Thanks to reader tips, I can provide the following links to news reports of the court-martial conviction of Army Major Erik Burris, formerly the Chief of Justice for the 82nd Airborne Division.

WNCN (a North Carolina NBC affiliate) reports here that:

The court-martial of United States v. Major Erik J. Burris concluded after six days of proceedings. Burris, a former 82nd Airborne Division chief of justice, was found guilty two specifications of rape, forcible sodomy, four specifications of assault and disobeying an order from a superior commissioned officer.

The court-martial found Burris not guilty of four specifications of assault, two specifications of sexual assault, two specifications of forcible sodomy and two specifications of communicating a threat.

Burris pleaded not guilty to all charges.

He was sentenced to forfeiture of all pay and allowances, 20 years confinement and dismissal from the service.

The Fayetteville Observer (a daily newspaper) has this report, with no significant additional details. Additionally, there is this Associated Press report, also with no significant additional details.

I believe that our only prior coverage of this case was in this April 2014 post, where I noted this March 2014 report from Fox40 Sacremento that appears to include details from a press interview of Major Burris. There was also (briefly) some significant discussion of the results of the court-martial in this week’s TWIMJ post.

Thanks to all readers for the tips. I plan to update this post with any significant new developments.

Update 1: The official news release from the Fort Bragg Press Center is available here. It is identical to the WNCN report quoted above.

Update 2: Here is a rather unflattering (to the military justice system) Associated Press report about the case, with references to the Sinclair case.

109 Responses to “Media reports on the court-martial conviction of Army Major Erik Burris, formerly the Chief of Justice for the 82nd Airborne Division”

  1. jagJ says:

    Thank you for posting.

  2. Phil Cave says:

  3. Phil Cave says:

    Overlap with two cases Camacho and Lorance.  In both cases Erik testified for the defense.

  4. stewie says:

    Obviously tough when one of our own is convicted of this. I don’t know hardly anything about the facts to know if it’s fair, not fair, sorta fair or what have you.  I’ve heard he didn’t take the stand, and this was a panel case. I won’t second-guess those decisions.  I don’t have enough information.  Could be very legit reasons why they went panel and didn’t have him testify.
    Having said that, it looks to me like the panel pretty strongly bought at least some of the what the wife was selling to give the sentence they gave.

  5. The Silver Fox says:

  6. afjagcapt says:

    As I find myself thinking quite often, what Stewie said. If you had these convictions and then a nothing sentence, I’d be somewhat more open to hearing the “residual doubt” argument; but when they followed up the convictions with a dismissal and 20 years? We (at least in the AF) say panels make decisions based on chicken bones and voodoo, but that is an awfully stiff sentence to think they were snowed by a couple SAPR briefings a vindictive ex who cried well on the stand. Until I see something pretty significant to the contrary, I’m going to trust the panel on this one.

  7. JudAv says:

    Is anyone able to articulate what prejudice, if any, there was to those convicted by the major? Of course hypocrisy smells bad to the defense, but is there an argument for prejudice?

  8. I fischer says:

    With all the recent press about the Lorrance decision up at Bragg and the alleged cover up of exculpatory evidence, did anyone notice that Burris got the same sentence as Lorrance, when the Government was only asking for 16 years for Burris?   Just seems a little odd that recently Lorrances attorneys are on Fox News alleging that the two guys shot on Lorrances orders were bad guys, Burris was the COJ at the time of Lorrance’s court martial, and the panel tacked on four years to the Government’s 16 years to make it twenty years, which coincidentally is the sentence Lorrance got.

  9. K fischer says:

    The Stripes article says that there were multiple victims.  That explains a little and perhaps the acquittals if they involved the wife’s allegations.

  10. DCGoneGalt says:

    k fischer:  One of the articles mentioned the sex crimes against the wife and physical abuse on the children.  What’s (not where’s) the beef on this one?  Impossible to form an opinion with no evidence public.  I would imagine all we will get at this point will be Army PA and defense statements.  Further substantive discussion may have to wait until a FOIA request for the record of trial.
    In other news with no details available:  Bergdahl.

  11. stewie says:

    afjagcapt…just to be clear, I don’t know enough to trust or not trust the panel. I only suggest that clearly whatever happened strongly convinced them of his guilt. The multiple victims part is interesting, and makes me wonder if one or more of the convictions dealt with his kids.

  12. k fischer says:

    If the convictions were for the charges involving the kids, but the acquittals were for the charges involving the wife, then I can sort of see how the panel might have given him 20.  Panels are more likely to believe kids, than to believe a vindictive spouse. Although, my experience in civilian divorce cases, while it is pure speculation in this court-martial case because I wasn’t at the trial, tells me that the defense on those charges would be that she coached the kids.  
    I agree with you and Stewie that it is impossible to form an opinion without reading the record of trial, which we will probably have to wait for an appeal, or clemency, as it appears that MAJ Crystal Boring’s statement to the press is……what’s the word I’m looking for……….boring and absent any substantial facts.

  13. Lieber says:

    no sex assaults dealing with the kids.  wife was caught at the 32 lying about some stuff, but they moved forward anyway.  what actually happened in front of the panel I don’t know.  I’m told by folks at Bragg that that panel convicts nearly 100% of the time.

  14. Saul says:

    Would have to presume that at least one of the convictions involved a child. 
    At the same time, can’t be too surprised that a panel of senior field grade officers would hold an especially negative view of a prosecutor, their Chief of Justice, who committed these crimes.  We should hold people in positions of trust to higher standards (for sentencing) and many of these officers probably have had their units affected by the justice process over the past few years.  
    the sentencing case should be particularly interesting.

  15. Michael Lowrey says:

    What I find particularly interesting is that this case generated zero press coverage before yesterday’s press release in an era when sexual assaults in the military are big news. The Fayetteville Observer has a military affairs beat writer. We can talk about courts martials being public trials and how important that is but it doesn’t mean much if the press and public don’t know that a case of interest is going on.

  16. J says:

    So in June 2014 he is a Captain and pending these charges, and he promotes prior to trial?

  17. J says:

    Belay my last, reread the article. Different guy.

  18. Lieber says:

    The case has been discussed in the comments here plenty of times as one that would cause a stir whenever the press found out about it.

  19. DCGoneGalt says:

    Michael Lowrey:  As far as I know the dockets for all services are public records, so there is no excuse for the press not being aware of it.  However, in my experience there are several times where cases are in the media at the allegation/Art 32 stage and and then the trial just goes uncovered or gets a simple mention of the outcome with no facts.  While I had no particular interest in the Maj Burris case, you are right in that all it takes is a local beat reporter to see an article of interest at their base and then follow up by checking the public docket and matching the name and the charges to the initial reports.  The public Army JAGCNET and Air Force TJAG public site list all courts-martial.  I believe Navy/Marines have one but last I checked it was regional and not user friendly.  Disclaimer:   For AF/Army, there are exceptions, such as when the initial court date ends up only with motions and then gets delayed and the continued date doesn’t make the docket site (ex. SrA Wright), but IMO the Army and AF are generally open about courts. 

  20. stewie says:

    Well, the public docket doesn’t say “oh and this guy used to be the Chief of Justice” so nothing from the public docket by itself is going to alert the media that this is a special situation.

  21. stewie says:

    Oh, and MSNBC reported that Bergdahl is going to be charged with desertion.

  22. DCGoneGalt says:

    Stewie:  If I am Joe Beat Reporter in Fayetteville and I see an article about the Bragg Chief of Justice talkinga bout charges pending against him (which he did and which was openly discussed on here) then perhaps I would check the public docket (on which his case was listed).  While the Army didn’t spell it out for him, it would have required the ability to Google News Search Bragg and then follow up with a second Army docket search.   So simple a Stripes reporter can do it.  Hell, I even keep a list of high-interest stories and search for the accused on the Army and AF dockets just to satisfy my own curiosity. 
    Bergdahl news came out last night but nothing much other than charges were brought and an effort is under way to keep it quiet.

  23. SLR2 says:

    Let’s pretend this law educated, thus more knowledgeable and less ignorant, Army Officer was an Enlisted man… Would we look for all of the ways out and prejudices that pigeon-holed him into a conviction when he is really a “great” American? The answer is no. We would say the enlisted guy deserved what the justice system served him. It kind of makes me sick that a gentleman with privilege and authority has all this support when he knew what he was doing was questionable/ criminal and those that are ignorant are not given benefit of the doubt or any compassion for their lack of guidance and understanding.  I guess it’s “The Army Way”, just ask former Brigadier General Sinclair.

  24. stewie says:

    Hmmm…no, first of all, he wasn’t given the benefit of the doubt, he was convicted and given about as stiff a sentence as you see in no molestation cases.  Second, the questions arise more from the fact that the Article 32 officer recommended not going forward, and other possible issues in the case.  Third, the remaining questions are really just that, questions…because most of us don’t have a firm grasp on even the basics of the case because of the limited to non-existent attention this case has gotten.

  25. DCGoneGalt says:

    I may be wrong (not the first or last time) but without any press coverage it seems to me the best short-term hope for any facts on the allegation (not necessarily the trial) would be to FOIA request the Art 32 report.  Timeline on production seems to differ by location, but in cases where the government doesn’t want to share in the spirit of executive transparency it tends to take much longer.
    SLR2:  I concur with you to a point, if he was Pvt Burris I doubt a peep would have been raised, especially without any media coverage.  However, I still would very much like to know what the underlying facts were in what should have been a high-profile case.

  26. Saul says:

    SLR2 – you’re right to a point.  Personally, I have more faith in the system and a panel than I do any individual 32 IO.  One person’s opinion just doesn’t compare favorably to the commander and SJA to get the case to court, and the panel to convict. 
    But we wouldn’t care if it were PVT Burris.  We likely wouldn’t care about MAJ Burris – if he hadn’t been the Chief of Justice for one of the Army’s premier units.

  27. Libby says:

    There is a political pressure within the military to prosecute all reports of sexual crimes – this comes from the perception that the military historically has been soft on pursuing sexual crimes.  If you look at the recent statistics of court Martials involving charges of sexual assault, there is a very high conviction rate, which leads to statistically probability that their assumption if charged than must be guilty.   This political push to have a high conviction rate is not only in the military, this pressure is now also being pushed into Universities and Colleges, where there has been pressure put upon colleges to push prosecution of reported sexual assaults, regardless if supported or not.   Everyone should be alarmed by this political push because you are going to see a larger number false convictions and the reopening of cases that were not pushed to prosecution due to lack of collaborating evidence.   While sexual crimes should be pursued and prosecuted, this type of political pressure does not take into consideration false accusations.  
    In this case, the accusations were originally brought up in family court during custodial trail of minor children.  You have an ex-wife who (1)  did not want to move out of her home state  when her husband received new orders and (2) to ensure that he did not share custody made accusations within family court several months after the formal separation        

  28. Saul says:

    Or perhaps you have a wife who left her husband because he was raping her and their kids but was too afraid to say anything while living together.  We don’t know her motives, we only know that a panel apparently believed her.

  29. DCGoneGalt says:

    Libby:  Without any facts it is nearly impossible to comment on the case.  However, you said:

    If you look at the recent statistics of court Martials involving charges of sexual assault, there is a very high conviction rate, which leads to statistically probability that their assumption if charged than must be guilty.

    Do you have any data to back that up?  I understand the concern regarding the politicized nature of sexual assault in the military but from the limited data I have there is nowhere near the same conviction rate for sexual crimes that there is for all other crimes, sexual crimes result in a MUCH lower conviction rate.  And the conviction rate has fallen due to the recent push to go forward with more cases, cases that never would have gone to court 5-6 years ago.
    NOTE:  I am not asking for the ridiculous conviction rate statistics used by Protect Our Defenders that measures the total claims (26K, 22K or whatever it was this year) vs. the total number of courts-martial convictions.  For the purposes of the conviction/acquittal rate restricted reports and victim non-participation cases are irrelevant.  What I am interested in the total number of cases in which as Art 120 spec was referred to trial vs. the total number of cases with Art 120 convictions.  I have yet to see that data but would be interested if there was a number cruncher somewhere with access to the data, especially with annual comparisons.

  30. stewie says:

    The Army’s rate sure has seemed to hover in the low to mid 50s for a long, long, long time.  I am not aware of any uptick for a statistically significant period of time in the Army.

  31. Libby says:

    The pentagon releases its annual report to the congress.  Its been no secret that both congress and the Secretary of Defense have been strongly pushing for better statistics, especially in sexual assault cases.   Overall the Army has the highest conviciton rate overall for its court martials.  It averages 90%.    In 2010 the overall military conviction rate was around 30% for sexual assault, in 2012 the conviction rate was at 57% and in 2013 the conviction rate was at 78% and although the report for 2014 has not been released, the pentagon is expecting even higher number for 2014.   The Civilian courts average 40%  
    More to take into consideration, false abuse accusations in divorce and custody proceedings are on the rise.  False rape accusations are destroying families and lives.  There was a rise of these accuastions seen in the courts starting in the late 1990’s as a result,  A Child Forenics Study was conducted in 2012 found that 77% of accusations were proven to be false.  There is now an accroyn that is recognized as SAID  Sexual Allegations in Divorce 

  32. Libby says:

    One of the of the accusations was ‘unlawful tickling’ of a minor. 

  33. stewie says:

    Can you provide a link? Because I’m almost positive if not 100 percent positive that the conviction rate for sexual assaults in the Army was not 78%…unless they are including guilty pleas in there.

  34. DCGoneGalt says:

    I have seen date prior to mid-2013 that had conviction rates consistently below 50% for Art 120 cases.  If you have service specific data that would be great but I am not buying the 78% conviction rate for Art 120 cases unless I see it.
    Rather than seeing the conviction rate increase, due to the beyond a reasonable doubt standard and the push to move the referral cutoff further to the side of the complainant I would expect we would see the acquittal rate increase because it is hard to come to certainty on the additional cases that are being referred post-2012 are generally weaker cases, regardless of whether investigations have improved, prosecutors are better trained, and members are briefed ad nauseum on whatever pet idea the Pentagon has.
    For instance, if you had 100 cases in 2011 and you referred the strongest 30 and got 15 convictions that gives you a 50% conviction rate. Because of the political sensitivity in 2013 you had 100 cases with the same general fact patterns and you chose to refer 50 cases. The 20 additional cases that you referred on in 2013 would by implication have weaker facts. I find it very hard to believe that you will get a high conviction rate on those additional 20 cases. While you may get a higher conviction rate on the original baseline 30 cases, it would be hard to drag your overall conviction rate up because you would now be saddled with another 20 weaker cases.
    Further, I am certainly no “2%-er” as to false allegations and, while have seen enough to know it is always a possibility, I certainly do not believe it is anywhere near the 40-50% numbers put forward by some because it does not lend itself to reliable quantifiable research results.  I do not believe the false report factor is something we will ever be able to pin a number on.  The nature of these cases does not lend itself to cases being categorized as 100% true or 100% false, except for the tiniest of minority of cases.  For instance, I have seen convictions where I am pretty sure there was no sexual assault and on the flip side I have seen recantations where I am fairly certain that a complainant was just trying to make the investigation go away.  The vast majority of the cases fall in the middle and that is where litigation occurs, and because of the standard of proof and pushing convening authorities to refer more questionable cases, that litigation will inevitably result in more acquittals. 

  35. i says:

    I’ve known Erik for almost 20 years. There were a number of heartfelt comments on his private Facebook, which I’m not at liberty to share. Suffice to say, it’s a shame nobody will hear his side of the story. Lots of shady stuff. There was a record of conspiratory text messages regarding getting his daughter to testify in a very specific way. The whole damn thing was a witch hunt.

  36. Ed says:

    i  Then tell his side of the story in detail. If there is some type of conspiracy lets not make it a mystery. If there was a witch hunt it needs to be exposed. If there is no witch hunt and/or conspiracy speak in silence.

  37. ContractLawyer says:
    is mention of the Miliaty Corruption website banned here?  They are skeptical of the charges, though they often are biased against accuseds.

  38. Libby says:

    The investigating officer into the abuse allegations reported this ‘“My assessment is that Ms. Burris’ allegations . . . her statements to CID . . . were driven by a combination of motives. The evidence in the case file and testimony suggests she embellished or made untruthful and or inconsistent claims . . . her displays of emotion . . . did not appear genuine . . . I am left with no other alternative but that Ms. Burris is fabricating her allegations.”

  39. Libby says:

    Why is it so hard to believe that  a vindictive angry ex-wife  brought false allegations to destroy a man’s life in an effort to have sole custody of her children?  Do you really think women are not capable of this?  Article 32 hearing requires a very low burden of proof –    
    The Department of Justice reports annually the breakdown of convictions for all the branches;.  The pentagon releases their statistics annually to congress and the Secretary of Defense.   The statictics show an increase of convictions and raise the issues about the trending change that goes from 6% in 2008 to 78% last year.   

  40. K fischer says:

    When the pendulum has swung so far that clearly innocent men are being convicted, then I recommend that the DoD show name May “Falsely Accused Recognition Month” where every Servicemember must watch the movie “Gone Girl.”    Then, perhaps we can reeducate panel members that their “intuitions” to doubt an accusers story is actually common sense and reasonable doubt.

  41. Phil Cave says:

    KF:  It appears I am one of 21.  Had to look it up on The Internets.

  42. DCGoneGalt says:

    Libby:  I am able to reach that opinion IF that is where the facts lead.  But here we have no facts.  The opinion and conclusion of an IO is not useful.  I disagree with IOs/PHOs quite often.  What were the facts used to reach that opinion and conclusion?  And were those those facts the same as presented at trial?

  43. DCGoneGalt says:

    Libby:  Please post a link to those stats.  Is 78% the figure for those convicted of ANY crime in those cases where an Art 120 offense is charged?  I cannot believe that is the ignite for Art 120 convictions unless I see it.  

  44. DCGoneGalt says:

    Libby:  I am willing to reach the conclusion of a false allegation IF the evidence leads there.  The problem is that we have NO evidence reported on this case.  An Art 32 IO conclusion/recommendation is NOT useful if we do not have the underlying facts for that opinion/recommendation.  It is not infrequently that I disagree with Art IO/PHO opinions/recommendations.  And while the Art 32 evidence would be useful, the entire discussion as to the trial itself would have to assume that what was presented at the Art 32 was actually presented at trial.  That is another assumption that I am unwilling to make.

  45. Phil Cave says:

    So for example, DCGG, let’s assume that there was a 412 motion which was initially denied, and then was modified to allow some questions but not all of it, and that testimony went to the CW’s credibility under 412(b)(1)(C).  Just saying.  Potentially a lively appellate issue if nothing else.
    A little off topic, but how’s this for vindictiveness.

  46. DCGoneGalt says:

    Mr. Cave:  I don’t see what the MRE 412 issue has to do with whether this was a false allegation or the trial was in some way a miscarriage of justice.  I fully understand that an ex-spouse going through a custody dispute has a motive to fabricate, that is common sense.  Anyone who asks for a change of assignment has a motive to fabricate but that doesn’t mean the allegation is false.  Anyone who brings a contract claim or a civil suit for damages has a motivation to fabricate.  If you have something to gain, money/revenge/etc. then you have a motive to fabricate.  A MOTIVATION to fabricate an allegation does not equal a fabricated allegation.  Hell, any accused that takes the stand has a MOTIVATION to fabricate, that doesn’t mean they are.  A determination of whether an allegation is actually fabricated is driven by the surrounding facts, facts which I do not have.  If someone has knowledge of specifics that were presented at trial then I would love to hear them but all I have seen is an Art 32 IOs conclusion/recommendation and without the facts behind that conclusion/recommendation it is not useful.
    On a side note:  The (C) Constitutional exception to MRE 412 has been deleted from the statute.  Those matters are still Constitutionally admissible but are no longer included in 412/513.

  47. afjagcapt says:

    Libby it is not difficult to imagine a vindictive ex-wife scenario on the very sparse (really 0) facts we in the general public have. However, sense were in speculation land and freely attacking the (no longer “alleged”) victim I also don’t find it particularly difficult to imagine a couple other scenarios accounting for your quote (I assume?) from the IO report. 1) the IO just got it wrong based on some factor be it preconceived biases against “these types of cases” or something else; biases and just plain incompetent JAGs do exist in the JAGC (certainly in in AF and I’ve seen them in cases worked with the Army too) just as, apparently, do rapists. 2) there was a significant evidentiary change post-32; cases are often not perfected at the 32 (much less after the MCIO ‘ s investigation) stage as the government is still gathering evidence that e.g. may require a subpoena and talking to less obvious, but still potentially relevant witnesses. 
    Since I can’t imagine how, even under 403, a judge keeps out conspiratorial text messages or all of this other compelling evidence of innocence that the convicted ‘ s supporters keep alluding to (and thus which the panel apparently did not buy). I’ve seen plenty of close SA cases that could have gone either way and, for the ones going against the accused, they universally came back light on sentencing (frequently months, not years). As I said before, I take the sentence in this case to mean something and more than that they were just angry he was the CoJ.

  48. Dwight Sullivan says:

    D.C. Galt, actually, the constitutional exception has not been deleted from Military Rule of Evidence 412, which is presidentially prescribed, not a statute.  You may be thinking of one of two things:  (1) the Joint Service Committee’s recommendation as to how Mil. R. Evid. 412 should be applied at Article 32 hearings; or (2) section 537 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, which requires amendment of Mil. R. Evid. 513 no later than June 17, 2015 “[t]o strike the current exception to the privilege contained in subparagraph (d)(8) of Rule 513.”  The exception contained in Mil. R. Evid. 412(b)(1)(C) remains in that rule.
    Dwight Sullivan [standard disclaimer:  I offer these views in my personal capacity and they should not be imputed to DoD or any other entity.]

  49. Zachary D Spilman says:

    On a side note:  The (C) Constitutional exception to MRE 412 has been deleted from the statute.  Those matters are still Constitutionally admissible but are no longer included in 412/513.

    The Military Rules of Evidence aren’t statutes. They’re rules promulgated by the President pursuant to the authority granted in Article 36, 10 U.S.C. § 836.

    The Military Rules of Evidence in effect today are exactly the same Military Rules of Evidence as were in effect in 2013. See Exec. Order No. 13,643, 78 Fed. Reg. 29,559 (May 21, 2013) (discussed here).

    In Section 537 of the National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291 (2014) (discussed here), Congress mandated changes to Military Rule of Evidence 513 (the psychotherapist-patient privilege). Congress mandated that these changes occur not later than 180 days after the date of enactment, which was 19 December 2014. However, the President has not yet acted to implement the changes mandated by Congress.

    As for Congress removing the constitutionally-required exception from the text of MRE 412, I’m not aware of even failed legislation that tried to do that.

  50. Saul says:

    CL – while the corruption article is interesting, we’ve all seen too many of those types of sites to believe everything they write.
    As none of us have all of the facts, we’re left to speculate which to believe; either
    (A) the 82nd OSJA went after one of its own based on only an angry wife’s allegations which were found noncredible by the IO; the XVIII ABC OSJA then decided to support going after the same COJ, the convening authority under pressure went along with the court-martial and the panel was steamrolled into convicting a field grade JA based on non-credible allegations.  OR
    (B) the powers that be did their job following their ethical duties and the panel convicted based on evidence we do not have access to. The IO disagreed. 
    I choose to believe B absent evidence to the contrary.

  51. stewie says:

    I didn’t even find the corruption article interesting. It was obvious whomever wrote it has zero knowledge about the case that the rest of us don’t already have.

  52. DCGoneGalt says:

    Mr. Sullivan and Spilman:  Thanks for the eagle eye, my mistake.  I did not know the change to eliminate the Constitutional exception to MRE 513 went into effect in 6 months and I also mistakenly carried over the elimination of the Constitutional exception to MRE 412 at the Art 32 stage to elimination of the exception at trial (even though if something is Constitutionally admissible it doesn’t need an MRE to make it admissible).
    Saul:  It could also have been a little from column A and a little from column B (referred due to pressure but factual determination made by panel or referred because it met minimum standard but a runaway panel).  But impossible to say until the facts are released.

  53. Phil Cave says:

    So, DCCG.  My comment was intended to support yours which is that what the IO had and what the members had could well have been different.  If the IO had a bunch of 412 information that may have factored into the opinion.  Whereas the members might not have been provided that information and so it would have not factored.  There may have been other information presented to the IO that was not admissible at trial or not produced at trial.  Not saying that happened exactly like that, but that’s how there can be a “discrepancy” between a 32 and trial.  That’s all.
    And keep this in mind if and when MRE 412 is amended.  Isn’t the “constitutionally required” language in the current rule surplusage? I certainly intend making that argument under whatever new rule there is – (a) the constitutionally required language was surplusage, (b) a rule of evidence can’t trump the constitution, and (c) for these good reasons (citing current 412 law and reasoning) – the constitutional right to confrontation allows these questions.  So we’ll be back where we started on this particular issue with lot’s of lovely trial and appellate litigation to fill up our time and law books and law reviews and blogs. — IMHO.  

  54. DCGoneGalt says:

    Mr. Cave:  That is a fair point on the members perhaps not being able to consider MRE 412 material, I didn’t consider it that way.  However, while that would be a fair point of criticism as to how MRE 412 affects the ability of a fact-finder to consider all relevant evidence, it would not be fair to use it to criticize the “Bragg panel” that I have seen made.  The panel makes the decision based on what is presented to it.  But again, we have no facts . . . and I really want them at this point.  Since I am wrong and MRE 412 was not changed it is moot, but your point is true as to MRE 513.  The language is surplusage and nothing has changed in the practical manner in which the evidence should be admitted.  If you have a Constitutional right to confront a witness on matters of truthfulness (or anything else) you do not need an MRE to state the obvious.

  55. stewie says:

    I wasn’t aware that anyone was proposing amending MRE 412.  I thought the issue was amending RCM 405 to limit the applicability of MRE 412 to Article 32s (i.e. getting rid of the “constitutional exception” at 32s)?  Am I missing something?
    MRE 513 is being amended, but I can’t imagine it changes anything except for those few judges who don’t understand that you can’t legislate away constitutional rights.  I would hope that number would be as close to zero as possible.

  56. DCGoneGalt says:

    Stewie:  You’re not missing anything, it was my mistake on MRE 412.  The change to MRE 513 should change nothing as a practical matter at trial because Constitutionally admissible trumps.  However, you are right that MRE 412 and MRE 513 Constitutionally admissible material is no longer able to be considered by a PHO in an Art 32.  I thought MRE 412 got the same change as MRE 513 and I thought it was immediate.  It did not get the same change and the change to MRE 513 is not for 180 days from NDAA being signed on 19 Dec.

  57. stewie says:

    Well, it’s always good to know there’s at least one mistake out there I didn’t make. ;)

  58. brian lc says:

    Stewie, I would check out the new MRE 513’s procedural requirements.  The proposal didn’t merely remove the “constitutional exception.”  If that was all, I would agree  – nothings changed.  Its axiomatic that you don’t need an MRE to tell you to follow the constitution.  But, the procedural requirements are a doozy, and many (most?) cases that now get in camera review will fall short.  I would summarize it thusly (and flippantly), if you can show that the mental health records contain admissible information, for which an exception to the privilege applies, then you get an in camera review.  Of course, if you have sufficient evidence to pass this bar, you may likely have proven that you have a non-privilege means of introducing the evidence, in which case you don’t get the in camera review. 
    If you can prove you get the evidence, you’ve proven you don’t need it, and therefore don’t get.  This is an exaggeration, to be sure, but I think of Yossarian when I read the rule.

  59. stewie says:

    I should have been clearer, I was strictly referring to the change in 513 dealing with the constitutional exception, not all of the other procedural changes, which I agree, are dreadful.

  60. Not a Lawyer says:

    Questions from someone ignorant of the legalese here:
    1. Appears to be some issues with this case. With the CM complete, is there a normal process this moves along, Burris goes to confinement and waits for a possible appeal – or – can some generals or whatever (as in Wilkinson) write some letters to the CA and try to persuade him, quickly, that a big injustice has been done? Maybe I missed, but I don’t recall seeing anything stating the CA has approved the sentence already. 
    2. I saw above someone stated the panel has a 100% conviction rate. Why is a panel seated more than once? Doesn’t that gravely increase the possibility of contamination or group think or influence from higher? I’ve seen this for admin boards, didn’t know it happened with CM as well. How is it possible that Congress ignores these types of things? With UCI such a prominent issue in military justice, I don’t see how a panel, or even portions of a panel can be repetitively seated together. Given these concerns, it seems Item B in Saul’s post above is the least likely circumstance. 

  61. stewie says:

    My answers:
    1. It’s not clear if there are issues with this case. Not enough information.  There may be, there may not be. We’ll probably see when the appellate folks get their hands on it.  The changes to Article 60 mean that no, there is little the CG can do here, even if he wanted to.
    2. I don’t think you can take much away from “the panel had a 100 percent conviction rate.”  How many of these cases had they seen? 5? 10? Small sample size.  Were they the exact same folks every time? Unlikely, excusals and challenges would have resulted in different compositions.
    This could be the right result, or a travesty, or something in between.  We just don’t know yet.

  62. V says:

    Can anyone post the exact verbiage on the charge sheet?  Since the Army must charge with some specificity, the allegations will be more clearly seen if the charges, as written on the charge sheet, are produced.  The specific charges may also be found in the Article 32 Investigator’s Report.  Right now all we have is a brief summary of charges which doesn’t tell us anything specific.

  63. Not a Lawyer says:

    1. All good points. Just feels odd to see so much dialog. Makes it ‘feel’ like something is amiss here.
    2. I believe there’s a plethora of research that shows the dangers of panels (even with excusals etc) being together over and over and maintaining autonomous, independent, critical evaluation of each case –  but like you point out in #1, I don’t know the facts and true composition. Panels have to be like any other group, forming/storming/norming/performing/transforming. I’ve seen it with admin board panels. 

  64. RKincaid3 (RK3PO) says:

    I know nothing about MAJ Burris or the evidence against him, so I have no opinion on the validity of the conviction.  Was he a narcissitic bad guy who got what he deserved?  I have no idea and offer no opinion on that issue or the evidence against him.
    But what I can say is that I would feel better about any court-martial conviction that results from a unanimous verdict of panel members not hand picked by the same convening authority who is court-martialing the accused in this politically toxic, UCI-infected environment where leaders must bend over backwards to show how tough they are in order to get Congressional approval for promotion.
    Until those problems are fixed, it is impossible to say that any court-martial conviction not involving the death penalty (which is a unanimous verdict, at least) is truly a “just” result.  The stats pointed out by Libby terrifyingly comfirm my reticence to take comfort in the procedures under the UCMJ, especially now in the new, post “all-men-are-rapists-and-all-women-are-victims” environment in which we find ourselves.

  65. RKincaid3 (RK3PO) says:

    afjagcapt said:

    “I’ve seen plenty of close SA cases that could have gone either way and, for the ones going against the accused, they universally came back light on sentencing (frequently months, not years). ”

    THANK GOD!  It is so reassuring that in this climate should one be convicted of a sex assault that they MAY NOT have actually committed (as opposed to having actually committed BRD) can rely upon receiving a light sentence (“…months, not years”) from a panel (that apparently–per Lieber–convicts “nearly” 100% of the time) as just compensation for their personal sacrifice on the altar of petty political agendas putting inordinate pressure on military leaders that drive specific, subjectively satisfying (but objectively unjust) results simply to appease those in power who can prevent future promotions for no better reason than the leader exercises their discretion in a politically unpopular way.
    I feel so much better about all courts-martial now.  I guess that we can all sleep better knowing that the convicted are not punished too harshly IF they really should not have been convicted in the first place.  Sounds like justice to me.

  66. RKincaid3 (RK3PO) says:

    Ummm…that was a really long sentence that I typed above.  Got ahead of myself in typing.
    Sorry about that folks.

  67. afjagcapt says:

    RK3PO you misunderstand, close doesn’t mean 50/50 the accused “MAY NOT” have committed the offense; close means the G is right at the line of whether they’ve met their burden to firmly convince the factfinder of guilt BRD. There are cases where guilt had been established beyond essentially all doubt (on video, confession+304g, etc), there are cases where guilt has not been established to anything close to BRD (e.g. the significant increase of referral of 120 cases that just barely meet RG/PC at the 32), and there are cases where the G has put forward a strong case, but it’s a close call on BRD. Those are the cases I was referring too. I respect your flair for the dramatic, but kindly take a minute to think critically before essentially suggesting that I was advocating a PC standard for conviction.   

  68. RKincaid3 (RK3PO) says:

           Hooah!  Roger.  The sad part is that in this climate, what you suggest (conviction based upon PC vice BRD) was dramatic exaggeration is actually a valid concern since in today’s military, conviction equals “tough commander” and “tough panel members” who are all now worthy of promotion by Congress.
    Where is the independent “justice” system where one can find solace that the process itself will in fact yield a verdict that rests on the facts and evidence at bar?  Until we get one, there will always be questions about whether the Burris verdict–or any verdict–is truly just.

  69. stewie says:

    RK3, I’m not on-board with the conviction percentages quoted earlier without some evidence…they don’t reflect the numbers I’ve seen.

  70. DCGoneGalt says:

    Stewie:  I would take a stack of cash to Vegas to bet against those numbers. 

  71. Paco says:

    Mr. Cave/DCGG-
    Your above discussion about potential discrepancy between the members and the IO is concerning to me.  Given, one possible reason for the discrepancy is that the IO may have had more information than the Jury in deciding this case.  I know politicians love to throw things like Rape Shield around to say they are protecting the system of justice, etc.  But it seems if the jury is supposed to find out the truth, the system we have that prevents evidence from coming in seems to be inhibiting that function.  The same could be said for the exclusionary rule.  Maybe the Jury should just have all the information we can let them have, instruct them properly, and not hide the ball from them leaving speculation and altered views of the facts that get spun by advocates whose intent is not necessarily the truth but the position they are advocating for. (If this seems like a chide at prosecutors not seeking the truth, though not intended for all prosecutors, it was meant to be.)

  72. stewie says:

    There are a ton of good reasons why we restrict some evidence from the panel.  To discuss each and every one, and the merits and problems would obviously require a ton of time and electrons, or even if we just talked about 412 which has a ton of clarifying case law behind it.  Has nothing to do with prosecutors.  So your general principle to just “give everything to the panel” is flawed.  Do you really want to give everything to the panel? Because there is a whole lot of stuff that would hurt the accused with the philosophy. 

  73. TC says:

    Paco, we certainly don’t want prosecutors arguing “the accused stole a pack of gum/talked back to his supervisor/is here on a drug waiver and is therefore guilty of rape.”  That, and much more, would be the result of your proposal.

  74. Paco says:

    I was not necessarily proposing anything, but simply pointing out that the previous discussion seemed to say: The IO got all the evidence and found it shouldn’t go to court; the members got filtered evidence and found him guilty beyond a reasonable doubt.  I am not opining on whether one or the other was correct, it just seemed to be concerning that the finder of fact determining if someone should be convicted may get a filtered view of the evidence which seems contrary to their duty/function of trying to find the truth.  I also acknowledged that my concerns about limiting the evidence because a witness may feel bad about the threesome they had the next day or not wearing any panties the night of, match many others concerns with the exclusionary rule (ie if the members are to find the truth why are we preventing them from seeing the DNA report, etc).
    My point was also not intended to say advocate for throwing out relevancy from a court.  Only just questioning excluding relevant evidence from the search for the truth for some other purpose.  All things being equal, if someone stole a piece of gum would not be relevant to the question of whether he sexually assaulted.   412/513 and even evidence excluded under the exclusionary rule can often times be very relevant (understanding relevance is part of the function of 412/513 as well). 
    However, the law (and I gave no opinion if this is good or bad) can prevent it from being brought forward during trial for the truth because “I don’t want my parents/husband/whomever else to know” or some knuckleheaded cop didn’t say the “magic words” at the right time.  My comment, then and now, is simply to point out the irony that the “fact finders” seems to be limited in their search of facts and conflicting IO/Panel decisions can show that.

  75. DCGoneGalt says:

    Paco:  While I agree that there are times where we wish the jury could have more, I generally believe the rules of evidence are time-tested and serve their purpose.  It is the risk of short-term politically-motivated tinkering with the MREs that I believe risks upsetting the delicate balance that has been set.  IMO, I prefer the MREs and adversarial system  of the English to many of the European open-ended models that are similiar to what you seem to prefer. 
    IOs/PHOs routinely have access to more information than will be admissible at trial.  They are supposed to comment on whether the evidence would be admissible and, even if it is not, to craft their recommendation based on the interests of justice.  And justice sometimes includes taking into account inadmissible evidence, that is why the convening authority can take into account any evidence they wish to.  I have been a prosecutor where I was asked to try to shotgun everything in under MRE 413 and I felt the evidence was irrelevant to the charge.  As a prosecutor I also used MRE 412 to keep out irrelevant attacks on a complaining witness.  As a defense attorney I thank The Diety Or Non-Diety Of Your Choosing that hearsay rules exist and that prosecutors were unable to run with the “he’s a dirtbag” Rorschact test but also understand why those same rules prevented me from doing the same thing to witnesses against my client.  The MREs enforced justice in each case, and I think they do so in the vast majority of cases.

  76. Libby says:

    Major Burris was wrongly convicted, he did not commit these crimes – he was falsely accused by a former spouse with no collaborating evidence.  it was merely a he said/she said.  .  This has been a battle that Major Burris has been fighting for several years.  The investigating officer into the abuse allegations did not believe the accuser, and noted in her report that she was not credible.  During the trail the accuser perjured her self and was found to be collaborating with other witness to bring false accusations,  Major Burris is an honorable man, who loved his country and severved honorably. He was a career officer, and deserves better than this.    He did not do the crimes he was convicted of.  His sentencing was excessive and is  due to the pressure on the military to appear tough on sexual crimes as well he was one of their prosecutors –  This whole process has been heartbreaking as so many of us had faith in the law and the process, and it failed miserably.     Support is needed for Major Burris as it will be a long fight to get this overturned.

  77. Ed says:

    Libby The remarks you made are mere allegations. Give specific facts. I am sure the specifics will be read with interest and considered by all who read this blog. Who collaborated with whom? What is your factual basis?  People need facts to determine whether support is justified.

  78. DCGoneGalt says:

    Libby:  If you have a publicly releaseable redacted Art 32 report that would be useful . . . but that still wouldn’t cover what was admitted at trial.  The Art 32 evidence is useful, but evidence can “evolve” over time by the time of a trial.  In addition, if it “evolved” or some evidence was not presented to the members then that makes it unfair to criticize the panel, as some have insinuated.  I fully understand that the military justice system is at a dangerous point and that injustices can, and do, happen.  But without facts I think people are finding it hard to lump this case in that category.  It doesn’t mean it wasn’t an injustice, and you may truly know the facts and have the correct view, but without publicly available information I think many are reserving judgement.
    In addition, I would still be interested in seeing the data behind the sexual assault conviction rates you mentioned.

  79. stewie says:

    I’ll be honest Libby…you presented data that is at best misleading and at worst inaccurate.  There was not a 78% sexual assault conviction rate in 2013 in contested cases.  If you are lumping in guilty pleas then you are being misleading (or ignorant of what the stats you submit are based on).
    Thus, it makes it harder for me to take your other remarks on face value alone.

  80. DCGoneGalt says:

    Stewie:  The numbers I saw ~ 18 months ago included guilty please and the conviction rate was not nearly that high.  I find it borderline impossible that, even with all of the changed atmosphere around sex assault cases in the military, the conviction rate for an Art 120 spec is that high.  And that holds true even if you include guilty pleas in the stats.

  81. k fischer says:

    I know for a fact that the conviction rate for guilty pleas.found provident by the military judge is 100%.  I’ll bet a hundred bucks on it.
    Anybody think the Lorrance publicity had anything to do with this verdict or sentence?  I think if I ever get hired for a Bragg court martial, I should fight like heck for a change of venue.

  82. James says:

    Listen here to Maj Burris’ plea his case to the Sacramento media:

  83. stewie says:

    Not much there, there in that video.  Other than a protestation of innocence, and the allegation that she changed her story to be more heinous with each retelling. All could be true, I don’t know, but unless there is more that wasn’t shown, not much there.

  84. Defense Hack says:

    Things that probably hurt him in sentencing, aside from the facts (which the panel must have bought in the first place), were his statements to the media and his position. IMH experience, CoJs are pretty much responsible for post trial, some mentorship, and aggregating information for the SJA, and are mostly hands-off in individual cases, but I think the fact that he was CoJ, ultimately responsible for enforcing the law, could not have resonated well with the panel. His statements about UCI in the Camacho case, as well as his statements to the media, may have pissed off the panel. He took some shots at the Army, which is a very, very risky endeavor.

  85. J.M. says:

    The Art 32 report has been uploaded to Is it ok to post a link?

  86. Phil Cave says:

    JM, thanks.  Let us know when it’s on a site you don’t have to pay to play.  

  87. J.M. says:

    I didn’t have to pay or log in. The Art 32 report was uploaded by a mil blogger, I claim no credit.

  88. ContractLawyer says:

    “Tickle Torture” and “Tushie Squeeze.”  This was one of the assaults against one of the children.  There are no redactions here.  Not sure if that is normal to release this without redacting vicitims’ names, even the children. 
    It appears that one of the children is from the ex ex wife, so it is the case of two ex-wives, though the first ex became involved only after the allegation of the second ex.  One of them went to the doctor for a rash around her privates and difficulty/pain while urinating.  This is something that can inflame the situation regardless of the merits of the case. 
    The main victim, ex-wife #2, claims that she was a virgin even though she was previously married and divorced.  Her ex-husband testified that this is BS (or words to that effect).  The claim is pretty much continuous rape from the marriage all the way up to the report to CID.  The victim was dissatisfied that MAJ Burris did not continue to send her flowers and give her bubble baths like he did when they first met on  The victim testified that she did not have access to a bank account set up for her by MAJ Burris, but yet bank statements showed that she made withdrawals and wrote checks on the account.  MAJ Burris was also guilty according to the victim of “unsafe gun storage,” though the only photo produced was a picture of ammo and a cleaning kit.  Ironically, the facts state that MAJ Burris even purchased his wife a 9MM.  If ten percent of what she claims is true, she should have used it (on him).  Testimony shows MAJ Burris was passed over for promotion and had some performance issues, though that is not an indicator of guilt.  The victim testified that their daughter is a result of a rape and that she informed her mother the day after that rape, though the mother testified she did not hear of it until the hearing for the protective order.  Generic allegations about bathtub abuse.  There are other references that are not described in the report. 
    Though the IO did not recommend court-martial, she did recommend an Art. 15 or GOMOR and a Show Cause Board for some of the charges. 
    We do not have the transcript here and I am not sure if this will be coming, but this does show more information than I have seen so far.  If additional transcripts of the 32 or ROT become available, I am not reading it except to review the victim testimony to see how all the factual inconsistencies were handled on direct and cross.  Or perhaps there motions to avoid most of the damaging testimony?  In any case, if the Government managed to keep out the damaging information, then the Art 32 experience allowed them to improve their case. 
    One thing is for sure, regardless of guilt or innocence, any man who considers dating or marrying this woman should give this a read. 

  89. James says:

    Your posts looks like an awfully vicious attack on internet dating.  
    All joking aside, thanks for the rendition of the facts–based on the facts you provided I guess you could characterize it as a stereotypical military rape case that a civilian prosecutor would not take to trial and a civilian jury would probably acquit on if he did.  With recent experience as a COJ at an Army division (with strong defense hack sympathies), it always concerned me that we were going out of our way to brainwash our panel pool,including forcing everyone on base to watch the propaganda film “Invisible War”
    Seeing the influence such propaganda can have on our convening authorities has convinced me ironically that perhaps it would be better to hand control over to civilians for sex assault cases– I am begining to question whether a service member can ever get a fair trial when accused of sexual assault in the military I this environment.

  90. k fischer says:

    I miss the old days when a non-legal IO could articulate that 1) The credibility of the CW is paramount, 2) the CW has a motive to fabricate, 3)the CW lied or at least embellished on several occasions, and 4) no physical evidence supports her allegations.  Therefore, I do not believe that reasonable grounds exist in this case to believe the charged offenses occurred period.
    Currently, you get lawyer who says reasonable grounds exist simply because the CW says it happened even though her credibility is completely shot, but I recommend that charges not be referred be a use the witness is not credible.  If the witness is not credible, then how can you find reasonable freaking grounds when the only evidence comes from her word??????
    Thankfully, we won’t have to worry about this anymore because CW’s won’t have to testify at 32’s anymore.

  91. Not a Lawyer says:

    So the IO says no to a CM but recommends a Show Cause BOI or GOMOR? Those two are the most rigged items in the military justice system. 

  92. k fischer says:

    Article 15 for rape? That’s legit…..not. IO’s need to step up and say no reasonable grounds when they don’t believe the charges are true. The IO started the memo with the discussion section in RCM 405 that states the purpose of the 32 is to inquire as to the truth of the charges. She says that the CW is not credible, there is a motive to fabricate, and no physical evidence supports the allegations. Yet there are reasonable grounds to believe the allegations are true based on the CW testimony? C’mon now.

  93. DCGoneGalt says:

    Remember boys and girls:  The IOs are dead, long live the PHOs!

  94. ContractLawyer says:

    Q?  Can a DA Civilian Attorney be a PHO?
    How about a TC or DC?  I think the process could benefit from civilian TDS attorneys to allow more experience and civ PHOs would feel more free with their recommendations, but it does not appear the Art 32 recommendation means anything these days.  I could look at the MCM, though I spend my days reading the FAR.  I don’t think I could be a TC these days or have any role such as an SJA when you are committing these injustices on a regular basis.
    Another point, what is wrong with referral without regard to the merits and instead brace the decision on the allegation and victim’s most favorable statements?  If the accused is innocent, the court-martial will find them not guilty.  So what if the acquittal rate increases?  I think the answer is that the acquittal rate will not decrease or it will not decrease by much.  
    What if they gin one up against you?

  95. ContractLawyer says:

    How do we get the ROT for this case and the Art 32 transcript?  I want to see how the complaining witness credibility issues were dealt with at trial.  I wonder if the defense was shut down in their legitimate effort at attacking the victim’s credibility?   This case would benefit from more transparency.  I am sure there are many other cases just like this worthy of debate and examination, but this is the one on the table right now and there are legitimate concerns.  
    The ROT should be posted here for all to see.  If this was a public trial, then the info is in the public domain.  I hope MAJ Burris set aside funds for appellate counsel.  

  96. Libby says:

    Contract Lawyer –
    The FAR and DFARS is much easier to understand than why this was ever went to trial based on the ART 32 report.     

  97. Lilbby says:

    If the witness is not credible and there is no supporting evidence, and its merely a he said vs. she said allegations, how does this move forward?  It moves forward because the military is under increaseing pressure to be politically correct and appear tough on sexual crimes -regardless if they are based in any evidence that is supportable –   I thought our judical system was innocent until proven guilty, guess that is not the case with a military court.  

  98. Libby says:

    Telling in the report is Mrs. Burris was concerned that her (ex) husband would enforce his parental rights to the fullest … that he would invest a great deal of time and money to ensure that he remained active in his daughters lives.    She resented the attention he gave to his daughter from his first marriage (jeolousy) and she never intended to live in North Carolina when he was transferred.   Evidence is provided throughout the report questioning the credibility of the accusor.  Based on evidence and testimony, the investigator did not find her to be credible –  yet it went forward to trail and a conviction, why?

  99. Advocaat says:

    In addition to getting this post over 100, I’d like to hear from the accused’s supporters as to why he did not take the stand at trial (if that previous assertion is true) to tell his side of the story, to have his day in court, to let us know what really happened.  If a friend of mine ever faced similar charges and I “knew” he was innocent, I would both demand and expect he would testify.

  100. James says:

    Advocaate–I apply the opposite logic, perhaps something like “friends don’t let friends testify”–fortunately though I have never had a friend accused of  such a crime, but had many clients that did–I regret putting every single one of them on the stand (about 4 or so) even though I “knew “‘ they were innocent.  Having watched MAJ Burris on the YouTube Link above the first thing that comes to mind is “COCKY”.  Red lights flash in front of my face “DONT LET SATISFY”.  It’s thus perhaps a wise decision that he did not, albeit he did get sent up the river so who knows.

  101. James says:

    Sorry my iphone spellchecker converted “DO NOT TESTIFY” to “DO NOT SATISFY” in my last post 

  102. Jack Burton says:

    @ James  – you are right, any DA would have passed on this.  When I was reading my bootleg copy of the 32 report I was wondering why nothing happened in Texas courts.  Numerous allegations were made in proceedings in various forums in Texas yet no investigation or charges (that we know of).  Maybe this is like MSG Hennis, the state took a crack at it or passed on it and we picked it up lest an injustice be done, oh wait maybe an injustice was done. 
    @ KFisher – right on the money, 32 IO goes on for 20+ pages on why the CW is not credible then finds reasonable grounds.  That is far different from the intial defense friendly reports that IO recommended not going forward.  I’m no genius but if the CW is not credible then the burden is not met and reasonable grounds do not exist.  She really split the baby and just threw this back to the SJA and CA and told them to figure it out.  Good job.

  103. stewie says:

    I’ll be the contrarian.  Right or wrong, that panel is not going to give the same, if any, benefit of the doubt to a FG JAG who used to be the COJ that they give to a SPC in the same boat.  There is no thought in the minds of the panel that he wouldn’t have held his own against a junior attorney, and add in the expectation I think panels have that officers get on the stand and tell their story and I don’t think the normal, don’t testify unless you have to analysis holds here.
    Now, having said that, if the DC felt after prepping him that he would come across poorly, then obviously not testifying may have been the best call..I’m not going to second-guess their process…I’m just commenting in general about the idea that do not testify should be the default position here…I think that’s old school, and flawed thinking.

  104. k fischer says:

    So, now that we have a new 32 aka “preliminary hearing,” who is going to ensure that the accused does not stand trial on baseless charges? CID doesn’t bother to peel back the onion on the craziest of allegations by asking tough questions, the PHO doesn’t have to investigate or call any witnesses, the SVP isn’t going to get himself accused of covering up a rape charge, the SVC gets to advise the CW on what to say, MJ’s are constrained by 412 and 513, and the panels are all trained by SAPRO who puts out bs and are told by the Senior GCMCA, aka POTUS, that anyone convicted has to be dishonorably discharged.  
    I propose that the UCMJ be changed from the Uniform Code of Military Justice to the UCMSAC, Uniform Code of Military Sexual Assault Convictions. I bet money that the next thing Congress takes away is the appellate courts’ ability to overturn a conviction based on factual insufficiency. 

  105. James says:

    What keeps the current system afloat in part is we military lawyers have defended it tooth and nails–I have spent most of my career, until very recently, in this camp.  But the sexual assault crusade has shown me that the military justice system has failed a critical test– it has failed to effectively respond to the Gillabrand camp and is letting politics unduly influence it.  For example, army officer Evals that judge officers on support of sex assault policies, or as the example I gave above, showing your panel pool a propaganda film like “The Invisible War”– I could only imagine screening a jury pool this way in the civilian world, showing them a propaganda film before jury selection, with Evals that intimate that propaganda is not supported your future employment opportunities may be at stake.  The civilian justice system would not tolerate this– neither should the military justice system.

  106. Jack Burton says:

    @ James
    I agree there is a failure in the system but think it is with the leadership.  There appears to be a “burry the head in the sand” mentality and claim that we have a great system and hopefully the storm will blow over. The big push in the last few years was to have DCAP and TCAP train, train, train.  Well that only goes so far and frankly has not worked anyway. 
    If you look at some recent events/cases like Muwwakkil, Wright, and Bowser and several others there is real indication that we operate a substandard system that is far from professional.  Serioiusly, in Muwwakkil, the government can’t even maintain audio recording of the CW’s testimony and produce a half a** script from the 32.  Really basic stuff and the paralegals and their leadership are to blame on that one, but no one is saying that mainly because they are not truly paralegals.  If we can’t have success at the basic stuff how can we expect for the harder cases to be handled in any more professional manner.  I read an article recently that indicates military members convicted of sex offenses are slipping through the cracks and not registering as sex offenders. 
    This all indicates to me that we are on the verge of losing the system just as some have suggested should happen.  My proposal would be for (If I were TJAG for a day) the Army at least to do something, anything to improve the day to day functioning of the system.  You can’t continue to ignore the issues and hope it will get better.  Establish a full time prosecution branch where assisgnments are made on valid, legitimate experience, not nepotism.  You can’t rely on one COL to prosecute all the hard cases (what happens when he retires or goes to ACCA).  Assignments can’t be made to critical positions simply to broaden an officer’s experience / ORB for promotion.  If you are assigning a MAJ to be CoJ or SDC but they really don’t want the job and they are an Ad law guy/gal or contract guy/gal, you have bigger issues than the crappy 32 report in this case.  Likewise, you can’t continue with the myth that people can’t be experts.  It happens but is not talked about because those people are typically special (FLEP) so their career progression is not at issue.  Even as dorked up as MEDCOM is they don’t have an OBGYN doing heart surgery.
    Anyway, a truly professional system deserves our best efforts, which we are not giving at an institutional level.

  107. Defense Hack says:

    I would also posit that the Government needs to get away from the cult of counter-intuitive victim behavior. I get that victims can act in bizarre, and counter-intuitive ways, but it’s gotten to the point where TCs have convinced themselves that if a victim says she was assaulted, then it must have happened, regardless of how nutty her story is. I’ve seen victims take the stand, get confronted on text messages/videos/their own facebook posts, only to come with some sort of crazy story to explain it away. I adhere to reciprocal discovery, but I hate that it gives the CW time (and the help of VAs, VLC/SVC, TC/SVPs) to fabricate an explanation as to why they sent a message to their friend that totally contradicts their testimony and provides a motivation to lie.In most civilian prosecutions, when a victim gets caught in lie after lie, the case gets dropped.

  108. Contract Lawyer says:

    Hack – This is one reason I want the ROT so I can examine the damaging statements and inconsistencies from the Art 32 and see how those are handled or resolved at trial.  As you speculate, they find a way to explain it (lie) and then object or file a motion in limine to block any suggestion otherwise or question them in the area.  Or the TC has a way to keep the entire subject from coming up.  For example, the victim will not testify about being a virgin until she met MAJ Burris.  When and if the Defense uses this to impeach, the TC argues rape shield because at this point there is nothing at trial to contradict and the benefit to the accused in allowing the attack on creditability is “outweighed by prejudice to the victim in having her sexual history disclosed to the panel.”  Of course we all know the sexual history now from the Art 32 report and we will see it in the ROT if it was discussed outside the presence of the panel.  This is just one of the many issues I want to resolve for myself. 
    I would like to get the Art 32 transcript and ROT to review these issues.  I speculate that the defense was limited in their attempt to discredit the victim in the same manner that was observed by the Art 32 officer.  Its not so much MAJ Burris that concerns me.  I do not know him and he just happens to be the accused here.  I want to review the ROT and see it for myself and I do not mind posting what I think about it, although anonymously. 
    Above I ponder the point about whether it matters that the CAs are referring cases to trial when the Art 32 recommends not to.  Another thought.  Lets drop double jeopardy.  This would be hard to do because it is actually written into the constitution, but lets say we could find a way around it, perhaps a military exception for courts-martial.  In this case, if an accused is acquitted/found not guilty, then the CA has the option to refer the case to a new panel.  If the accused is truly innocent, then it should not matter because the accused would be found not guilty again, but if the accused is found guilty after previously being found not guilty, this would be because he is really guilty and they did not find proof beyond a reasonable doubt in the first trial.  There should always be reasonable doubt for someone truly innocent.  If the system is built with a standard that allows a few guilty go free to prevent the innocent from being convicted, then why not have a system that re-screens for those few guilty that went free?  In the military we would take away most of the real jeopardy by providing free counsel and continuing pay and allowances until the trial where the accused is eventually found guilty.  The point of this thought experiment is that even an innocent man subject to repeated trials will be eventually convicted and this process could reach the point of a 100% conviction rate if the process were continued to its natural conclusion.  This would obviously not be legal and the Constitution will not likely be amended to allow this, but our process of referring shit cases to trial has this same effect.  Many of the “shit cases” will result in conviction and many of those convictions will be against innocent accused.  I have a problem with that.  I have less of a problem with assuming an accused committed the current crime based on a record of being convicted of previous crimes because there we are dealing with a bad person and the only issue is whether they did it this time; they probably did and who really cares if they didn’t because if we don’t put them away, they will recidivate anyway.  Our problem is that I bet close to 100% of our accused sex offenders have no prior convictions for sex offenses.  There can always be a first time and I know firsthand there is a lot of real cases that need to be tried, but when assessing the marginal cases, I believe there is prejudice to referring cases to trial with the assumption that the process will sort the guilty from the innocent because these trials do not offer the protections anticipated in an adversarial system.  The unique features of our military justice system in this environment further steals from the traditional protections afforded an accused under the law and in the military system. 
    I know of one ACCA judge who will get this and I am not sure that he/she is able to do a damn thing about it.