer: You win the internet for the day with “ruff sex”.

  100. DCGoneGalt says:

    I just wanted to be the 100th comment.

  101. Dew_Process says:

    Thought for the day:
     
    http://sd.keepcalm-o-matic.co.uk/i/keep-calm-and-jolly-roger.png
     
    In all seriousness however, the debate on this thread overall has been constructive and enlightening – and hopefully the General Officers who watch CAAFlog (personally or vicariously) “get the drift.”  And, like most debates, there are the obvious ebbs and flows and the occasional meanderings off-topic on a tangent or two.  The collective experiences here of a group of professionals who generally agree that there is a bona fide problem, should bring a moment of pause or two to the micro-managers long-since out of the trenches (if they ever were to begin with).
     
    Like a long-dormant volcano suddenly erupting, this issue has more-or-less exploded in our collective faces via the persona of LTC Morse – who I do not know and to my knowledge, haven’t had any professional dealings with.  “We” can’t afford to ignore the problem and its inevitable progeny, but the question imho becomes, is there a way that we can effectuate or influence positive change?  As lawyers and litigators, we’re used to planning and taking control of our cases in the courtroom – regardless of which side of the aisle one is on – but here it’s beginning to look like we’re mere pawns in the political stew that Congress seems to be stirring.
     
    Some of you may have been around as JAGs when shortly after 9/11, the so-called “Torture Memo’s” were floated around the DoJ and DoD.  At that point, the collective group of TJAGs privately let it be known to the DoJ and certain Congressional subcommittees, that they uniformly opposed torture because it violated the laws of war.  They were politely heard out, shown out and forgotten in the politics of that day.  Perhaps a “unified” front of the TJAGs might get some attention on a serious issue that is being mismanaged by people that have no experience (and sometimes less knowledge) with “military justice.”
     
    Just my rant for the day and likewise, I apologize if I offended anyone in my previous posts — it’s just that when you officially become an Old Fart, you sometimes get crotchety.  And speaking of that, Admiral of the Fleet Sir Cloudesley Shovell, chime in here!

  102. RKincaid3 says:

    KF:  well…I have missed much due to my schedule lately, but I did notice that many of you had new appellations.  So, while RK3PO is not my first choice, a nickname is earned–not chosen.  So, I gratefully and humbly accept being christened as RK3PO!!!  I will deal with that however I must–recognizing that it maybe be at once both an insult and compliment!!!  Heck it is better than my last two nicknames–“Shreck” from 2010 to 2013 and “Fester” from 2006-2008.  Those were–well….
     
    As for the dog collar case—sheesh.  Don’t know what else to say about that!  Remind me of the time I drafted a response to a congressional regarding an alleged SA that the military filed to properly investigate, letting the perp get away scot-free.  Well, I quoted the “consitutent” CW’s own statement about being on top during the assault, among other things, which pretty much resolved the consent issue.  Well, sure enough, the congress-critter’s office manager called and complained stating “I can’t send this letter to the constituent–you pretty much say she wasn’t assaulted.”  My thoughts at hearing that?  Yep–her words, not mine.  Her sworn statement doesn’t support a conclusion that an assault happened.  So, surprise–your constituent was lying to you. 
     
    What did I actually tell the complaining congressional staffer??   Well–I was deferential and sypmathetically sensitive, but I told her that her constituent’s “statement speaks for itself and you should answer the congressional simply by telling the constituent that her statement is enclosed and you trust that it will answer all her concerns.  That has the benefit of letting her draw her own conclusions so you don’t have to draw them for her.”   I wanted to add (but didn’t) that by responding that way, teh congress-critter could avoid looking like she didn’t do anything and the constituent will still think she cared.
     
    Never heard anything back so I have no idea what ultimately happened with that congress-critter and her constituent, although after I PCSed, drafting responses to Congressionals for that organization was reserved for 0-5s and above–so I am left to presume that 0-4s weren’t sensitive or political enough. 

  103. k fischer says:

    RK3, 
     
    You’ve got thick skin and a good sense of humor.  If you PCS to Benning on your next assignment,  call me.  I’ll take you turkey hunting.  
     
    Just like puking is the litmus test for proving a person was too drunk to consent, I think the “victim” being on top is a litmus test for proving a person was consenting.  Speaking of being on top and cases that are antithetical to the word “justice,” has anyone heard when the AF court martial of US v. Brandon Wright will begin?  

  104. RKincaid3 says:

    @AF_DC:  Thanks much!  It escapes me how many people try to justify doing stuff to others that they would never justify if done to them.  For a shining example of “comparitive suffering” being used to defend the indefensible and, by the way, define consitutionality, look at http://www.huffingtonpost.com/2014/05/01/jim-inhofe-death-penalty_n_5246158.html
    @ Dew_Process:  I remember those days way back when…ad dthat whole thing with the torture memo earned the TJAGs their 3rd Star–so that they could stand toe-to-toe with the politically appointed civilians who let politics interfere with the law and their judgment.  No more would the TJAGs be thanked and shuffled out the door.  They now had a seat at the table.  Unfortunately, Congress also rewarded one of the author’s of the torture memo–where the definition of torture was tortured beyond recognition–with a federal judgeship.  Probably for political reasons–principle be damned.   The other author is still practicing law and worse–teaching law.  God help us if his students learn to practice law they way he did–oh, wait, that will be okay since their cases can wind up front of the federal judge who helped draft the torture memo and he will ratify the torturing of whatever statute is at issue.  See http://harpers.org/blog/2008/02/jim-hayness-long-twilight-struggle/
    The torture memos and the TJAGs third star was where Congress was able to actually fix something instead of jack it up.  Sadly, though, it was fixed for political reasons–not necessarily for legal reasons or principle.  That same politics is infecting the current revisions of the UCMJ–without regard to law, logic, justice or principle.  So, somethings haven’t changed–just the cause celebre at the moment. 
     
    @ DCGG:  Congrats on your centennial achievement!!

  105. RKincaid3 says:

    @KF:  Ummm…TURKEY!  Yummy!  Will let you know if I am ever down that way!

  106. mycareerislongsinceover says:

    Here’s an idea: how about we get an amateur movie maker to do an independent film, a la The Invisible War, that profiles case after case of servicemembers that got wrongfully accused of sexual assault. To make it easy, we can stick to full acquittals. There will be plenty. To make it even easier, we can stick to cases where the 32 IO recommended not going forward, but the government went forward anyway. There are plenty of those cases. We can even find cases where an SJA with some guts recommended to the CA not to refer, but the case got referred any way. Then we can have some dramatic music in it. We can interview the girlfriends, wives, and children of these people now. They can talk about how the system put them through the ringer.  We can then form a special interest group Survivors of False Allegations of Rape and Sexual Assault (SoFARSA) and create a website, T-Shirts, and get them to testify in front of Congress. We can have a Reponse Systems Panel appointed to visit installations and meet with defense counsel. Who’s in????

  107. anon says:

    As to the merits of the writ, I can’t think of a case where a CCA found jurisdiction pre-referral . . . I suspect the answer would  be in the negative. 
    My issue lies in the early public release to the press of LTC Morse’s removal and pending investigation.  Not sure who released this information, but let the initial investigation run its course before making it public.  Frankly, this would have alleviated some of the harm and public scrutiny for both LTC Morse and the accuser.  I suspect this tactically is why LTC Morse’s counsel chose to include the not-admissible lie detector evaluation in the brief in support of writ.
     

  108. RKincaid3 says:

    @MCILSO:  Since I am anything but tele/photogenic–I will direct the film–or produce it.  Just keep me off camera!

  109. k fischer says:

    MCILSO, 
     
    “The Invisible War II” was one of my considerations on how to combat this issue.  We can start the movie showing Ariana Klay’s performance in “The Invisible War” then we can interview Mr. Faraj to discuss all of the inconsistencies in her story and perhaps the Marine Corps court reporter still has the audio of her testimony.  
     
    I have a client who was falsely accused and the girl was never in his house, and CID did not ask her to describe the crime scene or get independent records to corroborate her story.  Dismissed at the 32.  It would have been so easy to show her a liar, but CID did nothing.
     
    We’ve got the dog collar case from Ft. Hood.
     
    I’ve got a Servicemember free initial consult client who was accused of rape, but surreptitiously recorded the consensual sexual act committed with her.  He was never charged (I was so looking forward to cross examining her), so I didn’t have a case to take and I don’t have to worry about him being charged for a 120 offense of surreptitious recording, either.  I spent who knows how many hours pro bono advising him.  Thankfully, he didn’t get charged, but he was scared.
     
    We have the Naval Academy case.  Sinclair.  Brandon Wright coming down the pipe.
     
    How about all the guys who are convicted of rape, but get no jail and punitive discharges?  There are quite a few of those.  I’m sure someone could take an objective look at their records of trial and with a little post-trial investigation maybe get some of those victims to recant and tell the truth.
     
    And LTC Morse is subject to the UCMJ.  Why can’t he prefer charges as the Accuser against LTC Biehl, LTC Golden, and COL Agar for dereliction of duty, obstruction, violation of Article 98, conspiracy to commit obstruction.  Those are offenses and they should be investigated.  In the very least it would remove COL Agar and LTC Golden from acting as the SJAs on his case. I gotta tell you.  If I am the Chief of TCAP who supervises 23 SVP’s and someone falsely accuses me of a crime, then my SJA does something like this, there would be no turning of the other cheek and a “can’t we all just get along” kind of attitude.  

  110. Christian "Boba Fett" Deichert says:

    So, we’re making The Invisible Star Wars?  (Whoops, sorry, got caught up in the madness.)

  111. mycareerislongsinceover says:

     See,false reports never happen!
     
    http://www.huffingtonpost.com/2012/05/27/brian-banks-exonerated_n_1548823.html
     

  112. charlie gittins says:

    RK3:  When Haynes was up for a federal judgeship, I got a call from a reporter looking for a military justice lawyer who had some good things to say about him. My first words were I was not sure he was a law school graduate because a first year law student knows that torture is illegal.  I then pointed out that I could think of 100 people off the top of my head that would be more qualified and bring more legal rigor to the job.  The reporter didn’t hang around for any more info; it was clearly a Bush administration error to believe that I towed the Republican line on their conduct.  I still think those responsible for permitting torture and engaging in it should be prosecuted.

  113. RKincaid3 (RK3PO) says:

    Hologram video:  “Help [us], Obi Wan Kenobe–you are [our] only hope.  [Congress ain’t listening or helping].”
     
    Yep…SW is oh, so, useful!  But so is Star Trek…

  114. RKincaid3 (RK3PO) says:

    CG:  Yep…I wholeheartedly concur with your assessment.  Interesting back story.  That dark chapter of history was and remains a travesty bloody stain on America’s human rights record…one that politics has prevented America from redressing appropriately with adequate investigation and punishment.  

  115. RKincaid3 (RK3PO) says:

    @MCILSO:  You know that was “rape culture” protecting a football player…how dare you bring that up at such a serious time!  Sniffle….

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

    So this is how democracy dies, with thunderous applause….
     
    Does anyone see any parallels with Return of the Jedi?  Opening scene, I rescue Stewie from the carbonite, only to be caught and enslaved by the evil Jabba the Hut (that dog collar from Ft. Hood will probably do nicely).  All of us rebels fight and win the freedom of the galaxy, good overcomes evil, Jabba, the Rancor, and the Emperor die, the good in Vader resurrects, all is right in the world.
     
    I think under the circumstances of this case, MDW is completely conflicted out.  No GCMCA could be free of conflict for having authority over both LTC Morse and TDS.
     
    LTC Morse can’t prefer charges against anyone, because in order to do so, he would have to say under oath that he’s investigated the charges, which as we all know, he’s prohibited from doing any investigation himself….
     
    Anon, the case doesn’t need to be preferred for a CCA to consider a petition for extraordinary relief.  LTC Morse is under criminal investigation, he was given an order that interferes with his ability to defend himself, with a threat to hold him vicariously liable for his attorney’s actions, the commander who gave the order denied relief, and it doesn’t appear that the GCMCA was going to do remedy the situation anytime soon.  I think this all combined to be the perfect storm justifying CCA intervention, but the commander got smart and rescinded the order.
     
    I like the idea of creating a special category for victims of false accusations.  Congress should create an Article 107a to specifically punish that.  Victims should be able to sue military officials for pursuing false allegations.  They should also be able to file PTSD claims with VA for being victims of FAMSAT–False Accusations of Military Sexual Assault Trauma.

  117. mycareerislongsinceover says:

    I’m still trying to come up with a good name and soundtrack to the movie.  I think, “A Few Real Good Men” could be a title, and the “Be, all that you can be….in the Army!” would be the song and video that starts off the movie.  Cut to a scene at any installation where at DC tries to ask an alleged victim if she had sex with anyone else after the alleged rape (to see if there’s another source for the semen or injuries), and then the camera zooms in on the SVC jumping up like a jack-in-the-box, objected that MRE 412 applies at Article 32s but its excepctions do not…..Cut to an interview with PVT Joseph Shmucketelli and his story, etc. etc. 

  118. anon says:

    tami, I understand in aid of potential jurisdiction under the all writs act, I have simply never seen in aid of potential hypothetical jurisdiction. From my perspective, until CM charges are preferred there is no jurisdiction for a CCA to review any matter. Happy to reconsider position if anyone can recall a related issue either in military or civilian jurisprudence.

  119. Phil Cave says:

    http://www.farajlaw.com/documents/Klay-s-Trial-Testimony.pdf

  120. stewie says:

    Anon you may have a point, but it’s moot now.  I’d guess that the government wasn’t so sure since they rescinded the order.

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

    Anon,
     
    The standard for jurisdiction is whether the issue is within the subject matter jurisdiction of the military justice system.  I think we all agree the issue of a commander giving an unlawful order that threatens the suspect’s Constitutional rights during a criminal investigation, which is likely to lead to a court-martial, is within the subject matter jurisdiction of the military justice system.
     
    Certainly this raises the question of seeking relief from a trial judge–did they try, and were they required to try that before going to ACCA?  First, I don’t see a requirement to file a petition with the trial judge.  Second, if you read footnote #3, reading between the lines, it sounds like they tried, and the trial judge denied it or said there’s no authority until the case gets referred to court.  Hence the comment about appellate courts wouldn’t be needed if judges were open-minded to the possibility their rulings were wrong.

  122. Dew_Process says:

    @ anon & Tami:  Charges generally are, but do not have to be preferred to invoke the “potential jurisdiction” aspect of the AWA. See the Carlucci case I cited above [actually way above].
     
    Under traditional “exhaustion” principles, IF there is a MJ detailed to the case, you must start there.  But, if the case has not yet been referred to a court-martial (much less having charges preferred), the first “standing court” with jurisdiction would be the CCA.

  123. Anon says:

    Carlucci dealt with an issue of undue influence in relation to a CCA review of a cm conviction . . . and, equally important, predated Clinton v. Goldsmith. All writs act does not empower CCA to review all matters related to military justice. Otherwise, private joe gets read article 15 for disobeying lawful order, commander denies right to call witness on leave, writs CCA. subject matter jurisdiction? Sure, charge under  UCMJ.  Potential hypothetical jurisdiction? Sure, private joe can still get cm’ed.  CCA finds jurisdiction under all writs act?  

  124. Zeke says:

    A lawyer who knowingly participates in stifling a defendant’s right to have their counsel assist them in preparing for trial, such as occurred here,  should no longer be a lawyer.  I can’t imagine any state bar that would happily keep such a scoundrel on the books.  I think military lawyers need to be reminded from time to time that they are professionally accountable not only the federal sovereign, but also to at least one state’s Supreme Court.  I could imagine my State disbarring me for such idiocy… and I’d be hard pressed to disagree.

  125. Anon says:

    Zeke,
    Disbarred?  You are assuming a lot of facts that none of us know.  While not a perfect analogue, how is this different than the Govt denying a defense request for witnesses which are clearly relevant or a GCMCA denying a request for expert assistance/witness that is a no brainer to approve?  Both of these actions hinder a DCs ability to prepare for trial and the normal course of action to seek relief is to file a motion at trial to get the requested relief (i.e. production of the witnesses/expert).  Here, the order from the BC was not lawful (I think we would all agree with that).  Order was rescinded.  I understand that the issue with the order in this case and the strong concerns it raises from the defense perspective.  However, without knowing more facts I think your suggested course of action is a bit extreme.

  126. That Guy says:

    No deep thoughts here: I think we have a top 10 MJ story for 2014 here.

  127. RKincaid3 (RK3PO) says:

    @P.C.:  Thanks for the link to those transcripts. I had heard about them but had not seen them.  Makes The Invisible War even more attrocious once in context. Sad. But this junk is what drives politics. 
     
    @T.G.: Yep.  This is definitely a top contender for the Top 10.

  128. LT Caffey says:

    If you want the movie to get the attention of the pro-victim lobby (this is not intended to refer to those that provide victim services, but those with little practical knowledge of an issue upon which they are trying to force fundamental change) it would start something like this:
    INVISIBLE WAR II:  That’s Not What We Meant
    Open with a 22 year old male service member walking into a SARC/SAPR’s office with the following story:  I went to a party last Saturday night.  There were lots of people from my unit and my deployed girlfriend’s unit.  I had a few beers and started doing shots.  This girl in my unit started talking to me a flirting with me and asked me do go upstairs.  I told her “no” I have a girlfriend.  She left and I did more shots with my friends.  I really don’t remember anything else until the next morning when I woke up in a room I didn’t recognize…with the girl from the night before next to me.  We were both naked and there was condom wrapper on the ground.  I asked her if we had sex and she said we did.  I said I told her last night that I wasn’t interested in having sex with her and she replied that I seemed pretty interested later in the evening.  I got upset and left.  At breakfast one of my friends who just went to the SAPR stand-down told me that I was the victim of sexual assault because I was so drunk that I couldn’t consent.  But I told him that must have consented because we had sex and I participated.  He told me that didn’t matter if I was really drunk.  So here I am.
    The SAPR/SARC looks at the young male servicemember and says, “That’s impossible.  You got an erection so clearly you consented.  Stop wasting my time.  But before you go, could I get the time of the girl you mentioned, she may be in need of my services.”  The servicemember then goes to the SVC who is skeptical at first, but then forces themselves to read Article 120 in the gender-neutral manner it which is was re-written (and maybe even intended), and thinks to themselves “Dear God, what have we done.”  Reluctantly, the SVC takes the male Airman to the MCIO to make a complaint.  The duty agent says they have to talk to their boss.  Behind closed doors, the agent muses “if I was that guy I wouldn’t complain about having sex with a woman unless…[pause for deep thought], but that’s okay now.”  At that point, the supervisor chimes in and says they are calling the SJA.  The SJA advises them that yes indeed the law is gender neutral and includes a female on male sexual assault where the male is substantially incapacitated…and no, just because he got an erection doesn’t mean he wasn’t substantially incapacitated.  Therefore, they must choose to believe.   The SJA hangs up the phone, imagines the living hell the next year of their life is going to be, and then logs on to their USA Jobs account to see what is available.  At the same time the MCIO calls in the female servicemember and reads her her Article 31 rights.
    After that, much time will be spent by people trying to rationalize prosecuting or not prosecuting the female servicemember for a fact pattern that would certainly get a male servicemember investigated and most likely prosecuted.  Possibly intertwined with that will be a discussion about how some people honestly think men and women should be viewed differently under the SA construct even as we have just (rightfully) arrived at the point where genders are viewed as the same in terms of mental and physical ability to serve in combat specialties.
    After being beaten about the head and shoulders with logic and common sense as to how they have helped create a system where a female could easily (as a matter of law, not reality) find herself prosecuted for sexual assault for behavior that would have previously been considered crass or immoral (but not illegal) the pro-victim lobby might actually be receptive to hearing about a wrongly accused servicemember, or one convicted of a crime for committing an act that no female would be prosecuted for under the same circumstances.
    Of course, we won’t have to wait for the movie.  It will happen soon enough, whether it is a legitimate complaint of female-on-male sexual assault, or a male servicemember that hates where they are stationed are recognizes that the quickest path to greener pastures is to make a SA allegation and request reassignment.  Most likely, everybody involved will realize that they lack the fortitude to apply the new SA construct and investigate/prosecute a female service member for sexually assaulting a male service member.  Hopefully, from that will come the realization that a construct that cannot be applied equally in all scenarios cannot stand.

  129. RKincaid3 (RK3PO) says:

    LT Caffey (Kaffee??) can handle the truth!  He just nailed it!
     

  130. DCGoneGalt says:

    Anon:  I agree that we don’t have sufficient facts to pile on the SJA or talk about disbarment because we don’t know what the SJA knew or when he knew it, what advice was provided, and what remedial efforts or when they were taken.  However, the order here is fundamentally different than your examples of a convening authority denying an expert or witness.  In those cases the defense can interview the witnesses and prepare a motion for why they should be compelled.  This order to the accused is the equivalent of ordering the defense not to even speak to the expert or witness in order to establish why they are relevant and would therefore make it impossible to create a basis for a motion to compel.  Granted, they defense could establish such a basis after the CID investigation was complete (assuming the commander rescinded the order and/or the complainant somehow stopped taking offense at the defense searching for the truth once the CID investigation was complete) but the Government does not have the right to call a “Time Out” on someone’s Constitutional rights while they run some sort of half-baked investigation because of the feelings of a complainant and the inability of those in leadership to put common sense, fairness, and their obligations to ensure justice is done ahead of their own desires to serve the political puppet masters (including those in military leadership) who have fanned the flames of this witch-hunt.

  131. DCGoneGalt says:

    Lt Caffey:  Your scenario has already occured multiple times and the general reaction has been what would be termed “victim-blaming” on fact patterns that would result in an Art 32 and/or trial were the sexes reversed.  In addition, there have been charges preferred in at least one case against a female in an incapacitation case that I am aware of.

  132. stewie says:

    The problem with your attempt at sarcasm LT Caffey is that what you describe is pretty clearly a sexual assault if true (assuming all the required facts are proven BRD). I knkow for a fact that folks who advocate on the victim side talk up the large number of male sexual assault victims, so not sure they would have the issues with this scenario you think they would.
     
    Don’t get me wrong, I think a lot of this is over-the-top, unconstitutional, etc.  But no I don’t think the very idea of having sex with a heavily intoxicated person being a crime is wrong on its face.  I think the way we define it is haphazard, and the levels of intoxication required seem to range from a swig of mouthwash to near-death depending on who’s ox is being gored, but in your scenario, I don’t see the ludicrousness (new word) you appear to see.

  133. RKincaid3 (RK3PO) says:

    Here is my take–legally (and sicentifically) intoxication (up to the point of being unconscious) doesn’t render one incapable of making decisions and engaging in conduct consistent with those decisions. The fact that someone wakes up the next morning and can’t remember what they did–an all too common occurence–doesn’t mean that they didn’t consent to doing it and it certainly doesn’t mean that they were an active participant–i.e., consented. The victimologists who thrive in this climate don’t want the law or science to interfere with their version of reality–which requires a “rape culture” to exist if only to justify their livlihood as victimologists. And they have all the political attention right now. Sadly–because politics rarely serves “right” or “justice”–it serves itself.

  134. armydc says:

    On the subject of the Invisible War II, a quick war story.
    I had a client that was accused of rape by an ex-acquaintance. The ‘AV’ gave a credible, teary-eyed account of how she was savagely attacked by the SM on two separate occasions. Other than her odd explanation for why she was with him a second time, the timeline and story were clear and seemingly credible. Although she had a motive to fabricate, the case appeared to be headed to trial. As we all know, anything can happen at trial and the client was large, intimidating and struggled with English. In short, things did not look promising. Amazingly, it turned out that the client had recorded (with consent) both encounters. In the fallout, it was revealed that the ‘AV’ thought the video was deleted (as did the client) and she voiced the accusations to save her relationship. By some miracle the videos were still in the recycle bin. Ultimately, I decided to hand the videos over pre-32 and the whole thing was unfounded.
    Looking back, I can’t help but wonder what would have happened if the videos had been lost forever. In so many he-said/she-said 120 cases we never really know what happened. It is plain scary to think what people will say / do when they are desperate and how powerful these allegations can be.
     
     
     

  135. DCGoneGalt says:

    Victimology is a field that is somewhere between Tarot card reading and Ghostbusting (with all due respect to the late Harold Ramis).

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

    I didn’t take LT Caffey’s comments as sarcasm.  His point is that, if we start applying Article 120 and NDAA, etc., in a gender-neutral fashion, as we are supposed to, then the man is a victim of a sexual assault by virtue of being “too drunk.”  This isn’t happening, due to the common belief that erection = consent.  This has already happened with the Navy Academy case, and I’m sure it will be an issue in the Air Force case coming up.
     
    The problem that has been created in the wake of the “pro-victim” movement is the attitude that when it’s a woman-on-man, the attitude is “why wouldn’t he want it?”  After all, if a woman gives a guy a blowjob in his sleep, what guy WOULDN’T want to wake up to that?  But when you look at the law, she committed a sexual assault, and must be treated as a suspect, must be flagged, must be investigated, court-martialed, kicked out with a punitive discharge, jailed, etc.
     
    For those who watch South Park, you may recall the episode “Miss Teacher Bangs a Boy” (Cartman is a hall monitor).  Kyle’s brother Ike is having a sexual relationship with his “hot” kindergarten teacher.  When Kyle reports it to the police, they initially jump on the case right away, until they’re told that the teacher isn’t a man, and isn’t an ugly woman.  Then they sit around saying, “nice,” and wishing they were Ike.  Wikipedia notes that this “episode draws attention to the tendency for female sex offenders to not be taken as seriously as male sex offenders, as many characters consider Ike to be lucky that his attractive teacher is having sexual relations with him.”
     
    Now we are stuck with a system where it’s a race to the MCIO, the first one there gets to be the “victim,” the other one is the loser–big time.
     
    This will be the #1 story of 2014–I have foreseen it.

  137. RKincaid3 (RK3PO) says:

    Now we are stuck with a system where it’s a race to the MCIO, the first one there gets to be the “victim,” the other one is the loser–big time.

     
    Gee–just like family court and custody battles–the winner of the race to the courthouse generally is in the strongest position by default.  What a great system…

  138. Paladin says:

    Nice to see that no one here has strongly held convictions….  I appreciate the candor present here and all the thought-provoking remarks.  TDS and to some extent the judiciary have to operate under the unspoken reminder that while someone may go off to TDS or the judiciary, they should remember that they are coming back to the firm.  There has been some quiet whispers about BG Wilson’s not-so-subtle shot across the bow that we should toe the party line or end up like Helixon and have a radioactive bus driven over us. 
    Just my humble opinion but I see two major systemic problems.  First, political pressure has caved in the backbones and the voices of those who should be protecting the military justice system (which is for the most part, better than the civilian system and provides more protections).  Hard to fault someone for not wanting to get fired for speaking their mind or standing up to idiocy when all of us have probably not spoken up when we should have in the past.  Second, even if no one comes out and says it (but I’ve actually been told), you can’t go too jolly roger without getting some blast back.  That bothers me.  The SJA who you hammer with a UCI motion then goes to PP&TO and does your next assignment. 

  139. RKincaid3 (RK3PO) says:

    There has been some quiet whispers about BG Wilson’s not-so-subtle shot across the bow that we should toe the party line or end up like Helixon and have a radioactive bus driven over us.

    God, I pray and hope and that the above quote is far from true.  The fear that it is true is why many use pseudonyms on this site.

  140. Zeke says:

    @Paladin-

    [the military justice system] is for the most part, better than the civilian system and provides more protections

     
    Except of course:
    the lack of a unanimity requirement for conviction;
    the acceptability of panels too small to engage in meaningful deliberations;
    the presence of a suprerior/subordinate relationship among members of the panel rather than a panel of equals;
    the systemic effort among military leaders to taint panels with messaging g calling on them to “believe the victim” rather than presume the accused to be innocent;
    the willingness of military prosecutors and JAG Corps leaders to pursue cases for which they have no reasonable belief that guilt can be proven beyond a reasonable doubt; and
    and the absence of a right to appeal a conviction unless it results in lengthy jail time or a punitive discharge, even when it carries a sex offender registration requirement.
     
    The idea that a court martial is even roughly equal to civilian judicial processes is laughable.  The only fair result from all of this hullabaloo surrounding sexual assault and the military’s handling of it would be the abolition of trial by military tribunal for any offense that occurs within US territorial jurisdiction.  The preference for court-martial jurisdiction over traditional civilian trials is a failed experiment of a government which increasingly values expedience over due process and fundamental liberties.  Our military service members deserve better than to be systemically denied a right to trial by jury of equals who must be unanimous to convict them.

  141. BalanceOfJudgement (Yoda) says:

    If we are calling dibs on star wars handles, I am calling it on Yoda. Unless MAJ Maurer got to it first.

  142. DCGoneGalt says:

    Zeke:  I have worked in both systems and I concur with Paladin in that even now I continue to believe the military justice system is much more considerate in the way it determines which cases go forward, discovery, provision of experts, education of members, and prosecutorial fairness.  While I concur wholeheartedly that the lack of unanimity and small panel sizes are not the equivalent of a civilian jury and would like to see change in this area I would still rate the military justice system as better.   As you point out, the current environment regarding sexual assaults has created a separate class of cases that are handled more based on political than evidentiary considerations I would still not allow that to affect my consideration of the military v civilian system balance.  Members on balance still make the right calls because, despite DODs best efforts, the majority of members do what is right based on what is presented to them and have seemingly realized they are being briefed/force-fed a line of hogwash by leadership and have simply zoned out the “2%/victim-blaming/onedropisnonconsent” briefs.
     
    IMHO, these cases ain’t going to the civilians and we ain’t getting unanimous 12 member juries.  It wouldn’t get the political hacks what they want:  More convictions.  So the piecemeal tinkering with the UCMJ will continue and the vultures will eventually move on to some other issue to demonize and some other institution to destroy.  If the crap really hits the fan, a Sexual Assault People’s Tribunal of some sort will be set up like I mentioned in a post above but these cases won’t go to the civilians and we aren’t getting juries.

  143. RKincaid3 (RK3PO) says:

    @Z:

    The preference for court-martial jurisdiction over traditional civilian trials is a failed experiment of a government which increasingly values expedience over due process and fundamental liberties.

    Yep—SUSTAINED!
    @ DCGG:

    IMHO, these cases ain’t going to the civilians and we ain’t getting unanimous 12 member juries. It wouldn’t get the political hacks what they want: More convictions.

    Yep.  Sadly true.  But let me draw one distinction.  The prosecution of CRIMES should stay with military prosecutors–not commanders.  Commanders should keep their hands on DISCIPLINE.  The conflation of the two is the evil root that needs excised.  Ne’er the two should meet lest we have the same conflated problem we are addressing now.  As for unanimous verdicts and panel members NOT selected by the CG but instead at random–there is simply no GOOD or CREDIBLE reason those two things are not done in the UCMJ. 

  144. mycareerislongsinceover says:

    One of the first things we need to do, and this whole debacle with Morse/Wells v. Agar demonstrates it…..is make TDS a separate branch of the Army that has a separate chain of command and that is akin a true Federal Public Defender service. The idea that COL Agar is legal advisor to both TDS and to TCAP is ridiculous. This whole thing is incestuous. We’re putting the foxes in charge of the hen-house. Once you join TDS, you should be allowed to stay there as long as you want, and guaranteed sanctuary to 20 years, even if it’s as an 04.  We are relying on ourselves to police ourselves and it’s not working very well as this example shows. How many more scenarios like this have happened but did not involve high profile JA clients and did not get the visibility that this one has gotten?  I would like to think that all of us are honorable. But the system is flawed and needs to change.

  145. rob klant says:

    I’ve come around to the same position as Zeke’s:  it’s time to abolish the system altogether.  
    There’s no amount of “reform” which can salvage it and there’s insufficient reason even to try.

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

    BTW everyone, there is a Stars and Stripes article on this.  The claim is that the order was rescinded on the 18th because CID just so happened to wrap up its investigation on that same day.  What a coincidence!
    http://www.stripes.com/news/army-stops-morse-defense-investigation-then-backs-off-1.281174
     

  147. DCGoneGalt says:

    Tami:  Thx for the article cite.  As for the timing of the withdrawal, I will have to go against the Seinfeld episode that says there are no large coincidences and small coincidences . . . there are only coincidences.  That is one helluva large coincidence.
    From the Stripes article:

    The Army decided the policy could also be used to limit defense actions, she said, and ordered Morse and his counsel to back off until CID finished up. CID represents neither the prosecution nor the defense, she said.
    “Particularly with these cases, we want to make sure that it is the least traumatic for all parties involved as possible, and it’s a thorough investigation conducted by authorities who are trained to do these investigations to ensure justice is served for all parties,” she said. [. . .]
    Fidell recommended the Army Judge Advocate General issue a statement reaffirming “that the accused in the military justice system continue to have full rights to defend themselves.”

     
    “To ensure justice for both parties”.  Excuse me while I stop laughing.  Then why would they not seek exculpatory evidence?  And if TJAG wants people to have the right to defense themselves then more than words are needed, this needs to be “no further” moment.
     
    I especially love the quote “It almost appears they’re trying to inhibit his ability to put on a defense.”  Yes, it certainly does ALMOST appear that way.
     

  148. Some Army Guy says:

    The Army decided the policy could also be used to limit defense actions, she said, and ordered Morse and his counsel to back off until CID finished up.

    I hate when the media reports that “the Army” has decided something.  Has TCAP put that new interpretation out?  Has it come out in an ALARACT?  A TJAG sends?  Or was this just the lone decision of a commander and his JAGs in MDW?

  149. Paladin says:

    The JAGC has long prided themselves on speaking truth to power.  We should possibly amend that statement to JAG company grade and brand new field grades speak truth until they get spanked.  Everything has to be worded in a palatable way.  God forbid you answer a congressional with candor or that we have a CMCA give a PAO release that says screw you all, I’m doing what I think is right based on my 3 decades of military service and multiple educational degrees.  Oh wait, we had that happen in the AF and that was just awesome.  I don’t know the details but the fact that he did it and said I know my career is over and I’m doing it anyway is just amazing. 
    Couple things from earlier, MDW SJA is not supervising TCAP or TDS.  Very different lanes and specifically designed to be stovepiped.  The entire JAGC needs to be stovepiped from the competitive category.  You give a client advice that they don’t like and then they get to give you a grade?  That is just silly.  Human nature does not allow for zero bias.  We are in a profession that is all about selfless service but very few of us go above and beyond what is required and expose ourselves to great harm (mortal or professional).  If all of us in the profession had that trait, then we wouldn’t need medals for valor.  A mentor of mine retired from the USMC once told me that an officer had two choices when faced with orders I didn’t like.  I could obey or I could resign (different from the enlisted model which is obey or face the commander’s justice).  The military breeds a couple different types of leaders.  The company men and the somewhat rebellious warrior who just wants to get the job done.  Does anyone feel that the different JAGCs are becoming more and more company men(women) only?  I guess there is a time and place for people to look pretty for a dog and pony show but you need people to make the hard calls and stick their finger in the dike while everyone else talks about building a floating city where nothing ever goes wrong.  I think the SJAs instead of just giving advice, should possibly be given veto power over command decisions involving legal concerns.  Instead of sir, I don’t think you should refer this case because the evidence is crap and even if we get a guilty verdict, we should have serious doubts about that verdict; it should be sir, I know you feel the pressure from Congress on this to appear tough so you can say you wanted to but we are not because it is not legally supported.  Or even better, sir, you can’t spend that pot of money for that purpose but you are free to do as you wish becomes Sir, You cannot do that and I am required by law to prevent you. 
    After I read that out loud I realized it was more or less insane but it would be fun for about 30 secs until the same problems with senate confirmation and oversight trickled down to the JAG Corps.

  150. k fischer says:

    CID works.for neither  Government or the Defense?..I can assure you that anyone who agrees with that has never been named or defended someone named as a subject in a CID investigation in the past five years.  And being falsely accused of a sex crime is about the most traumatic thing you can imagine.  At least if someone is attempting to ass rape me I can fight back and rip their balls off or afterwards take a glock and shoot them in the balls..  But there is nothing you can do when someone accuses you of rape.when you didn’t do it.  And now the false accusers get trained up on what to say every April.  And Stewie, if back when I was single and some girl who I previously told no took advantage of me when I was drunk, then I would probably victim blame myself and stop drinking with skanks.  It’s all about logic and accountability.  
     

  151. stewie says:

    Well on the government side, I certainly wished CID worked for me, because I would have told them to do a whole lot of different things then they ended up doing.  You may have victim-blamed yourself, but if you’d have blamed the woman, this scruffy nerfherder would have been ok with it.
     
    I dont think it makes sense to make folks permanent TDS or permanent government.  First of all, you lose that TDS mellowing experience and you make the government side a lot worse.  Second, TDS counsel benefit from spending time on the government side too.  What I would like to see is the removal of the “too much time in TDS” negative stain that you see, that you don’t see if someone has spent “too much time on the prosecution side.” I’d also get rid of the “too much time in criminal law” since again, we need experts, and we clearly do not have experts, and thinking we can put folks in higher positions and it’s ok so long as they’ve been a TC once, or an STC once is part of our troubles.  We have to stop giving lip service to how important criminal law is while really pushing the whole “well-rounded” thing at the same time.  Are we really having any problems in the JAG Corps because SJAs are struggling with ad law or op law issues??

  152. af_dc says:

    Stewie, you’re exactly right. The problem is the same in the other services. Last year one of the AF’s absolute courtroom stars, Maj Gwen Beitz (aka Evil Barbie) left the JAGC to become a federal public defender because the alternative was leaving litigation to be “broadened out”.
    Being a litigation SME should be a viable career path for a JAG.  

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

    “Particularly with these cases, we want to make sure that it is the least traumatic for all parties involved as possible, and it’s a thorough investigation….”
     
    THAT is the most laughable phrase in that entire speech.  To quote truthhurts3, CID’s investigations are about as “fair and balanced” as FOX News.

  154. Horton hears a who says:

    So what are the guesses on the outcome of this investigation?  Founded? Unfounded? GOMOR?

  155. stewie says:

    I have on idea on a guess since I don’t know what’s going on.  I don’t know if she lied, or is telling the truth.  Or if she’s lying about it being nonconsensual, but not lying about something sexual/physical happening but the reality is, we don’t have enough info to know, so best to just see what the CID report says and what the Command does and go from there.
     
    I know this is “just a blog” but really seems to me we shouldn’t engage in speculating, particularly when both the alleged victim and the suspect are JAGs.

  156. mycareerislongsinceover says:

    Paladin is right. Furthermore, it would have been nice when the Chiefs of Staff and TJAGs all got called in front of Congress the first time, or second, third, fourth, or whatever, they all called bullshit and spoke with a unified voice that: 1) we do not have a sexual assault “epidemic”; 2) we prosecute more cases, based on less evidence, than any civilian jurisdiction and ones that civilians would never touch with a ten foot pole; 3) “The Invisble War” is a bunch of bullshit; 4) our system is based on the need for good order and discipline and is already probably too lopsided for the prosecution, it is a very bad idea to make it lean more in that direction by doing things like taking away the convening authority’s power to grant clemency, etc. 5) the “surveys” and “statistics” are bullshit and have no value in determining real data; 6) there are false acccusations all the time; 7) not every instance of drunken sex between two servicemembers is necesssarily a sexual assault; 8) your dumb ass ideas, while perhaps well-intended, will have horrible second and third order effects that you have not considered since almost none of you have served in the military before and have no understanding of how your “great ideas” will actually play out in the real world of the miltary and military justice; 9) stop listening to “special interest” “victim rights” groups and start listening to people who actually know what the hell they are talking about. 

  157. mycareerislongsinceover says:

    Horton, my uneducated guess is that if it’s founded, it’s minimum GO Article 15. I wouldn’t be surprised if they court-martial him. Congress is going to be out for blood on this one after Sinclair (which should have only have been a GO Article 15 to begin with). If he takes the Article 15, he’ll get found guilty, OMPF’d, and the AGDRB will knock him down to 04 when he retires. If he turns it down, he’s risking possibly getting convicted of a 120 offense and all that comes with it. If it’s unfounded, then he may be asked to retire anyway. Regardless, like all these other “cases”, how does he ultimately get his good name back? You can’t prove a negative, even though he passed what looks like a very legtimimate polygraph. Those who know him and like him and don’t think he did it anyway will remain in his corner. From the level of 06 and above though, what is there to gain by not letting him get thrown to the wolves here? Do they want the accuser going ballastic that she complained and nothing was done?

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

    Given the low standard for founding a case, unless she comes forth and admits to lying, I’d say founded for abusive sexual contact, GOMOR in OMPF.  They won’t offer an Article 15, because he’ll turn it down and demand trial by court-martial, and get acquitted.  Why do all of that when a GOMOR is so much easier to impose, with a lower standard of proof?  And with the new NDAA provisions, a GOMOR will go into his OMPF automatically.  Then he can spend the next year and thousands of $$ trying to convince the DASEB the GOMOR is unjust.  Then he’ll face a show cause, but he’ll likely retire before that can launch (he would probably be retained), then he’ll be forced to retire as O-4.  Yep, our justice system at its finest….  Sigh.

  159. DCGoneGalt says:

    mycareerislongsinceover:  I like your nine talking points of truth.  Many think (and know) it but no one who matters says it.

  160. Ed says:

    DCGoneGalt Eventually a morally corrupt system decays. The points are well taken but no one in real authority would have the guts to say so. The result is that many good JAG’s  who enjoy the work but who can make a  lot more money in private practice will leave. The current climate is not conducive to a career of intelligent and aggressive lawyering. To minimize career risk perhaps ABA military law section should lobby some of the points made by mycareerislongsinceover using a retired JAG or civilian as the point person. Let them tell it like it is.

  161. DCGoneGalt says:

    ED  I already see good litigators leaving, and making plans to leave, the military which I fear will result in the future of intellectual and moral mediocrities being thrust into positions of leadership that are far above their cognitive pay grade.  To listen to the Captains who litigate Art 120 cases and then to the leadership that craft policy is to realize that these two groups live in totally separate worlds that never meet.  There is nothing more illustrative of this than spending time every day talking with Captains at a busy military justice base about their work, morale, and opinions on the current state of military justice and then having to sit through a TJAG lecture on these same topics.  It takes on an almost Alice in Wonderland-like context when you come to realize that the view from the top is a carefully crafted and managed political message that has received no input from those who actually do the litigation and day to day interaction with the investigators and bears no relation to what is actually occurring because it is wholly manufactured out of a desire to please Congress, be stiflingly politically correct, and cram in as many fact-free victimology/2%/counter-intuitive behavior talking points as possible.  I, like you, await retired General officers and/or JAG officers going rogue and speaking freely but I am not holding my breath while I wait. 

  162. RKincaid3 (RK3PO) says:

    DCCG says:

     
    I, like you, await retired General Officers and/or JAG officers going rogue and speaking freely but I am not holding my breath while I wait.

     
    @All CAAFlog readers: Well, why wait?  Every one of us who regularly puruse this website have already gone rogue in a way.  We are all leasers of one sort or another–saying what needs said.   In fact, isn’t it more correct to ask “why wait for others to lead?”  Perhaps here and now is the time for the experts on this site to step up and lead.  Perhaps a first step could be by abandoning the use of pseudonyms?

     
     

    Yes, pseudonyms allow us to hide in plain sight (despite the fact that many of us know each other’s real life identities) and speak truth to power publicly, but no matter how correct our legal analyses or how strong our points, anyone following this site who is not part of the business–say, for example, the media–they can’t contact us to follow-up and report, investigate,  clarify and publicize the many valid and articulate positions of both law and opinion. 

     
     

    Without that publicity, we and our important contribuions to this area will remain–individually and collectively–as obscure, invisible and ineffective as the leadership vacuum that we regularly accuse others of fomenting.  Yes, I am aware of the fact that I might be advocating the same sort of principled stand-in-the-face-of-political-reality that resulted in Robb Starks execution on the Game of Thrones, but there is no leadership without risk.

     
     

    Regarding that risk, none of us has posted anything worthy of judicial or non-judicial punishment, IMHO.  And many are civilians. So where is the risk?  Certainly, in 21st Century America, we are not facing Lord Stark’s medieval fate.  The level of risk to us as individuals is relatively low, again IMHO.   And most of the experts here on this site are masters of a particular discipline within MJ, be it research, writing, evidence, procedure or trial practice, and have much to offer–and they should be proud to put their name to their contributions.  

     
     

    In fact, I suspect that in many cases, many who frequent this site have reached a point where they are so good at Military Justice  that they are either still in the court room (despite being more senior than the grade of captain and who should, to be promoted , be in positions outside the courtroom) or they are outside the court-room but still indirectly active in Military Justice and/or criminal law matters and as a consequence;  and in any event, possibly aren’t considered diverse enough (well-rounded) to make it to the very senior positions of the JAGC anyway (because generalists, not specialists, succeed in this paradigm)–so what is the risk of personal loss? Where is the substantive downside?  The loss to most of us will not include losing our retirements, or facing jail time, or missing out on promotions or disbarment. 

     
     

    Conversely, though, look at the upside:  with your true identities–as experiences and as gifted as you are–you have credibility sufficient to carry the day–especially collectively.  This group of experts has the individual and collective wherewithal to effectuate fundamental change through their experienced credibility provided that we can get the attention of those who matter–the American people. 

     
     

    Sure, your names and reputations may be a gift to society of your lives–as happened with Lord Robb Stark–or your livelihoods,  which is a more realistic possibility outside the Middle Ages.   But anonymity merely gives society opinions–and we have plenty of those already. Your names and reputations give society the force and breadth of your experience, education and training–your LEADERSHIP–which is much more substantive than mere opinion–and which is oh-so lacking today in the halls of military and political leadership. 

     
     

    Whatever you all do, anonymously or openly, I look forward to reading and hearing more from each of you as we together trod into a very challenging and unknown future.  that future is shaping up to look like a dangerous time for the concepts of liberty, truth, justice, constitutional rights and innocent-until-proven guilty.  
     
     
    NOW is when leadership counts. Not someone else’s rogue leadership tomorrow–but ours. TODAY. 

  163. RKincaid3 (RK3PO) says:

    @ All:  sorry for the formatting errors (extra blank quite space formatting) in the above. Problems with cutting and pasting on this damnable smartphone.  Dagnabit!!!

  164. LT Caffey says:

    Stewie, it was an attempt at irony, not sarcasm (though I find a sprinkling of sarcasm makes most of my writings more palatable).  And while I agree that male victims have been referenced repeatedly during the discourse, it has rarely been in the context of female offenders, and often it is presented in a manner that implicitly or explicitly leads one to conclude the offender was male.  I agree that the facts as described certainly do describe a sexual assault.  That was the point…to highlight to the pro-victim crowd what the new paradigm is, and how if applied equally, it will cause significant collateral damage from their perspective.  If it is already happening, that it unfortunate for those caught-up in this mess.  Hopefully there is outcry and it forces an objective conversation about how the pendulum has swung too far.

  165. Paladin says:

    For those who at 18+ yrs and are effectively at safe haven, then they can speak up and go rogue.  For those who aren’t, there are numerous risks other than adverse action.  The JAGC (at least the Army) and I assume the other services value discretion and loyalty very highly.  If a CPT or MAJ speaks up, they run the risk of being given lousy and/or career killing assignments from here on out.  Given the state of promotions, getting lousy assignments with lousy bosses can and probably likely result in getting passed over which results in the complete waste of 5 to 17 years.  With 3 JAG and 3 non-JAG on a promotion board, even one voter who has a grudge can drop someone below the cut line.  For those with spouses, how long will a JAG stick it out if they keep getting assignments that cause angst at home?  Army assignments are drafted up by the branch manager, then given to a panel of Generals to refine, and then given to TJAG to approve.  Given reports about how involved those individuals are, if a name becomes well known for the wrong reasons, what are the odds of that process going smoothly?  We can sit here and say that things like that shouldn’t happen but let’s be honest, people are petty and vindictive and assignments can used to encourage someone to get out.  O6s who are sticking around too long were given increasingly worse assignments until they retired.  That is until recently when they just decided to convene a board to cut a bunch (which doesn’t have the same impact as they do on a CPT/MAJ since O6s can retire).  No one likes a tattletale. 
    Even if there were no professional consequences for speaking out, the odds of any story being used in a manner that distorts our words or meaning is quite high.  Just look at the stars & stripes article.  “The Army” made some interesting decisions and quotes there, which we of course know to be just silly but the rest of the world reads that and goes wow, “The Army decided the policy could also be used to limit defense actions, she said, and ordered Morse and his counsel to back off until CID finished up. CID represents neither the prosecution nor the defense”.  The average person reads that and believes it.  The Army didn’t decide crap.  This was a knee-jerk reaction to an unhappy alleged victim.  CID got a complaint and they ran to the CDR or the TC who complained to the CofJ/DSJA/SJA who came up with the idea for this order.  This was an idea from a couple individuals, not the Army.  This was bred from an environment where several select politicians have been making life painful for flag officers and promotions have been impacted. 
    I love reading the comments and thoughts from so many other smart people on this stuff.  Personally, I have not reached the point where the chance of my words creating positive change outweighs the risk of my words being skewed or the backlash risks my ability to provide a retirement for my family.  Also impacting my analysis is the evaluation of the current procedure to raise concerns within my lane.  Key for me is my lane.  I can comment and think on anything I want but you don’t talk about things outside your lane.  Is anything that we discussed out of the thought process by the powers that be?  I doubt it.  I bet that they thought of many of the same concerns but feel constrained and/limited in their ability to respond.  Can you imagine the chaos that would result if TJAG made a public statement disavowing an SJA’s actions (and thereby their judgment)?  The 2nd and 3rd order effects would be immense.  This whole Morse/Agar thing would be a very different discussion if it hadn’t made the news.  I bet TJAG had more than a couple drinks with her husband over this stupidity and probably swore some too. 

  166. RKincaid3 (RK3PO) says:

    @ Paladin:
    You are correct, unfortunately.  Your concerns are all too real, as I conceded when I made the following statement:

    …I am aware of the fact that I might be advocating the same sort of principled stand-in-the-face-of-political-reality that resulted in Robb Starks execution on the Game of Thrones…

    But are we content to just complain without it amounting to anything?  Possibly—sometimes there is a therapeutic effect in vapid bitching–even anonymously.  I just can’t believe that we should accept complaining as anything to be proud of–there is to much courage, experience and knowledge herein to be content with that.  But the price is or can be high.  Too high, maybe.
     
    As for staying in our respective lanes, roger.  My rant yesterday morning reflects my general ideological naivete.  Perhaps my nickname should be changed to “the late Lord Stark” or some other deceased character.  But, on the practical side of reality, I do recall a recent discussion with a fellow JAG who was heading into a new opportunity dealing with the frustrating issue of sex assault.  I advised that JAG to be strong to effectuate change from within their position, but not so strong that they get fired.  This is because they are more effective within the system than they will be outside the system and complaining as if they were a disgruntled former employee with a grudge.
     
    So, forget my pie-in-the-sky sermonizing, yesteerday.  Sorry.  It was a Sunday morning and I just felt free and felt like opining.  Needlessly, apparently.   Alas, it is doubtful that we will ever reach the point where, as a society, doing away with pseudonyms is either appropriate or safe for the vast majority.  But at least we have this site for the therapy….

  167. Zeke says:

    I concur RK.
    I can only speak for the AF, but my experience is that our senior leaders (JAGs and commanders) are more willing to accept dissent than some of us may be willing to give them credit for.  A thoughtful dissent, even one which is public and widely disagreed with, should never be discouraged among professionals.  I think most of our leaders get that.   There are limits on dissent, of course, prescribed by the rules of ethics and professionalism.  There are also exceptions to the good leader model, I have no doubt.  There are bound to be some leaders in any legal society who don’t understand that our profession itself is built around the principles of argument and zealous disagreement.  But, I have to think those individuals are a minority, because my leaders thus far have been willing to hear out my arguments, and haven’t tried to install a muzzle, even if they ultimately disagree. 
    I don’t know if my zeal will eventually impact my career.   I really don’t care if it does.  I’ve already achieved more than my TI said I would when I went through BMT at Lackland 16 years ago.  And, if the AF eventually decides it’s heard enough from my big mouth, I’ll happily return to civilian life.  It was good enough for my parents, grandparents, and great grandparents.  I suppose it’d be good enough for me too.  I’ve always liked this quote as well: “Be who you are and say what you feel, because those who mind don’t matter, and those who matter don’t mind.” – Bernard M. Baruch

  168. RKincaid3 (RK3PO) says:

    @Zeke:  Thanks!  My sentiments exactly.  And my experience, too.  Listen, not one person has said anything bad to me about my sometimes caustic words on this site.  I have received feedback, and even from superiors, which could at WORST be characterized as “don’t get too full of yourself” or you will lose credibility.  (my quotes–not the exact words).  So, I would have to characterize the Army JAGCs response to me on this site as supportive simply because nothing negative has happened.  And perhaps my experience is why I felt that I could write my pie-in-the-sky sermon yesterday–because I am nothing special.  Surley others are enjoying similar silent support. 
     
    Also, thanks for reminding me of one of my favorite quotes.  I used to have that on the bottom of my e-mail messages, but I never knew to whom they are attributed.  Quite using it when the e-mail police at a post told us to remove all quotes from our e-mails.  Might have to start using it again where I can–this time with full attribution to the author.

  169. Paladin says:

    RK and all the others, love your perspectives. I hope that this is just not bitching but serves as perhaps some food for thought for the powers that be. Of course, I think the powers that be actually have little to no power to effectuate real change. That and I think stars don’t get truth from the ground because senior field grades keep them pretty insulated.