Here is a link to Yahoo News coverage of Colonel Don Christensen’s decision to retire rather than take a spot on the Air Force Court of Criminal Appeals. Say what you want about whether the Air Force is punishing Christensen for his comments about the Mil Jus system (and I know there has been much said in comments), but the overwhelming message isn’t a positive one about the image of AFCCA. Good luck Col C in his new role at Protect Our Defenders, because word is he will need it if he is interested in changing the perception of that organization.

Here is Navy Times’ interview with the NCIS Director, Andrew Traver, on the organization’s priorities after his first year at the helm.

Here is Marine Corps Times coverage of the death of a Marine Corps sniper reduced at NJP over urination videos. Sgt Robert Richards was reduced to Corporal at NJP over his role in the videos, report here. He was subsequently given a medical discharge for combat related injuries. The Marine Corps Times report says that his death was due to “drug toxicity” related to prescription drugs prescribed for pain that stemmed from his combat injuries.

Military Times reports here on VA benefits for victims of sexual assault:

The Veterans Affairs Department announced Monday it is expanding eligibility for veterans to access mental health treatment at VA hospitals or clinics if they were victims of rape, sexual assault or harassment while serving in the military.

34 Responses to “Military Justice News for Tuesday, Dec. 2, 2014”

  1. Richard Stevens says:

    I am admittedly one of those who has publicly commented on Col Christensen’s claims and remarks because, at the end of the day, isn’t the most important issue in the public debate about the military justice system that the information published be accurate and appropriately investigated before appearing in print? For better or worse, this was my take: militaryadvocate.blogspot.com.

  2. Mike says:

    I’m not surprised that there are members of Congress who don’t grasp the importance of commanders being involved in these military justice decisions.  I am a bit suprised that a senior JAG doesn’t trust the system, but if that’s the case, then he probably should retire.  For Col C to effectively say “trust me, the entire military justice doesn’t work” and point to his Lt Col W case (where Gen Franklin abided by the post-trial process laid down by Congress) and some personal example of when a Sq CC hugged an accused (so what??) is sad.  It reminds me of a few young, defense counsel who take all of their cases personally, get jaded with the military and decide to seperate.  It’s their call, and probably best for everyone involved but it is unfortunate when we lose good people who lose sight of what’s right with the system.
    I can see why some JAGs might be tempted to support Sen. Gillibrand’s proposal because it gives more power to the JAG Corps, but it’s a poisoned apple and it won’t make the system better.

  3. RKincaid3 (RK3PO) says:

    Mike says:
     

    I am a bit suprised (sic) that a senior JAG doesn’t trust the system, but if that’s the case, then he probably should retire.

     
    As to your first point, Mike, since when does disagreement with and mistrust in the way a system operates or is administered a reason to retire—especially when one has developed an incredible expertise in that system? If a military system had as a tenet that leaving the service was the only recourse for disaffection vice investing its personnel with an incentive to improve the system, then I say that is a system that must and should be left behind to wither on the vine from its own stagnating and delusional sense of self-perfection and self-importance. Indeed, one part of the overall beauty of the American military service is that its personnel, its LEADERS, are NOT supposed to engage in groupthink and ARE supposed to offer thoughts and suggestions for improvement. We are and have been empowered to use doctrine and regulations and manuals as guidelines with room to adapt and improvise. We in the trenches (outside the 0-6/G.O. corps) have not been–until recently–expected to tow thoughtless, agenda-driven political lines cast far and wide by a Congress that simply doesn’t get it.
     
    Mike also says:
     

    I can see why some JAGs might be tempted to support Sen. Gillibrand’s proposal because it gives more power to the JAG Corps, but it’s a poisoned apple and it won’t make the system better.

     
    As to your second point, Mike, that change certainly cannot make it any worse. As for better—that is a debatable standard. But it would certainly make it more just—as a justice system is supposed to be—if it is to amount to more than a word in a statutory title name. With no less than three historical commander-driven abuse scandals since 1916 that have each triggered remedial congressional action following national shame, how much longer are we going to ignore the elephant in the room and pretend that a commander-centric, discipline-disguised-as-justice system is not in and of itself a problem? Listen, I agree that it is not THE only problem–but it IS a problem that is overdue for a remedy.

  4. Advocaat says:

    Thank you, @Rich Stevens, for your excellent counterpoint.  I believe Don is a good man; the tenor of his recent remarks falls short of his character and reputation.  Taking a swipe at former colleagues on AFCCA is unbecoming; pointing to a single flawed case again and again and again is hardly evidence the system is broken; and disparaging the right to a public trial is laughable when usually it is the SARCtourage glowering at the accused and his counsel.  However, I don’t disagree with him that the system is skewed (albeit for the prosecution IMO) or that removing commanders from judicial proceedings would be an improvement (and not in the way POD imagines).

  5. RKincaid3 (RK3PO) says:

    On another subject—but MCM related, is anybody aware that today is the last day to submit comments on the Federal Register announcement from 3 October, 2104, Vol 79, No. 192, part III, pages 59937 to 59959? Of considerable concern are the following proposed amendments to the UCMJ:
     
    1) RCM 305 (Pre-Trial Confinement) proceedings is amended to provide a “Victim’s right to be reasonably heard.” The proposed rule provides that:
     

    (iv) A victim of an alleged offense committed by the prisoner has the right to reasonable, accurate, and timely notice of the 7-day review; the right to consult with the representative of the command and counsel for the government, if any, present during the review; and the right to be reasonably heard during the review. The right to be heard under this rule includes the right to be heard through counsel. Inability to reasonably afford a victim these rights shall not delay the proceedings.

     
    The purpose for PTC, preventing flight and/or further serious misconduct, as limited by the historic rule and legal principle that confinement is an absolute last resort in the quest for maintaining liberty by constraining government.  Apparently, this amendment is yet another insipid attempt to insert raw emotion into an area—one of the last few areas—in MJ where calm, informed, educated and professional consideration of legal principles were considered while deciding to deny someone their liberty.  The result will NOT be justice.  But hey, who cares–it is so subjectively, touchy feely statisfying, let’s run with it!
    2) RCM 405 (Pre-Trial Investigation) proceedings is amended as follows:
     

    (f) Rights of the accused.
     
    (A)(i) For purposes of this rule, a “written statement” is one that is signed or otherwise adopted or approved by the witness that is within the possession or control of counsel for the government; and
     
    (ii) For purposes of this rule, a “recorded statement” is an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and contained in a digital or other recording or a transcription thereof that is within the possession or control of counsel for the government.
     
    (iii) For purposes For purposes of this rule, a “recorded statement” is an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and contained in a digital or other recording or a transcription thereof that is within the possession or control of counsel for the government.

     
    Those changes, it seems to me, focusing as they do on limiting the issue to what is in the possession of the government (vice simply known to the government) follow conveniently close to the holding in the case of U.S. v. Stellato, a case wherein the holding is utterly disturbing in its ignorance of the principles of American justice concepts as it is a blatant endorsement of the prosecutorial practice of cherry picking which evidence is not only KNOWN to the government but is specifically (deliberately??) NOT POSSESSED by the government if only to avoid having to give it to the defense.  In other words, as Phil Cave noted the other day, the “Ostrich Defense,” to an objectively fair trial is now going to be available to the government and codified as controlling and binding.  The message: JUST GET THE POLITICALLY CORRECT RESULT, government—it matters not how it is achieved or who gets hurt in the process.
     
    3) MRE 412 is amended as follows:
     

    (2) Mil. R. Evid. 412 shall apply in any case that includes a charge defined as a sexual offense in Mil. R. Evid. 412(d), except that Mil. R. Evid. 412(b)(1)(C) shall not apply.
     

    4) MRE 412 is further amended as follows:
     

    (C) A victim has the right not to be excluded from any portion of a preliminary hearing related to the alleged offense, unless the preliminary hearing officer, after receiving clear and convincing evidence, determines the testimony by the victim would be materially altered if the victim heard other testimony at the proceeding.

     
    Of these two proposals, the former provides that there is now no “constitutionally required exception” to 412 evidence being admissible.  In other words, confrontation by the accused is no longer required as it is or was too much of a hindrance to the political agenda on Capitol Hill.
     
    The second proposal is clearly designed to give the “victim” a confrontation right that doesn’t exist under the constitution. It is clearly designed to give a victim a confrontation right to all evidence and testimony that goes against her, the veracity of her claim, and counter the accused’s legal presumption of innocence. (This actually could be good as how many “victims” have really truly ever heard the truth about their behavior and reputation from their friends? “Victim control,” by the government could benefit from such testimony similar to how an accused sometimes benefits from his friends testifying against him at a 32 after insisting that no one will sell testifying against them.  However, the perversion of this is that more true the victim’s friends’ testimony about the victim’s conduct, the more harmful it is and thus the more MRE 412 prohibited it now is—especially if it rises to the level of being constitutionally required—in which case it is explicitly excluded from the IOs purview.
     

    5) Finally, I note this gem:

     

                  (i) Procedure.   (1) Generally…..The preliminary hearing officer shall not call witnesses sua sponte.

     
     
    WTF? So, the IO, who is supposed to get to the TRUTH of what happened in order to make a thoughtful, deliberate, appropriate and legal recommendation supported by both facts and laws is NOT allowed to call witnesses he might identify throughout the proceedings who might provide key crucial information on the matter at hand? Really? The IO is stuck with the evidence and witnesses presented to him by the government and the defense and if those witnesses indicate that other people have information, the IO cannot call them? Anybody else see a problem with this, from a “doing justice” perspective?
     

    I am still going through this mess, but I have to get back to work, so I don’t have time to go on. But this is or should be sickening and heartbreaking to any serious practitioner who aspires through their works to effectuate JUSTICE, not be a foil for petty (and now systemic) vengeance and retribution sans mercy and mutual accountability principles.

     

     

     
    Maybe Mike was right.  Maybe retirement is the only acceptable option for one with principles and a backbone when facing a system that is so broken–by the people responsible for fixing it–that it is impossible to repair as those with the authority to do justice are blind to what havoc they have wrought by their continued piling-on of senseless, but politically satisfying systemic changes that cannot be resisted due to the force of momentum (political or otherwise).
     
    Beam me up Scotty–there is no intelligent, principled life on this planet.  It is still run by senseless emotion and debased political agendas.

     

  6. The Silver Fox says:

    WRT the NY Times article, I don’t think they quoted Col C regarding the “dumping ground” comment, and it certainly does not sound like something he would say:
    “Although the Courts of Criminal Appeals have had a large number of first rate, highly competent judges, they also have had far less qualified individuals appointed.  Unlike civilian jurisdictions in which this may result from the political process, this has occurred on occasion because the Courts of Criminal Appeals have not always been viewed as desirable military assignments.  Indeed, sometimes they have been used either as ‘dumping grounds’ for officers considered otherwise unassignable, or as an interim assignments for highly competent officers awaiting their next assignment.”  COURT-MARTIAL PROCEDURE, 3d ed., § 25-51.00 (2006). 
    In my experience, the CCA judges have been excellent. 
     

  7. Paco says:

    The mass amount of TJAG certifications he presided over while at JAJG seems to suggest he doesn’t have a large amount of respect for the CCA if every time they decide against the government they must be wrong and must be certified to CAAF.

  8. The Silver Fox says:

    Yeah, either that or he believed they got it wrong.  And, if what you’re saying is true, that must mean appellate defense hates the CCA with the fire of 1000 suns since they continuously file these things called “petitions for grant of review” at CAAF. 

  9. Lt Caffey says:

    So Silver Fox, all the AFCCA judges are “excellent” until they “get it wrong” when they rule against the gov’t?  Got it.
    Your defense of Col C’s characterization of AFCCA reminds me of these immortal lines from Caddyshack:  “Oh, this is the worst-looking hat I ever saw. What, when you buy a hat like this I bet you get a free bowl of soup, huh? Oh, it looks good on you Judge.”

  10. The Silver Fox says:

    A judge can be excellent, but still incorrect on the law.  The Supreme Court disagrees 5-4 all the time; does that mean 4 justices are idiots?  Of course not.  I guess reasonable people cannot disagree in Paco and Lt Caffey’s world.  I know dissent is terrifying to the recalcitrant members of this blog, but I’m just offering what appears to be the direct source of the quote attributed to Col Christensen.

  11. Dew_Process says:

    FACTS folks, facts!  When a relatively junior 0-6 publicly chastises a Lt Gen and then gets a “warning” from his own 3-star boss, who wouldn’t expect to be dinged on their next OPR and questioned about “judgment” in the context of a follow-on assignment?  Col C [btw, does anyone know if he had the requisite TIG to retire as an 0-6?] held that billet for 4 years, an incredibly long time for an AF 0-6.
     
    If you haven’t read the (redacted) email traffic between Col C and the then AF TJAG, Rich Harding and others in DC, take the 5-10 minutes to read what was publicly released HERE.  The stench of bull manure rises dramatically.  If anyone wants to seriously “fix” the MJ system, those emails contain the evidence of a good place to start, i.e., keep the politics out of the “justice” system.
     
    It’s now academic, but the emails suggesting that the CA in the Wilkerson case [Lt Gen Franklin] be kept “informed” of DC’s on-going “interest” in the case, could certainly be viewed as attempts at UCI.  Yet, in the end – even knowing of that interest – he did what his gut told him to do (and had the legal authority to do at the time), makes him the one with some semblance of integrity, whether you agree with him or not.
     
    For the non-AF folks, the initials “LL” in the email string refers to the AF Legislative Liaison office a/k/a the “spin doctors.”

  12. Dew_Process says:

    @ Silver Fox:  unbunch your undies – Appellate Defense files PGR’s at CAAF because if their client has any meritorious issue [versus doing an Anders’ Brief], they have an ethical issue to do so on behalf of their client, unless the client affirmatively tells them not to and then you probably ethically still have to file the PGR while you ascertain the client’s competence to preserve his/her rights.

  13. The Silver Fox says:

    Right, Dew_Process, I’m sure they only file reluctantly out of an obligation to the client.  Not because they also disagree with the CCA’s legal reasoning. 

  14. stewie says:

    Mike, I can’t speak intelligently as to whether or not COL C has a point specifically about the AF system of justice because I know zilch about it. But your specific criticism rings a bit hollow to me. He did what we all do when talking about something, he brought up a few, select examples. There’s no way for him to bring up a laundry list of problems in great detail with numerous examples in an interview.
     
    Now, I concur with you that confronting a General as a junior officer in the manner he did was not very professional. Like it or not, the military has certain customs, and there’s a way to express dissatisfaction and a way not to, and speaking as low level FG officer, I certainly wouldn’t have handled it that way. There were more professional and respectful ways to handle that if you are going to do it IMO.  Whether or not that led to his assignment, whether or not it was just a normal part of how rotations work, or whether something else led to it (and whether or not it was even “punishment”) I don’t know.
     
    I’d guess a guy with his sincere, against the grain views was/is probably not going to be up for promotion to O7, so really, at that point, career is a bit of a relative term. (Not denigrating O6s, just suggesting that odds are he’s not getting promoted again, because most O6s don’t get promoted again).  At any rate, lost in all of that is he has some criticisms of the CJ system in the military, and the more appropriate questions are: Is he right about any of those criticisms, and if so, what are the solutions?

  15. RKincaid3 (RK3PO) says:

    Stewie:  You correctly make the most important point:

    At any rate, lost in all of that is he has some criticisms of the CJ system in the military, and the more appropriate questions are: Is he right about any of those criticisms, and if so, what are the solutions?

     
    When people finally start to discuss solutions to the known MJ problems, I am hopeful that all solutions will finally be on the table.  We don’t need more repeats of the last time when the group responsible for solutions decided from the get-go that removing the commander from the prosecution chain is OFF the table–not even up for discussion.  If it is, then the fact of the matter is that no substantive change is to be forthcoming.  And under such circumstances, the more correct question is:
     
    Are people willing to at least CONSIDER ALL OPTIONS in order to actual make the tough changes necessary to improve the UCMJ?  If not, we are just kicking the can down the road and asking ourselves why nothing changes the more things seem to change.  And that is the petty showmanship that is politics–not change.

  16. TheWritesofWeiss says:

    I hope that in his new job, COL(Ret.) Christensen gets to do an oral argument on a case before AFCCA. I promise to bring the popcorn and sit quietly in the back row . . . .

  17. Paco says:

    Silver Fox- First, US v Moss makes it clear who holds the purse strings when it comes to CAAF petitions.  Secondly, I can’t speak for App Def Counsel, but even if they disagree with the CCAs analysis, use of law, etc, I can’t remember a public statement attributed to any of them saying that it is a place for “JAG misfits” or they are sent “out to pasture.”  See http://news.yahoo.com/former-chief-air-force-prosecutor–outraged–by-military-s-handling-of-sexual-assault-cases-001143572.html;_ylt=A0LEVwpuO35UmcIAvCdXNyoA;_ylu=X3oDMTEzYnAwdnFrBHNlYwNzcgRwb3MDNQRjb2xvA2JmMQR2dGlkA1ZJUDQzMF8x
    Again these comments may not be from the new head of POD at all.

  18. Dew_Process says:

    I don’t know how this slipped by the normally “eagle-eyed” Admins of the CAAFlog, but long-time readers will recognize the significance of a recent writ filing at the AF “misfits” CCA available HERE.  But, it is MJ “news” in a sense.

  19. DCGoneGalt says:

    So Col Christensen honestly believes giving JAGs the preferral/referral decision will be a solution?  A solution to what?  Lessening sexual assault?  Bringing more cases to trial?  Getting more convictions?  
    SJAs have even more time to consider the facts of these cases and I honestly this would result in even less cases being referred, especially with respect to the incapacitation cases.  Under the “reformed” system that exists today a GCMCA who chooses to not refer a case against the recommendation of their SJA has to forward the case up for higher HQ review.  Does this ever happen?  What GCMCA in this political environment who wants to advance is going to go against their SJA advice and send a non-refer recommendation to their higher HQ?  It is a political disaster and career suicide.  On the other hand, there are cases where the SJA recommends non-referral and the GCMCA refers.  IMO, this is in large part because at this time the political pressure is on commanders, not JAGs.  IMO, even changing the political pressure to JAGs would not result in more cases going forward because JAGs actually know what the majority of these currently non-referred cases would look like at trial . . . a publicly embarrassing acquittal.  This is certainly not to say that JAGs are any more insulated from political pressure or have more of a spine on this issue, it is simply because they are more in tune to the facts and weaknesses of a case.
    So, as I have said before the end result is likely to be something along the lines of: http://www.caaflog.com/2014/04/14/air-force-jag-files-a-certificate-of-review-of-the-afccas-denial-of-a-government-effort-to-stop-a-deposition-of-an-alleged-victim-of-rape/

    Instead, I think the worst endgame scenario involves a centralized Sexual Assault Justice system with a separate preferral/referral authority, as well as regional Art 120 IOs for Art 32s, regional SVPs and quarterly member panels in each region that are specially chosen to hear Art 120 cases. Creating a wholly separate system for Art 120 cases with these special command and prosecution structures would likely achieve the desired result of many more cases going forward and increase the conviction rates.

    The NY Times piece was amazing as a work of art in the school of absurdist political advocacy masquerading as journalism.  http://www.nytimes.com/2014/11/30/magazine/the-militarys-rough-justice-on-sexual-assault.html?_r=0 
    Is this an Onion article?  A Col Christensen/Senator Gillibrand press release with a NY Times reporter byline?  Is there a difference? 
    As for the AF Times article:  http://www.stripes.com/news/top-prosecutor-leaves-air-force-to-reform-military-justice-system-1.316201

    I just can’t cross victims anymore and say the things I’d need to say about them in court arguments”, he said. ” I know they’re almost always telling the truth.” The idea that women ‘cry rape’ for revenge or regret and that their lives are enhanced by pursuing false allegations through the justice system is an absurd belief held by “misogynists”, Christensen said.

    I have seen several cases of demonstrably false allegations.  None of those have been sent to trial even though the the false claim could have been proven beyond a reasonable doubt, whereas many weaker sex assault allegations were sent to trial.  It is not a matter of being a misogynist, a victim-blamer, or even a matter of pro-prosecution or pro-defense viewpoint . . . it is a matter of considering the facts and making an honest evaluation under the law as to how to dispose of a case.  The simple truth is that false allegations do happen (it is certainly fair to argue over the extent) and the vast majority (nearly all) of the time even those that can be proven false beyond a shadow of a doubt result in no action because of the political climate. 
    The worst quote of all was:

    “We need to bring balance to the system,” he said. “We’ve shoveled all these rights onto the accused that don’t appear anywhere else.”

    Perhaps military members have (or I should say had) “all these rights” because they do not get a jury.  Instead they get 5 members chosen by the commander who has accused them of a crime and must only be convicted by 2/3 of those members.  If Congress (and Col Christensen) want to take away the right to a pre-trial interview of an accuser, a meaningful Art 32, and whatever other rights have been “shoveled” onto an Accused then by all means go right ahead because there does not seem to be anyone in Congress or in uniform in a position of leadership with the courage to publicly push back.  However, as part of those reforms please give military accuseds a jury of at least 10 and make it 90% to garner a conviction (to avoid the potential for mistrials).    
    I thought I had finally seen then end of this when this afternoon I saw an Army Times article with this from Col Christensen’s comments on the Hill today: http://www.armytimes.com/story/military/capitol-hill/2014/12/02/air-force-former-chief-prosecutor-christensen-military-sexual-assault-gillibrand-bill/19772967/

    The outcry over Lt. Gen. Craig Franklin’s February 2013 decision to overturn the sexual assault conviction of fellow fighter pilot Lt. Col. James Wilkerson at Aviano Air Base, Italy, “has done nothing to quench the zest for commanders from trying to tilt the scales in favor of the accused,” Christensen said in the remarks.

    If anyone has practiced in military justice in the last few years and says that commanders and convening authorities try to tilt the scales in favor of the accused then I believe they are either dishonest or stupid.  Col Christensen is anything but stupid.  I hope Protect Our Defenders pays him well and he is able to translate his years at POD into a political career.  
    At this point, just kill the whole UCMJ court-martial system.  Retain commander authority for non-judicial punishment and hand everything else to the civilians.  The politics of this is insane, I quit.  I just want to sit in my chair in front of a nice fire, sip booze, and read a good book in peace and quiet.   

  20. k fischer says:

    I liked the article. Col. C is a very skilled litigator.  He has earned a well-deserved retirement.  At least I won’t wince if he is advising Senator Gillibrand every time she discusses UCMJ issues.

  21. Dew_Process says:

    I suspect that it is only a matter of time before Col (ret) C shows up representing a “victim” in some sex case . . . .
     
    As an aside, here is a remarkably thoughtful commentary by a young USMC judge advocate.

  22. stewie says:

    Depends on the commander, depends on the accused. There are subtle ways to affect things. I don’t share COL Christensen’s belief that on the whole things are tilted by commanders in favor of the accused as a general proposition. Obviously, commanders feel a lot of pressure (GCMCAs that is) to take cases to trial regardless of the relative merit. Many succumb to that pressure, some don’t.
     
    However, I do think particularly at the lower level, there are commanders or senior enlisted leaders who do subtle things to try to discourage reporting, or to bolster an accused whom they believe over a victim whom they don’t. Now, having said that, COL C seems to insinuate that simply believing the accused over the victim equals tilting the scales, and obviously I don’t agree with that.  I guess I’m just saying there are a few germs of truth in there.

  23. Richard Stevens says:

    @DCGoneGalt, while you’re quietly sipping those booze, maybe your mind will wander back a mere 5 years ago (almost exactly) when CAAFlog published their #10 top story of 2009 as:
    In the Air Force court-martial case of United States v. Payton, the military judge described the new Article 120 as “a prime example of what happens when legislation is influenced by what you see on Oprah and what advocacy groups propose as opposed to what is really necessary and unfortunately it makes all of our lives difficult.”  He continued, “[A]nybody who reads it would realize that Article 120 on its face is almost incomprehensible and is probably the most poorly drafted and poorly enacted Article in the UCMJ, probably in the history of the UCMJ.  If you had a hundred monkeys with a typewriter they would probably come up with something like this.”  Yet, for all its faults, Article 120 has proved remarkably resilient.
    Who was that Military Judge?  Anyone heard from him lately?…
     

  24. DCGoneGalt says:

    Mr. Stevens:  The man that was that military judge does not exist any more.  Loved your blog post on the issue, keep calling it what it is.  His mindset will make you a lot of money.

  25. stewie says:

    Well, he was speaking about the 07 version wasn’t he? And that version is pining for the Fjords.

  26. Richard Stevens says:

    I wonder how Airman Payton would feel now, knowing that the Judge who presided over his case left the defense counsel job feeling that his clients were guilty sexual predators, that the defense counsel function was distasteful, that defense counsel arguments are bogus, and that while the complainant was testifying in that case, the Judge may have wanted to take her aside and whisper “i believe you.”  And, if I’m not mistaken, wasn’t Payton a case in which the accused went Judge alone?  If so, I bet his forum selection now gives him even more pause than when that Judge convicted him…

  27. Advocaat says:

    I have to remind myself Don is in an advocacy role again.  He is not Kurtz…yet.  If he adopts the 26,000 SA myth, I will crank up the opening scene of Apocalypse Now as a tribute to his outstanding military career, and then I’ll tune him out.

  28. Mike "No Man" Navarre says:

    Dew, just so you know we aren’t asleep at the wheel, here is our post on the Capt. Rodman JFQ article.  Funny thing is, you commented on it :-)

  29. Lieber says:

    just a sidetone, it’s a NY Times Magazine piece not a NY Times piece.  there is a difference.  the two publications have different editorial standards.  the Magazine is allowed to single-source their stories and push the envelope onto the advocacy side.  the newspaper is not supposed to.  (I realize that the Magazine is published as part of the Sunday paper but I have friends who write for both.  the editorial standards are different.)

  30. Dew_Process says:

    @ “No Man” — Thanks for the jolt!  Prima facie evidence of what litigating whether or not a constitutional “case or controversy” exists and if the matter meets “ripeness” standards in a Fair Housing Act case in federal court does to one’s brain!

  31. Mike "No Man" Navarre says:

    Dew, no worries.  I’ve done it myself, in fact more than once have posted on something another contributor already posted on.

  32. Zeke says:

    Col Christensen’s possible name-calling directed at the CCA doesn’t really bother me.  Judges are big boys and girls and are expected to weather a bit of public heckling from time to time.  It comes with the job of being selected to sit in judgment of your fellow citizens.  Although, admittedly military judges may not be used to being roasted given the fact that they are not subjected to either elections or confirmation hearings.  A little ribbing in the media by a disgruntled former prosecutor pales in comparison to those rites of passage most other judges are forced to endure just for the privilege of wearing the robe.
    What does concern me, though, is how quickly Col Christensen disregarded his duty of loyalty to his former clients when speaking with the New York Times.  He noted that as a defense counsel he “represented nine men accused of rape,” that he found the trial work he had to do in their defense to be “distasteful,” and that he “imagined taking the women aside after the whole thing was over and whispering, I believe you.” Col Christensen – Judge Christensen, lest we forget – noted that in pursuing the defense of those men he merely “did what professional ethics demanded of him,” and that as a result he would “win acquittals of men he often suspected of being sexual predators.”  http://www.nytimes.com/2014/11/30/magazine/the-militarys-rough-justice-on-sexual-assault.html?_r=0
    ABA Standards for Criminal Justice, Standard 4-3.5(d): “Defense counsel who has formerly represented a defendant should not thereafter use information related to the former representation to the disadvantage of the former client unless the information has become generally known or the ethical obligation of confidentiality otherwise does not apply.”
    I think it is certainly to those 9 clients’ “disadvantage” to have their attorney blabbering to a newspaper reporter about how much he hated defending them, that he believed their accuser, and that he only helped them because of some ethical obligation that he has now apparently forgotten.  
    I note that, curiously, the Air Force Standards for Criminal Justice generally track the ABA Standards very closely, but the Air Force chose to omit the above Standard 4-3.5(d) from their version.  It’s a shame the Air Force didn’t codify the obligation, but the professional obligation remains regardless.  Perhaps the obviousness of the obligation is why it wasn’t codified . . . It’s fundamental that a lawyer owes their client loyalty, and that duty doesn’t expire once the work on the case is done.  A lawyer certainly shouldn’t publicly state their client was guilty despite an acquittal or dismissal when that statement is made to make themselves appear more palatable to a Senator looking to set up a new civilian-run prosecuting office to handle sexual assault allegations in the military.
    I also wonder if Judge Christensen bothered to disclose his “distaste” at having had to defend men who were exonerated of sexual assault allegations when he was sitting on the bench.  Did he, during the initial Article 39a sessions of all the trials he presided over, let counsel for both sides know that he was so disturbed by the experience of defending those accused that he still remembers it post-retirement.  I imagine those accused would have liked to have known the strong feelings their judge harbored when deciding whether to challenge his detailing.

  33. stewie says:

    Well, I don’t know if I’ve represented more or fewer accused charged with a sexual assault or rape than Col C, but I’ve represented as first or second chair well over 9. So no one would know which 9 I was talking about if I made a similar statement. So I don’t think he’s technically violated his ethics.  Having said that, it is a, at best, weird statement. You know/knew what you were signing up for, did you think you were going to get all innocent angels, or misunderstood rough around the edges good guys?  When you are a defense counsel, you are going to be trying to get some guilty people off, that’s how the system works.
     
    Complaining about how “dirty” it makes you feel after is simply an attempt to wash off some unseen taint you feel you have, and to make yourself look good (“yeah I got guilty guys off, but I feel really bad about it, so I’m still a good person”).  Not his best comment in that article I agree.

  34. Terminal Velocity says:

    Another unfortunate legacy of the commissions is they began the era of the celebrity JAG.