Stripes reports, here, that a military judge has dismissed charges against Air Force Chief Master Sgt. Roy A. Bowser Jr.  The government reportedly twice failed to disclose evidence that might be categorized as Brady v. Maryland, see United States v. Mahoney, 58 MJ 346 (C.A.A.F. 2003), and was likely required to be disclosed under R.C.M. 701, because it reportedly would have challenged the credibility of the victim in the case.

68 Responses to “Rape Charges Dismissed for Prosecutorial . . . Incompetence(?)”

  1. DCGoneGalt says:

    Incompetence is the politest term possible.
     

    Rather than delay a court-martial that has been in the making since last year, Leavey dismissed the case.
    “The government is now inhibiting the court from ensuring a fair trial,” he said.
     

    Sarcasm Alert:  All Congress needs to do is pass the “2014 Military Justice Governmental Inhibition of Fair Sexual Assault Trials Act” and this whole problem of judges demanding fair trials would be solved.  I have said it before and I will say it again:  We need to remove military judges from the military justice system.

  2. Zachary D Spilman says:

    The judge, Lt. Col. Christopher Leavey, dismissed the case after it was determined that prosecution had known about two witnesses who could challenge the credibility of the victim, but had not released the information to the defense until this week. This new evidence was turned over only after the prosecution had been ordered to review their records for failing to provide other materials to the defense.

    After the most recent omission was revealed, Leavey sought to review the prosecution’s evidence to make certain they did not have any other evidence that should be turned over to the defense. The prosecution objected and sought a delay to appeal, but the defense argued another delay of the trial could harm Bowser’s career and would hurt him financially since he hired a civilian attorney.

    Rather than delay a court-martial that has been in the making since last year, Leavey dismissed the case.

    “The government is now inhibiting the court from ensuring a fair trial,” he said.

    The prosecution now has a 72-hour window to appeal the dismissal. If their appeal is not successful, the government cannot prosecute the Lakenheath-based airman again for these charges.

    Considering the Defense objection to delay to sort this out, I can’t help but wonder if the Government’s appeal will discuss an alternative to dismissal: holding Government counsel in contempt. See 18 U.S.C. § 3162 (sanctions for failing to proceed to trial without adequate justification).

  3. DCGoneGalt says:

    Mr. Spilman:  Incompetence seems to be the most polite term that could be used.  The counsel in contempt may be their only option based on the caselaw that I am aware of.  Especially depending on the nature of the evidence that was not disclosed and its effect on defense case preparation.
     
    On a sarcastic side note:  T-Minus 10 minutes until a Senator says “I have said it time and time again that military judges must be removed from the military justice process.  This is yet another reason why we must act now to pass the 2014 Military Justice Inihibition of Fair Sexual Assault Trials Act.”

  4. rob klant says:

    DCGG,
    And what’s up with the right to civilian counsel:  If the military is already providing free detailed defense counsel, why should an accused deserve anything more?

  5. DCGoneGalt says:

    By the time the “reforms” are done military trials may look something like the courtroom scene from Idiocracy:
     
    http://www.popmodal.com/video/1397/Idiocracy–Justice
    Defense Attorney:  Says here you robbed a hospital.
    Client:  Yeah, I’m not guilty.
    Defense Attorney:  That’s not what the other lawyer said.

  6. Mike "No Man" Navarre says:

    Just to be clear, I am not accusing anyone of incompetence, I was just trying to divine what the judge was saying.  It certainly did not appear the ruling was based on prosecutorial misconduct (that would have been a headline), so incompetence was a guess at why the case was dismissed.  and I would agree with Zee that the TC will likely argue alternatives to dismissal, i.e. some sort of sanction for the prosecution in the trial.

  7. DCGoneGalt says:

    Based on the article you almost hope it is some level of incompetence in an interpretation of what constitutes Brady material (although it is hard to imagine a judge dismissing with prejudice solely based on the delay issue if the material was “iffy” Brady material) because the alternative would be deliberate withholding of information.

  8. k fischer says:

    Anyone know if the charges were dismissed with prejudice?  Also, can anyone proffer what these two witnesses would have said if called to the stand?  Because a dismissal of a rape charge is a pretty big deal in today’s environment, and it appears that the prosecutors were objecting to the MJ reviewing the prosecution’s evidence and asking for a delay.  Why would they object?  And why the request for a delay?  If the Brady evidence is that good, then wouldn’t they dismiss sua sponte?  Did they ask for a delay, so they could take the case to the GCMCA to dismiss the charges, and the MJ said, “I’ll save you the trouble.  Dismissed.” If the evidence is not so clearly exculpatory, then I wonder if McCaskill or Gillibrand will call him out?
     
    So, it appears that Adam Mathis is missing a lot of the salient facts that went into this dismissal?  Anyone know the inside scoop?

  9. Andrew Cherkasky says:

    It was dismissed with prejudice. And the judge did find prosecutorial misconduct. The judge’s hand was forced because he ordered the Government to disclose their witness interview notes and TC refused claiming work product privilege. 

  10. McLovin says:

    The MJ actually did find prosecutorial misconduct.  While the judge didn’t get into TC’s intent, he did find several Brady violations and specifically found prosecutorial misconduct.  As for TC’s refusal to turn over the notes, the MJ (correctly) hypothesized that it was because of concerns that such a disclosure would set precedent, which seemed to infuriate the MJ even more because, as he noted on the record, TC should be more interested in fairness to this particular accused and complaining witness (neither of whom would be served by an abatement).  As for the requested delay, TC had asked for several continuances up to the point of dismissal.  It seemed pretty clear to me that the MJ thought the refusal to turn over the notes was just another tactic to get that continuance.  As for what the witnesses would have testified to, the report they received from the complaining witness was diametrically opposed to the report she later made to authorities and was prepared to repeat in court.  And yes, the case was dismissed WITH prejudice.
    There was a lot more going on in this case besides this one issue, but it definitely was the proverbial straw that broke the camel’s back.

  11. RY says:

    I’m not part of the case but I’m well connected with the folks that were and I’ve already been in contact about the case a few times today with folks on both sides.  It was dismissed with prejudice.  The witnesses provided exculpatory evidence in the nature of refuting the complainants testimony about the alleged sex offenses.  
     
    WRT to why TC would refuse to turn over notes, I wondered about that before particularly in light of US v. Rittinghouse from just a few years ago.  In that case, MJ found a Brady violation, ordered STC to turn over her notes for in camera review and she refused.  He dismissed in the same fashion as the judge in this case and AFCCA affirmed in pretty convincing fashion, such that TJAG did NOT certify it to CAAF.  With knowledge of that case, TC still refused to turn over their notes for in camera review.  I suspect that decision is partly to shield TC from losing his license.  MJ asserted the violation was one which a 1L would have known the right answer and seeing his actual notes might have disclosed intentional withhold of Brady material or worse, even more instances of violations. TC kept asking for delays and so simply delaying the case would have benefitted the Gov’t when the MJ saw no justifiable reasons for delay, wanted to get this trial going, and TC still did not want to play ball with in camera review.  There were a ton of other issues. 
     
    Given Rittinghouse, this seems pretty straightforward.  An appeal is not likely to result in any change but rather make the case more clearly distasteful.  

  12. af_dc says:

    When Judge Leavey was the SJA at Malmstrom he was known for recommending that some extremely minor charges go to trial. I am pleasantly surprised by this ruling and by his evident and justified ire at the TC’s actions.

  13. A. Dreyfus says:

     While the responsibility for misconduct rightly and ultimately rests with the lawyer who committs/ed it, let’s not overlook the certain likelihood that the entire OSJA and perhaps TCAP were involved in the decisions made by that or those TCs. This is group, not sole misconduct. The self-fulfilling prophecy of military inability to handle these types of cases continues to play out. Did I read someone mention overturning Solario? Ha ha.

  14. RKincaid3 (RK3PO) says:

    Sigh…how unfair.  This is another glaring example of “Rape Culture” at work.  Don’t all of you KNOW that no victim ever lies…they just make mistakes.  We should look not to their words, but to their counter-intuitive behavior to support a PRESUMPTION of truthfulness so that the myth of 2% of false allegations is no longer perpetuated.
     
    “Brady evidence?”  There is no such thing as “Brady evidence” in a sex assault case–“Brady” is nothing more than a euphemism for beating up and victmizing yet again a victim of the military’s indifference to the scourge of “Rape Culture.”  It is time for “Brady” to be excised from sex assault litigation as it is simply a vestige of military patriarchical oppressive dominance.
     
    What is next, you beastly men-running-the-system?  Attacking her sexual history because she mispoke about being virgin at the time of the sexual assault?  Or worse, are you brutes going to attackg her manner of dress simply because she misspoke about dressing liked a school girl when everyone else saw her dressed in a fishnet sundress sans under garments the night of the attack?  How low will you stoop to further destroy the innocent victims of misogeny run amok?
     
    You people just don’t get what it is like to be a perpetual victim…you…you…trolls….you!!
     
    :)

  15. Stu Couch says:

    Where is the TC’s supervising attorney (Marines call them the Military Justice Officer; Army the Chief of Justice)?  Every prosecutor should have a healthy fear of God response to Brady material. As much as I liked and respected the TCs who worked for me as a MOJO, they all knew I would personally sign their ethics complaint and an adverse fitness report if a MJ found they committed a Brady violation.  Does anyone know why the MJ did not use his contempt power in response to TC’s failure to produce the interview notes? I know I’m speaking from the cheap retired seats, but these sex assault cases have people losing their minds. No accused, no victim, no SJA, CA or fitness report should cause any attorney to compromise their bar license with an ethics violation.  How can this ugly trend get fixed?

  16. AF Capt says:

    Lt Col Leavey was my SJA.  He is a natural litigator who loves the joy of the fight and got us into the court-room more often than our peers.  (OK, the defendants had something to do with that, too.)  He pushed TCs to work hard by holding us to a very high standard.  I learned a lot that way.  It’s good to see he’s doing the same thing as a judge.

  17. Dew_Process says:

    Brady imposes a duty – WHY isn’t this an Art. 92, dereliction issue?
     
    Second, just where does the gov’t come up with any authority that (a) they have a “work product” privilege that can trump (assuming it even exists here) Brady ; or (and) (b) that an in camera review of “gov’t” notes are sacrosanct??
     
    This is really a sad indictment of Air Force JAG “leadership” and I’m a product of that Corps.  Charlie Dunlap, if you’re out there, please chime in . . .

  18. Phil Cave says:

    Part of the problem is the lack of understanding of what is Brady material.  It is not just “exculpatory” information.  As we have said before, Brady materials extends to issues of credibility.  Dew_Process will at times call it a Kyles issue, I prefer Brady-Giglio-Kyles, either way the self-executing disclosure duty is actually quite broad.
    Kyles v. Whitley, re-affirmed United States v. Bagley, 473 U.S. 667 (1985) and Brady v. Maryland, 373 U.S. 83 (1963).  Kyles information is any information which bears favorably for the defendant as to the defendant’s guilt or innocence.   Brady, 373 U.S. at 87.   Kyles information is also any information that impeaches the credibility of a government witness.  Bagley, 473 U.S. at 676-77.
     

    “The prudent prosecutor will resolve doubtful questions in favor of disclosure.” . . . Such disclosure will serve to justify the trust in the prosecutor as “the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”

    Kyles v. Whitley, 514 U.S. 419, 439 (1995) (quoting United States v. Agurs, 427 U.S. 97, 108 (1976); Berger v. United States, 295 U.S. 78, 88 (1935)).

  19. DCGoneGalt says:

    This one was a judge alone trial?  Any discussion in court on trial strategy (which is privileged) that could have been written into the notes and if that played a role in the refusal to turn them over?  Could the TC have asked for a separate MJ to review, one that was not the factfinder?  [I fully understand that even if this was requested it would have caused a delay, which according to the Stripes article led to the dismissal, due to the need for a new judge to understand the facts of the case to determine what was Brady material and thus discoverable.]  I took interview notes mixed with strategy at times but that problem was solved by actually sending the Brady material over when the interview was complete and, voila, there was no reason to put the notes in question.

  20. Mark Hardman says:

    The problem can be fixed by holding attorneys accountable.

  21. Andrew Cherkasky says:

    In response to DCGoneGalt.  The decision to go judge alone came after motions.  I’m not sure about having another judge review the notes, but delay was ONLY to the Government’s benefit, and they had been begging for the delay for a couple weeks.  The other piece was that their refusal was without compromise.  
    As for the contempt issue…. I don’t see the Government as necessarily violating the Court’s order so much as the Court giving the Government an option to turn over, or else…
    The case on point for judicial review of prosecutor interview notes after Brady issues is US v. Romano, 46 MJ 269.  It’s directly on point and a good case for all to know.  

  22. stewie says:

    I concur with others, where were the supervising attorneys??

  23. RKincaid3 (RK3PO) says:

    Great quote, Stu Couch:

    No accused, no victim, no SJA, CA or fitness report should cause any attorney to compromise their bar license with an ethics violation. How can this ugly trend get fixed?

    I am afraid that given human nature, and human politics, this ugliness is just the tip of the iceberg.  Consider what we have already seen–“orders” that an accused’s defense counsel cannot defend their client by investigating the allegations; the premature retirement of senior officer’s from active duty. or a hold on their promotability simply because they exercised their lawful statutory discretion consistent with the facts and law but contrary to the political winds; the roughshod rummaging through defense counsel offices looking for a phone after the phone has been found and looking for it in places where a phone could not be found; the amendment of the UCMJ to continue trusting commanders and SJAs to always do the right thing while simulataneoulsy setting up a statutory decision monitoring scheme that requires a commander’s and SJAs decisions to NOT prosecute a case to be reviewed by thier next immediate commander, etc., etc., etc.
     
    No, the pessimist in me has me worried that basic human nature has yet to exhaust the depths of it self-preservation in a system that appears more and more and more hard-wired to cater to politics and political pressure.  As such, the full measure of the horror stories may still to come as more pressure is exerted to achieve a particularly palatable RESULT of trial at the expense of a fair,  full and due PROCESS.  It is these challenging times that require leaders to gird their loins, stand up for their Soldiers and to stand up for the process while simultaneously getting ready to be trampled and surpassed by those who can’t or won’t lead (or who are otherwise incapable of leading) and end up capitulating for the sake of their own career gains–gains which really may only be as simple as basic survival in the NEW system.
     
    I am sure it is not all gloom and doom–change is always tough.  The problem I have is that these changes aren’t well thought out and the consequences discussed herein and on this blog reflect that the reactions of many in leadership–both military and civilian–are likewise not well thought out but are reactionary.
     
    But this too will pass…when is the question.

  24. Zeke says:

    @ RY

    An appeal is not likely to result in any change but rather make the case more clearly distasteful.  

    Zero percent chance that the appeal being distasteful, or even improper and an abuse of discretion, will prevent it from going forward.  The only solace is that, if the AF’s record on Art 62 appeals and extraordinary writs is any indication, the appeal is not likely to prevail in doing anything other than harassing the accused and tying up appellate dockets.  This AF sexual assault prosecution ship has lost its rudder . . . It’s not sailing towards anything resembling justice, and hasn’t been for a while now.  One might hope the new TJAG/DJAG might find a way to get it back on course to favoring justice more than prosecutorial zeal.  
     
    And in this case, with the trial court finding misconduct, that should suffice for state bar sanctions whether TJAG concurs or not.  I see no reason that a civilian defense counsel shouldn’t report the infractionmto state authorities for inquiry.

  25. DCGoneGalt says:

    Next week is the AFs US v A1C Brandon Wright. 
     
    Is it against the rules of decorum to show up in the court gallery with “D” and “[picture of fence]” signs?

  26. Gerry Healy says:

    The larger, and more salacious, story is how congressional intrusion can create prosecutorial misconduct throughout the military services trial shops. Follow the dots…because of a perceived problem with the military prosecuting sex crimes, Congress puts pressure on military service chiefs and Sec Def, which creates pressure on DoJ, which in turn creates pressure on CA’s to prosecute more and GET CONVICTIONS, which creates actual and apparent UCI throughout the military, which destabilizes public’s confidence in the military to prosecute and fairly judge sex crime cases, which starts the hue and cry for AUSA’s to be given jurisdiction to prosecute military cases, which angers and emasculates military trial shops, which further incentives TC’s to WIN…at all cost.
    Prosecutorial misconduct is a direct byproduct of Congress peddling a misperception that men rape women with impunity in the military.    

  27. RKincaid3 (RK3PO) says:

    @ G.H.:  YEP!  True dat!

  28. JustanotherADC says:

    Far be it from me to defend the (trial level) government attorneys involved, but…
    With the way cases are tried in the AF today, it seems highly possible to me that the TC referenced in the articles was an STC who only traveled to try the case a few days in advance… as is custom in the AF.  It is certainly possible that he or she didn’t know about the non-disclosure until the last minute and the junior attorneys at the legal office failed to apprehend the importance of memorializing the impeachment evidence to be provided to the defense. (Isn’t the DOJ “best practice” to write a separate memorandum summarizing the conflicting statements so that they can be disclosed apart from the attorneys’ notes?)  While Phil is exactly right about the relevant standards, I find that it is quite common for junior prosecutors to not understand what constitutes impeachment material that they should turn over to the defense–and this issue is not unique to military practice.  The fact that the (S)TC had to stand up and defend his or her client’s (the gov’t) conduct doesn’t necessarily mean that he or she had any bad faith.
    With that said, I don’t disagree with the judge’s remedy and certainly believe there is a place for an inquiry into how engaged the supervisory attorneys in the office were in the process.  There is a lot of room for the AF to train on proper discovery for its junior attorneys, and perhaps this case is a good reminder of that.  Although the defense attorneys (civilian or not) certainly could file a bar complaint against members of the trial team, I think the more civil thing to do would be to take the win, have a collegial discussion with the opposing side about discovery obligations, and move on.  I would think differently if this sort of thing was a pattern with the individuals involved.

  29. stewie says:

    Couple of responses:
     
    1. That’s what you have a COJ/DSJA for. SOMEONE has to be the adult supervising the process. There is no room for excuse when the government miserably fails discovery and speedy trial enough for a judge to craft this remedy.  Yes, young TC might be clueless, that’s why we don’t let them do things unsupervised.
     
    2. TC are fungible. Everyone knows that. So, “I was just put on this case don’t blame me” just doesn’t work.

  30. Not a defense hack, just a Constitutional one says:

    @JA ADC, I don’t think reporting counsels efforts to subvert justice are a question of civility. We screw up; we take our lumps. How often do we counsel our commanders to document subordinates’ misconduct? Not doing so means we can’t take appropriate action on future misconduct. (“What do you mean a board won’t discharge him? He’s a dirtbag! So what if there’s not a shred of bad paper in his file, and he just received another Good Conduct Medal!”) It also means the next commander doesn’t know what’s going on and might not even recognize recidivism. The nature of Air Force practice means a counsel’s errors in judgment are capable of repetition without anyone realizing it. Just err in a different way (and with less panache).
     
    It is our state bars give us our foundational certification of competence (our license) and protect the public through their disciplinary authority. I was around when there wasn’t a requirement maintain an active state license. There’s now been a recognition that the state bars have a role to play. Reporting prosecutorial obstructionism or misconduct that has the effect of denies a fair trial isn’t uncivil. Uncivil is trying to label someone a rapist while you’re hiding evidence from the defense and the court that supports a contrary finding.

  31. DCGoneGalt says:

    JustanotherADC:  As for “having a collegial discussion and moving on” – That is assuming that the Government is not taking a position that the statements in this case are not Brady.  If they are taking that position then they are wrong and they were withholding evidence.  If at the end of the collegial discussion they persist in withholding evidence then I believe the remedy is to address it to the court and then take it to the bar.  Here it seems the trial counsel never disclosed the material  and instead they were caught red-handed.  And it was impossible to tell if they were hiding anything else because they refused to hand over their notes because at that point the military judge, justifiably so, seemingly lacked trust in their willingness and/or ability to identify Brady material and turn it over. 
     
    As for my experience, shady discovery issues are common in Art 120 cases and this is why it is incumbent on defense counsel to investigate these cases as early as possible.  I talked to the witnesses as early as possible because I didn’t trust the investigators to be allowed to get the full story and I sure as hell did not trust the trial counsel. 

  32. JustanotherADC says:

    I think we’re talking past each other, as my point was not that what happened was okay (“I don’t disagree with the judge’s remedy”), or that some form of accountability (“and certainly believe there is a place for an inquiry into how engaged the supervisory attorneys in the office were in the process”) is inappropriate. 
    Accountability could be achieved in many ways short of filing an ethics complaint.  I am certainly making some assumptions about how this possibily came about, as are those who are assuming that the trial attorneys acted in bad faith.  My experience has been that junior counsel do these initial interviews with witnesses, they don’t document what was said very well, and this may never get passed on to the senior trial counsel who arrives days before trial.  I would view what I have just described as simple negligence on the part of the local office, and perhaps no negligence on the part of the senior trial counsel who showed up and had to deal with the mess.  Perhaps there is a failure to supervise the junior attorneys by the SJA, DSJA, or CMJ (who is also frequently pretty junior in the AF), but I also see that as simple negligence rather than malicious conduct.
    It looks like from the article (and can we really trust Stars and Stripes to accurately capture the issues?) that there was some sort of order to review prosecution files for Brady material, and then there was an “oh S&*t” moment where the trial counsel realized there was additional material that needed to be disclosed.  I’m certainly guessing here, but the way this likely played out is the judge orders the gov’t to review its files and the STC goes back to the local legal office and says “ok, we have an order here, tell me anything that could even come close to being discoverable,” and the junior counsel says, “well, there was this one moment where two witnesses said the CW said something completely different at first.”  Then, the STC has to deal with it, so he or she gives notice to the judge.  Then, the judge says “you guys have screwed this up so badly that I want to know for myself,” and the STC asks the local leadership (and perhaps the NAF) what they want to do.  The local leadership decide they think the notes are privileged and would rather risk an appeal, so the STC is tasked to go stand up and say there are remedies short of dismissal.  The judge disagrees, and dismisses the case with prejudice.
    Everything I just said could be fantasy, and there could be more malicious versions of the truth out there.  If the above version somewhat resembles what happened, I personally don’t view an ethics complaint against the trial team as the correct course of action.  Reasonable minds can disagree.

  33. DCGoneGalt says:

    Based on what I know about how sex cases have been handled in Europe in the recent past I am not surprised that something like this happened, not in the least.  If, and I stress IF, the STC arrived late and didn’t know then they should have owned up to the mistake and turned it all over immediately.  Having to fight over seemingly clear-cut issues of basic fairness in discovery is common place in this region.  If the government simply refuses to turn over their notes when they have been caught red-handed withholding information then they can watch their sexual assault case implode and they can deal with the media/command/ethical onslaught, and without the ethical portion of that triad there is no way to know who knew what when and who took what action to prevent disclosure.  This is a train that is out of control and it has come time to run it into a brick wall.  Stars and Stripes didn’t cover the facts fully and I hope the government appeals and the appeals court lists all of the shenanigans publicly. 

  34. Dew_Process says:

    @ Phil – the Brady / Giglio / Kyles trilogy is best summarized as follows:
     
    1)  Brady – mandating the disclosure of all favorable  evidence, not “exculpatory” evidence.  “Favorable” is obviously a far broader concept that “exculpatory” evidence, and indeed, if one actually READS the Brady  decision [most Black Robes have not – ask them during your opportunity to voir dire them] one finds that the term “exculpatory” is never used at all in the majority’s opinion – only the term “favorable.”  Trial counsel frequently fall into this trap because of the lack of scholarly leadership from above.
     
    2) Giglio – clarified Brady to include material that may be [in the eyes of the DC] “impeachment” material, i.e., motives to testify, financial considerations, etc. “Admissibility” is not the test here.
     
    3) Kyles – while I do indeed cite Kyles for the propositions you correctly note, I also include it in my “discovery trilogy” for a separate reason, viz., that it clarified that “shoddy” investigative techniques [the ostrich approach / tunnel vision etc.] also fall within the ambits of Brady material.
     
    @ JustanotherADC – Don’t misinterpret my remarks as an ad hominem attack – they’re not. As someone with @ 30 years of AF JAG experience, to include being an ADC and SDC, and where many of my contemporaries became MAJCOM/JA’s or got stars, there has been a toxic fungus that has infected much of (but not all) the AF JAG leadership since the infamous “Fiscus Fiasco.” [see: http://www.washingtonpost.com/wp-dyn/articles/A64246-2005Jan10.html ] and that of Mike Murphy, the “commander” of the AFLOA [see: http://www.washingtonpost.com/wp-dyn/content/article/2006/12/09/AR2006120900833.html ]  Under that so-called “leadership,” a performance metric evolved that counted convictions, versus asking “was justice done.”  That issue came to a head within not only the AF JAG Corps, but the “purple” JAG Corps, when the former Commandant of the AF JAG School and then Chief Prosecutor for the GTMO Military Commissions [Colonel Mo Davis – yes, a good friend of mine even though he was a career prosecutor] resigned as the Chief Prosecutor. [see: http://en.wikipedia.org/wiki/Morris_Davis ]
     
    Brady issues have plagued the Military Commission process since its inception and to think that similar “thinking” does not occur during courts-martial, is to act like the proverbial ostrich. See generally: http://en.wikinews.org/wiki/Seventh_Guantanamo_Prosecutor_resigns_over_ethical_issues
     

    “My ethical qualms about continuing to serve as a prosecutor relate primarily to the procedures for affording defense counsel discovery. I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain ‘procedure’ for affording defense counsel discovery.”
     

    Finally, as this case unfortunately demonstrates, the so-called “work product privilege” is not well understood within the AF JAG prosecution function and thus, stupid arguments such as made here keep surfacing.  SCOTUS made the point on this issue in Hickman v. Taylor, 329 U.S. 495, 508 (1947), when it held:
     

    We also agree that the memoranda, statements and mental impressions in issue in this case fall outside the scope of the attorney-client privilege and hence are not protected from discovery on that basis. It is unnecessary here to delineate the content and scope of that privilege as recognized in the federal courts. For present purposes, it suffices to note that the protective cloak of this privilege does not extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation
     

    This case is particularly idiotic imho because there is (and has been for a long time) relevant “guidance” on the issue of Trial Counsel’s notes from CAAF:
     

    If a rehearing is ordered, we would expect the military judge to examine in camera any documents for which the work-product privilege is claimed. The military judge should determine which documents fall under the work-product privilege in accordance with the principles discussed above. Any documents not released should be sealed. The military judge may issue appropriate protective orders for any documents ordered released to trial defense counsel.
    U.S. v. Romano, 46 M.J. 269, 275 (CAAF 1997).

     
    The AF JAGs “ethics commission” is a toothless tiger – yet AF DC are frequently subjected to threats of “ethics violations” when they don’t “toe the line.”  I speak from my own personal experience and having represented or advised numerous ADC’s over the years when they were threatened with ethics charges for nothing more than zealous representation.  So filing ethics complaints with a State Bar is something that should be encouraged when appropriate under the circumstances. And, when in doubt, let the ethics people decide where the line is to be drawn. I have personally filed such for a Brady violation, and it in fact resulted in a disciplinary sanction because Trial Counsel are held to a higher standard than “mere advocates.”
     
    Just my Friday rant, carry on!

  35. Phil Cave says:

    What Don said.  In fact I believe our lengthy written production and discovery requests in cases would be considered remarkably similar.  :-)
     
    IMHO the only way  TCs (and their SJAs) are going to be taught and held accountable for discovery issues will be through strong action, including case dismissal, by military judges, which are affirmed on appeal.
     
    I’m not sure the issue is across the board with the AF, although it crops up more in AF cases.  I have done a number of AF cases where the TC has sent me an email which essentially begins, “we have just finished interviewing X, and we need to disclose the following . . . .”  

  36. Don Christensen says:

    As the “rudder” of the purported rudderless ship, I find it ironic that a blog that is commented on by what would appear to be mostly defense counsel that so many are calling for punishment, ethics complaints and sanctions based on a newspaper article that barely scratches the surface of a contentious proceeding. I keep reading on this very blog complaints about “rushing to judgement” in 120 cases. Government counsel deserve no less than accused rapists. Let the process work. That should be second nature for this group.  And yes Zach, that process includes Article 62 and TJAG certifications. 

  37. ImaDC says:

    Well, it’s actually not a “rush to judgement” when there has, literally, been a judgement.  My clients tend to sit in jail while their appeals are heard…

  38. stewie says:

    Yet the process did work, the MJ made a ruling, and apparently that ruling was based on prosecutor misconduct. The judgment was rendered. I’ve been on both sides. When a MJ dismisses with prejudice for a discovery violation (Brady) in a sexual assault case…that’s kind of a sign.

  39. Don Christensen says:

    Stewie,  your use of “apparently” kind of proves my point. Decisions and rulings made in the heat of litigation sometimes appear different after calm reflection.  The judge is a personal friend, the defense counsel is one of my former STCs (who was very aggressive himself as a prosecutor), and two of the trial counsel work directly for me.  I know all of them well, and I’m certain each party was acting in what they believe to be an ethical and appropriate manner.  The judges ruling is not on this blog.  He dismissed the charges.  The process may very well continue through appeals. But to publicly lynch three officers of the court based on a short blurb in a paper is unseemly for this group.  I’m retiring in a couple months, and will soon have no dog in this hunt. But, I am concerned when so many see nothing but ill motive on the government’s part.  We have an adversarial process, but there is no reason that it can’t be a civil process.  All I’m asking is you judge these counsel on the facts and not assumptions. That by necessity takes some time and reflection. 

  40. Phil Cave says:

    Christensen is right.
     
    Pity the military doesn’t have PACER or something similar.  If there was such an elemental level of transparency in the military like in federal court we’d see the motions and the order, and therefore might be able to engage in a more meaningful discussion.
     
    We’d be happy to post the motions and the order should someone email them to me.  So that, “The judges ruling is not would be on this blog,” and publicly available as would be the case if this case were in federal court.  Perhaps a more intelligent conversation could then be had.
     
    In addition, we could  “judge these counsel on the facts and not assumptions.”  It’s fine to argue that we should not discuss the issue without the facts, but not when at the same time people withhold or decline to disclose the facts.
     
    Email the motions and the order, let us see.
     
    I had some other comments, but after six tries, I have decided it better not to make them and to limit this comment to the continued absence of transparency in court-martial proceedings, unlike the transparency in federal court proceedings.

  41. Dew_Process says:

    @ Col Christensen – you state:
     

     We have an adversarial process, but there is no reason that it can’t be a civil process.
     

    I agree with both of your premises. One can litigate fiercely, yet still be civil to opposing counsel. And while in name we have an “adversarial process,” that process only works when both sides abide by and follow the “rules.” That  is the issue here.
     
    I’m not accusing any one of “incompetence” either – but when a MJ dismisses a case, such as herein, the proverbial “red flags” go up. But, the issue here really boils down to – assuming some modicum of “good faith” by the TC – why wouldn’t the gov’t allow the MJ to review the TC’s notes in camera?  As brother Cave asks, where is the transparency?
     
    I am troubled by your admission that:
     

    . . . two of the trial counsel work directly for me.
     

    I’m not suggesting any type of “implied guilt” here because anyone who’s been a SJA, DSJA or CoJ (especially in the AF) knows that sh*t happens – especially with inexperienced TC.  So, if they both work for you, were they that inexperienced?  I doubt that the STC was . . . but that’s just my opinion.  But to return to Phil’s post, why didn’t you post the relevant pleadings?  A court-martial (unless closed for proper reasons, e.g., classified material issues) is a public forum as are the transcripts, pleadings and judicial rulings. Why the secrecy if you’ve nothing to hide (and I’m not suggesting anything personal here)?  Since the time that Bob Norris was the AF TJAG I’ve pestered the JAGC leadership about “being up front” or transparent on military justice issues.  Obviously, without much success!
     
    I’ve taught numerous AF (and “purple”) CLE courses on trial practice and professional responsibility and it always amazed me to find out just how may young JAG TC’s believed that a court-martial was like a game of tennis – may the best player win.  But this forum is not just a “bitch session” for defense counsel.  It strives to and many of us attempt to weave in some educational value even if we’re bitching about something, educate the readers here.  If you’ve got the MJ’s ruling in this case, I can only ask as does Phil, why isn’t it posted here so we can argue (if that’s even necessary) based “on the record”???
     
    Then this thread WILL have some legal meaning.  Just my 2 cents!

  42. Don Christensen says:

    My understanding is the judge didn’t do a written ruling, so nothing to release. While I agree with you about it being public, as you know based on your Air Force experience I am not the release authority.  As you also know, since this is ongoing, I am limited as to what I can say.  I am the head of JAJG.  I’m not the base. SJA, so  I was not at the trial. Just as most of the other posters here were not at the trial. I’m sure Andy was the only one.   That is whole point of my earlier post. 

  43. DCGoneGalt says:

    Col Christensen:  Based on what I know of this case, and it is not limited to CAAFLOG pontificating, I believe this matter will be investigated outside of the military and I think that is a good thing because IMO there is a widespread and genuine lack of trust in the military’s ability to police ethical matters (and I would double down on that opinion when it involves the military’s ability to investigate Governmental conduct that could have resulted in the dismissal of an CMSgt Art 120 case that reached the media). Sir, if there is no ethical lapse here then nothing will come of any complaint, though I certainly understand that ethical complaints can be thought of as the “nukular” option and IMO should only be made when counsel believe it is either mandatory or are sure they have the facts to back it up and there is no other remedy available.  I concur with you that this “nukular” option should not be lessened due to the heat of the moment of this case.  However, I would hope this case will serve as an impetus to educate trial counsel, including STCs, on discovery obligations because, contrary to Mr. Cave, I have found post-interview Brady discovery from trial counsel to be the small exception to the rule.  As for there being no reason it can’t be a “civil process” it can be hard to keep it that way in Art 120 cases in this environment.  I hope you and others in the JAJG chain actually talk to JAJD (not the leadership but the actual counsel in this region who have litigated) and I can sincerely believe the answers and examples you will get may be quite surprising based on your comments above. 

  44. Dew_Process says:

    “Release authority?” Not to tread on Phil Cave’s long-standing complaint, but if something is in a “public forum” then it’s already been “released,” period.  It is this artificial barrier to transparency that causes angst on this Blog — and defeats the very concept of public proceedings.  There is no equivalent to PACER; “Clerks of Court” could and should post pleadings that aren’t sealed without question – in the real world, that is a ministerial act and you can go into any Court Clerk’s Office and ask to see the file of State v. Snuffy Smith, and you’ll get it.
     
    I recognize that because of your position that you cannot publicly comment right now on whether or not the government is going to proceed with an Article 62, appeal. Speaking for myself only, I hope in one aspect that you do because the matter needs to be aired and made abundantly clear — that is, Brady is not a “discovery” vehicle (although it may function in that capacity), but rather is a constitutional process to ensure a fair trial with a verdict worthy of confidence under the Due Process Clause. 
     
    Let’s assume that the following media account of this case is true:
     

    . . .  This new evidence was turned over only after the prosecution had been ordered to review their records for failing to provide other materials to the defense.
     

    So, it appears that there was a predicate Brady  “issue” that remains undisclosed which in turn resulted in the current imbroglio.  May I respectfully suggest a some CLE for your Trial Counsel, an informative Air Force Law Review article by then Captains Hernandez and Ferguson, entitled: 
     
    THE BRADY BUNCH: AN EXAMINATION OF DISCLOSURE OBLIGATIONS IN THE CIVILIAN FEDERAL AND MILITARY JUSTICE SYSTEMS,  
    http://www.afjag.af.mil/shared/media/document/AFD-111121-039.pdf 
     
    After all, “Knowledge Is Good.” [Motto of Faber College, of Animal House fame]

     
     
     

  45. DCGoneGalt says:

    Dew_Process:  I salute you for your ability to quote a two-second, at most, shot of the Faber statue from Animal House. 

  46. stewie says:

    I guess Sir my issue is this:
     
    The facts are thus, and no one appears to be disputing them:
     
    ” The judge…dismissed the case after it was determined that prosecution had known about two witnesses who could challenge the credibility of the victim, but had not released the information to the defense until this week. This new evidence was turned over only after the prosecution had been ordered to review their records for failing to provide other materials to the defense.
    After the most recent omission was revealed, Leavey sought to review the prosecution’s evidence to make certain they did not have any other evidence that should be turned over to the defense. The prosecution objected and sought a delay to appeal, but the defense argued another delay of the trial could harm Bowser’s career and would hurt him financially since he hired a civilian attorney.”
    So, we have a situation where there are at least two occurrences of either direct (and pretty clear) Brady evidence about the credibility of the victim being knowingly withheld, and some other unknown discovery problem(s) on the part  of the government counsel.
    We combine that with the totality being so bad that the TC involved were ordered by the MJ to turn over their evidence for in camera review just to make sure they weren’t concealing, knowingly or otherwise, any other constitutional evidence. That’s a pretty extreme step Sir, and one I’ve never seen on either side of the aisle or even heard of before.
     
    Then, instead of saying, ok, maybe we don’t know what we are doing, but we aren’t intentionally hiding anything, so here you go, they refused and wanted to appeal? So the MJ takes the really extraordinary step of dismissing a sexual assault case with prejudice…in this climate. Knowing the government has a guaranteed right of appeal if he’s doing something beyond the pale (or even on the line).
     
    The universe of facts where that doesn’t say bad things about the government criminal law shop is really, really small. I think it likely enough that someone, somewhere is either guilty of (in the arena of a PR lapse) lack of adequate supervision of junior counsel, or something more direct on the part of an involved counsel. I concede I don’t know which one, and I suppose I concede said universe where no PR violation occurred isn’t infinitesimally small, but the idea that no one had a PR lapse here in some manner is highly unlikely to me. It is certainly likely enough that I think it fair to discuss and consider openly on this board.

  47. Don Christensen says:

    DC, I assume you’re a defense counsel in Europe. That means you just had the opportunity to talk to me a few weeks ago when we were at Ramstein. You chose not to. You know how to reach me. Call or email and I’m happy to talk to you about your concerns. Dew Process, I’m sure I know who you are and I’m happy to talk to you offline. Send me an email. I concur it would be great if everything was public. See above, I am unaware of any written ruling by the judge. There is not a transcript at this time. Not sure what you would have me release. Moreover, there is no one who is more in favor of full release of records. Trust me, I was unhappy so much of the Wilkerson records were redacted. It only fed into the foolish conspiracy theories of his fan club.  Having said that, big Air Force has a different view than you do on who has the authority and how transcripts are released.  I have full confidence in your abilities, but I really don’t want to IMDC you. So again, I’m not the release authority. 

  48. DCGoneGalt says:

    Don Christensen: You assume incorrectly.

  49. Don Christensen says:

    DC, regardless you know how to reach me. Happy to talk anytime. 

  50. DCGoneGalt says:

    Don Christensen: Perhaps if the chance arises without erasing the protection of my online name.  This forum allows for honest, humorous, sarcastic, rough and tumble that is prohibited in JAG world.  I have also found that even tame, honest and respectful criticism on all matters Art 120 related goes over about as well as the proverbial turd in a punch bowl.

  51. stewie says:

    It’s not a turd, it’s just a Baby Ruth!

  52. Ed says:

    Other than for reasons of national security Pacer type availability should exist for all SCMs and GCMs.

  53. Gene Fidell says:

    “[P]rohibited in JAG world”? Sad if true — for all concerned.
    What assurance can there be that lawyers who are afraid of retaliation for what they say on line (if unmasked) will not pull their punches in the courtroom (where their names are known)?
    Sorry, friends/fellow members of the legal profession, but I still don’t get this anonymous/pseudonymity business. It’s not in keeping with the highest tradition of the bar.

  54. Charlie Gittins says:

    I am with you Gene.  If I am willing to say it out loud, I am willing to have my name associated with what I say.
     

  55. stewie says:

    Couple of responses:
     
    1. I’m unmoved by two senior civilian counsel touting their willingness to reveal their name knowing zero possible ramifications come from whatever they say. But, if your goal is to have a website where the two of you, and a handful of other civilian counsel and a couple of military counsel are the only ones posting here, then it’s simple…lobby to change the rules requiring real names…and that’s what you will get.
     
    2. People use pseudonyms for multiple reasons one assumes. Some may not feel comfortable or experienced enough to have confidence in their opinions. Some may fear that by using their real name, they will be asserted to speak for the organization of which they are a member as opposed to themselves as individuals. Some may feel their bosses will punish/disapprove of what they type. Some may simply like the freedom to discuss things anonymously.
     
    Comparing that to being willing to be strong advocates in the courtroom is a little silly. It presupposes that strongly advocating for your client is anything but rewarded.  It isn’t.  But again, if you gentlemen don’t like folks being anonymous then you can ignore those of us who are, or lobby for the site to go to actual names only.  Then you can have discussions “in the highest traditions of the bar” all day long.

  56. Charlie Gittins says:

    This site didn’t exist when I was last on active or Reserve duty.  But my response would have been the same then.  If it is important enough for me to say it, then it is important enough for those who hear it to be able to evaluate who I am and where I come from so that they can independently assess my opinions and/or judgment.  I was outspoken on active duty; more so as a Reservist — I published opinion pieces in newpapers critical of the President, the court-martial process, military commissions, etc, while on active duty and in the Reserves.  Never heard a word of complaint from my superiors.     

  57. stewie says:

    That’s great for you Mr. Gittins, I’m sure you wear your outspokenness as a badge of courage…of course, I listed multiple reasons why some may choose a pseudonym, most of which had nothing to do with being outspoken… 

  58. JustanotherADC says:

    Anonymous speech is “not in keeping with the highest tradition of the bar”?  I’m sure some examples came to Prof Fidell’s mind when writing this, but I can’t help but think of the Supreme Court’s pronouncement that

    “[a]nonymous pamphlets, lealets, brochures and even books have played an important role in the progress of mankind.” McIntyre v. Ohio Elections Com’n, 514 U.S. 334, 341 (1995) (see the footnotes for some famous examples).

    Perhaps the most obvious example:  I wonder what those three authors who chose to only let the public know them as “Publius” between 1787 and 1788 would think of your criticism, Prof Fidell?  You certainly have a very impressive biography, and I have no doubt that in your career you have courageously spoken when you felt necessary, but is it so difficult to understand why young lawyers—especially those employed by the government—find this position a wee bit facile when it is advocated by a tenured professor?  Without attempting to take away from Col Christensen’s vigorous defense of his subordinates (which he reasonably chose not to name in this forum), or Mr. Gittins’ pronoucement of how outspoken he was as an active duty or reserve JAG, is it not obvious how less dangerous such public speech is for a respected senior leader approaching retirement, or a civilian counsel marketing himself as someone who ‘speaks his mind,’ to ‘throw down’ in this environment?
    If you only meant that judge advocate defenders should show moral courage in the courtroom, then I have no true disagreement.  I personally think there is no shortage of moral courage in the Air Force defense bar.  For example, we know that base level, NAF, and even MAJCOM SJAs have called our bosses (even in pending cases) when they are disgruntled by our advocacy (ask any ADC who has requested a continuance on behalf of their client).  Yet, I haven’t met a single defender who would fail to request the relief they thought could benefit their client.

  59. Anonymous says:

    Stewie/JustanotherADC
    Very good words!  Thank you for the honorable work that you do.

  60. DCGoneGalt says:

    Haven’t checked this thread in a while but while Publius I (we) certainly ain’t, but I love this site because it is the only source for knowledgeable, interesting and novel discussion of the area of the law that I love and feel is being irreparably damaged.  I am also strongly attracted to the site for the humor of the commenters.  While my humor, and many of the other commenters, can be often sarcastic and biting I feel it is an honest response to a situation that IMO is worthy of harsh commentary even if at times the specific facts of a given situation lead to commentary that could border on ridicule.   Honestly, I only wish there were more “government/SVC” folks that would join in the comments to avoid what at times has been called, and reasonably so, a defense echo chamber. 
     
    As for the speculation of the commenters, or “public lynching” as it was put on this comment thread, I would assert that the TCs have been afforded the respectful anonymity (as I believe they deserve) that is not afforded those who are accused of a crime from the time of the accusation, both on this site and in the media.   I would posit that that any comments on a blog are necessarily limited to those facts that are publicly available (unless one has complete command of the facts via personal experience) and that reasonable speculation and debate based off of those facts is the very purpose for having comments on this blog.   I think that is what has occured in this instance. 
     
    Because of the reality in which we operate I concur with Stewie and Justanother ADC that pseudonyms allow for people to give honest commentary and engage in a way that they never could/would in JAG world.  In large part this is so because experience has taught me that, at this time and perhaps for the near-term forseeable future, we are stuck in a holding pattern where there is no place for honest feedback that IMO a majority of military justice pratitioners hold regarding the environment surrounding sexual assault and its effect on the justice system.  I fear it is completely different from a zealous representation in the courtroom scenario, and in all honesty I can say I have never seen such zealous representation harm a counsel.  All one can do is allow the crisis to pass while continuing to work to ensure that victims receive the care they deserve, investigations are impartial and complete, and that the system adequately protects the interests of the government and the accused.
     
    If CAAFlog wishes to change its policies regarding pseudonyms then they are free to do so.  I would still read the site regularly but I, and I fear many other commenters, would either disappear entirely from the comments or greatly water down their comments.  While some readers may prefer this I think a greater number enjoy the back and forth and I believe it adds to the site.  If the creators of CAAFlog feel differently and instead of getting rid of pseudonyms want people to cease commenting or “simmer down” then they are free to say so as this is “their house” and while I am not sure how others feel I would certainly comply.

  61. Michael Lowrey says:

    So is there any word on whether the government has appealed the MJ’s decision to dismiss the case with prejudice?

  62. stewie says:

    It’s been well over 72 hours, so one assumes, they have not.  Although, that’s an assumption on my part. (or one’s part).

  63. RKincaid3 (RK3PO) says:

    I can’t help but jump in on this.  I understand the desire for anonymity.  But I do not understand the NEED for it.  I have personally received both positive and negative feedback on my very public (and in some cases acerbic or hostile) comment about how things are done.  The Army has us post online under our names in ILE, so if they want to now punish any of us for doing what they once GRADED us for doing in a mandatory military training course, shame on them.  But at the end of the day, no one has said one word to me that smacked of retaliation or could induce fear in me.  At least one other person I know who is still active duty has recently started posting using his real name, and that is good to see.  I haven’t seen his screen name in a while but I have seen his real name.
     
    As for quoting the founders use of the name “Publius” in the late 1780s and comparing it to this forum in this day and age, recall that back then people still engaged in duelling and killing; and allegations of treason were easily made and carried a hastily arranged execution; such consequences were not uncommon for speaking out of turn.  Conversely, though, in this day and age, when the worst one can expect is a reprimand (or if it is really, really personally contemptable and not just adverse criticism of both miltiary and civilian leadership–maybe a court-martial–but not death), such a comparison is inappropriate.  The stakes are totally different.
     
    Besides, is anonymity sometimes appropriate and necessary?  Sure.  But as professionals in a professional service executing their professional duties consistent with their professional training, well, I for one personally hope that my faith–and that of many others–is not and has not been misplaced.  We are doing as expected.  But then again, perhaps I am just Eddard Stark from Game of Thrones who trusts that right always prevails and winds up being beheaded out of naivetee over the workings of the real world.
     
    Query:  If every one of us suddenly lost our anonymity and started posting publically, what is going to happen?  What is to prevent those who are ill-treated for doing what they are trained and taught to do at PME courses from posting their adverse paperwork as a very public criticism which thereby creates even more doubt in the integrity and fidelity of senior leadership towards their subordinates?   Sometimes there is strength in numbers and if trouble befalls those who do what they are trained to do, well that carries consequences, too.  How much of that kind of treatment, once publically acknowledged (in addition to how the military is currently being and has been treated by Congress via Art 120 and its all too blatant and very public UCI) will today’s volunteer military actually tolerate before they quit volunteering by getting out?  Or before there are no new volunteers tomorrow? 
     
    No one on this site has anything to be ashamed of, in my opinion.  And I would hope to one day meet and know each of you by your real names.
     

  64. stewie says:

    Yet, the need is there, and the desire certainly is, and since you state you understand the desire for it, well, there you go.
     
    Your personal experience (positive or negative) is just that, your personal experience. Your experiences are not all experiences, your bosses are not all bosses, your career may be in a stronger place than others, or several other reasons why you feel comfortable with notoriety when others don’t. Some of us like to engage in discussion “quietly.” I don’t get the big deal here. Discussions are had, thoughts are exchanged, what exactly does some of us choosing anonymity hurt?

  65. RKincaid3 (RK3PO) says:

    Point taken, Stewie.  The sad part of the truth of your statement is tha it also sends a signal–not very subtly, either–that either the need for or the perceived need for anonymity on matters of public import are required becaus in the real world, some in power don’t practice what they preach when it comes to encouraging young leaders-in-the-making to stand up and lead from the front by speaking truth to power.  And in that sense, I am perhaps too naive of the ways of the real world for my own good.  

  66. stewie says:

    Again, doesn’t have to be about bosses. Some folks are shy, some are unsure, some just don’t like being the center of attention, some like testing thoughts in an open, but anonymous forum. I can think of a dozen reasons.

  67. Charlie Gittins says:

    Well, I am no longer looking for clients in the sense that I don’t do courts-martials, appeals or admin boards/BOIs any longer; I have a 9 to 5 corporate gig that pays well and requires none of my clients to get up and go away in handcuffs.  I read this forum because I once spent most of my waking hours working for clients, while on active duty and as a civilian counsel, and I am interested to follow the wayward trend military justice is taking.  My timing on leaving the practice, in retrospect, appears to have been exquisitely timed to avoid the new paradigm that requires practice against the heavy thumb now being placed on the scales of justice for the Government, particularly in sex assault cases.  All I am saying about anonymity is that it makes it difficult to evaluate the motives, experiences, etc. of the poster and thus dilutes from the message. 
    One concern expressed here does bother me though — the fact that military officers would fear retribution for honestly speaking their mind on issues of importance to the military justice system.  In a society that trumpets integrity as a foundational principle, that military superiors can get away with that type of intimidation scares me.  Those types of leaders need to be called out and reported.  In the “new” military, command climate, consideration of subordinates, etc., where lacking, gets such people fired.  If that is happening to those posting anonymously, you should say somethign about it to the IG and not meekly go along to get along.   Those types of leaders need to go away.  Flame on.   

  68. stewie says:

    I don’t think it makes it difficult at all to assess someone’s experience/message (you can simply judge that based on the quality or lack thereof of their arguments), and I think it removes those “filters” folks put on someone’s opinion because of “who” they are or “what” job they are currently in.