In what I believe is the first crisis that threatens to shake up the military’s nascent victims’ counsel programs, the Marine Corps Times reports here about an investigation into an allegation that a Marine Corps victims’ legal counsel counseling a victim/client to destroy evidence:

The head of the Marine Corps’ Victims’ Legal Counsel program in Japan is at the center of a legal probe after allegedly instructing a client to destroy documentation relevant to a case.

Maj. [H], a 15-year officer and judge advocate who is serving as regional special victims’ counsel for Legal Services Support Pacific in Okinawa, Japan, is being investigated by the Naval Criminal Investigative Service, according to a Marine official. The official spoke on the condition of anonymity as he was not authorized to discuss the case.

NCIS officials confirmed the existence of an investigation, but said they could not comment on the case as the probe was ongoing.

The investigation is centered on allegations that [H] instructed a victim she was advising in an active sexual assault case to destroy information on a personal cellphone that was relevant to the case, but may have reflected negatively on the victim, according to several sources in the Marine Corps’ legal community who are familiar with the case.

78 Responses to “Military victims’ counsel programs face a crisis”

  1. Defense Wizard says:

    I’ve been saying this since I got my first briefing on the Army’s SVC program. I suspect this happens more often then we realize. Although my primary concern is that you have an attorney not bound by Brady rules advising the Government’s main witness, this crossing of the ethical Rubicon was not far behind. 

  2. afjagcapt says:

    “Crisis that threatens to shake up?” If a DC tells a client to destroy evidence (or more likely advises a client against consensually turning over such evidence that the client then goes overboard on), is that a crisis for the entire defense community? If a single TC instructs a witness to destroy exculpatory evidence, is that a crisis for the entire government? (Okay, on this blog, it likely is, but I digress…).
    If the Maj did so instruct the AV, clearly that was a giant foul and must be dealt with accordingly. On the other hand, if she simply advised the AV against turning something over and the AV on his/her own destroyed it? That is on the AV, not the lawyer. Afterall, I don’t know about the Corps, but in the Air Force I certainly don’t see that SVCs are getting graded on wins and losses at trial; thus, what is the incentive for this COA? Thus let’s hold off on the inevitable, “ah-has” and desire to string up the Maj until some facts come out.
    As the SVC-thing has been around for a couple of years now, and is codified in statute and DoD policy, I’m just not sure I see this (even if it is the intentional wrongful act of a single person) as the existential “crisis” imagined (or should I say desired?).  

  3. RKincaid3 (RK3PO) says:

     
    Sigh…as much as I loath the Special Vengeance Counsel, er, Special Victim’s Counsel program as a waste of time, effort, money and as a miscarriage of justice (witnesses to a crime–which is what a “victim” is—have never been and should not now be entitled to a lawyer at government expense, period!), I don’t see this allegation or investigation as an indictment of the program itself (which program should immediately, and promptly be terminated–but for other more practical reasons).
     
    Defense attorneys often face allegations of ethical impropriety for no better reason than they beat the government. Government attorneys face the same problem when they beat the defense.
     
    I would recommend we all accept that humans do dumb, criminal things for any number of reasons–some admirable and laudable–and others for selfish, criminal reasons.
     
    The failure of a particular lawyer in any particular program to conduct themselves appropriately, professionally and ethically says nothing about the program in which they are employed and engaged. It speaks only to them–the individual actor–unless there is evidence that the actor was following the policies, procedures, climate, influence, leaders, etc., of the program itself. In other words, unless the program itself is encouraging, requiring, pressing, or influencing such conduct, or looking the other way when such conduct occurs, then we attack the program. Until such evidence is produced, we should NOT condemn the program itself, no matter how worthless it is or what a waste of time and energy it is, simply because a human actor screwed up bad.
     
    The SVC program needs to die not because it might have the occasional bad actor–but just because it is a bad program that serves nothing but a petty political purpose–the cause du jour–and as such, it is not needed or even justifiable. Victims are witnesses–nothing more and nothing less. And they should be treated as such–no more and no less.

  4. Advocaat says:

    Maybe, just maybe, the good major said exactly what she was supposed to say when her client asked what to do with the evidence on her phone and, I’m going out on a limb here, perhaps the client did the opposite and then lied about what her lawyer told her.  To all you SVCs out there, I hope you know exactly what to do in this situation and that you’ve confirmed that COA with your supervisory attorney.

  5. Monday morning QB says:

    This isn’t about SVCs. This is basic ethics. Unless I missed something in law school and 20 years of practice, it’s never okay for ANY attorney to advise a client to destroy evidence. Even a DC whose client walks into his office with the murder weapon. Hello.  

  6. Zachary D Spilman says:

    I believe that this is a crisis that threatens to shake up the victims’ counsel programs because of the ethical implications and the questions it raises. The victims’ counsel programs are operating without a well-developed policy safety-net, and there are numerous legitimate concerns about the program.

    Those concerns are clearly evident from the comments so far:

    Defense Wizard says:
    you have an attorney not bound by Brady rules advising the Government’s main witness

    A Government attorney, no less. 

    afjagcapt says:
    On the other hand, if she simply advised the AV against turning something over and the AV on his/her own destroyed it? That is on the AV, not the lawyer. 

    Is such advice adequate? Proper? Legally accurate?

    RKincaid3 (RK3PO) says:
    The failure of a particular lawyer in any particular program to conduct themselves appropriately, professionally and ethically says nothing about the program in which they are employed and engaged.

    What if the program has insufficient (or non-existent) guidelines for lawyers?

    Advocaat says:
    Maybe, just maybe, the good major said exactly what she was supposed to say when her client asked what to do with the evidence on her phone and, I’m going out on a limb here, perhaps the client did the opposite and then lied about what her lawyer told her.

    We anxiously await news of preferral of charges against the alleged victim.

    Monday morning QB says:
    This isn’t about SVCs. This is basic ethics.

    And yet here we are, wringing our hands over the alleged conduct of a field grade Marine Corps judge advocate.

  7. Saul Goodman says:

    I am going out on a limb here, but didn’t the USMC also search defense spaces this year?  Hasn’t the Air Force simply disregarded both trial judge and appellate orders regarding discovery?  And I use the terms USMC and Air Force because trial counsel and military criminal investigative agencies are the “government.”
    Any assertion that a SVC or VLC is part of the “government” is uniformed and shows you simply don’t understand the law, or have chosen to ignore it.  There is absolutely nothing wrong with advising a witness (whether a victim or not) of his/her constitutional 4th amendment right to refuse consent to a search and seizure of evidence.  I am not sure what kind of additional policy or guidance is needed to be promulgated to understand such basics of criminal procedure that are taught in law school, the basic law course, and every episode of Law & Order.
    Like Monday morning QB said, if a SVC or VLC advises a client to destroy material evidence, the PR world is aptly suited to address such a clear and blatant violation of existing policy and rules.  Again, I am not sure why anyone would ever ask for additional guidelines simply to restate such clear rules for a SVC/VLC – these already exist.
    If true, this judge advocate will be fighting for her bar license and 27b certification.  .
    The Darren Sharper saga is much more interesting than this “crisis.”

  8. Just Another JAG says:

    Mr. Spilman,
    According to the AFCCA, the Special Victim’s Counsel is not a “Government attorney,” at least without something to suggest the Trial Counsel instructed the SVC on any particular course of action. See, United States v. Arma, 2014 CCA LEXIS 802. In that case, the AFCCA reviewed possible misconduct by an SVC and basically said, without evidence showing Government involvement in the SVC’s alleged misconduct, the SVC was not a Government attorney.
     

  9. afjagcapt says:

    What Saul Goodman said.

  10. k fischer says:

    I remember a case where an alleged Vic told me that the SVP screamed at her, “Your parents don’t love you. Your dad is a Mother@#%&$?@”. She did that after the alleged Vic told the SVP that she made the allegations up.  I recorded the interview.  When she told me that the Gov was dismissing the charges, the SVP told me that it was ironic that I said the Vic was lying about the charges against her dad, but was telling the truth about her.
     
     So, if this Vic is lying about the good Maj, then I hope she will become one more person less apt to drink the kook aid.  Isn’t that the ultimate schaudenfreude when the Vic flips on the SVP or the SVC and falsely accuses them of malfeasance they way they accused an innocent man of sexual assault?

  11. Zachary D Spilman says:

    Just Another JAG says:
    According to the AFCCA, the Special Victim’s Counsel is not a “Government attorney”

    The SVC is paid by the Government, trained by the Government, certified by the Government, detailed by the Government, and evaluated by the Government. That’s a Government attorney. Also, the applicable Rules of Professional Conduct (JAGINST 5803.1D) identifies all active duty Navy and Marine Corps judge advocates as “U.S. Government (USG) attorneys.” 

    As for Arma (an Article 62 appeal), I analyzed the AFCCA’s opinion in this post. The victims’ counsel issue in that case involved an erroneous assertion of the spousal privilege by a witness who was the alleged victim’s husband. The CCA noted:

    Whether this issue is styled as witness tampering or unequal access to a witness, there is insufficient evidence of Government involvement to warrant a punitive remedy.

    Slip op. at 5. “Government,” in this context, clearly means “prosecution.” 

    Moreover, as I wrote in my analysis:

    There’s no evidence that the alleged victim’s counsel tried to prohibit the husband from answering the Defense questions (and even if there was, that still wouldn’t amount to tampering). Rather, the husband had a faulty understanding of the [spousal] privilege. As the CCA suggests, the judge should have tried to sort this out before invoking it as a basis for a drastic remedy [of dismissal with prejudice].

  12. Dew_Process says:

    @ SG:

     I am not sure what kind of additional policy or guidance is needed to be promulgated to understand such basics of criminal procedure that are taught in law school, the basic law course, and every episode of Law & Order.
     

    First of all, when she became a complainant, with reference to matters relating to her complaint, she has a diminished expectation of privacy.  Second, even as a SVC, she had a duty to her client to ensure that the client knew and understood the offense of obstructing justice, which – if the allegations are true – both are guilty of. But as an attorney, if she recognized that the information on the cellphone might “reflect negatively” on the complainant, what about the ethical obligation as an “officer of the Court” to preserve what appears from the description as classic Giglio material?  That then raises the issue of whether the underlying complaint / statements constituted a False Official Statement.  And then of course – if the allegations are true – a classic Article 133 offense.
     
    Now, I’m not convicting the Major as obviously these are allegations and we all know that complainants sometimes lie [surprise], but, to even be caught in such a situation – guilty or not – raises “judgment” issues imho.  The system really wasn’t broken, and like RK3PO opined above:
     

    The SVC program needs to die not because it might have the occasional bad actor–but just because it is a bad program that serves nothing but a petty political purpose–the cause du jour–and as such, it is not needed or even justifiable.

  13. The Silver Fox says:

    “The SVC is paid by the Government, trained by the Government, certified by the Government, detailed by the Government, and evaluated by the Government. That’s a Government attorney.”  Just like military defense counsel?

  14. Just Another JAG says:

    Mr. Spilman,
     
    I am aware of the fact that anyone paid by the Government is a Government attorney in the truest sense of the phrase. However, I took your comment to mean “Government attorney” as a representative of the Government, i.e. prosecution. We were simply using two different meanings of “Government attorney.”

  15. The Silver Fox says:

    AREA DEFENSE COUNSEL FACE CRISIS:  IAC FOUND.

  16. Zachary D Spilman says:

    Let’s not ignore the context of my comment, The Silver Fox:

    Defense Wizard says:
    you have an attorney not bound by Brady rules advising the Government’s main witness

    A Government attorney, no less.

    Military defense counsel don’t advise “the Government’s main witness.”

    Just Another JAG: So we were. Fair enough. But I think it axiomatic that all Government attorneys are – for better or worse – Government attorneys.

  17. The Silver Fox says:

    ZS, I’ll let the courts and/or policymakers decide whether there’s a Brady-type rule to be had for SVCs.  Whether that’s necessary is a valid question.  And, if the allegations against this SVC are true, then there’s certainly a very serious problem that needs to be addressed with that attorney. 
    But, my point here isn’t that:  It amazes me when I see folks on this blog repeatedly call for the prosecution and/or public ridicule of government counsel (and, at times, SVCs) when those counsel either make mistakes as fallible human beings or make good faith arguments before our courts that may not be popular.  On the flip side, however, I never hear calls for defense counsel to be prosecuted, disbarred, or publicly reprimanded if ineffective assistance of counsel is found.  I guess what’s good for the goose is not good for the gander.    

  18. Zachary D Spilman says:

    I’ll give you three answers The Silver Fox.

    First, I don’t know who you mean when you reference “folks on this blog” who “repeatedly call for the prosecution and/or public ridicule of government counsel.” I’m fairly certainly that in nearly six years of posting, I’ve never done anything like that (though you’re welcome to search the archives and remind me of the time I did – I don’t think it exists). As for things posted by pseudonymous commentors – like you – I can only say that I’ve been party to more than one serious conversation about eliminating the comments feature on this blog. But I think the comments are overall more probative than prejudicial; even yours.

    Second, ineffective assistance of counsel is not necessarily misconduct (just as “prosecutorial misconduct” is also not necessarily misconduct). And IAC alone (that is, prejudicial deficient performance) is not an ethical issue per se. Moreover, I can’t help but note that I have been criticized for repeating the name of defense counsel identified in decisions addressing IAC (the comments to this post come to mind). 

    Finally, you comment that you “never hear calls for defense counsel to be prosecuted, disbarred, or publicly reprimanded.” If that’s what you think this post is about, you really need to switch to a different flavor of Kool-Aid.

  19. The Silver Fox says:

    While I obviously wasn’t referencing you, ZS, since I used the colloquial term “folks,” I believe the names of individuals involved in these cases, including IAC cases, should absolutely be deleted from this blog.  The Saulk comments section repeatedly included names of individuals who had nothing to do with the issue at hand, but will now ostensibly come up in a Google search. My point of course is not to call for more invective from either side, but to start giving one another, as attorneys and officers of the court, the benefit of the doubt.

  20. Zachary D Spilman says:

    The Saulk comments section repeatedly included names of individuals who had nothing to do with the issue at hand, but will now ostensibly come up in a Google search. 

    I’d like to know the search terms you’re concerned about. Feel free to email them to me at zack@caaflog.com if you don’t want to post them. 

    Particularly since I’d expect the two military counsel identified in the comments section to the post discussing the CCA’s oral argument order in Sauk to be grateful that the post clearly explains that they were no longer involved in the case by the time the contempt issue ripened. To my knowledge, that is the only public source of that information. However, the CCA’s initial opinion in the case is available to the public, is indexed by search engines, and identifies those military counsel as counsel of record. So, but for the mention of their names on this blog, an interested observer would assume that those two lawyers were implicated in the contempt issue.

    Similarly, when it comes to IAC or prosecutorial misconduct or any other issue, the discussions on this blog are based on information available to the public (in fact, I make a conscious effort to use only public information; the Sauk clarification being a rare departure). If a court identifies a counsel by name, then that’s a matter of public record that is worthy of discussion here and elsewhere, including discussion of whether it was fair or appropriate to identify the counsel by name. Criticizing such discussion because you don’t agree with the court’s predicate action isn’t just unfair, it’s wrongheaded.

  21. Tami (a/k/a Princess Leia) says:

    Has it occurred to anyone that what got deleted may have been “relevant,” but not “evidence” admissible at trial?  What if the SVC and client had discussed deleting text messages between the two of them about the case?  Those text messages are covered by attorney-client privilege, and NO ONE ELSE is entitled to get them.  Yet in the over-zealousness of law enforcement (and trial counsel), they probably insisted on seizing the entire phone, which then puts EVERYTHING on that phone as fair game, even when it has absolutely nothing to do with the case, whether its e-mails, financial stuff, or social media.  If that is the situation, the victim and her attorney did absolutely nothing wrong.  No more than if Sinclair had deleted all of his e-mails with his attorneys before his computer got seized.  We all saw the uproar when it was revealed CID got a hold of his privileged communications.  Yet I don’t see anyone expressing the same concern here.  Why?
     
    Or maybe it was advice to change the privacy settings on her Facebook page so that it’s not open to the public (including DCs and TCs), but the client decided on her own to delete it because she would prefer to avoid a massive intrusion into her personal life?  Kind of like that Navy MJ with “the young wife” whose personnel file got invaded by a bunch of over-zealous TCs who violated federal law, yet those JAs have probably gotten promoted and plum assignments.
     
    The Government’s main witness does not become part of the “Government” simply because she is a witness.  She is a private actor, and has no obligation to cooperate, no obligation to tell every dirty little secret throughout her entire life, and no obligation to open up everything private in her life.  The SVC doesn’t become a “Government” attorney simply because the Government pays the SVCs salary and advises a Government witness.  The SVC is not an “officer of the court” until they’ve made an appearance on the record, and even then, it depends on whether the SVC is offering evidence or testimony.  You could have an SVC simply arguing evidence that one of the parties has introduced.  The SVC represents the individual person, not the Government.  The SVC has a duty of confidentiality toward the individual, and therefore does not, and cannot, “out” the client like the TC does.  That is why the SVC does not have a Brady obligation.  The SVC has an obligation to protect the client’s privacy from unwarranted and excessively invasive intrusions. 
     
    On top of that, these intrusions lead to additional time and money litigating the suppression of stuff that isn’t relevant to the case, because “the Government” insisted on getting everything.  Once case I saw was 9,000 pages of Facebook messages between the victim and others, and maybe 5 of those 9,000 pages were relevant, so the judge turned them over to the defense.  But the court time it took to litigate that, the time CID agents had to review all 9,000 pages, the TCs and DCs, and the MJ.  And the rest of the pages had to be sealed.  I can only imagine the look on ACCA judge’s faces when they see this ROT.
     
    It’s amazing to me how quickly people jump in to bash SVCs and the program in general, when they have no clue how it works.

  22. Saul Goodman says:

    10 USC 1044e
    “Nature of Relationship.— The relationship between a Special Victims’ Counsel and a victim in the provision of legal advice and assistance shall be the relationship between an attorney and client.”
    PR Rules: “The executive agency to which the covered USG attorney is assigned (DON in most cases) is the client served by the covered USG attorney unless detailed to represent another client by competent authority.”
    Seems like Congress has expressly stated that, like legal assistance and defense counsel, a SVC and VLC represent his/her victim as the client.
    For those referencing Giglio and Brady, there is a slew of case law stating that such disclosure obligations to not extend beyond the prosecution office and other governmental agencies closely aligned with the prosecution.  You may want to dust off your Lexis password, or better, just google the Brady/Giglio handbook from DOJ.  Witnesses are not covered by either obligation.
    No attorney can let a client perpetrate a fraud upon a court, and it is not contingent on whether the attorney has entered an appearance in court.  So, hypothetically, if a SVC knows that the client is lying on the stand, even though the SVC never entered an appearance, the SVC – as a covered attorney and officer of the court – still owes a duty to the court that, according to PR Rules, includes taking remedial action up to and including disclosure.
    This is the same obligation that a SJA has under the rules if the commander lies on the stand, that a defense counsel has if the accused lies on the stand, and that the trial counsel has if a witness lies on the stand.
    I am not sure why this blog thinks that SVCs have clients that walk in, tell them they made up the allegation of assault, and then the SVC joins the conspiracy to put a wrongly accused servicemember in the brig.
     
     

  23. Zachary D Spilman says:

    Saul Goodman says:
    I am not sure why this blog thinks that SVCs have clients that walk in, tell them they made up the allegation of assault, and then the SVC joins the conspiracy to put a wrongly accused servicemember in the brig.

    This blog? Not exactly. See my comment above regarding pseudonymous comments (like yours).

    Perhaps it’s time to reconsider our comment policy.

  24. Saul Goodman says:

    ZS – poor choice of words, let me rephrase.  “Some comments on this blog imply that SVCs have clients walk in….”

  25. Zachary D Spilman says:

    The horror.

    image

  26. Neutron73 says:

    I think I’ll wait till the investigation is complete.  I can’t see why a RSVC would tell a victim to destroy any evidence.  I think most SVCs have their clients’ best interests at heart, and the program is in its infancy.
    But I’m willing to bet that the victim destroyed the evidence, NCIS called the them on it, and they threw the Major on the barbie as a CYA.

  27. Broken System says:

    The lawyer in question did not graduate from law school until 2008.  So with bar exam and OBC, she probably only has 5 years of time as an attorney.  Not an excuse but now makes the picture more clear.  Rank or seniority is no substitute for years of experience. 

  28. The Silver Fox says:

    I give up.  You all win.

  29. Monday morning QB says:

    Being of short experience is no excuse when it comes to ethics.  It’s the same thing the Quintanilla prosecutors claimed after they stole the weapon and put it on a plaque.  Any first year law student knows intuitively that you do not take evidence and you cannot destroy evidence.  Any first year law student knows intuitively if your client walks into your office and says, “Here’s the gun.  Should I throw it in the river?” The answer is no.  “Can I leave it with you?”  The answer is no.  “Do I have to turn it over to the cops?”  The answer is no.  As the hypothetical progresses, the answers get more difficult, but the easiest two answers are the lawyer cannot accept evidence into his possession or counsel it to be destroyed.

  30. Broken System says:

    MM QB: don’t get me wrong.  If she actually did advise her client to do this then she deserves what is coming. 
     
    My point is that at least in the Army we have a problem with attorneys that are senior due to FLEP program or prior service becoming supervisors of people that have been attorneys the same length of time or longer.  Neither party is in a position to supervise other attorneys but we do it simply b/c of TIG or TIS.  If she were direct commssion then she would still be a mid grade Captain and probably not supervising.  Likewise, she would be assigned a litany of jobs that would provide her more perspecitive and experience. 
     
    That said, there is no excuse for what has allegedly occurred here.  It is a first year law student issue spot and certainly a licensed attorney should know better.  I’m just frustrated at the supervisory part and that she has been given a position of greater responsibility without the underlying experience level to match. 

  31. stewie says:

    Boy, this thread escalated quickly! Zach killed a guy…with a trident.
     
    I think I’m in wait mode.  Let’s see what actually happened.  But, for the sake of argument…I agree with those who say that the fact that one counsel does something dumb does not extend to the entire program.  If she did it, she should and will be in big trouble.  But that’s it…one time does not a pattern make.  If a pattern emerges, then we can see if the safeguards and guidance needs to be beefed up.
     
    But it seems to me, an SVC is effectively a glorified legal assistance attorney.  And we have guidelines and standards for legal assistance attorneys, I’m not sure we need extra special guidelines.  We may need better training, but given we just stood up these programs, it would be pretty surprising for there not to be growing pains.
     
    I think the SVC program is a bad idea in general, but this isn’t the reason why.

  32. DCGoneGalt says:

    stewie:  [sarcasm alert]  How can the SVC system be a bad idea in general?  Only people “with no clue how it [SVC program] works” could believe that.

  33. Fired AFJAG says:

    I don’t see why this kind of thing would be surprising…considering that in the USAF, SVCs are trained to coach their clients’ statements and accounts to meet the elements of 120 crimes.  Making unfavorable information disappear is just the next logical step, whether it is officially sanctioned by the powers that be or not.  After all, that comports with the JAGC definition of justice: conviction and punishment regardless of what the truth actually is.

  34. Tami (a/k/a Princess Leia) says:

    Saul Goodman,
     
    Totally agree that no attorney can allow his/her client, or a non-client witness, to get on the stand and knowingly lie about something.  An SVC should always be instructing the client not to lie on the witness stand, and the consequences of that (including withdrawing from representation).  While SVCs are officers and attorneys all the time, whether they are officers “of the court” truly depends on the circumstances, including whether they’ve made an appearance on the record, whether they are “offering” evidence (as opposed to a TC or DC offering evidence), and whether they are making an argument on behalf of the client.  But the SVC still has a duty of confidentiality to the client, so “outing” the client to the court isn’t really an option.  If the client persists in fraudulent conduct, then it seems to me that, under the PR rules, terminating the representation before the client takes the stand is the way to go.  Regarding the duty of candor to the tribunal, there is also a difference between “knowing” evidence is false versus “believing” evidence is false.
     
    I think we can all agree that a huge problem in sexual assault cases is that the complainant, and the accused, tell different versions of what happened to different people.  They may also claim lack of memory.  Sometimes those stories are so opposite that we all “know” one of those stories isn’t true, but how do we “know” which story is true and which story is false if we weren’t there to actually see what happened?  It then becomes a matter of what we “believe” happened.
     
    There’s also a difference between getting rid of the gun (assuming it was used in the crime) and deleting text messages.  “Evidence” has to be legally admissible in court.  Privileged matters are not “legally” admissible.  If a client goes to her SVC with “CID wants to seize my phone and I have all of these text messages from you,” or “text messages between me and my husband,” then what is the issue with deleting them to protect the privilege?  We all know that once CID agents get their hands on that phone, everything on that phone will be exposed, and then it has to be turned over to the defense.  This is stuff the defense was never entitled to get in the first place.  Once privileged matters get exposed, it’s incredibly difficult to get them back in the box.  The best COA is to avoid the exposure of the privileged information at the outset.
     
    As far as Arma is concerned, the opinion was clear that the communications at issue occurred before the marriage, so they were not covered by the “communications privilege.”  However, the husband does have the right to refuse to “testify against” his wife, which would include those communications before the marriage, so in that sense, I don’t see a problem w/ husband refusing to talk to the defense.  But the smart thing to do would have been to not talk to the TC either.

  35. afjagcapt says:

     

    @ Fired AFJAG:
    …considering that in the USAF, SVCs are trained to coach their clients’ statements and accounts to meet the elements of 120 crimes.  Making unfavorable information disappear is just the next logical step, whether it is officially sanctioned by the powers that be or not.

    First, condolences on the FSB result; we certainly lost a lot of good people…and I do mean that sincerely.
    However, I’d like to know where you got your facts about SVC training as what you stated is unequivocally false. I have been to the SVC course. There is no training whatsoever on coaching the AV to ensure a report meets the elements of 120 crimes or (or any other objective or subjective standard). The only training that occurs for the SVCs with regard to the interview is in the realm of privacy; for example, ensuring the AV has a full understanding of (exactly what Tami was talking about above) with respect to turning over their cell phone.
    In fact, SVCs are told over and over again throughout the course that it is not the SVCs job to see the allegation is even reported and certainly not their job to see that a court-martial in convened or conviction is obtained. SVCS are told it is perfectly fine, and within the AV’s discretion to get an SVC to speak with, and, if they so choose, keep the report restricted or, if it is already unrestricted, never do anything else (even speak to AFOSI)…period.
    I get there is legitimate disagreement about the need for SVCs and even the practical impacts to their involvement, but what you stated is simply factually incorrect.

  36. stewie says:

    I think most of us think the SVCs are just doing their best.  I have a problem with the program itself, but not a problem with people assigned to the program trying to be a zealous advocate.  They are placed in a difficult position IMO.

  37. Former JAG says:

    I was going to ask “Fired AFJAG” about his back story.  Based on his nom de plume, and the fact that his comment was sooo bitter and sooo cynical, I thought he must have a pretty interesting story to tell!  But, I guess AFJAG’s comment answered my question.
     
     
    Cf. Jackie Chiles, available at 

    , at 12:00 minutes.
     

  38. k fischer says:

    afjagcapt, 
     
    I don’t know about the AF SVC program, but I had a case back in 2010 where I read a CID entry stating that the SVP was  “present during Mrs. F’s statement for the purposes of ensuring her husband’s propensity to be violent or abusive was clearly documented as corroborating testimony to [Vic #1’s] remarks and comments made by [the accused] during her assault.” (CID AAR, SA [T], 10/15/10 at 1630)
     
    Of course, that could just mean the SVP was there just so the right questions got asked, which is not coaching, IMO.  
     
    But, afjagcapt and I agree once again (that’s twice this week).  ‘Twould be nice to have some evidence of this training because “coaching:” has different meanings to different people. And, different courses with different instructors could have different topics to include coaching.  But, if that were the case, then I would hope that someone with some integrity would come forward.  

  39. Monday morning QB says:

    Tami- Your position that ““Evidence” has to be legally admissible in court.  Privileged matters are not “legally” admissible…” is a very dangerous position to take during a scenario when a witness comes to the lawyer with certain information/material/evidence, etc., and asks what the they should do with it; you don’t know whether anything is admissible or not until a judge says it is or is not.  Privileges can be breached in certain situations and I for one do not want to be the lawyer who tells a client to get rid of something; I’ll wait for the issue to come up and get the insulation of a judge’s ruling first.  If you don’t have a judge on the case yet, you are taking a  risk telling a non-defendant/suspect client to refuse to cooperate with law enforcement investigators.  I would never counsel any attorney to just make his or her own judgment that certain material are not evidence so just go ahead and get rid of it.  Pretty presumptuous and dangerous professionally. 

  40. afjagcapt says:

    @ kf: Twice in one week; what is the world coming too? But what the hell; let’s make it thrice: there are current defense counsel (both military, ADCs and SDCs, and civilian) practicing before AF courts who have been to (and/or helped give) SVC training for former jobs. One thinks they’d have raised this issue, and to be abundantly clear I wholeheartedly agree it would be an issue, if it was there to be raised.

  41. Don Rehkopf says:

    @ Saul Goodman:

    For those referencing Giglio and Brady, there is a slew of case law stating that such disclosure obligations to not extend beyond the prosecution office and other governmental agencies closely aligned with the prosecution.  You may want to dust off your Lexis password, or better, just google the Brady/Giglio handbook from DOJ.
     

    Anyone who relies upon the DoJ “Brady/Giglio” handbook is already in deep trouble. Cf. the number of federal district judges who have lambasted them for repeated violations of such, to include the prosecution of the late Senator Ted Stevens. See, e.g., the contents of BEYOND TRAINING PROSECUTORS ABOUT THEIR DISCLOSURE OBLIGATIONS: CAN PROSECUTORS’ OFFICES LEARN FROM THEIR LAWYERS’ MISTAKES? available HERE.
     
    And, I agree with Stewie -most SVC’s are trying to do their best in an ethical manner – indeed, one sought Ethics advice from me on a “privilege” issue. But the attorney-client privilege is not absolute, something that is forgotten sometimes “in the heat of battle.”  Furthermore, there is a common misconception amongst defense counsel (and now, probably SVC’s) that it is somehow illegal or unethical to possess physical evidence.  First, there is no per se prohibition (unless it is contraband), and second, there may be a requirement to take custody of evidence in order to “preserve it.” It is perfectly legal for counsel in a criminal case to have possession of physical evidence, as long as the applicable rules are followed.  Consider Rule 3.4, ABA Rules of Professional Conduct:
     

    A lawyer shall not:
    (a) unlawfully obstruct another party’ s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; [emphasis added].
     

    That is consistent with Restatement Third, Law Governing Lawyers, section 119 (2000) [allowing counsel to take possession of non-contraband, physical evidence as long as it is not altered or destroyed]. For a comprehensive look at this topic, see Prof. Gillers [NYU Law] extensive article HERE.
     
    Finally, in the context of when the attorney-client privilege collides with an accused’s right to access evidence or confront witnesses, HERE is a link to a good discussion.

  42. Defense Wizard says:

    I’ll be honest. I don’t like the VLC/SVC program and I have not been able to articulate a reason why, but here are my thoughts:I think the comparison between the accused and the victim and the rights to their respective attorneys is misplaced. As a defense attorney, I can advise my client to remain silent. If my client has a terrible past loaded with crimen falsi and conflicting statements, I would likely strongly recommend they remain silent. An SVC/VLC can do the same thing, but the outcome is remarkably different. If the AV remains silent at trial, the case goes away, and nobody goes to jail. If the accused remains silent, they might still go to jail. In a civil case, the plaintiff is subject to discovery. The SVC/VLC programs places the AV in the position as the plaintiff, but not one that is subject to discovery. When they get involved in the process early, they can do a lot to shape the battlefield before the TC even begins their investigation. Lots of Brady/Giglio materials that would have been discovered by the Government might get lost or hidden because the SVC/VLC can shape what is presented to the prosecutor. Meanwhile, the accused, who does not get an attorney until they know they are being investigated (and is not technically entitled to free counsel until charges are preferred), still has their facebook account up, etc.

  43. AnonymousJA says:

    re ZS and anonymous comments – I post anonymously bc I am active duty. Many who contribute inside knowledge are just not comfortable using real names. Judges may say they don’t read caaflog…
    This IS a big deal because it plays into reinforces the stereotype of victim’s counsel and does so in a very public way thanks to the Marine Corps Times. Every public investigation erodes our servicemembers confidence in the system.
    I am proposing FLEP for the infantry. Let’s take lawyers with 8-10 years service and make them battalion commanders. This of course is ridiculous and would get people killed. In our community, it leads to injustice on the government side and substandard representation on the defense side. 

  44. Don Rehkopf says:

    A couple of more things that just flew in over then transom on the issue of “deleting” things:
     
    1) An article discussing a proposed Florida Ethics Opinion HERE.  And
     
    2) A copy of the proposed Opinion HERE which also discusses authority from other States.

  45. Monday morning QB says:

    Anonymous JA- I don’t know; I have seen some infantry officers from the inception with 8-10 years in and they would be no better than most Marine Corps JAs I know at leading a battalion.  In fact, the JAs might hold their own.  The infantry is not a good analogy because it’s set up with layers of checks and safeguards to protect against the imbecile C.O.; anybody who knows anything about staff NCOs in the Marine Corps knows what I am saying.  TBS spread-loads the good, the bad, and the ugly and the infantry ends up with equal parts of each.  But I think it’s correct to say that if we are going to have these SVC/VLC programs they need to be staffed with experienced folks – people who have military justice experience and know the rules of ethics; at least at the local office level so they can show their junior SVCs how to represent their clients in an ethical manner that does not infect any given case.

  46. AnonymousSrA says:

    I have been reading CAAFlog for almost 1 1/2 years now and I think it is really awesome! I have tried to chime in on multiple occasions but for some reason I haven’t been able to post. It was probably a good thing my post haven’t made it through.
    I am still active duty for the time being and I was convicted of sexual assault during the summer of last year. My case didn’t get any publicity partly because of my duty location and mostly because I decided not to go public myself although many people thought I should.
    There is no doubt in my mind that a lot of shady stuff goes on behind the scenes with the SVC and the alleged victim. In my case we had the JAG or SVC sharing my statement to the alleged victim days after I was interrogated by AFOSI which was months before the investigation was closed. The military has created a climate and I don’t think it is for the good of the forces. I agree there is a problem with Sexual Assault in the military, but no different than in normal society.
    Recently 5 people from Congress came to a base to talk about the Next Generation Fighter. A very good Chief told me that one of the Generals had a briefing with all of the Commanders and Chiefs that were involved in this Dog and Pony show. After they talked about the Next Gen Fighter the General started talking to them about Sexual Assault/Harassment. He basically told them that we have a problem and we are doing everything we can to fix it. He said, if you don’t agree with this than you need to get onboard because these are the people that authorize our paychecks. Bottom-line, if you don’t tell them what they want to hear than we want get paid.
    If this General is saying this to his people, who told him and who else was told this? Talk about UCI! I know there are people that are getting away with Sexual Assault in the military and in the civilian world, but there are also innocent people getting convicted more and more because of these changes and programs like the SVC.
    Like @Defense Wizard said, the SVC is getting involved way before the accused has even been investigated. If you think there is not any coaching involved in this process than I think you are naïve.
    If the SVC or JAG truly believes the accused is not guilty, do they still go for a harsh punishment or do they go for a lesser punishment because they feel sorry? In my case once I was convicted my military and civilian lawyer thought the Government was going to try for 2-4 years in jail. I over heard the Government and the SVC talking and they said 6-9 months with a bad conduct. I told my lawyers what I overheard and they said I don’t believe that. Ultimately they did push for just 6-9 months and a bad conduct and I ended up getting no confinement, no discharge and reduction in rank. The jury had questions about what would happen if I was reduced in rank and then retired. They wanted to know what rank I would retire at if I was reduced. I honestly can’t see the jury thinking I should be able to retire or not receive any jail time if they believe without a reasonable doubt that I was truly guilty.
    The Government then decided to pursue a discharge board even though I hadn’t went through clemency process with my CCA. My military lawyer thought it was best not to fight the discharge board and use this as an opportunity to address our legal issues and new evidence. Since I was convicted of sexual assault the board members did not have the option to retain. They could only say discharge and then characterize my discharge. One would also think at best I would receive a General Discharge under other than Honorable conditions or probably get a dishonorable discharge. My lawyer thought at best I would get a General Discharge. The board members came back with an Honorable Discharge decision.
    I know I should be happy about this decision, but at the same time it just angers me more because I know I am innocent. I am currently waiting on the SECAF to decide whether I should be able to retire or not. I have almost 21 years in service. At the end of January I was told that Senator Gillibrand requested my record of trial and record of discharge board. Yes, my case is on public records, but it is not public knowledge. I want express my opinion about how she found out about my case and why she is concerning herself with this. I just know since the beginning there has been things going on behind the scenes that are shady at best.
    E-7 with 33 medal points and no blemish on my career with over 15 years in Special Duty assignments. I thought I was on my way to Senior Master Sergeant, but now I am a Senior Airman. It is all gone now. I was destined to do great things in the Air Force and even more once I retired and became a contractor. I know I made some pour decisions that night, but none of them deserving of being stamped a Sexual Predator the rest of my life. I don’t know when or if I will ever get it all back, but I know the Air Force lost a true asset to the military and our country. I will continue to keep up the fight and I will continue to read CAAFlog. It is things like this blog that will hopefully help make a change in our system.
    The one thing I do agree with Senator Gillibrand about is that these cases should be tried in civilian court. I know my case would have never made it to court if it was. How many more have happened and will happen in the future?

  47. stewie says:

    I’m not sure why this thread generated comments on commenting anonymously.  Suffice to say I think  you’d lose a lot of good contributions if you went by name only, but it’s not the end of the world either as this is just a bunch of law geeks debating law geek stuff (including me), with movie quotes, sometimes deep thoughts, and every once in awhile, a flock of birthers.  Or is it gaggle? Or Murder? I don’t know, I don’t do birther taxonomy.

  48. AnonymousSrA says:

    @Stewie     Sorry to speak Anonymous, but I didn’t want to spell my name out just so I can be judged again. I am not a lawyer, but I am very interested in a lot of this law geek stuff. I wish I knew more of this law geek stuff before my case started. I hope I didn’t offend anyone. I just have a lot of stuff bottled up and reading some of the crazy things that are happening across all branches with our legal system gets me even more worked up. I am just glad they are being addressed somewhere and hopefully these issues will get pushed to an even higher level.

  49. Isaac Kennen says:

    The Silver Fox said:

    It amazes me when I see folks on this blog repeatedly call for the prosecution and/or public ridicule of government counsel (and, at times, SVCs) when those counsel either make mistakes as fallible human beings or make good faith arguments before our courts that may not be popular.  On the flip side, however, I never hear calls for defense counsel to be prosecuted, disbarred, or publicly reprimanded if ineffective assistance of counsel is found.  I guess what’s good for the goose is not good for the gander.    

    I think I’m one of the “folks on this blog” who have called for public accountability – specifically I did so in reference to the Sauk case, under my not-so-pseudonym “Zeke.”  Therefore, I suppose I’d best respond.  
     
    First, I think both defense counsel found to commit IAC and prosecutors who have committed misconduct should be subject to publicity.  Yes, that includes me.  That being said, I think there is a difference in magnitude of harm posed by a misbehaving defense counsel as compared to a misbehaving prosecutor.  A defense counsel does not wield the power of the state.  Therefore, a rogue prosecutor is a threat to liberty in many cases whereas a rogue defense counsel is a threat only to the particular defendant he or she is failing.  Further, our justice system exists to restrain government power – that’s the reason for juries, the reason for the presumption of innocence, and the reason for the placement of the burden of proof on the government.  The People do not trust their government – they do not trust its prosecutors.  Our history is chocked full of examples to show that their distrust is with good cause.  A prosecutor that misbehaves runs afoul of that very principle of limited government.  He or she is a threat to society.   In contrast, the offending defense lawyer is only a threat to justice for that case.  So, both should be held publicly accountable.  But, if we’re going to impose some silly false dichotomy and imagine that a choice must be made between the two, then the answer is clearly to publicize the misbehaving prosecutor before the misbehaving defense lawyer.

  50. Grey says:

     I attended NJS with the attorney in question and I would certainly be willing to give her the benefit of the doubt.  People lie to their attorneys all the time.  People ignore their attorneys all the time.  When people get caught, they often say “my attorney told me I could do this.”  The reason we attorneys spend so much time with notes to the file and CYA letters is because we know that a certain percentage of clients will turn on us when they perceive it is their interest to do so.
     
    Tami did not say this, but I’m worried some people might read her comments as implying it is okay for an attorney or client to delete privileged material that is not admissible.  As another commenter said, only the court determines what is ultimately privileged.  The litigants and witnesses don’t get to decide that issue.  They can take a position on the issue and argue against production or for a protective order.  Filing for protective orders or motions to quash subpoenas would be appropriate for SVC. 
    If that sounds like a hollow remedy, you may be concerned about the limited rights of all servicemembers, to include the accused and witnesses.  One, there is an issue challenging subpoenas when the court has not yet been convened, which showcases the military oddity of having a subpoena issued by authority of the President rather than the court.  Someone purports to have authority to issue a subpoena, but there is no one claiming to supervise the process.  This was a problem in the Camp Pendleton search as well because a court had not been convened and there was no forum for the parties to litigate possession of the phone; when there is no court available then naturally the people with power (in this case, the executive arm of the United States government) get their way.
     
    Two, there is also a problem with investigators gathering privileged material as a consequence of overbroad search authorizations.   My feeling is that this is more extensive in the military where the approval authority is not a neutral magistrate judge but a lay person with a direct interest in expeditiously resolving all disciplinary matters in his AO.   The only remedy for military members is suppression of the evidence, which is no consolation to witnesses.  Case law prevents money recovery by servicemembers against the military for violations of civil rights (and even civilians are only getting token damages because you can’t really put a price on “CID read my text to my husband”).   
     
    As far as the SVC program, it is still strange to me that the US has undertaken to provide representation to a huge segment of witnesses.  Those witnesses were always entitled to hire a lawyer, of course (in civilian practice many 3rd party witnesses bring lawyers to depositions, especially professionals trying to navigate their own confidentiality obligations).  It’s just weird that the US would pay for this out of its own pocket.   As a taxpayer I pay for a defendant’s lawyer because it is required under the Constitution and Gideon if there is to be a prosecution of an indigent defendant.  But why am I paying for a witness to talk to a lawyer?  Nationally (not just military), there are many populations that struggle with access to legal services and many meritorious claims are abandoned as a result.  I would have thought if the US had a few million to spare that it would have gone to those populations first.

  51. Isaac Kennen says:

    I would certainly be willing to give [the SVC in the OP case] the benefit of the doubt.  People lie to their attorneys all the time.  People ignore their attorneys all the time.  When people get caught, they often say “my attorney told me I could do this.”  The reason we attorneys spend so much time with notes to the file and CYA letters is because we know that a certain percentage of clients will turn on us when they perceive it is their interest to do so.
     

    This, times 10.  

  52. Okinawa Marine says:

    Folks, I know what happened in this case as I am stationed in Okinawa with Maj [H].  The victim never reported a sexual assault and the attorney never advised the client to delete anything and nothing was ever deleted.  NCIS burned a copy of the phone long before VLC got involved with that case.   They had the phone in tact before they decided to open an investigation.  In fact the client, her parents and the victim advocate immediatly confirmed that nothing had been deleted because the advice was to wait to see what NCIS wants to do.  However they STILL chose to open an investigation.  It could have only been for two reasons;  1) for the purposes of destroying this Marine’s career or; 2) the typical abuse of police power against african americans.  I doubt they would have taken the same steps had her skin color been a different color.  They would have likely asked her and/or contacted the supervisor to report potential unethical misconduct.

  53. AnonymousJA says:

    We should let justice run it’s course on this one – referral of charges and a trial by her peers. That’s what the process is there for. 

  54. AnonymousJA says:

    (That of course being the nonsensical answer that accused servicemembers hear.)

  55. Tami (a/k/a Princess Leia) says:

    Monday morning QB,
     
    You make an excellent point.  If a client were to text her SVC saying “I lied about the whole thing,” then that is something that the SVC probably has an affirmative obligation to say you CAN’T delete that, in addition to trying to persuade the client to do the right thing by telling the TC.  I have never seen a client do that though.  I’ve seen clients lie about some stuff, or withhold information, but never “I completely made it up.”

  56. Tami (a/k/a Princess Leia) says:

    “Two, there is also a problem with investigators gathering privileged material as a consequence of overbroad search authorizations.”

     
    Grey,
     
    That is the problem–overbroad searches by CID of the complainant’s phone.  But it isn’t usually due to overbroad search authorizations (which by the way are mostly granted by judge advocate magistrates, not “lay persons”).  It is due to CID agents asking for consent, telling the complainants they are looking for “stuff related to the case,” when in reality they’ll be going through that ENTIRE phone and pull up EVERYTHING on that phone, even when it has absolutely nothing to do with the case!  Much like the agents who raided the defense attorneys’ offices, and kept going even after they found the phone that was the subject of the search “authorization.”
     
    Even when the complainant offers, for example, text messages from “that night,” the agents will say “that’s fine, but I need the phone.”  Once that phone is in the possession of the agent, it’s in the possession of “the Government.”  And then even if the agent abides by the limits the complainant sets, the defense will insist on getting the phone and having their own expert go through it, and then it becomes a feeding frenzy by getting access to all kinds of information that they’re not entitled to.  If the judge ordered the release of the phone to the defense, then good luck trying to convince the judge to suppress anything found on it.  If the judge didn’t order it, or if there isn’t even a judge, then you even if you can convince the judge later to suppress, the damage is done.  This is on par with the level of harassment that led to rape-shield laws.
     
    Being a defense attorney was the best job I ever had, and the most enjoyable.  But what I see nowadays is some (not all) defense attorneys go overboard, and I think sexual assault victims need SVCs to try to protect them from that, since the TCs won’t.  They want everything too, no matter how irrelevant or privileged, and once they get it, they have to turn it over.  The program offers a different perspective.  You don’t have to “drink the Koolaid” to see there is some value to it.  Of course, if Congress would stop tampering with the substantive rules on sexual assault to make them “Government favorable,” then maybe defense attorneys wouldn’t feel the need to go overboard.

  57. del_taco says:

    I’m certain that there’s more to this story than what’s been reported, but it strikes me as odd that NCIS would open an investigation into what, at first glance, is a PR matter. I’m not familiar with the USMC VLC program, but I would think that even a regional coordinator has a supervisory attorney or that an appropriate remedy could be found within the military justice system rather than law enforcement action.

  58. Justice Done says:

    @ AnonymousSrA – I love it when convicted sex offenders say stuff like, “I know my case would have never made it to court if …”  But if you were convicted, it was by a standard that is the same in civilian and military court, beyond a reasonable doubt, not an easy bar to get over.  Next time, keep your hands or whatever else to yourself.

  59. Grey says:

    Tami,
    I had forgotten about JA magistrates for other branches (I’m not sure which ones utilize that billet).  The Marines still use commanders to authorize searches. 
    I agree that the SVC program has value.  My question is about whether the government should foot the bill for these services.  I had a similar question when I was a legal assistance attorney–I think I provided a valuable service, but I wasn’t convinced that the US should foot the bill instead of the actual beneficiary of the service.
    If the government illegally obtains evidence from a third party witness, is production to the defense inevitable?  Seems like the witness would still have standing to challenge the further dissemination of the evidence.  Releasing the evidence to one party (usually the government) might be waiver of privacy rights and privileges, but that would not apply if the government obtained it illegally (which would include taking more than had been authorized).

  60. AnonymousSrA says:

    @Justice Done – I guess I should have expected that kind of response when I made my post. I also guess you think everyone that was convicted in a court of law is guilty? I never said I didn’t make stupid decisions.

  61. AnonymousSrA says:

    @Justice Done – I find it funny that you say civilian court systems and military court systems are held to the same standards. There have been several cases just in the last couple of years where cases did not get prosecuted on the civilian side yet the military still decided to prosecute. I am not a lawyer, but even I know there is a difference in the standards not to mention major process differences. We can start with the jury selection first.

  62. DCGoneGalt says:

    Justice Done:  BARD is only one side of the coin.  Civilian courts also have juries that haven’t very likely been briefed multiple times with inaccurate and biased information on the topic of what constitutes the subject matter of the trial while being employed and subject to the control of the prosecuting authorities  Hell, I could have stopped it with “civilian courts have juries”.  At least you reminded me of the Georgia Satellites.

  63. wowzers says:

    I was on the verge of crying and feeling sorry for Silver Fox. Then the drugs wore off and I remembered stuff like this from the way-back machine, 75 years ago, still applicable today:
     
     
    “…The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’sfriends interviewed. The prosecutor can order arrests, present cases tothe grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether heis a fit subject for parole. While the prosecutor a’t his best is one of the most beneficent forces in our society, when he acts from malice’ or other base motives, he is one of the worst… ”
    http://www.justice.gov/sites/default/files/ag/legacy/2011/09/16/04-01-1940.pdf
     
     

  64. Tami a/k/a Princess Leia says:

    Justce Done,
     
    Civilian courts require a unanimous verdict.  The military does not; it only requires 2 out 3 to find someone guilty.  Which means with a panel of 5, the Government needs at least 4 to convict.  Totally legit for someone to say their case would never have made it to civilian court, in light of the unanimous verdict requirement.  Prosecutors are concerned about their win/loss ratio.

  65. wowzers says:

    Mr. Spilman – You commented “Perhaps it’s time to reconsider our comment policy.”
     
    I don’t think you should.
    I’ve looked at this blog for a while. 
    Previously only looked to see the case pages, and comments were a distant second. I noticed there was a core group of commenters and some regulars that were less frequent. It didn’t appear to me to be a ‘clash of ideas’ or ‘meeting of the minds’. It was more casual, less rigorous in addressing the law, less vigorous in debating the law, more jokes. Just my casual observation, could be wrong. 
    The blog now appears to bring in more visitors with varied perspectives, professions, etc. (just my rough observation). For all the debate that goes down, especially related to sexual assault cases, you now have someone convicted that posted in this entry. There are some interesting items he brings up. I suspect there’s quite a few people that look through this site, such as congressional staffers, senior JAG officers, and others. Probably good for them to see more than the standard briefing products and the same group of commenters every time they show up. 
    Seems to me you have all the indications that things are going well. You must be doing something right, and since this isn’t like ‘the onion’, it’s probably quality and quantity that bring these people in. Added commenters may also draw or keep some people here as well.
    Because of this increase in ‘names’ I now go straight to the comments, then read the blog entry because I find many of the comments prompt me to focus in on areas that I may not have normally noticed. That’s a win for me. I’m not going to further my understanding or find entertainment value if all the opinions are like mine.
    I guess it depends on your vision for this blog. I would offer that if you clamp down on commenting, you’ll end up with a club rather than a blog. That would probably be easier to handle but perhaps not as influential.

  66. Zachary D Spilman says:

    Thanks wowzers. I really do appreciate that feedback.

  67. AnonymousSrA says:

    @wowzers – I agree with you and I do think this is an awesome blogspot. I come to the site probably a dozen times every day. Of course a lot of my initial reasons were to see if I could find any info on cases that had similar legal issues that I feel happened in my case. After coming here I found myself interested in everyone’s opinions on all different types of cases. I knew by posting that some people would fire shots or judge. I figured why not try and chime in, after all I have faced crazier stuff in the last 2 years.
    I think most people on this site feel there are some issues with the route we are going down with our military legal system. True change will only happen when all sides brainstorm and share opinions like the ones here on CAAFlog. 

  68. Javert says:

    The SVC program is clearly still in its growing stages.  Just remember; at least in the Army, the program was imposed on us because the USAF had one and thought it was a neat idea so DoD and ultimately Congress mandated that we provide SVC services. A lot of the growing pains are because the program was assembled on the fly; and too many SJAs didn’t pick experienced JAs who had been successful TCs and DCs. It’s a disaster waiting to happen for us to have junior JAs without any (military, and possibly any) trial experience serving as SVCs.  I know OTJAG is now viewing SVCs as a 2nd or 3rd tour CPT or MAJ assignment.  Which makes some degree of sense. 
    My thoughts on anonymous posting:  I’m not one of the regular commenters; but I occasionally try to weigh in when I think I might have something to add.  But a pseudonym is (in my opinion) critical to maintain a non-attribution environment.  If you started going to Disqus or one of the other systems out there, I’m not sure you’d get the frank conversations we need.  Particularly not from Government attorneys who want to deviate from the party line.  I know I’d be much more deliberate about what precisely I say if it wasn’t pseudonymous.  

  69. k fischer says:

    As one of the anonymous posters on this blog who jokes a lot, I agree with Wowzers.  Hopefully, nobody will figure out that the “K” stands for Kyle……..aw, dang!
    I don’t mind the anonymous posts so much, either.  Who knows what I would type if Stewie wasn’t here to reign me in sometimes, like when I use terms like “Fobbit” or make a personal observation about an SVC based on a facebook page.  

  70. Gilbert says:

    It is easy to make comments about someone’s Facebook page when their privacy settings are a bit loose. Might want to check your own settings out kfischer or should I say Elvis?

  71. k fischer says:

    @Gilbert, thank you very much….I hope you noticed the absence of selfies in my photos.
     
    Speaking of “a bit loose,” how’s your……..um…..strike that…….wouldn’t want to disappoint Stewie with some juvenile comeback……..

  72. stewie says:

    kf, gotta say, it seems like I’m in your head a little bit.
     
    And really, you should clean up in here. It’s a bit of a mess.  Half-eaten pizza wedged in the cushions, dirty clothes just thrown on the floor…

  73. k fischer says:

    That’s because  you’re my favorite anonymous poster, Stewie.  It’s a prestigious honor, I know, but don’t get cocky.

  74. stewie says:

    I’ll try not to…but it’s so darn hard.

  75. k fischer says:

    Phrasing……..

  76. RKincaid3 (RK3PO) says:

    Tami:   even though coms between a victim and her SVC are privileged, the deletion of the message denies the court the opportunity to conduct an in camera review of the coms to determine if the convo at issue involved protected coms.  Not every com between an attorney and a putative or actual client is privileged.
     
    So, I don’t see how the privilege argument offers those who deleted the messages any relief from either criticism or worse, actual judicial sanction for misconduct.
     
    No, this situation is bad, but it is NOT a program failure–it is an individual failure. 
     
    But the Special Vengeance Program needs to die a quick and silent death despite the fact that this incident is apparently NOT a programatic failure.

  77. Okinawa Marine says:

    RKincaid3,  I’m confused.  Remember, as much as we want to believe it happened,it didn’t.  It was all a hoax, overreaching by NCIS and now Marine Times.  Hell, there wasn’t even a sexual assaullt case reported.   The article was flat out wrong. It’s sad a person’s reputation and career will be trashed over this mess. V.R.

  78. RKincaid3 (RK3PO) says:

    Okinawa Marine:  You apparently have access to info that most of us do not.