CAAF will hear oral argument in the Navy case of United States v. Woods, No. 14-0783/NA (CAAFlog case page), on Wednesday, February 25, 2015. The case presents a single issue that addresses the persistent myth that service members give up their constitutional rights when joining the military:

Whether the military judge erred by denying a challenge for cause against the court-martial president, who said the “guilty until proven innocent” standard is “essential” to the military’s mission.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of aggravated sexual assault in violation of Article 120, UCMJ (2006). The senior member of the panel that convicted Appellant was a Navy captain (O-6) who provided the following written response in a members questionnaire:

The questionnaire asked, “What is your opinion of the military’s criminal justice system?” CAPT Villalobos answered:

There is not [a] perfect system, and I understand why the enforcement of ‘you are guilty until proven innocent’ (just the opposite as in the civilian sector) is essential because the military needs to be held to a higher standard just for reasons of our mission. It is a voluntary force and you come into the service knowing that you will be held to this higher standards [sic] and give up your civil rights.

App. Br. at 2. See also Gov’t Br. at 2. The Captain was selected for the panel and questioned extensively by both sides during voir dire. Ultimately, the military judge asked the Captain the following series of leading questions:

MJ: Okay. Captain, going back to your answer to question 20, it appears that you, in fact, arrived at this court-martial with an erroneous understanding of the burden of proof in this case.
CAPT MV: Right.

MJ: Is that fair to say?
CAPT MV: Yes.

MJ: Okay. And your answer also tends to indicate that you might think that there would be a good reason for the military to operate under a system like the one that you presumed that we did.
CAPT MV: Um-huh.

MJ: I want to make sure in my own mind and for the record that you understand that the burden of proof in this case is on the government, that it never shifts to the defense.
CAPT MV: Right. I understand that.

MJ: And that the obligation for a conviction in this case is that the government must prove their case beyond a reasonable doubt. Do you understand that?
CAPT MV: Yes.

MJ: Are you completely comfortable with that?
CAPT MV: Yes.

MJ: You don’t have any reservations in your own mind about following that instruction when I give it to you?
CAPT MV: I don’t have any reservations.

United States v. Woods, No. 201300153, slip op. at 4-5 (N-M. Ct. Crim. App. Jun. 26, 2014) (quoting record at 296-97). The defense challenged the member for cause, the military judge denied the challenge, and the NMCCA affirmed.

Appellant asserts that the Captain should have been removed from the panel under both actual and implied bias theories. “Actual bias is personal bias which will not yield to the military judge’s instructions and the evidence presented at trial.” United States v. Nash, 71 M.J. 83, 88 (C.A.A.F. 2012) (citing United States v. Reynolds, 23 M.J. 292, 294 (C.M.A. 1987)). “Implied bias exists when, regardless of an individual member’s disclaimer of bias, most people in the same position would be prejudiced.” United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (citations and marks omitted).

But implied bias was the topic of CAAF’s recent decisions in United States v. Peters, __ M.J. __, No. 14-0289/AR (CAAFlog case page), and United States v. Castillo, __ M.J. __, No. 14-0457/AR (CAAFlog case page):

In reaching a determination of whether there is implied bias, namely, a “perception or appearance of fairness of the military justice system,” the totality of the circumstances should be considered. United States v. Dale, 42 M.J. 384, 386 (C.A.A.F. 1995). While cast as a question of public perception, this test may well reflect how members of the armed forces, and indeed the accused, perceive the procedural fairness of the trial as well.

Peters, __ M.J. at __, slip op. at 8 (emphasis added). A ruling denying a challenge for cause based on an implied bias theory also gets less deference on review. A ruling on actual bias is reviewed under the highly deferential standard of abuse of discretion, while one on implied bias is reviewed in a manner that is “less deferential than abuse of discretion, but more deferential than de novo review.” Peters, __ M.J. at __, slip op. at 5 (quoting United States v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006); United States v. Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997)). So Appellant’s challenge of the Captain in this case stands a greater chance of succeeding under an implied bias theory.

Appellant’s brief aggressively pursues both theories, asserting that the military judge’s ruling was based on the erroneous finding of fact that “when CAPT Villalobos was speaking about a ‘higher standard,’ she was not referring to the burden of proof at court-martial. Rather, the military judge found that she was referring to a belief that military members are held to a higher standard of personal conduct than civilians.” App. Br. at 7. Appellant asserts that the record does not support this finding:

In light of these facts, the record does not fairly support the benign gloss the military judge gave to CAPT Villalobos’s statements. By straining to conclude that CAPT Villalobos meant something other than what she actually said, the military judge predicated his decision on a clearly erroneous finding. This was an abuse of his discretion.

App. Br. at 9.

Additionally, Appellant asserts that it was error for the judge to use leading questions to rehabilitate the member, and that the judge “relied too much on the tainted member’s own disclaimer of bias.” App. Br. at 10. Appellant ultimately sees this member as beyond rehabilitation:

Here, the member’s own statements on voir dire avowing impartiality are not enough to allay concern because her initial prejudice was so unequivocal and undercuts two fundamental pillars of due process-–the presumption of innocence and the burden of proof. This was not a simple misunderstanding. The court-martial president knew that the “guilty until proven innocent” standard is “just the opposite as in the civilian sector.” Yet she believed it was “essential” to the military’s mission, noting that those who join the military “give up [their] civil rights.” The court-martial president was not merely expressing an opinion, she was sermonizing. Her later declarations of impartiality, no matter how sincere, were not sufficient to ameliorate concern about her bias. The military judge erred by ruling to the contrary.

App. Br. at 12-13.

The Government’s position is that the Captain’s feelings about military justice are likely commonplace among service members:

CAPT Villalobos arrived at the court-martial with an incorrect understanding of the burden of proof; she had no mental reservations in applying the correct “guilt beyond a reasonable doubt” standard; and, her comments relating to holding service members to a higher standard were not related to standards of proof in court, but rather were her expectations for standard of behavior of servicemembers in daily life.

CAPT Villalobos’ presence on the members panel also posed no threat of implied bias, as most people in similar circumstances as her would not be prejudiced. . . . Her initial misunderstanding of the law likely affects many military court-martial and jury members.

Gov’t Br. at  10-11 (emphasis added). CAAF is unlikely to be sympathetic to the Government’s argument that it is commonplace for a senior officer to believe that in the military an accused is “guilty until proven innocent.”

The Government’s brief also takes aim at CAAF’s test for implied bias, asserting the court “has provided multiple, inconsistent, implied bias tests over the years.” Gov’t Br. at 19. The Government’s brief argues that CAAF should eliminate consideration of the public’s perception of the fairness of the trial from the analysis of the implied bias theory, and that the test should focus solely on whether an objective person in the position of the challenged member would be prejudiced:

If “public perception” is the test, then objectively looking to whether a reasonable person in the member’s shoes would be biased is pointless. Alternatively, looking to whether “the public” would find it “unfair” if most people were in the member’s shoes likewise voids the objective test of the reason for its creation. Implied bias was created to complement actual bias. It should provide a R.C.M.912(f)(1)(N) basis for dismissing a member, as in Federal courts where, despite a lack of actual bias, most people in identical shoes to the member would nonetheless be biased.

Gov’t Br. at 23. If adopted, the Government’s position would radically transform the implied bias theory. But considering that Chief Judge Baker’s recent majority opinions in Peters and Castillo highlighted the public’s perception of the fairness the trial (and even noted the accused’s own perception), it’s unlikely that the court will now abandon that consideration.

Finally, the Government makes a surprising argument that CAAF should review implied bias de novo, eliminating the deference that the current standard of review affords to a military judge’s decision on a challenge involving implied bias. Gov’t Br. at 17. Predictably, Appellant agrees with the Government’s suggestion of de novo review in a reply brief. It’s surprising that the Government would make this argument, because de novo review eliminates the deference contained within the current standard of review for implied bias: “less deferential than abuse of discretion, but more deferential than de novo.” Peters, __ M.J. at __, slip op. at 5 (citations omitted). An appellate court is less likely to affirm a judge’s denial of a challenge for cause under a de novo standard than it is under the current standard, and implied bias is generally only an issue in the case of a conviction (as a challenge is not a basis for an interlocutory appeal; however, the Government could seek extraordinary relief similar to what happened in United States v. Colonel Eller, Military Judge, and McGrath, Real Party in Interest, Misc. Dkt. No 2013-15 (A.F. Ct. Crim. App. Jun. 21, 2013) (discussed here)).

The Government is effectively asking CAAF to make it easier for an appellant to win reversal by showing that a member should have been excused from the panel. Because of this, regardless of whether Appellant wins relief in this case, CAAF’s consideration of the standard of review to be applied to a ruling on implied bias will make the court’s decision in this case a significant precedent.

Case Links:
NMCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

60 Responses to “Argument Preview: United States v. Woods, No. 14-0783/NA”

  1. Charlie Gittins says:

    Ah yes, the old time-worn leading questions by the military judge to salvage a member who should not sit.   I wonder how close they were to breraking quorum.  All counsel and the MJ should be required to ask open ended questions on voir dire.  Let the member talk.  Then you get a true indication of bias, prejudice and lack of qualification or the contrary.  Any military judge — any lawyer for that matter — with any competence, can leading question a member to the “preferred answer.”  Military members are very good at ascertaining when they are being led to the “right answer” and it is the rare one who is so clueless not to sing along with the leading question answers that are suggested. 

  2. TBeckett says:

    “Her initial misunderstanding of the law likely affects many military court-martial and jury members.”  The government conceded a point regarding public perception. 
     
    Also, given the role public perception played in the creation of the UCMJ, I think it’s unlikely that CAAF will grant the government’s request to drop it from consideration. 

  3. Advocaat says:

    Spot-on, @CG.  Methinks the Navy will learn nothing and simply change the questionnaire that led to this amazing, honest admission by the O6 member.  Why TC did not concur with DC’s challenge is a mystery when the govt had what looks to be a compelling case, especially with its strategic use of uncharged misconduct.  The military’s clueless approach to sexual assault not only puts innocent men at risk of conviction but it also hurts real victims like LTJG CT, who will soon be put in a position of deciding whether she wants to ride this carnival ride again.

  4. stewie says:

    Why? Is there a shortage of O-6s on that post?  Why not just remove and replace with someone else? I just don’t get why MJ’s fight so hard to keep on people when simply taking the easy route, kicking them, and replacing with someone else would remove so many of these cases.  It’s not like the next person up isn’t going to be similar in most respects to the person they replaced anyways, at least when it comes to sitting as a panel-member…I mean aren’t they all selected by the CA, and thus all have been predetermined qualified under the Art. 25 criteria?

  5. afjagcapt says:

    Agree whole-heartedly with Advocaat, why knowingly bake this issue into the case when it was so easily preventable? I hope the TC who argued the member should be kept on is the one who has to explain to the victim why this case is coming back. Assuming CG is right (which I think is a good bet), being so concerned about the logistical difficulties of busting the panel that you would fight to keep someone who said “guilty until proven innocent” is just indefensible. 

  6. RKincaid3 (RK3PO) says:

    Sigh.  So much for senior leaders being informed, educated and knowledgeable on our military legal system–and so much for “leading” by example. Even worse, the much criticized and highly problematic Art 25 criteria, apparently mean nothing anymore (if they ever did), when they describe one as:
     

    …best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament… 
     

    How does the Navy Captain’s response reveal any education, training, experience or judicial temperament on the part of the officer in question, much less that he is “best qualified.”  And add to this the problem with political UCI from Congress (ala the General Sinclair trial, AMN Wright cases. etc.), and does the concept of a fair trial in the UCMJ exist anymore, if it ever did?
     
    And what is with the  military judge not striking from the panel that oh-so unqualified officer whose bias against a fair trial is so terribly disrespectful of the basic constitutional rights of Servicemembers? Where was he trained in the law, what was his education?  Where is his judicial temperament?
    Listen, this is just part of a bigger problem in the modern, politically-tainted miltitary. Whether it is a General Officer accusing subordinates of treason for contacting their elected officials in opposition to the wasteful and unneeded F-35, or this Navy Captain at a CM being completely ignorant of the nation’s laws (or those of the military), with political cool-aid drinkers posing as senior leaders, is there any hope that a Service member can or will receive justice from a military bench and bar?
     
    Let’s hope that CAAF does right by Servicemembers everywhere and unscrews this debacle.  Or better yet, how about Congress fixing the UCMJ so that it is more than a “justice” system in name only?  How many more instances of crap like this does Congress require to fix what is so obviously broken?
     
    And if it is not fixed, does anyone else see a recruiting/retention problem looming as potential volunteers–citizens who naively and oh-so-quaintly believe that they can contact their elected officials freely and are entitled to the legal presumption of innocence–realize that objective justice is NOT their due once the join or as long as they remain in the service?
     
    Or should we all just accept that–like the NSAs rejection of the 4th Amendment as substantive law–in the military, we volunteered to have no rights?
     
    I for one am NOT ready to give on that point. 

  7. Jack Burton says:

    http://www.caaflog.com/2015/01/14/the-army-cca-considers-a-members-questionable-answers-during-voir-dire/#comments
     
    Just in case anyone has forgotten ACCA’s recent case US v Robinson that was reported on this blog on 14 January 2015.  I really didn’t think voir dire was that difficult…

  8. anonymousJA says:

    Thank you CAAFlog. Nobody simultaneously makes me laugh and cry like you do.

  9. (Former) ArmyTC says:

    I had a court martial once where during voir dire, 3 CSMs on the panel gave some questionable answers that they did not in any way back off from when questioned individually. Kicking them off would have had us at 2Es for a mixed panel and a couple of officers were about to go out. We joined the defense challenges, because as big a pain in the ass as busting a panel when you don’t have alternates standing by is, doing the trial over in 2 years after a CCA or CAAF kick it back sucks more. We busted panel. Had to bring in a second venire and selection took two days. Guess what? No appellate issue courtesy of questionable panel answers.

  10. Saul says:

    While the case at hand is bad enough, at least it is being heard.  What about any separation actions or non-judicial punishment this O-6 has acted on over the years?  (Presuming he’s been in command at some point) 
    This type of misunderstanding doesn’t happen in a vacuum.  

  11. Matt says:

    Saul,
    You raise a good point and I think this attitude is 1) far too common, and 2) not corrected when it should be.  I represented a young officer who was given an Article 15 for groping an enlisted soldier.  We had statements from three other soldiers who were present who stated that the accuser lied, that he didn’t do the things she accused him of, and that they would have seen it if he had because they were sitting right next to her the whole time of the alleged incident.  We couldn’t risk going to court-martial, because there were some other petty regulatory offenses that he would probably have been convicted of, so he accepted the Article 15 forum and argued his innocence on the sex assault charges.  In the Army, a commander is supposed to only punish a soldier at an Article 15 if he finds beyond a reasonable doubt that the soldier is guilty.  After hearing his statement and reading the witness statements, the General stated “Well, you haven’t proven to me that this couldn’t have happened.”  The deputy SJA was sitting in the room and never corrected the General.  Of course, I was allowed to be present but not to speak.  The Soldier was found guilty of all the offenses, including the sexual assaults.  The really troubling thing to me is not that there are officers who have an incorrect understanding of the law, but that the senior JAs who are supposed to be advising them don’t seem to be interested in correcting their misunderstandings.

  12. Ed says:

    Saul is there some procedure to appeal an article 15 to a higher command level. In that case  couldn’t a lawyer at least prepare a memorandum to attach to the appeal?

  13. The Silver Fox says:

    Interestingly, you will not find the presumption of innocence anywhere in the Constitution.  I don’t believe it was until Coffin v. United States, 156 U.S. 432 (1895) that the Supreme Court recognized it as a fundamental concept.  Regardless, the principle was established well before this accused’s court-martial.  
    And it is important to remember, as Mr. Gittens correctly points out, “[o]ur citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes.” United States v. Marcum, 60 M.J. 198, 205 (C.A.A.F. 2004)(quoting Goldman v. Weinberger, 475 U.S. 503, 507 (1986)); see also United States v. Jacoby, 11 C.M.A. 428, 430-31, 29 C.M.R. 244, 246-47 (1960)(“It is apparent that the protections in the Bill of Rights, except those which are expressly or by necessary implication inapplicable, are available to members of our armed forces.”).
     
     

  14. afjagcapt says:

    http://www.cnn.com/2015/02/19/politics/army-ethics-lying-report/index.html
    Very interesting; so from the field: is this member a positive or negative on the ethics side? My inclination would be to say that at least the Captain was honest (if obviously mistaken) on the questionnaire. On the other hand, I am quite certain there are going to be some questions about whether the Captain was honest during the rehab questions from the MJ. 

  15. Bill Cassara says:

    One of my first trials as a defense counsel, the first question is “having read the charge sheet, is there any panel member who doesn’t think they can give the accused a fair trial?”  Panel member responds in the affirmative. When asked, he says “just looking at the charges, and looking at the accused, he’s guilty.”  Didn’t budge during individual voir dire, but of course promised to listen to the judge’s instructions. I challenge. TC actually objects. MJ just looks at them like they are from Mars, and grants the challenge.

  16. Not Surprised says:

    I hope no one is surprised by any of the issues in Woods or the USAF General’s actions (worthy of Art 134), or the USAF Spokesperson’s laughable re-framing of the issue to act as if no issue exists – and the juxtaposition of that nonsense with the Art 15 mentioned by Matt and that General’s deplorable perspective and his eagerness to find guilt rather than facts, while the most qualified individual on the installation with respect to adjudicatory decision making sits on his hands, rendered incapable of speaking up due to a lack of courage (a part of ethics). 
    By the way, before anyone gets the wrong impression that the issue of ethics was perhaps neglected, or that there hasn’t been a guideline, readily accessible to these leaders, look for DoD 5500.07-R, the Joint Ethics Regulation, which has been around since at least 1993. Also, reference the 2011 survey of junior Army officers and the 1971 Study on Military Professionalism. Before you do, tear the covers off and shuffle them so you don’t know which report is from what year. I challenge anyone to find a difference in the language used in the 1970s to describe senior officers and that used in 2011. Things haven’t changed. If anything, they’ve gotten worse. How could things ever get better – there’s never accountability for senior officers. 
    The SSI report about rampant lies in the officer corps is certainly not news. Search the archives of Military Review, SSI, and Parameters and you’ll find the military has suffered these crises in ethics and misconduct about once or more per generation. It’s not enough to resurrect those articles and conduct more surveys. Results and progress are needed and some pointed questions should be asked to those at the top as to why these problems are not fixed. Of course, the generals and admirals will have to dispatch a spokesperson to give you an answer. 
    If it wasn’t so sad, the speculation about the CAPT in Woods (or Bill Cassara’s panel member example) and what role he’s played in NJP, admin seps, and so forth, would cause one to laugh. Anyone care to guess, or try to do the research to see how many careers, lives, and families that CAPT (and Mr. Cassara’s panel member) has ruined due to his impotent outlook? These are the same perspectives that produced a monumental increase in administrative discharges with a concomitant nosedive in court-martials back in the 1970s when ad-sep powers were expanded, and subsequently prompted a former service JAG to accuse commanders of abusing those powers (can anyone imagine one of the service JAGs these days with that type of spine?). They are the same perspectives leading to the discharges of thousands during this past war, claiming these soldiers had personality disorders, stripping them of benefits and medical coverage when in reality almost all of those discharges resulted from TBI or PTSD or other service-connected issues.
    Why does this keep happening? Why is there a chronic problem of ethics, misconduct, and double-standards, particularly among senior leaders? Because they are never held accountable. 

  17. stewie says:

    Perhaps this is impolitic to say, but military servicemembers are humans.  Generals are humans.  Officers are humans.  NCOs are humans.  Privates are humans.  By that I mean to say there really is nothing that makes them extra good at integrity or honesty or doing good vice your average human.  Some try to follow the rules nearly all of the time, some don’t try at all, some have a weak spot in an otherwise moral existence.  Yet we pretend that somehow, the military turns humans into quasi-paragons through the use of acronyms, and cards carried around.
     
    I’m not suggesting we give up on morals and ethics, but I am suggesting that we not be so shocked that we aren’t all paragons all of the time.  We destroy careers of otherwise highly moral, highly effective men and women because of a one-time adultery, or other one-time mistakes, again because we operate under this idea that any crack in morality means no morality.  It didn’t always use to be that way.  Said mentality makes it harder to uncover actually issues because no one is willing to admit even the tiniest lapse for fear of destroying their career.
     
     

  18. Contract Lawyer says:

    I once had the assistant commandant of the MP school on a panel and the TC ask him on voir dire his opinion of MPs being on a panel.  He said that he did not believe it would be professional since an MP should know that by this stage is guilty and since they are suppose to presume innocence, serving on a panel would not be honest.  The TC then challenged for cause, which I did not object to. 
    In another case, a civilian attorney, Gary Myers, simply asked the meanest looking panel member who he would have used his preemptory challenge on and asked:  Q:  “Please look at the charge sheet in front of you.  [Pause.]  After looking at the charge sheet, what is the first impression you have as to the guilt or innocence of the accused?”
    A:  At this point no opinion, I have an open mind?
    Q:  So you do not presume either guilt or innocence? 
    A:  That’s right.
    Then he challenged for cause and despite Qs from TC, the challenge was successful.  I do not recall the first part of that being an individual voir dire, so it was a one-time trick because everyone else got the point that you should have a presumption or first impression and that should be that you presume the accused to be innocent.  I picked up some tips from Gary Myers, to include this one, but it never worked for me.  Judge Hodges let it work for Gary Myers that one time and after that in future cases when I tried the trick, he allowed the member to be rehabilitated. 

  19. Defense Hack says:

    It would seem that just saying the phrase “liberal grant mandate” on the record will protect you. In civilian trials, you’ll have upwards of 50 prospective jurors on simple cases, and hundreds on more complex cases that have publicity. IMHO, the judge’s leading questions do nothing but remind the panel member to be a yes-man (or woman).

  20. RKincaid3 (RK3PO) says:

    Well, since we are talking ethics–THIS is depressing–from CNN just TODAY!
     
    Study: ‘U.S. Army officers lie’ routinely
     
    To be fair, military personnel are probably no more or less ethical than are civilians who comprise the community from which the military is drawn.  But we like to think–are act–like we are.  
     
    This is just depressing–to see it in black and white.
     

  21. Zeke says:

    This court-martial member clearly should have been relieved, and there should be a new trial because that wasn’t done.  That being said, I am amused by all of the gnashing of teeth and wringing of hands over how the public might perceive this propriety of this court-martial panel due to the answers one member gave to questions about the presumption of innocence.  (A concept which long predated Coffin, the SCOTUS case cited by Silver Fox, above.  In fact Coffin itself states the presumption of innocence was “unquestioned” and “a matter of course” in federal jurisprudence and that of the several states cases up to that point.  The Court in Coffin then tied the concept all the way back to Deuteronomy and the laws of Sparta and Athens.  You don’t get more established in Western law than that… but I digress…)  We shouldn’t lose sight of the fact that this member’s answers arose in the context of a panel comprised entirely of military officers without any civilian representation, hand picked by the command to try the command’s case, without even the suggestion of there being any requirement for random selection or representative sampling, without the requirement of a panel large enough to engage in meaningful deliberations, and where minority or dissenting viewpoints can be muzzled during deliberations by the lack of a requirement for unanimity.  If those underlying circumstances hadn’t already made the general public, military members, and the accused as well, question the impartiality and fairness of this (or any) court-martial panel, I doubt the stupid answers of one member was going to do it.  Complaining about the impact that one member’s answers might have on the public’s perception of how that court-martial is comprised is like wailing about the grease fire on your stove while the house is burning down around you.
     

  22. RKincaid3 (RK3PO) says:

    Sadly, too true, Zeke.  Too true.  Until the average Servicemember has Congressional support rising to the level that sex assault victims currently enjoy, this is a non-issue–despite the fact aside from Commanders acting as prosecutors, few other provisions have been as criticized so often, by so many experts and for as many valid reasons as has been Art 25.
     
    And those criticisms have been largely ignored by those who do not have to deal with–or live with the consequences.

  23. RKincaid3 (RK3PO) says:

    The scary part about the article/report was this line:  
     
    “…at least at some level a breakdown in ethical behavior and in the demonstration of moral courage,” 
     
    The moral courage issue is the terrifying failure–the inability to speak truth to power even when it is one’s job, like a JAG.
     
    Think of the commander who won’t accept legal opinions that they don’t like and the JAG who, as a result of that commander’s overbearing or disagreeable “my way or the highway” mentality, eventually gets to a point where they can’t or won’t tell the CDR what they need to hear and instead says what the CDR wants to hear–or worse–acquiesce by silence.

  24. stewie says:

    Zeke, so you think a civilian jury doesn’t have people on it who don’t know the first thing about innocent until proven guilty or any number of basic legal concepts?  The answer to that question was based largely on ignorance, and misconception.  Hardly unique to military members. 

  25. afjagcapt says:

    “Until the average Servicemember has Congressional support rising to the level sex assault victims currently enjoy…”

    Just so there is no confusion on the issue RK3PO, overwhelmingly, the average sexual assault victim in a court-martial is a Servicemember.

  26. AnonymousJA says:

    Stewie, the fight I have always seen (both civilian and military) has been not over knowledge over basic legal concepts but over who trusts the legal process versus who doesn’t. Demographics are often used as a proxy for trust with young male minorities being viewed as the least trustful (and incidentally the most likely to hold the government to its burden). So it is not surprising (to me at least) that a presumably white, well-heeled O6 would hold those views.

  27. Saul says:

    Stewie – the issue, at least my view of it, isn’t that our officers are infallible, it’s that the panel needs to select the “best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament…”  Clearly (well, hopefully) an O-6 who doesn’t understand basic concepts of our justice system isn’t best qualified by education or training.  OTOH, he apparently took heed when questioned further. 
     
    Ed – yes, NJP allows for appeal.  I’d be interested in seeing the success rate of those appeals.  Deference is always granted to the imposing commander.  Recall the report about the ABCMR not granting proper review, I forget the details but the basic idea of our system failing is terrifying to us Govt’ hacks.

  28. Ed says:

    Saul thank you. I suggest an appeal of an article 15 is probably more successful if it involves a standard of proof rather than a factual conclusion.

  29. 1st Civ Div says:

    An aside for discussions of ethics: interested parties should take a look at the work of Paul Piff at UCLA. In a nutshell, in his words, his line of research has shown the following: I have been finding that increased wealth and status in society lead to increased self-focus and, in turn, decreased compassion, altruism, and ethical behavior.
     
    That would seem to translate directly to the senior members of the military on the enlisted and officer sides, respectively, and the news items noted above. 

  30. RKincaid3 (RK3PO) says:

    afjagcapt:  Nice distraction from point.  No confusion there at all.
     
    You will note that I referenced the “average Servicemember,” which, contrary to the politically-induced, media driven hysteria, is not as well represented as are those few servicemembers who are true victims of sex assault.  
     
    Why is this an important point?  Because the average service member is NOT a victim of sex assault.
     
    And, the average Servicemember lacks any significant representation in Congress, the problems with the UCMJ will continue to fester unredressed until that “average Servicemember” is treated as respectfully and sympathetically as are Congress’ current pet projects.

  31. RKincaid3 (RK3PO) says:

    1st CIV DIV: that sounds like an unfortunately prescient line of research.  Sadly, I suspect it is far more true than it should be both in America and it’s military.  I will to review it.  Thanks for the reference.

  32. stewie says:

    Well, unless you are going to quiz folks on select legal principles before selecting them, you aren’t going to know what they do or don’t know.  Our civics education ain’t what it used to be, and we have a lot of different (and flawed) sources of information out there these days.
     
    I’m not suggesting it’s not a bad thing that we have officers (or enlisted for that matter) that don’t know the basics of our legal system, just that it’s not a rare thing (unfortunately).

  33. Zeke says:

    stewie: I think my point was clear… whether a member (civilian or military) knows obtuse concepts of law is not as important the public’s perception of proceedings as is the manner in which that ignorant member was placed on the court, and where that member’s loyalties apparently lie.  I think your average American would find the fact that the command pressing charges gets to hand-pick the entire jury to be a fact that is more outrageous than allowing a single member who openly disavows the presumption of innocence to sit.  If the former hasn’t convinced the public that courts-martial unreliably stacked in favor of the prosecution, then I doubt the latter is going to do it.  

  34. stewie says:

    As usual you overstate things by a lot. I’ve sat through several actual panel selections, and the CG usually only actually knows a handful of the people selected.  I have no heartache if the process were different, but I have little belief that would fundamentally change things.
    The problem is much more about things like SHARP, and the “training” and “information” that is presented there, as well as a relative dearth of education on how the legal process works both in the civilian and military world.  And no, I would be much more outraged if a person who openly disavows the presumption of innocence sat on a panel than knowing that the CG personally selected the panel members, because I’ve seen the process in action, and he or she never sat there and went, now who are the most pro-prosecution folks I can pick?  And most panels I’ve seen are willing to acquit.  That doesn’t mean they get it right all of the time, no system does that…and as I said before, the misinformation spread by SHARP and victim advocates is highly concerning, but that’s a separate issue.
     
    CGs picked panels in the early 2000s, and I had little concern that tons of innocent accused were being prosecuted or convicted then, I have more now, and it isn’t because of CG-selected panels.
     

  35. Zeke says:

    stewie: Anecdotal evidence – such as your personal experience with “several actual panel selections” – is always interesting, and certainly relevant.  It is, however, usually unpersuasive.  Anecdotes are especially unpersuasive when the question is public perception, which is dependent upon optics rather than discreet reality.  The public doesn’t get to sit in on “several actual panel selections.”  Since that process is completely opaque, it is, in the public eye (and rightly so), suspect.  Glowing anecdote from behind that curtain is unlikely to dispel those optics.  Instead, what is seen by the public is a convening order wherein the same officer who levied the charges selected the men and women – usually under his command – who shall determine the truth of the allegations he has made against someone they don’t know and who is subordinate to them.  Optics are reality.  Those optics won’t yield to reassuring anecdotes.  Which leads to my premise:  If those optics haven’t made the public doubt the fairness of courts-martial, there is nothing that will.  Certainly one mistaken member won’t make a dent.

  36. RY says:

    i think anecdotes are undervalued. Optics are abstract. Optics may be a starting point but it is the bone and anecdotes are the muscle that shape and define it.  The 26,000 victims figure was the optic that began canversation but it has been the individual cases, the anecdotes like the Wilkerson cases and the Invisible War, that have given the movement strength.

  37. stewie says:

    Zeke, you make a blanket statement.  I respond with actual evidence showing that statement is not universal.  Your response is, eh, anecdotal.
     
    What evidence do you have about how the “public” perceives the fairness or lack thereof of the court martial process?
     
    Surveys? Opinion polls? Anything?
     
    So from your POV EVEN if every single CA did the right thing in truly selecting fair balanced and neutral folks, the fact that they select at all MUST mean you have to doubt the fairness of any and all courts-martial.
     
    Because…optics.

  38. RKincaid3 (RK3PO) says:

    Stewie: My take on what Zeke said is that regardless of actual evidence, perception can be and often is reality. Because of that fact (perception being reality), the facts about panel bias or impartiality is lost on those who validly perceive that the system appears (“is”) procedurally imbalanced, e.g., unfair, then the conclusion/outcome of that process (conviction/acquital) is likewise unfair and therefore invalid. For a justice system to function effectively and to adequately address societal concerns and thus avoid a return to blood feuds, reproaches and private redress (the breakdown of society generally), the public must perceive the system as objectively just, even when the public occasionally feels the results in a particular case is subjectively unjust. This isn’t about a scientificly or mathematically certain justice system, but is more importanly about public confidence, generally, in the system.  The more the public learns about the UCMJ and its peculiarities that defy traditional yhe typical American’s basic civics lessons and understanding about the fairness of government actions against citizens (like Art 25, or 1/3 of 3 or 5–unless capital–vice unanimous of 12 verdicts), the less confidence the public has in the system, and thus also in the outcomes of the trials conducted in that system. Indeed, case in point: much of the hysteria around military sex assault is fueled by public misconceptions of the military and the UCMJ as a legal system–most dangerously in and by Congress–who then change that system without regard to both the reality of the system or the 2nd and 3rd order effects of the new changes, which in turn actually increases the public’s misunderstanding and the perceived need for more even more ill-conceived changes. And with less confifence in an all-volunteer military, it won’t be long before people quit volunteering to serve via either recruitment or
    retention, which, in the long term will result in bad news for the future of the military as a valid force and for the nation as a respected, responsible member of the international community.

  39. RKincaid3 (RK3PO) says:

    RY:  there was no real substantive value at all, anecdotal or otherwise, in “The Invisible War.  It was all optics, smoke and mirrors, that was long on sympathy mongering that emphasized emotional, hyper-drama while being short on the facts that necessarily and actually result in a just outcome–which cannot occur in the present toxic climate.

  40. stewie says:

    One of the perceptions is that we are horrible towards sexual assault victims and that our system skews to protect an accused too much versus taking care of the victim.
     
    In fact, it’s that very perception that’s led to a whole laundry list of changes. 
     
    So are you very sure you want to go full bore into the perception equals reality camp?  Because, like nearly every sentiment, that one has its limits doesn’t it?

  41. RKincaid3 (RK3PO) says:

    Stewie:  concur in part.  My point is not that perception is in fact true.  My point is that the anecdotal evidence that forms a subjective perception is to be COMBATTED, not ratified and acted on, which I think is what Zeke was trying to say in a roundabout way.  The answer is educating people, not running headlong into an abyss like Congress has done; as the public has done.  In the case of the UCMJ/RCM, etc., we need to recognize that perception can be reality and while it shouldn’t form reality, it shouldn’t be ignored either. There is in fact a justice problem in the UCMJ, as well as a perception problem of both its fairness and objectivity.  The two problems must be tackled and not ignored or compounded, both of which have been the practice of Congress until it becomes a national scandal where witless, indiscriminate and thoughtless over-reaction is the standard.

  42. stewie says:

    Well, I think Zeke thinks the system has been useless from the start, which is where he and I part company significantly.
     
    I think it was just fine circa 2006.

  43. TC (not trial counsel) says:

    I read these comments and the thing that strikes me is noone is holding the judiciary accountable.
     
    The perception of “guilty until proven innocent” is one that has manifested its way due to how the judiciary rubber stamps convictions.
     
    Here is yet another example.  Reasonable minds would have asked how this could get by the CCA.  But apparently they are fine with “guilty until proven innocent”.

  44. RKincaid3 (RK3PO) says:

    Stewie: you know I have long stated that the UCMJ has been broken, from an objective justice perspective, since it was creted, even though it was a vast improvement over the arbitrary injustice of the Articles of War.  So on that point, Zeke and I agree.  It didn’t just suddenly become unjust in 2007 except in the sex assault arena.
     
    TC:  well said.  That perception, as wrong as it is, is the reality for far too many.
     
     

  45. RKincaid3 (RK3PO) says:

    Point of clarification:  I said above:
    It [the UCMJ] didn’t just suddenly become unjust in 2007 except inthe sex assault arena.

     

    I should have stated:  It [the UCMJ] didn’t just suddenly become unjust in 2007 except in the sex assault arena, when sex assault allegations became the straw that broke the camel’s back.  That is when a systemically, objectively unjust system allowed an objectively just outcome even though albeit not probable.

     
    Said another way, the UCMJ has always relied upon an implied “guilty until proven innocent” standard, and the 2006 and post-2006 amendments effectively codified as a standard what was previously only an implication.  And all the mandatory sex assault “stand-down days,” all the mandatory emotional sob-fest training seminars watching “The Invisible War,” the political UCI from Congress and the POTUS (“…should be fired….dishonorably dishcarged…,” etc., all have guaranteed a “military culture” reinforcing the “guilty until proven innocent” standard. And yes, MJ’s aren’t helping disabuse the services or the American people of that implication when they laughably and half-heartedly “rehab” those honest Servicemembers who mistakenly, but truthfully, speak openly about their over-indulgent consumption of the corporate cool-aid. Let’s hope our senior appellate judges are better grounded in the traditionally American concept of objective justice, insulated as much as possible from the toxic politico/military culture driving the incessant sex assault feeding frenzy still infecting the services and slap down with the strongest language possible both the panel president and the Trial Judge, and in the process, send a loud signal to Servicemembers of all rank/grade and position that legal principles matter and cannot be whitewashed away with a few slick worded “curative” rehab instructions.
     
     
    The issue is fixing the UCMJ as a system.

  46. MD11 says:

    “Agree whole-heartedly with Advocaat, why knowingly bake this issue into the case when it was so easily preventable? ”
    Because it’s not about justice, it’s about results!  Who cares about some random, faceless service-member who gets the hook when the military justice apparatus can report to the power-that-be that it is “getting convictions” and “we need more money and stuff” to continue “the good fight”?  The sooner we realize this, the less heartburn you will have.

  47. stewie says:

    No it didn’t. Come on. There is no “implied guilty until proven innocent” standard, and the UCMJ has not always relied on said non-existent implied standard.  Quite frankly, you engage in this issue with the same level of hyperbole that the very folks you critique (rightfully!) engage in from the opposite direction.
     
    Do you seriously think the issue with not understanding the basics of how the criminal justice system work are limited to the military?  This is a problem of ignorance primarily.  I will agree that SHARP training, and the media, and Congress have all had a negative impact on fairness.  You’d have to be blind not to agree to that.
     
    I think if you are talking about “guilty til proven innocent” that has ZERO to do with the CM process, and everything to do with how we do SHARP training, and the messages the organization sends out that the CM process is then saddled with and has to repair.
     
    That we’ve done a poor job of it to me shows just how the system implied standard WASNT guilty til proven innocent.  We are using the old pre-SHARP training methods of rehab to deal with things with a sort of assumed belief that this will be sufficient.  I think some judges haven’t linked yet the real impact SHARP training is having on how prospective panel members (whether hand picked by the CG or not) view sexual assault cases and the burden of proof.
     
    You want a culprit to rail at, it’s there. 

  48. RKincaid3 (RK3PO) says:

    Stewie:  the problems with Art 25, the 2/3 of 3 or 5 (unless capital cases) vice unanimous verdicts, etc., all systemic problems, pre-date the 2006 assault on Servicemembers’ presumption of innocence for the simple reason that they lower the government’s historic constitutioally requires burden on being able to criminalize citizen conduct.   And all those secondary systematic problems support the primary systemic cancer that is the commingled role of commander as both prosecutor and disciplinarian.  Prosecutors should handle crimes and commanders should handle discipline.
     
     
    The fact that those provisions exist in the system certainly imply a “guilty until proven innocent” standard since they serve no purpose other than to reduce the burden upon a government trying to criminalize citizen conduct.
     
     
    Aside from our now historic disagreement on this issue, Stewie, which you and I have oft debated, you and I do agree that starting in 2006, the system is horribly broken from a justice perspective.  We just disagree on whether and to what degree it was or could be considered “just” before 2006.

  49. RKincaid3 (RK3PO) says:

    Alcon:  sorry for the typos above.  Typing on this Samsung phone is difficult at best for my fumblefingers (but is is better/easier than on my teeny tiney old Apple iPhone.

  50. stewie says:

    Nothing in the Constitution requires unanimous verdicts.  Oregon and Louisiana don’t have unanimous verdicts thanks to two Supreme Court cases from 1972, Johnson v. Louisiana and Apodaca v. Oregon.  Is your argument that Oregon and Louisiana have a “guilty til proven innocent” system?
     
    I don’t agree with the argument that non-unanimous verdicts per se mean a lowered presumption of innocence.  Now, I’d be just fine going to a unanimous verdict, nothing wrong with doing what the vast majority of other states do.
     
    But there are studies on this (link):   http://juryboxblog.blogspot.com/2009/09/bowen-v-orgegon-why-non-unanimous-jury.html
    One study found that about a third of folks in a unanimous verdict actually disagreed with the verdict they actually gave.  Which means your average unanimous decision is really an 8-4 decision.  That’s not that surprising.  We know that group dynamics will often cause the minority to bend a lot more than cause the majority to adopt the minority viewpoint.
     
    Again, I’m not anti-unanimous verdicts.  However, I am also not buying into the idea that majority verdicts equals “guilty til proven innocent” nor is it unconstitutional to have.
     

  51. Lieber says:

    actually, apparently the Constitution does require unanimous verdicts in cases involving six or fewer jury members.

  52. K FISCHER says:

    Lieber, 
     
    Where? Citation?  And does that mean that a GCM with the minimum amount of members has to be unanimous, vice 4 votes for guilty under the 2/3’s standard?

  53. stewie says:

    Burch v. Louisiana, 1979 Supreme Court case that said if 6 people, has to be unanimous.  Obviously I missed that part.
     
    So, I suppose one could argue that any panel with 6 or fewer should be unanimous.  I don’t know that I agree per se, although I do find the idea that you can have a SPCM for a sex assault offense, where only 2 out of 3 people can convict you and make you a registered sex offender wrong.  I’ve never seen a 3 member panel in such a situation, but I’m sure it has happened.
     
    But if you have 9 people, and 6 convict? I’m less of the belief that’s per se wrong or unconstitutional.

  54. k fischer says:

    Answered my own question: Mendrano v. Smith, United States Court of Appeals, 797 F.2d 1538 (Tenth Circuit 1986)

  55. RKincaid3 (RK3PO) says:

    We should be able to agree that with a lower burden to convict, there is necessarily a government that is much less restrained in its ability to criminalize its citizens.  That is inconsistent with the concept of a constitutionally limited government of limited authority.
     
    The revolutionary war leading us to break away from England was about oh-so-much-more than taxes, representation and tea (shame on our public education system for messing that up with kids). 
     
    It was about secret trials; indefinite detentions; denial of counsel; corruption of blood; secret evidence; secret complaints (the Star Chamber); anonymous witnesses; etc.; the practice of “outlawry;” the denial of due process; tortured/coerced confessions; fishing expedition searches; seizures of private property; kangaroo courts where protections were at best, illusory; targeted executions of political and military opponents and anyone who interferred with the government in a way the government didn’t appreciate; etc.  In short, it was about rejecting a government that was unlimited and above the law. 
     
    WAIT!  Oh yeah!  It was about ALL the things America is NOW doing to itself and others–or has recently done–via the NSA; the CIA’s so-called “Blacksites;” rendition; waterboarding; etc., and yes, less than unanimous verdicts for service members, or the lack of a grand jury that can veto the prosecution; targetted killings overseas via tortured readings of Title 50 and creative legal exceptions, etc., which also include Fed Court and SCOTUS refusals to intervene in cases where the government is or has gone astray (like the SCOTUS has repetitively done–and did again today–in challenges to the newly post-911 expanded, paranoid government authority).
     
    Yep…so much for traditional American concepts of “limited government” and “justice.”  We have indeed discovered the enemy–and he is US–those who champion the motto “The ends justify the means (especially if the means is a clever and creative legal rationalization that swallow the very rules and laws which govern)!!!”

  56. stewie says:

    it’s relative.
     
    I’m sorry but I don’t see “much less” in 12-0 vice 11-1 (and neither do the Supremes).  At some point, yes, either the whole number gets so low that unanimity is much more important (Supremes say 6 and I don’t necessarily quibble with that)…or the ratio is too low (7-5 clearly too low as that’s effective just above half and half…what about 2/3rds? 3/4ths?).
     
    The Revolutionary War was basically about rich colonists not liking taxes.  Let’s be real here.  Sure, the heavy-handedness was a factor as well, but when you have a nation that talked civil rights while declaring AA’s not quite whole people, and that basically restricted freedoms to free, white men with property, there is still plenty that government could do that was “above the law” or was antithetical to “limited government” or especially “justice.”
     
    It took a long time, incorporation, a civil war, reconstruction, the women’s rights movement, the civil rights movement, and one might argue now, the gay rights movement…to move us closer to the ideal we teach our kids about what the founders wanted.  It’s been a work in progress.  There was never golden, silver or even bronze era where justice and freedom reigned supreme.
    That’s still somewhat in the future.

  57. RKincaid3 (RK3PO) says:

    Yes, indeed, Stewie, we as a nation have made much progress beyond that initially identified by the wealthy landed gentry who were the founders.  But for all that progress, we have also been backsliding and allowed or encouraged our government to do to us, or to others on our behalf, things that no government should have the legal authority to do.
     
    When we give short shrift to protecting our very own Servicemembers and ignore the obvious justice problems with the UCMJ–which have been made much worse with the 2006 and after amendments–is it any wonder that we treat others in the world so poorly–nay–criminally–as a matter public policy and national security?
     
    What we do to the weakest or worst among us–or others on our behalf–can and will eventually be done to the rest of us.  And apparently for many, it is okay that all that stands between “us” and “them” is only one or more subtle legal distinctions that create or justify the exceptions that swallow the rules that previously protected us all and now–or soon will–protect no one.

  58. Zeke says:

    stewie is right – I do think the military justice system is inherently broken – and it was broken long before 2006.   Burch v. Louisiana, 441 U.S. 130 (1979) clearly requires a six member jury to be unanimous.  Further, Ballew v. Georgia, 435 U.S. 223 (1978) declares that five member juries are unconstitutional even if they are unanimous, and even if the crime being tried is a mere misdemeanor.  In Ballew, SCOTUS found that a group of five people is, empirically, too small to engage in deliberations that are robust enough to yield decisions which are reliable enough to justify criminal sanctions.  We still subject our warriors to panels as small as three despite these thirty plus year old precedents.  I find that astounding.  Congress allows for small panels, permits them to be nonunamious, and allows them to be selected by the commander who levied the charges, for one reason: to get convictions in cases where there would otherwise be a failure to prove guilt beyond a reasonable doubt.  Its an injustice.

  59. Charlie Gittins says:

    Zeke, you are spot on.  And now Congress has declawed, if not entirely discarded, one of the few procedural benefits to a military accused in this flawed system — the Artricle 32 “investigation.”  What was once a “bulwark against baseless charges” is now a flagman, waiving through crap cases to trial in a system already so stacked against the accused that it is incomprehensible to call a “justice” system.  I used to relish going up against two prosecutors (the one labeled TC and the one labeled MJ) once I had done my job in the Article 32.  Now, you get the stacked system and no real discovery, plus the addition of SVCs who will now be looking to help their clients get money restitution.  I used to call it “testi-lying” bu that is now going to be the norm, not the exception.
       

  60. Michael Lowrey says:

    To answer a question that came up in the discussion: In oral argument it came out that the O6 in question was a dentist with no previous military justice experience (!).