Yesterday I posted some analysis of the Secretarial implementation of guidance for Article 32 preliminary hearings. The ensuing debate was quite contentious. It continues in this week’s Scholarship Saturday, with Jonathan Lurie, The Transformation of Article 32: Why and What?, 29 Wis. J.L. Gender & Soc. 409 (2013) (available here).

The article is part of the Special Symposium Issue of the Wisconsin Journal of Law, Gender & Society: “The Threat From Within: Current and Alternative Response To Sexual Assault in the Military” (full contents available here). Jonathan Lurie is a professor emeritus at Rutgers University and he is the author of two books documenting the history of CAAF.

Professor Lurie’s article discusses the “‘notorious’ Article 32 investigation” in the Naval Academy sexual assault case (part of our #2 military justice story of 2014, and also a topic in my op-ed published in the Baltimore Sun), and he asserts that “the military judge who recommended that this case not be referred to a court-martial is the same official who permitted the excessive cross-examination of the alleged victim, later characterized as causing ‘heavy damage’ to the [sic] her testimony.” Lurie, supra, at 409-410. It was Navy Commander and military judge Robert Monahan who recommended that the charges not be referred for trial, and his report was quoted by the Washington Times as stating:

As difficult as it would be for the government to prove beyond a reasonable doubt that (the alleged victim’s) professed lack of memory at the time Midshipman Graham engaged in sexual activity with her was due to her being substantially incapacitated, the government’s task becomes extremely more difficult, if not impossible, due to the heavy damage done to (the alleged victim’s) credibility at the Article 32 hearing.

Of course, the accused who actually suffered a trial by court-martial (a kid by the name of Midshipman Josh Tate) was ultimately acquitted of sexual assault after a bench trial before a military judge.

But that won’t stop a good narrative. Professor Lurie continues:

[O]riginally intended to protect the defendant, somehow Article 32 evolved into a device for abusive cross-examination of the plaintiff. To be sure, the presiding officer easily could have restrained defense counsel from the type of abusive cross-examination inflicted on the complainant.

Lurie, supra, at 411. Commander Monahan – who justly enjoys widespread respect as an excellent military judge – apparently is little more than a neanderthal misogynist. And as for those ruffians who represented the now-exonerated accused, Professor Lurie has a few choice words:

It will be recalled that in the “notorious” cross-examination conducted on behalf of the Annapolis football team defendants, their counsel subjected the complainant to what at best can be described as barely on the cusp of acceptable trial conduct, and at worst totally beyond appropriate trial procedure.

Lurie, supra, at 413. You read that right; both the Article 32 investigation as a whole, and the cross-examination of the alleged victim in particular, are separately described as “notorious.”

The article continues:

[T]he military remains in general control of its military justice system.

Lurie, supra, at 413. Oh, the horror.

Further, the hierarchical nature of military life remains unchanged.

Lurie, supra, at 413-414. Can’t have that.

Change [in the military] comes slowly, and more often than not, when enacted, it is a result of civilian imposition rather than voluntary military innovation. Three examples can readily be cited. The decision to integrate the military in terms of race came only after President Truman ordered it. Similarly, the decision to admit women to the service academies resulted from congressional pressure. Most recently, the congressional decision to repeal the inappropriate and unnecessary statute known as “Don’t Ask, Don’t Tell” probably rendered a future Supreme Court decision concerning gays in the military unnecessary.

Lurie, supra, at 414. Here the gloves have come off. The military, it seems, isn’t just misogynistic, it’s also racist and homophobic. Professor Lurie, you owe me a keyboard, because I just vomited on mine.

The article ends with the following paragraph:

It only remains to inquire what happened to the three midshipmen charged with sexual assault, mentioned at the very outset of this paper. Two of the cases never came to trial, and the third resulted in an acquittal by a court-martial. Describing the trial of Joshua Tate, lawyer Jason Ehrenberg observed that “we went through this whole process because the superintendent of the Naval Academy fell prey to political pressure. The system, is broken.” So it is, and while there seems to be almost unanimous agreement on this point, consensus breaks down concerning the next step. Senator McCaskill’s bill now goes to the House, with future action unclear. It remains apparent, however, that the military is incapable of providing consistent and effective resolution of sexual assault cases within its ranks on its own.

Lurie, supra, at 420. Here we reach a consensus. The military is proving itself incapable of providing consistent and effective resolution of sexual assault cases. But where Professor Lurie sees abuses inflicted upon complainants, I see the maltreatment of those who are accused. For it is better that n guilty persons escape punishment than that one innocent suffer.

Thanks to Gene Fidell’s Global Military Justice Reform blog for alerting me to Professor Lurie’s article.

10 Responses to “Scholarship Saturday: Article 32 – why and what, and a new keyboard”

  1. DCGoneGalt says:

    Not surprisingly, the article is very light on the actual facts of the case that emerged at the Art 32 and the court.  You know, it almost seems like in these cases the facts are irrelevant.  The article didn’t need to use the case to make the point about reforming Art 32s, but if the author had to choose an example could he have chosen a straw-man that didn’t blow away in a light breeze?  I wonder what will happen when the youngsters in the JAG Corps, who have been inundated with this “You Must Believe” mantra for years start moving into defense billets, and hold the opinion that a parallel investigation and a robust cross-examination are taking things just a step too far into “victim-blaming” for what every reasonable person knows is “counter-intuitive behavior” that only supports the allegation.
    The author asks what happened to the three defendants?  Tate was thrown out of the Academy for lying to investigators (as presumably the others were . . . I don’t remember and after reading the article I am so numb I don’t want to search it out), as he should have been.  The complainant, who asked him to lie to investigators, is a Naval Academy graduate and likely a Naval officer.  
    On a side note, here is an entertaining article I ran across this week discussing the “Rape Culture” that is a must read for anyone that insists on putting quotation marks around that term. 

  2. afjagcapt says:

    Couple of reactions to this: 1) WRT the “notorious” 32, at this point I’ve seen more than 50 120 32s and never seen an AV on the stand 20 hours, even in a multiple subject 32; hard for me to believe that was necessary for the IO, or the Defense, but I wasn’t there so okay, 2) if media reporting at the time was accurate, there were certainly things I, as GR, would have objected too on 303 grounds  if nothing else because I do think they were asked in an intentionally degrading way (“did you feel like a ho after?”…the AV purportedly had made such a statement to a friend, but I’d posit that to the extent exploration of that at a 32 was ever appropriate, the IO should have required it to be limited to inquiry of whether she said it…semantics maybe, but I don’t think so); again I wasn’t there so maybe there were objections and they just weren’t reported.
    That said, 3) WADR, this “professor” seems like a hack…I read a lot of law review articles; I feel confident most I read (particularly the non student ones) cite a case or previous scholarship (other than th author’s) at some point in addition to newspaper articles and blog posts; 4) it really pisses me off upsets me when commenters lay DADT, segregation etc solely on the DoD: as I correct people frequently, DADT for example, was not a “military policy” as it is often referred too; rather is was a law passed by majorities of both houses of Congress and signed by the sitting (Democratic) President who would work together again a couple of years later to enact the Defense of Marriage Act without any DoD assistance.

  3. DCGoneGalt says:

    1) Length of cross alone adds nothing to the debate.  In the not so olden days when Art 32s served a discovery function (or served any purpose), I crossed a complainant for around 8 hours at an Art 32 because of a disputes fact pattern and many other mistake of fact/truthfulness issues.  If the IO allowed 412/513 questions it would have been close to two full days.  2)The questioning on how the complainant felt afterwards can be relevant to motive to fabricate, especially if third parties have knowledge about what occurred and when the situation could lead to expulsion.  The use of the word “ho” may seem a low blow but I have seen the word “slut” in cross when the complainant used the word to describe the behavior that led to an allegation in the immediate aftermath to friends and then denied using that word, or saying anything similar, on the stand.  3) Hackery is to non-STEM academia as political hysteria is to the military sexual assault debate.  4) Concur with you.  DOD follows the lead of the CC-i-Chief, if you don’t like the policies then elect new leaders.

  4. Richard Stevens says:

    @DCGoneGalt you are so right.  We are moving to a system where lawmakers (doing the bidding of advocacy groups) will have significantly stamped out the rights of an accused to investigate, confront the complainant, and present his defense (see, for example, Don Christensen’s misguided descriptions of the system, to include his “heaping rights on the accused” nonsense commentary).  And to your point about the article being “very light on the actual facts”…I defended a case in 2013 when the debate was heating up about how “unfairly” Article 32 hearings favored the defense and needed to be changed.  The hearing was recorded and transcribed verbatim.  I warned the reporter who was covering the case that the complainant had said a lot of outrageous things during the case and before the reporter published what the complainant claimed about the hearing, she should fact check against a transcript of the hearing.  I was ignored. The reporter from the Kansas City Star published the complainant’s description of the hearing, saying she spent “days” in the Article 32 hearing being “asked about her sexual history” and it was “brutal.”  The truth was that the complainant testified for a little over an hour for the prosecution and I asked her less than 50 minutes of questions, none of which were about her sexual history, all of which were in a professional manner and were in the morning of a hearing that lasted less than one day in total.  The case ultimately ended in acquittal and when the rather lengthy article about the case was published, I was still trying to force myself to believe that the truth mattered, so I published a blog post in response to the article and I contacted the paper.  No response from the paper or the reporter.  Big waste of time.  The truth and facts don’t matter in the public narrative about the military justice system or to the lawmakers and politicians who are making the changes.  The rights of an accused don’t matter in the narrative or changes either.  It’s all about trying to ensure successful prosecutions and it is all quite discouraging.  Here is my response to that news article:  

  5. DCGoneGalt says:

    Mr. Stevens:  Congress and Protect our Defenders, or as I call them – P.O.D.-people (Invasion of the Body Snatchers: a nomadic, parasitic group of aliens from a dying planet with no regard to the destruction they cause or the resources they drain whose sole purpose in life is to perpetuate their own survival) – can decry all of the rights heaped on the accused they want so long as in making military justice track with the civilian system they see fit to provide near unanimous juries on military accused.  As for your experience with the media just keep in mind that the reporter had the narrative for the story all picked out and just needed some names and dates to fill in the blanks.  The reporting on these sexual assault cases is like a politically-motivated game of Mad Libs.  But that is the state of the modern media . .  what can you do about it.  William Tecumseh Sherman said it best:  “I would kill every reporter in the world, but I am sure we would be getting reports from Hell by breakfast.”

  6. Phil Cave says:

    Disappointing to say the least.
    I’ve had plenty of conversations with Prof. Lurie, just as have Dwight, Gene, and others, specifically when he was researching, writing, and promoting his excellent multi-volume history of CAAF.  Still have the books on my shelf.
    So it was most disappointing to read this.  It is however just more proof positive how an agenda can be messaged through the media to Congress, and anyone else who will drink the Kool-aid.  People will then be resistent (this is a well researched point) to having their minds changed by facts.
    Pity, pity, pity.

  7. Charlie Gittins says:

    I don’t know Professor Lurie, but I assume he is an adequate historian, as his CAAF history establishes.  I don’t know if he attended even 1 minute of the USNA Article 32 investigation.  But if he didn’t, as his footnotes suggest, and he wrote the article based on the hysterical and uninformed news articles, then he is a very crappy historian, and an incompetent attorney, assuming he holds a law degree.  I have done more than 100 Article 32 in sex assault cases, back when the Article 32 hearing was meaningful.  More than half of those cases were dismissed after the Article 32.  Many others ended up in some form of lesser forum than a court-martial or in a plea to a lesser offense.  A good number that went to trial ended in acquittal.   I think the Superintendent caved to political pressure in the case that should never have gone to trial.  And, I was pleased to see that what goes around, comes around, that the former Supe lost a star and received a Secretarial Letter of Censure for ethics violations that occurred prior to his tenure at USNA.  As he should have been when he was taking gifts from prohibited sources, the Supe should have been more thoughtful of a recommendation provided to him by a seasoned Military Judge, who, presumably, was assigned to be the 32 officer for just that reason — his ability to evaluate evidence and assess the proper course the case should take.   

  8. Dew_Process says:

    Prof. Laurie, who I’ve also worked with in the past, is not a lawyer.  That being said, I must also, unfortunately, agree with Phil’s assessment here.

  9. Advocaat says:

    I wish Prof. Lurie had explored (or even mentioned) the full dynamic of the three USNA cases, which involved a white woman alleging rape against three black men.  One of the outstanding civilian defenders who commented above won an acquittal in another case that involved a white CW who actually said she would never consent to having sex with a black man b/c she wasn’t attracted to them; fortunately, there was video evidence that contradicted her lies.  Before I retired, I tilted against racial disparities (e.g., panel composition, prosecution rates per thousand) within the military justice system and won few fans as a result (I was often accused of “playing the race card” as a defender).  In my view, the present system makes it more likely that an innocent man will be convicted of rape, but it makes it MUCH MORE LIKELY that an innocent black man will be convicted of rape, especially if the CW is white.

  10. Charlie Dunlap says:

    Though I do not always agree with Phi Cave, Charlie Gittins, and the other legends of the defense bar, I think we all ought to be troubled by the erosion of the accused’s rights that we are seeing in the military justice system. 
    Standing up for the rights of military accused is profoundly unpopular these days, but it is great to see that so many CAAFloggers – to include prosecutors – still have the moral courage to continue to fight the good fight.  Moreover, standing up for the rights of the accused hardly equates to tolerance of sexual assault (or any other crime); rather, it is a recognition that fairness in the military justice system is essential to its ability to carry out its function of supporting morale and discipline so indispensable to battlefield success, especially in the 21st century.
    In this regard allow me to once again express profound disappointment with the operation of Code Committee (which is due to meet again tomorrow).  Regrettably, it is has not really carried out its intended function of providing recommendations for changes in the military justice system for many years.  When I was a member of the Committee, I found it virtually impossible to get any support for substantive discussions of almost any issue and – indeed – I was cut off speaking even though the meeting had gone on little more than an hour.
    If the CAAF judges – or any other members – do not wish to carry out their statutory responsibilities with respect to the Code Committee, I firmly believe that Congress should be told just that, so that the Committee can be re-fashioned with members willing to do the hard but vital work of addressing military justice issues.  And any such reformed Committee needs – more than ever – robust representation from the defense bar. 
    Sadly, we can no longer expect that the press to give visibility to the challenges defense counsel face in today’s hyper-politicized environment.  There needs to be the kind of access to lawmakers that the Code Committee was intended to provide but fails to do these days.