An article published in the recent edition of the Air Force Law Review considers the new Article 32 (analyzed in this post) and concludes that the new version is “not revolutionary and will not significantly alter the nature of the Article 32 process.” Major Christopher J. Goewert and Captain Nichole M.Torres, USAF, Old wine into new bottles: The Article 32 process after the National Defense Authorization Act of 2014, 72 A.F. L. Rev. 231, 247 (2015) (complete volume available here) (direct link to article).

The authors explain that “when the Article 32 investigation was conceived in 1949, it was intended to be a probable cause hearing and not a sweeping mini-trial.” Goewert and Torres, supra, at 236. Accordingly,

Amending the language of Article 32 from “investigation” to “preliminary hearing” will not change the complexion of Article 32 hearings in any substantive form. Although the text of Article 32 has superficially changed, the two most critical questions that were addressed at the Article 32 investigation, that of probable cause and what disposition should be made of the case, remain in the new Article 32 language.

Id. at 238. Significantly, the authors note that “while the language of the old Article 32 does not explicitly state that the preliminary investigation was meant to be used as a discovery tool, discovery has always been part of its purpose.” Id. at 239. They also note that “the role of defense counsel in seeking discovery at the preliminary investigation is now expressly limited.” Id. at 241. Nonetheless:

the process for conducting the Article 32 hearing described in R.C.M. 405 is similar to the process of a federal preliminary hearing, which means discovery might still be a practical benefit derived from cross-examining witnesses and reviewing evidence. . . . Although defense counsel may be restricted from going on a “fishing expedition” at the Article 32 preliminary hearing, similar to a federal preliminary hearing, it will still offer some collateral discovery benefits to the accused.

Id. at 244. Finally, considering what types of evidence the preliminary hearing officer may receive and consider under the new statute and rules, the authors write that:

R.C.M. 306 provides an extensive list of factors for the convening authority to consider. Since the Article 32 hearing officer has as one of his/her responsibilities to make a recommendation as to disposition to the convening authority, the hearing officer should consider evidence presented by either party that addresses any of these factors. These factors allow the defense to present evidence and cross-examine witnesses to an extent beyond that of a pure probable cause determination.

Id. at 246.

54 Responses to “Scholarship Saturday: Deconstructing the new Article 32”

  1. stewie says:

    I don’t know how you can argue it won’t significantly alter the Article 32 process. The authors here appear to be conflating two arguments: that the original intent of the Article 32 was subsumed by a minitrial approach and this is just a return to that original intent and that the changes don’t amount to such that it alters recent precedent in how the process was run.
     
    I don’t know if the first is true or not, it may well be. Although I find their scholarship quite lacking. They note the primary purpose of an Article 32 under the old rules being about probable cause…they eventually admit that discovery was always a secondary purpose (which means Congress didn’t intend it to be just about PC and disposition even if the authors attempt to, poorly IMO, argue that maybe it wasn’t–even though Congress left that language in through all of the myriad changes to the UCMJ/MCM over the decades that followed).
     
    Of course, tons about the military justice system has changed since 1949, and I don’t think it is as if we emerged in 1949 with a perfect system and we’ve been mucking it up every since. To argue that since it’s still about determining probable cause and disposition that no real change has occurred makes me wonder if the authors have actually done an Article 32 in the last say 20 years.
     
    It’s like saying cars haven’t changed much over the last 60+ years because at the end of the day their purpose is still to get you from point A to point B, most of them still have a steering wheel and four tires, and most still run on gas.
     
    This is a significant change. And the author’s are trying to minimize that change.
     
    Note this line:
     
    “Consider the typical sexual assault case in which the primary evidence is the victim’s testimony. The defense may still cross examine the witness about prior inconsistent statements, actions which make the events implausible, the reliability of the victim’s memory and even prior sexual acts that reasonably bear on the issues in the case that could negate criminality.”
     
    Uh, actually no, they may not, unless the alleged victim agrees to appear and testify. And if they don’t, they can sit in the audience and listen to everyone else testify, and even if the PHO decides to not let the alleged victim do that they STILL get a copy of the testimony/hearing to listen to at their leisure.  The PHO no longer has the right to call witness they think are necessary. The process has become fairly perfunctory, particularly in a climate where GCMCA’s are hard-pressed to say no to a sexual assault referral.
     
    So here’s where we stand:
     
    Alleged victims are more and more making initial statements with scant detail and encouraged not to provide too much detail lest inconsistencies be revealed.
    They aren’t required to testify at an Article 32, and can listen to any other testimony. (which is why article 32s in all likelihood since we don’t have the numbers yet are going to be waived more and more–the risk is not worth the reward in a lot of cases).
    They don’t have to agree to a pretrial interview.
    This is a far cry from before when they were questioned just like any other witness, when they often appeared and testified at Article 32s, and when GCMCA’s felt free not to go forward with weak cases.
     
    But sure, Article 32s haven’t changed much because probable cause and disposition. I think this was a poorly argued/reasoned/supported article trying to push a singular point of view. The latter isn’t a problem, the former is.
     

  2. Vulture says:

    F. Lee Bailey once said that if you had an innocent client, he wanted them charged in the UCMJ.  He specifically cited the Art. 32

  3. DCGoneGalt says:

    I read it, although it was hard because, IMO, the position is ridiculous.  A better assessment of the recent changes is stewie’s comments that follow his “so here’s where we stand” line.  I have seen dozens of Art 32s since the change occurred.  All but a few were entirely paperwork-based and were essentially worthless in even holding a hearing.  Everyone I have interacted with who is involved in litigation who isn’t interested in currying favor with their boss’ boss says openly that Art 32s are now largely worthless.  Even the SJAs/DSJAs know this and will say so privately.  
     
    IMO, Art 32 was changed for two reasons: to prevent sexual assault victims from testifying and from allowing the defense to effectively carry out an investigation of the charges.  The changes have been effective.  This has been a dramatic change.

  4. Tom Grieger says:

    Stewi sums it up well.  The complaining witness declines to show and the “special agents” testify about what they think the facts are.  By not requiring the complaining witness to show for the 32 I’ve seen more cases where the team prepares for trial and two days before the opening statements the witness backs out of it.  It creates a huge waste of time and money.  

  5. DCGoneGalt says:

    I once had someone tell me:  other than the victim not testifying, it not being an investigation, and not being allowed to dig into credibility/412 issues, that there is not much of a difference with the new rules.  It reminded me of the line “yeah, but other than that how was the play, Mrs. Lincoln?”  

  6. Vulture says:

    Ref F. Lee Bailey; Sorry, error, he may have said that but I could not find where he said it about 32’s exactly.

  7. Lieber says:

    yeah, that was pretty ridiculous.  anyone who’s actually been doing military justice would have to concur I think

  8. Goewert says:

    Please understand that this article was written and submitted over a year ago, prior to the January 15 changes that worked a powerful negative effect on Article 32s. The premise of the argument is that Article 32 hearings were always about probable cause so in those early days it seemed absurd to believe that for decades IOs has misapplied the legal standards and simply changing the name to preliminary hearing did not lessen the amount of evidence required to move a case forward. However, the reality has been quite different. The article was supposed to encourage those applying the Article 32 rules to do so with an eye toward the previous rule as their purposes were at heart the same. This is not an apology for the current application of Article 32/ RCM 405, which in many instances is an exercise in futility for the parties and rarely results in useful information beyond what was previously discovered by initial investigation. Our quotes in the beginning of the article highlight our point. The field was basically instructed that 32s required very little to meet the PC standard and this has now been normalized in the most recent 405; however to the degree that PHOs have concerns about the requirements for PC the standards applied in previous Article 32 investigations are still applicable. Ironically enough it is being lambasted as a whitewash for the current state of affairs when at the time it was written it was a call not to deviate too far afield.

  9. k fischer says:

    1.  Article 32s should not be a paper drill.  This is the time to nail down every other witnesses statements.  You should still go through the CID file and put every name in that file on your witness list who might have relevant testimony good and bad for the accused.  It is going to be a paper drill for the HO in determining probable cause which  most often will be found, but you are laying the foundation for trial with everyone else.
     
    2.  Lately even when the Vic did testify before the changes, there is a body of defense counsel who have strongly considered waiving the 32, so the Vic and the SVC/SVP did not see what was coming, so she could not adjust fire at trial.  I’ve had those 32s where I wish I hadn’t gone so hard after the Vic to try to get the case dismissed because the Vic presented as a much better witness for the Government the second time around.
     
    Just sayin’.
     
    2.  

  10. Vulture says:

    Lieber, I think that anyone who saw all the denials of big tobacco in the seventies would have to look at the glitzy, shoulder to shoulder in front of congressional hearings on UCMJ and say, “yeah, that was pretty ridiculous.” 

  11. Concerned defender says:

    I’d disheartened by a 60-year step backward in time.   In 1949, women had recently earned the right to vote and 1949 predates the civil rights act of 1964.  Shall we return to that era, too?  
    Criminal Justice has evolved dramatically.  The dynamic of the military has changed with co-ed ranks, and the war on men, and sex offender registry and the false “1 in 4 women are raped” statistics, and the brainwashing of SHARP.  Sex assaults in particular are now witch hunts lacking in evidence.  We’ve all experienced the complaining witness with paltry or inconsistent statements of dubious credibility that sent a client to prison with a punitive discharge, SO registry and a ruined career and life due to this scarlet letter.  
    Once upon a time, we had 32s where IOs recommended dismissal given the totally nonsensical or lack of credibility of the “victim.”  I’ve personally gotten this result and saved clients from a criminal trial.  I’m sure all here have also impeached the “victims” based on material contradictions at the 32.  Removing the requirement furthers the war on men for the politics of increasing convictions, and nothing more.  It should be about justice, not conviction rates and sadly OER bullets. 
    Any justice minded person would want to do MORE, not LESS, to prevent this injustice.  The only persons with the keys to sex assaults are the participants.  Removing the ability to impeach the complaining witness (since there’s likely little in terms of prior statements) is a burden shift violating the accused 5th Amendment and requiring him to testify.  Otherwise you’re left with she said it happened, and he remains silent.  The government will also charge him with something else, so testifying is particularly dangerous. The forensics are often useless, just proving that sex occurred.  Most of these are not based on the forensics.  It’s a credibility test.  If you can’t impeach the “victim” with her lies from the 32, you’re left with having the Panel guess at credibility.  We should not be guessing at guilt. 
    Article 32s should be a thorough fact finding mission for the IO.  Otherwise what is the point to holding it if it’s just the entire position given by the government?
    I’m ashamed of the MJ process for many reasons, including the 6 decades step backward.  
     

  12. Dew_Process says:

    To put this into my perspective, I did my first 32 in 1977, and as a GRep, got my clock handed to me on a case where the DSJA “assured” me that AF OSI had “left no stone unturned.” The reality was that they hadn’t even found the boulders, much less the stones.
     
    Back then and until the “changes,” had anyone remotely suggested what is now Art. 46(b), they probably would have been permanently re-assigned as the Claims Officer and most likely reported to their Bar Association if they tried to interfere with defense access to a complainant.
     
    The authors’ lack of historical research is obvious, because as originally drafted, Art. 32(b), stated inter alia:
     

    At such investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused.

     
    And if there’s any doubt, the 1951 and 1969 MCM’s demonstrate their erroneous conclusions.

  13. Goewert says:

    Thank you for reading the article.
    to clarify;
    1) This was written one year ago looking at the text of the NDAA and the legislative history of the 1949 committee hearings and the congressional language surrounding the NDAA 14. 
    a. Reading the statute at that time without the service guides and regulations that attempted to implement it in the absence of an updated 405 and then an amended 405, the fact that the original purpose of the rule was PC  and that practioneers had been using 32 investigations to get at PC for 64ish years suggested they were either getting it wildly wrong or they were getting it right and the outlier cases that had garnered so much media interest were to be ignored.
    …everyone was already using the 32 generally for the purposes Congress was again legislating and as they had previoulsy legislated. Changing the name was superfluous window dressing. The only purpose that was obviously lost at that time was discovery. There should have been a still sizable sphere for evidence that reduced PC or related to an expansive interpretation of disposition to come in.
    b. Fast forward one year.  The field believed the window dressing and the guides  and the amended RCM 405 and now we have paper cases that are beyond the text and history of even the new Article 32.
    I apolgize that in some ways the article has been dated as the evolution of law surpasses the speed of legal publishing, however we felt there was some validity in pointing out that the way  Article 32s are being applied today is actually more limited then envisioned by the language and history of Article 32, and could raise discussion about the standards and meaning of PC, and how creative DC might still use the rules to gain or present evidence.  As the legal standards for PC are unchanging since the enactment anyone serving as a PHO need not forget the old days entirely.
    This is most certainly not an argument to return to a pre-enlightened era, but an argument that the vestiges of the prior investigations survive and should be followed, namely that the question of PC is not always easy and requires searching review. 
    As to the non-testifying victim I have a lot to say – it has been strangely construed- given that victims rights are essentially against the government, it was never axiomatic that a victim who avoids a 32 should get a day in court- that was never implicit in the rule, just the practice. Victim cooperation at 32s was often good for both parties, the CA and potentially the victim. But our world is political.
    Cheers

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

    A huge change was made in removing the truth-seeking function from Article 32.  Fortunately, I still see PHOs who are still interested in seeking the truth and writing lengthy scathing reports about how jacked up the Government’s cases are, and that there is no PC.  Unfortunately the PHO’s determination isn’t binding.  It should be.

  15. stewie says:

    Goewert, I get somewhat what you are trying to say. You were not anticipating a substantial rewrite to RCM 405 that rendered Article 32s different than what you argue they would have been when you wrote the article.
     
    But even ignoring that, respectfully, I think your article missed some things.
     
    1. You seriously underestimate the power of discovery being an explicit purpose of an Article 32. I remember many an Article 32 where the IO did not want to get into an area because it wasn’t about probable cause or about disposition in his eyes, but was forced to because…discovery. Discovery filled in where a too constrictive reading of PC or disposition might have kept out evidence that should come in. Now, sure it could and was used to get into evidence that had nothing to do with either, but that helped everyone. It helped defense prepare for trial, and it helped the government understand how strong or weak their case was.
     
    2. It was clear more than a year ago that other parts of the rules were going to be changed, particularly with regard to the alleged victim. Now the specifics may not have been there, but I think your article would have been better served by taking a more “what if” approach, and discussed the ramifications of increased “victim rights.”
     
    3. The tone of your article simply does not read like a call not to deviate too far afield but an argument that we’d gone too far already and that this was a welcome change.

  16. Dew_Process says:

    The Legislative Hearings for the UCMJ clearly envisioned “discovery” as implicit within the context of Article 32, e.g.:
     

    An accused may, under the proposed statute, have the benefit of counsel at the pretrial investigation, if he desires, and he should be confronted by his accuser and witnesses against him, and should be able to present witnesses in his own behalf. The pretrial procedure should be conducted in such manner as to permit both the prosecution and defense to discover all evidence available, and to make it possible for the free use of the accused as well as the prosecution. The right conferred upon a military suspect for apretrial investigation is a valuable right. If there is vigorous and good-faith compliance with the directions. the accused will have an opportunity for defense not heretofore possessed by him. [Emphasis added]
     

    Senate Armed Services Subcommittee Hearings, at 185 (1949).
     

    The Article 32 investigation—among other served purposes—provides for the accused a form of discovery. As was said by Felix Larkin, Esquire, one of the Code’s principal draftsmen, during the course of a discussion of the provisions of Article 32:
     

    “. . . it is partially in the nature of a discovery for the accused in that he is able to find out a good deal of the facts and circumstances which are alleged to have been committed which by and large is more than an accused in a civil case is entitled to.” [Hearings before the House Committee on Armed Services, 81st Congress, 1st session, on H.R. 2498, page 997. See also page 669.]

     
    US v. Allen, 18 CMR 250, 256 (CMA 1955).
     
    Or, as noted here:
     

    It is axiomatic that the military practice as envisioned by Congress, in Article 32 and elsewhere in the Code, has always been much more lenient than civilian practice in permitting pretrial disclosure of the government’s evidence.
     

    DA Pam, 27-2, Analysis of Contents: Manual for Courts-Martial, United States, 1969 Revised Edition at 27-36 (July 1970). But, one merely needs to look at the language in the original 1951 version of Art. 32(a), which included this phrase: “This investigation shall include inquiries as to the truth of the matter set forth in the charges. . . .” language that continued until the recent transformation into a so-called “preliminary hearing,” which is reflected in the Appendix to the article.
     
    If the purpose of a criminal proceeding is to “seek the truth,” then any procedure that obfuscates the truth is constitutionally suspect, if not a Due Process violation. Allowing the complainant in a sexual assault case to “opt out” of the process, but not to if her car is stolen from the BX parking lot, makes no sense logically, but clearly frustrates the truth-seeking function of whether or not PC exists.
     
    Using F.R.Crim.P., Rule 5.1 as an analogue, is respectfully misplaced because of the Grand Jury clause in the Fifth Amendment.  Where R. 5.1, Preliminary Hearings are still used (and in many federal districts, they are virtually extinct), they merely serve as a conduit to “bind over” a suspect to a sitting federal grand jury, which – unless waived by a negotiated plea – must still indict the suspect (or not) – which the article does note. Trying to compare the federal grand jury process with the Article 32, process, is the classic “apples and oranges” comparison.  They are not even remotely the same, e.g., while a “target” of a grand jury has a limited right to appear and testify (providing that s/he’s been noticed as to such), s/he does not have the right to have counsel present during such testimony.
     
    The differences between the federal grand jury process and an Article 32, “hearing,” are more substantial than their similarities.  GJ proceedings are ex parte and “closed.”  Disclosure of the transcripts of witnesses’ testimony is highly restricted, i.e., a specific court order is required. See F.R.Crim.P., R. 6(e)(3)(E-G).
     
    But, the Grand Jury clause doesn’t apply to the military per the Fifth Amendment, so the reality is that one must look to State jurisprudence, where the federal Grand Jury clause is inapplicable, for some guidance.  For example, in Coleman v. Alabama, 399 U.S. 1 (1970), the Court held that state preliminary hearings were “critical stages” of the criminal trial process when a state opted to provide for preliminary hearings, and thus, counsel must be assigned under Sixth Amendment principles.
     
    Another significant difference between a R. 5.1, PH and the current version of Article 32, is that where 5.1 hearings are still used, is that they are generally done in the context of a Bail hearing – something totally alien to military practice. And perhaps most notably, the federal criminal justice system does not have SVC’s obstructing the truth-seeking process.
     
    Finally, as the majority noted in Coleman:
     

    Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer’s skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State’s case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail. [Emphasis added]. 399 U.S. at 9.
     

    The fact that there appears to be a 1-year “time lag” for publishing an article in the AF Law Review, only partially mitigates the issues pointed out on this thread.  The Editor should have either inserted an “Editor’s Note” to explain the changed circumstances or sought out an Addendum to the original article.  I don’t mean to be hyper-critical, but of what value is out-of-date legal scholarship?

  17. Concerned defender says:

    The more I learn about and practice MJ, the more I realize it’s just about winning and total control over individuals and not about justice.  The term “Military Justice” really just needs to be changed to “Military Oppression.”  
    It’s an illusion to think that SMs have rights.  The 4th, 5th, and 6th have been so watered down – with health and welfare “inspections,” denial of due process, custody interrogations with senior ranking individuals defined as “administrative only,” a majority decision by panel members to secure a conviction… I remember at the JAOBC being told that the process for Military Justice is better for the criminal defendant.  What a laugh.  
    On top of that it seems that in so many areas, in my experience, the Courts just really try to find a way to help the Government secure the conviction.  I’ve observed the bench twist and finagle to help them get to guilty.  
    And now the fact that an alleged “victim” can basically swear out an arrest warrant and ruin an accused’s life based on often absurd allegations… we all know what happens when someone alleges sex assault.  The accused is ruined administratively, and will likely face a CM with probably at least a 60% or better statistical chance of a conviction. 
    Given these circumstances, would anyone here recommend military service for their son?  It’s pretty chilling. 
     

  18. Phil Cave says:

    Article 32 is a defense discovery mechanism See e.g. Diaz v. United States, 54 M.J. 880, 883 n.2 (N-M Ct. Crim. App. 2000) citing to United States v. Samuels, 10 C.M.A. 206, 212, 27 C.M.R. 280, 286 (1959) (It is apparent that the Article [32 investigation] serves a twofold purpose. It operates as a discovery proceeding for the accused and stands as a bulwark against baseless charges.) See also United States v. Roberts, 10 M.J. 308, 311 (C.M.A. 1981) (There is no doubt that a military accused has important pretrial discovery rights at an Article 32 investigation); United States v. Payne, 3 M.J. 354, 357 n.14 (C.M.A. 1977) (One of Congress’ intentions in creating the Article 32 investigation was to establish a method of discovery); United States v. Tomaszewski, 8 U.S.C.M.A. 266, 24 C.M.R. 76 (1957) (The Article 32 investigation “operates as a discovery proceeding.”). R.C.M. 405(g)(1) requires production of “reasonably available evidence.”
     

    There is a robust appellate history that the prior Art. 32 was a discovery mechanism.  That was the appellate interpretation of the legislative history of the original enactment.  The new statute takes that away.  The removal of the Art. 32 as a discovery mechanism was a deliberate act of the legislature.
     
    I’ve now done several cases under the new Art. 32.  While it clearly impedes the defense.  It also, based on a somewhat small anecdotal experience also impedes the prosecution.  As we have discussed at other times; the trial counsel no longer prepares for a 32, thus their trial preparation occurs at a later time (they seem to insist on the reliability of law enforcement); further, the trial counsel does not get the reverse discovery in time to prepare to address problems in their case until closer in time when it is harder to fix.  Thus, again a small sample, this has and will have an adverse effect on the prosecution of a case.
     
    I will continue to whing about the failure of the legislature to comply with their duty to ensure a fair military justice system.  But I would also encourage us to seek ways to use this failure to the defense advantage–for advantages there may be.
     
     

  19. stewie says:

    Oh absolutely. This process helps no one. TC are going to continue to lose cases because they won’t know how bad it is until it is falling apart in the court-room.

  20. Dan Conway says:

    The 32’s are obviously diluted.  The recommendations were always non-binding.  A lot of the work we used to do on the record, we now do off of the record.  And it’s still a great opportunity to tear into a law enforcement agent if s/he testifies. 

  21. Dan Conway says:

    Bottom line, it was nice to cross-examine alleged victim’s at the 32.  But, there’s still value in doing good pretrial prep and turning the case inside out before the 32.  Like stewie says, the TCs are no longer getting a preview of how bad it is.  

  22. Mike says:

    Does anyone think there is value or wisdom in ensuring that we only do the trial one time?  I’m genuinely curious.  It has been a long time since I practiced MJ, but I recall that, under the auspice of ‘discovery’ and a ‘full investigation’, defense counsel could often force a nearly full litigation of all the trial issues.  This was particularly tough for me as a TC because I never (ever) prepared for an article 32 hearing!  But, I also never had a single IO recommend against going forward or find a lack of PC – we need to remember what a low burden PC really is.  It seems to me plainly intentional that the legislature removed the discovery function from the PH.  That brings the MJ system more in line with PC hearings in Article III courts as well as most state jurisdictions that I am aware of where defendants are often charged by information (pure paper) or at a grand jury hearing and the issues are litigated one time (ideally) at a trial.  So of course it is frustrating for counsel to lose out on the opportunity lambaste a few witnesses, but isn’t there value, especially in light of the current scrutiny, in looking more like a traditional justice system and (just a little) less like a military one?  
    Boy, do I sound like a government hack!  I will hang up and listen.

  23. stewie says:

    With respect, it does feel like it’s been a long time since you’ve practiced MJ.

    Yes, discovery did often make the Article 32 feel long if you were a TC, but as a DC I rarely had one last more than a day, and rarely did the article 32 last longer than the trial or even as long. Sure, it happens, anything can be abused, and certainly some DC abused the process, but most did not.

    The goal of the “old style” of 32 was not necessarily to convince the IO not to go forward, it was to discover facts for follow-up investigation for the defense, and it was to allow the government to see their case for what it was (and if you didn’t prepare for them as a TC, you should have).

    I will, again, remind that everytime we talk about looking more like a traditional justice system, it never seems to be in ways favorable to the accused. No one is talking about making verdicts unanimous for example. If we wanted to make it look completely like the civilian system, I’d be fine with that, except we aren’t when it might help the accused.

    You are right, it is plainly intentional that Congress removed the discovery function. It’s also painfully clear to a lot of us that the end result isn’t really going to be a host of new convictions, better prepared alleged victims, better prepared TC, or better prepared DC. The only real winner here is that the process moves faster because a lot of DC are waiving the Article 32 now.

  24. DCGoneGalt says:

    Mike:  If there is such an interest in making the military justice system track with the civilian justice system then why is there no effort to provide 7-12 member unanimous juries for military courts-martial?  

  25. Dave Roberts says:

    Chris, I appreciate your contribution here to explain that the article was written a year ago.  I think most would concur that if the NDAA 14 provisions were enacted in the way you suggest, we would have much less to complain about now.  As for the manner in which it was changed by NDAA 15, and implemented by service regulation and now by executive order, I can only offer anecdotal accounts — but I would agree with your assessment that “now we have paper cases that are beyond the text and history of even the new Article 32.”
    I concur with Dew_Process’s criticism of your article’s premise, though.  The legislative hearings reflected some disagreement as to whether the hearing should be merely a preliminary investigation to determine probable cause, or a much more intensive hearing expressly intended to provide discovery to the accused.  What became Article 32 reflected a balance between the two positions, respectively espoused by Rep. Norblad and Counselor Larkin, and derived from the distinction between pre-UCMJ practice under the Articles of War and the Articles for Governance of the Navy.  Even the former position, however, contemplated something more exhaustive than the preliminary hearing practice later ratified by Gerstein v. Pugh — it required the Govt to bring a “prima facie case” at the Article 32 hearing before proceeding to a general court-martial.  See Hearings on HR 2498 before a Subcommittee of the House Armed Svcs. Cmte., 81st Cong., 1st Sess., 996-98 (1949). 
    Stating the obvious, 66 years has changed a lot, both in terms of what the law requires and in what military necessity requires.  The U.S. Commissioner system, on which Article 32 review was based in part, became defunct in 1974; and Gerstein ratified the use of preliminary hearings in state courts.  The biggest difference, though, is that in 1949, Congress’ actions reflected overwhelming political will to protect the accused and increase public confidence in the fairness of courts-martial.  See id. (remarks of Mr. Larkin).  That political will is absent today, subsumed by a contrary, results-oriented desire to hold servicemembers accountable for a perceived sexual assault crisis. 

  26. Alfonso Decimo says:

    My question to the group is whether they share the public perception that defense counsel sometimes abused the (old) Article 32 hearing, for the purpose of intimidating government witnesses. I don’t think I’ve ever seen a clear case of it. The details of the oft-cited Naval Academy case in 2013, where the complaining witness was reportedly abusively cross-examined for 30 hours, I believe have been exaggerated. 

  27. DCGoneGalt says:

    Alfonso:  From press coverage of the Naval Academy trial, it seems there was quite a bit of ground to cover in the cross.  I saw one case where the demeanor of the defense counsel was, IMO, inappropriate but the questions were not over the line.  There were two times where I felt the questions were over the line.  One time the IO put a stop to it ASAP.  The other time the IO stopped for a break on my objection and asked the civilian counsel to explain the relevance.  At this point I was provided with an explanation as to relevance that exposed the Art 120 charge to be nonsense.  I have found the time of cross is irrelevant because when you do not have a pre-32 interview and a complainant with “issues” there can be quite a lot of ground to cover.  It will be interesting to see if MJs grant a wider leash for trial cross under the new Art 32 refusal to testify regime.

  28. k fischer says:

    DCGG,
     

    It will be interesting to see if MJs grant a wider leash for trial cross under the new Art 32 refusal to testify regime.
     

    Yeah, I can’t wait for the following dialogue in my next trial:
     
    TC:  Please the Court, is this dialogue relevant to anything in particular? DC:  The defense didn’t have an opportunity to depose this witness, your honor. I’d ask the Court for a little latitude. MJ:  A very little latitude.
     

  29. stewie says:

    I’ve seen it on rare occasion. It happens, but in my experience the vast majority of the time the DC really is just trying to discover, or solidify the alleged victim’s story or lock in witnesses’ testimony so they know what they will likely be dealing with at trial.

  30. k fischer says:

    I’ve never felt that I abused the system or any witnesses at an Article 32, nor have I seen it.  But, there is something strangely satisfying and symbolic as an attorney when you are having your way verbally with a witness who is lyingand she can’t escape until you are finished with your cross-examination.  Not so much when you have a witness who you think could be telling the truth; that’s no fun.  But, any witness to a crime is going to have that cross to bear whether it be a robbery, insurance fraud case, or a sex assault case.

  31. Concerned defender says:

    I’d rather have a case dismissed at the 32 stage than risk going to trial.  Often the TC’s or their bosses are so unreasonable they ONLY were persuaded by the terrible 32 recommendations and “victim” performance which they could not fix at a trial, so they dismissed.
    Let me share a couple real-world examples of how justice was meated out at the 32, preventing an unnecessary and risky CM.  
    1.  19 year old client with a very low GT score was accused of making out with and one time touching the breast of a 15 year old girl.  We were headed toward a GCM and a ruined life for this client.  At the 32 she refused to cooperate back when they were expected to cooperate.  Turns out the TC had concealed evidence that I got during a delay and learned about from a collateral case with the girl’s sister.  I presented the evidence.  She and her sister were ‘gypsies’ and their dad had a DD from the military.  They both looked like adults, he had made them fake IDs which passed the scrutiny of the on-base businesses where they worked, had gotten fake military dependent IDs, and filed fake income taxes on their age… their goal was to dupe my client (and another soldier) into statutory rape and then sue the Army.  She didn’t testify because her civilian tort lawyer recommended against it.  So my client wasn’t the only one duped when she lied and said she was 18.  When the IO learned of all this, it was dismissed.  But the “Harvard Graduate” TC wanted this to go to trial until the very end, and just refused to see it reasonably.  Thankfully some adults in the SJA saw it for the scam that i was and gave my guy a dismissal.  I suspect today, it may have gone to a CM and then the dice rolled.  
    2.  Client was facing GCM for 4 counts of sex assault by force, intoxication, etc.  “Victim” had battery and bruise marks all over her.  Seemed bad on the surface.  Turns out she was so drunk she fell earlier in the night independent of my client.  My client took her home, he was a medic so he doctored her up, and he never sexually did anything toward her.  She had no memory.  He took her home in the early morning hours.  When her friends saw her in the early AM hours her hysterical girlfriends were convinced he raped her.  She was bullied into reporting rape.  CID put words in her statement and she didn’t read it.  Client charged in spite of repeated denials.  Prior to the 32 I interviewed the “victim.”  She had never read her statement she signed.  She recanted the important pieces in the presence of me and her victim advocate.  At the 32 she recanted the allegation.  In spite of that, the totally unreasonable TC still wanted an additional 2 charges plus the original 4.  The entire thing was recommended for dismissal and was dismissed over the TCs angry and unreasonable positions…  
    I have more examples, but those two always come to mind when I think of the value of a real, honest, and open 32. To think either of these mens’ fate at a trial without that valuable 32 dismissal is scary…. 
     
     
     

  32. Concerned defender says:

    I’d also like to share another real-world “victim” sworn statement – now public information.   You tell me if she was a “victim.”  This charge brought by the government was very upsetting to me on many levels because it was so dishonest.
    My client held parties including with junior female Soldiers at his rural house.  He was accused of raping one junior enlisted female under the following circumstances. Witnesses at the house testified that she was seen with the accused, drinking, flirting, and kissing on him. According to her, she voluntarily went upstairs to accused’s bedroom. Once in his room, she vividly remembered helping remove her own clothes. She specifically recalled taking off her own bra and socks. When they were completely naked, they performed oral sex on one another, they had consensual sexual intercourse numerous times, and at one point she stated she was having sex on top of accused. Her moaning was so loud that one witness, who was standing outside of the room in the hallway, could hear her pleasurable moans over the sounds of the TV. These are facts from the case, which is public record. 
    Here is an in-context excerpt from her sworn statement and complaint to the Criminal Investigative Agent:
    “Q: Who decided to go upstairs? A: We both got up and started to walk upstairs together. Q: What happened after that? A: …We made out more and then we took off our clothes…. Then he put his fingers inside my vagina and started to perform oral…. We started to have sex…I then rolled onto my stomach…We started to have sex again. He tried to put his penis in my ass and I said “No,” so we tried to have sex again the regular way. … I then put my mouth on his penis, but I didn’t like it so I stopped… we kept trying to have sex again… The last thing I remember was us trying to have sex again. I woke up later and had gotten dressed and left.  Q: When you told him ‘No” after he tried to have anal sex with you, what happened?  A: Nothing. Q: Did he try to have anal sex again with you? A: Not that I remember.  Q: Did accused ever force you to have sexual intercourse with him? A: No. Q: During the sex, did accused ever restrain or prevent you from leaving? A: No. Q: Were you awake when you and accused started to have sex? A: Yes… Q: When you and accused were having sex what was your actions? A: For the most of the time I just laid there and then one time I got on top of him but then I got dizzy. Q: Were you having sex when you were on top of him? A: Yes. Q: What were your thoughts when you woke up the next morning? A: Oh my God what did I do, what am I going to do when I go down stairs and everyone is going to know what I did….”
    When she woke up the next morning she stated she felt embarrassed. She did not state she felt raped, assaulted or violated. According to her sworn testimony, her first thought was, “Oh my God, what did I do?” Her main concern was how to explain the fact that she had sex with an NCO and about how this would impact her reputation. Although she saw several of her peers that morning when she came downstairs from accused’s room, she did not claim to be assaulted, nor did she tell anyone else that she was assaulted until she other complaining witnesses made allegations against accused.  She had an uncanny ability to recall all of these facts, several days after the ‘assault.’ So, that demonstrates that she was not too drunk to remember. Her actions, consenting to some, not consenting to other acts, demonstrate her ability to make decisions and even say no. And she even was on top of the accused and initiating sex to keep on going.
     
    At the 32 I destroyed her on the stand.  Today, that individual would likely instead give a very vague statement to CID and then not testify at the 32.  If it were just her statement and 32 testimony, I believe we could have beaten the allegations entirely.
     
    However, he was facing multiple allegations of raping multiple women who did not provide similar damaging statements and were actually credible on the witness stand.  The woman above was the weak allegations among multiple allegations.  So my client was boxed in and pled guilty to a variety of things, and we got a variety of things dismissed and the allegations with this female were watered down to very low level sex assault if I recall correctly.  He went from facing decades or more in jail, down to around 13 years max, and getting handed confinement around 33 months or something like that… And overall we felt quite good about the result given what he was facing and would have likely gotten if convicted with open exposure.  
     
    But the 32 was very important for defense to impeach at least one of the witnesses and I’m convinced if it were just that female and her CID statement, that is not rape as we think of it.  Defense has lost a lot in terms of the ability to impeach with these new rules, and justice suffers.  

  33. k fischer says:

    Concerned Defender raises a point that warrants discussion.  The cases s/he described makes me shake my head thinking, “How on Earth could the Government charge the Accused with rape based on that vic’s statement?”  I had a Court-martial where the acquittal was so one sided that I was a little embarrassed for the SVP, and the trial was just as bad as the 32 in which the IO recommended dismissing the charge because she simply was not credible.
     
    So, to those who have practiced military law since say at least 2005, has everyone experienced an uptick in cases that are/were completely ridiculous more so after 2009? 

  34. stewie says:

    I’m sure there has been an uptick, but I’ve only seen it indirectly. Having said that, I think it’s more along the lines of weak cases than the idea of cases that are so bad that all government parties involved should be embarrassed (not that there aren’t those as well).

  35. DCGoneGalt says:

    IMO, common sense seemed to win out in most cases until after the AF General overturned the conviction of the O-5 in Italy. Once that happened, the screeching wheels of the Congressional and POD People Witchhunt Bus headed straight to Crazytown and on the way committed a vehicular manslaughter on the persons of Prosecutorial Discretion and Command Integrity.

  36. Alfonso Decimo says:

    KF – McClatchy News reviewed a large number of Article 32s under FOIA in 2012 and reported that CAs were often aggressively referring cases to court martial against the advice in Article 32 reports. They found a significant number of cases where CAs proceeded with weak cases, often disregarding the Article 32 IO as well as the command’s legal advisors.  This data was overshadowed at the time by the Wilkerson court-martial debacle.  http://www.mcclatchydc.com/news/politics-government/article24746326.html. In my experience, CAs would tend to want almost all cases to undergo review at an Article 32, but they would invariably defer to the Article 32 advice, or at least the SJA advice following the hearing. 

  37. Concerned defender says:

    My time in MJ has caused me great heart ache seeing the corrupt or naive or power hungry prosecutors in action.  While most are well-intended, I’ve encountered a number that had zero concept of fairness or justice – they just wanted OER bullets and to please their bosses.  Trained lawyers that don’t understand the 4th Amendment, 5th Amendment, 6th Amendment, 2nd Amendment… just scary really.  We spend too much time learning really stupid stuff like which is the new uniform to wear at PT, or which is the latest font style under AR 25-50, but not enough time focused on justice – real actual fair justice.  It’s an indictment of the whole system, and probably the #1 reason I sprinted to get my separation papers and DD214.  NO WAY was I going to be subjected to some snot nosed Trial Counsel who doesn’t believe people should have rights, and thinks everyone is guilty and s**tbags.  The conversations I’ve had with TCs and CID agents was staggering in their ineptitude and lacking of fairness, truth, or justice.  And they readily implement their underhanded dirty tactics regularly.  I’ve experienced Brady violations, shady CID agents, lying TCs, TCs that back out on deals or use other shady tactics, and totally unreasonable senior Military Justice officials and SJAs and CGs that are so-blatantly one-sided and unfair.
    And sadly this attitude results in innocent Soldiers being ruined by the system they defend, which is ironically tragic itself.  
    These witch hunts are examples.  Often requiring no evidence, ignoring contradictory exonerating evidence, behaviors of the complaining witness, etc.  Scary to think what a fake allegation can do – I’ve argued this is a threat to national security because a woman can get anyone removed from any position with a semi-credible complaint, which may take weeks or months to investigate.  
    We really need to have more scrutiny of complaining witnesses, challenge them on their allegations, and use some common sense.  Too many motives for fake allegations, and these detract from the resources to help real victims and undermines the credibility of the system.  

  38. DCGoneGalt says:

    Concerned defender:  I have only seen a few prosecutors/SJAs that are underhanded.  Most of the issues I have been concerned with are a mentality among TCs to want to win no matter the facts which colors their advice to the SJAs and SJAs who are spineless in their recommendations to a commander (i.e. “This isn’t a strong case but you know how it is . . . “).  I think law schools seem to be churning out more young’uns who share that mentality and also there are a quite a few POD People true believers among the young CGOs.  As for the SJAs, the system seems to reward the path of least resistance “go along to get along” personality.  So I don’t see either of those changing any time soon.  
    Two reforms that I think are needed (if we are keeping the changes that have already been made) are recording all complainant interviews (I would push for all witnesses) and funding for defense investigators.  Investigations seem to be hamstrung by the same considerations of political correctness that drive a rational investigation into prohibited “victim blaming” and far too often a complainant makes a multi-hour statement that has a very short written statement with no agent notes.  Recording the interviews allows the defense to get all exculpatory information/inconsistencies discussed while also protecting a complainant from being crossed on items that were covered in an initial statement that didn’t make it into the short written statement.  Defense investigators are needed because fear of being accused of “victim blaming” prevents examining “counterintuitive behavior” that IMO is often a mask for motive to fabricate or inconsistent with the facts.  Defense investigators do no need to be concerned with political considerations, which only hinder the search for truth.

  39. Concerned defender says:

    Imagine other allegations operating like Sex Assault allegations and it would be a joke.  Imagine a witness complains he saw the accused rob a bank, and heck include while the witness was herself involved in some collateral or unrelated illegal activity or has other motives to conceal her misconduct (we see this a lot with underaged drinking, GO #1 violations, custody disputes, adultery, etc.).  The witness won’t testify out of fear of being bullied.  The accused then goes to trial with no other evidence other than a witness, who herself has motives to lie or was engaged in her own illegal acts.  This whole sex assault business is overblown in my view.  
    This has watered down the protections for accused dramatically.  

  40. stewie says:

    Not to beat the same tired drum but part of the problem here isn’t, as DCGG says about underhanded TC/SJAs, it’s about the overemphasis on jack of all trades attorneys who can do a little bit of everything. Give me two MAJs, one with almost no crim law experience, say one year as a TC, but with BJA, Ad law, op law time as both a worker bee and chief…the other with two or three tours in crim law on both sides, but maybe only a little BJA, AD Law or OP Law time, and I guarantee you all things being equal the former has a lot better chance at promotion than the later.
     
    That’s a problem when it comes to knowing how to evaluate, train, mentor and process criminal cases…far more than issues with underhanded or wanting to win no matter the facts IMO…but I realize I’m in the extreme minority on this argument.

  41. Concerned defender says:

    @ DCGoneGalt – a “few” spineless TCs and SJAs will ruin the lives of companies full of Soldiers.  Off hand in my time at TDS I bet there were no fewer than 5 or 10 TCs that we collectively hated due to their dishonesty and lack of integrity or ethics.  Nearly every opposing SJA I’ve dealt with was spineless and corrupt – meaning they placed their own career over doing the right thing.  And many commanders are also spineless when it comes to doing the right thing.  
    The irony is that these folks are brave in combat, brave in the court room, brave in airborne operations, and brave doing other Soldier activities.  But when it comes to showing some courage or loyalty toward the innocence of a Soldier, they will immediately put their own career progression ahead of justice, fairness, integrity, due process, etc.   When you see how the sausage is made, you no longer enjoy the sausage.  Having heard time and again that a once stellar Soldier is a dirtbag and is relieved and investigated or charged following nothing more than an allegation, it is very disheartening.
    More and more I think there needs to be a major overhaul to remove the incentives we have for career progression and put some adults with experience in the prosecutor seat.  Eligibility for a senior prosecutor job or SJA should require a 2 year stint in defense work as a mandatory prerequisite.  
    It’s rare you can leave TDS having not experienced injustice against your clients. 

  42. Alfonso Decimo says:

    Wow. From the recent postings, apparently at least a few experienced judge advocates (JAs) have known more than a few fellow JAs that place their careers above the interests of justice. That was not my experience in my 20+ years on active duty, primarily in military justice, including service on the bench. Of course, I experienced cases the civilians would never take to trial, but my opinion of my fellow JAs doesn’t match the condemnation posted above. Each of us has a different experience and perhaps it varies by service. Going forward, I agree the defense needs more resources, including dedicated investigators. Defense counsel overseas should have cell phones unless they can plug into the intranet at each court-martial location. When I was in Europe, we would routinely “MOJAG” (mobile JAG) with a huge bag of reference books, but JAs nowadays need to be connected and I don’t understand when HQ won’t fund technology when it will make us more efficient. Looking further ahead, we all need to prepare for the day when certain members of congress succeed in removing the CA’s prosecutorial discretion to a team of lawyers. Ultimately, down that road lies the end of military justice and we will look back whimsically like those who were experts in the horse-and-buggy during the days of the Model-T (or maybe the Model-A, if anyone gets that reference).

  43. k fischer says:

    AD/CD,
     
    I have experienced the SJA’s office that CD apparently has.  However, they have been few and far between.  I share more of the opinion that Alfonso has in that my practice has primarily been at Ft. Benning after I left the Army and my TDS billet.  I have seen some outstanding SJA offices who have bent over backwards to ensure the accused gets a fair trial.  I have had a few military cases outside of Ft. Benning, and on each one I have worked with Government reps who I would hold in very high regard, particularly when they do the right thing in today’s hyper-political environment.
     
    I also agree that all the recent changes to Article 120, M.R.E. 513, and Article 32, have been taken to ensure convictions with little consideration to the accused getting a fair trial.  And, when I see an office, SVP, or TC who does the right thing, then it cements my respect for them even more, particularly because I understand that the changes made are beyond their control.
     
    I think DCAP should be given more resources.  I have shared my dossier of Dr. Veronique Valliere with three attorneys to include my scripted cross examination of her.  I’ve had individuals share with me verbatim transcripts of her testimony at trial that have gotten passed around.  I wonder if DCAP has a folder in which every verbatim transcript from the 50 some odd courts-martial where Dr. Valliere testified is kept, as well as her articles, letters to “The Morning Call,” blog posts, testimony in front of the Pennsylvania state legislature, etc.  Military Defense counsel have a vast array of resources at their disposal, but I’m not sure if it is being leveraged properly.  I think the reason DCAP does not receive funding is because nobody is concerned with the rights of the Accused.  The only person I really saw say anything of substance about it during these response panels is COL(R) Holly Cook.  She was an instructor at TJAGSA when I went through the basic course.  She gets it.  But, she is but one voice in the wilderness. 
     
    I am but one civilian practitioner who has no less than four horror stories about how easy it is to be falsely accused and have adverse action taken against you on charges that are absurd, and military law makes up about 25% of my practice.  Think about how many innocent Servicemembers could be interviewed for a documentary on the fairness of the military justice system in regards to sexual assault where every story would be vetted to ensure that it was actually true.  (I would love to know if Dick Kirby actually read the verbatim transcripts from the court-martial where Ariana Klay was the complaining witness.)
     
    I am still waiting for the pendulum to swing the other way where panels look at SVP’s with complete contempt like they did in my last court martial.  It was really noticeable, except perhaps to the SVP who appeared oblivious to the problems with his case.  Once they do, then perhaps military Accused will be given the benefit of the doubt that they are entitled to by the Constitution we all took an oath to defend.   

  44. stewie says:

    Most JAGs try to do what they perceive is the right thing. We all fail at that from time to time, but we try. So count me in among the what CD has experienced ain’t what I’ve experienced. To me the problem is just that…experience, or lack thereof.

    I’m not sure what you mean by funding DCAP. I wasn’t aware they had a funding problem, although I do know they have fewer personnel than TCAP. They travel and train so clearly they have funding. I think TDS is concerned with the rights of the accused. I think most JAGs are at a base level, but certainly with Congress focused more on the rights of the alleged victim, the emphasis isn’t what it should be there for sure…not in this environment.

  45. Concerned defender says:

    It’s good that others haven’t had my experiences.  I know I was not alone in my installation.  It was a weekly, if not daily, event where defense counsel were furious over the actions of trial counsel.  For instance, in once case a CSM was charged with 7 allegations of a variety of things.  TCs refused to be reasonable in any regards.  He was fully acquitted.  Now, what does that say about the merits, when the TCs cannot even get a majority on a single charge?  So what did the SJA office do in response?  Sour grapes.  They issued a permanent GOMOR.  One of the TCs in our jurisdiction had FIVE – yes FIVE – full acquittals in a year!  Now, I must say that in an environment where the cards are stacked very high against an accused and conviction rates are over 90%, for a TC to accumulate FIVE acquittals in a year says something about him and his leadership about taking frivolous cases to trial.  
    In one administrative separation, I contacted one of my respondent witnesses and he said he was already contacted by the respondent counsel (he said “defense lawyer already contacted me.”).  Turns out the TC had – giving her the benefit of doubt – not clearly identified herself.  But she had a very shady reputation and I know she lied to him.  
    I can think of at least 5 and probably 10 lawyers at that SJA office who were overzealous prosecutors competing with each other on cases and throwing the rights of the accused out the window.  Entrusting these people or others like them to do the right thing was never, and will never be, a consideration for me.  Combine that with the MJs who were clearly slanted – we renamed “Bridging the Gap” as “Perfecting the Prosecution” or some such.  There was never criticism for bringing frivolous charges, or even frivolous cases, or education on rights.  It was just perfecting their cases, as defense sat in silence watching the MJs take great care helping the TCs with their cases.  I’ve NEVER seen a MJ dismiss a case or grant a full acquittal.  And we all know there are ample frivolous cases to pick from.  So, what does that say?  
    DCAP is woefully underfunding.  I traveled to several out-of-state installations and observed other DCs travel to mine.  Having a private office was a luxury for a traveling DC.  Try defending a client facing life in prison when you are meeting in a hallway and borrowing a computer and printer to sign the necessary documents?!?!  It’s disgusting and offensive that the DCAP is so underfunded. 
    I left that assignment fully disgusted with the MJ process and the imbalance in resources.  TCs have CID, local authorities (in some cases), an Army of paralegals, other lawyers, and resources, etc.  I once tried a GCM against 5 Trial Counsel (2 Majors and 3 Captains), only having my co-counsel assigned a week before trial due to staffing issues.  They have two paralegals standing by during the entire trial to run errands, set up equipment, access to the court room in advance, etc.  I think I am lucky if I had a paralegal for a few minutes here and there to momentarily assist me at trial – because we were so badly understaffed… I could go on, but you get the idea about the imbalance.  The DC really has only 2 things.  A tenacious DC and the Bill of Rights. 
    And to keep this on track, the deck was stacked against the accused before these sweeping SHARP classes, SVP program, and changes to the 32 and other rules.  Now watering down the Bill of Rights – the inconvenient “innocent until proven guilty” concept (undermined by SHARP brainwashing, and the fact that nonsense allegations move to trial), and “confronting and accuser” (destroyed bit by bit with limits and prohibitions on when and what you can ask).   
    Oh, and does ACCA or CAAF grant relief for the CLEAR unlawful command influence?  In most cases they refuse to see the obvious, and I’m unaware of a single case yet where relief has been granted.  So, again, anyone who thinks the system is fair or honest – I have to respectfully disagree. 
    It’s a system eating itself and one in which I have nearly zero faith in.

  46. Charlie Gittins says:

    On the general issue of the new Article 32, I believe my clients and I were the beneficiaries of the old rules, where discovery was a an understood reason for the Article 32.  (“Defense Counsel shall be given wide latitude in cross-examination.”).  I treated Article 32s like a discovery deposition.  Try to nail down all the facts, find areas where impeachment might be found, prep the trial battlefield so that military defense counsel and I don’t get surprised by testimony at trial.  To that end, I have had clients hire a court stenographer for sex assault cases in the past when the CA refused my request for a verbatim transcript.  The court reporter was my “assistant” and she was taking notes for me.  Those were th days where an accuser didn’t have a choice but to testify at the 32. 
    I spent as much time as I thought was necessary cross-examining witnesses.  Those who remember the SMA McKinney case might remember that that 32 was a multi-week affair.  Six accusers to lock into their statements and delve into areas where we might find evidence of untruthfulness or lack of credibility.  Yeah, we had an objection to the questions about SFC Jecsala’s divorce — where it took place, but we got an answer and when we went to the court records of that divorce we found a file with her deposition in it, where she admitted to defrauding the United States of $10,000 and relevant facts of the scheme used to effect the fraud.  Nice subject for cross-examination at trial — the look on the prosecutors’ faces were priceless.
    On unscrupulous prosecutors, I have had some experience with that breed.  At the McKinney trial. I caught the prosecutor withholding exculpatory evidence.  I pushed hard with the judge to inquire about it and when he finally gave me the 39(a) session, the result was he agred that he had witnessed for himself an effort to mislead the court about withheld evidence.  He instructed the members that they had witnessed prosecutorial misconduct and that they were entitled to consider that fact when they were deliberating on the case.  I once had a prosecutor tell the MPs to ticket my car on base (I was in a command visotor spot — and I was after all a command visitor).  Judge found a problem with that.  Same prosecutor withheld evidence that was specifically requested and then tried to use it on rebuttal.  Findings set aside due to prosecutorial misconduct and my SGT client retired from the Army as a SGM after the ABCMR finsished undoing the prejudice.  I have seen some unscrupulous prosecutors, but mostly, the problems were with the experience and understanding that a prosecutor’s job is to see justice done.
    I saw the changes on the horizon — changes designed to get more convictions and obviate politically unpoular outcomes — not to improve the military justice system.  That is why I retired from MJ.  I believed the old system was fair to the accused.  I do not feel the same way these days.  In fact, just the opposite — intentionally weighted against the accused in order to have outcome satisfying convictions rates for the pols.     
     

  47. thewritesofweiss says:

    I just read the article and have now read all of the posts on CAAFlog.  Doing so makes me feel exasperated, depressed, and cynical at the same time.  I could give plenty of war stories myself, but they’d just be repetitive, so I won’t.
    I can tell you there is one bright spot in the wilderness.  Mr. Russell Strand, the Chief of the Behavior Sciences Education & Training Division at the Army MP School actually cares about the rights of accused service-members and that they get Due Process. He’s also someone who’s a “who’s who” in this area—sexual assault in the military.  To that end, he’s invited me for the last year to present a class during their week Special Victims Capability Course on “The Defense Perspective on Sexual Assault Cases.”  This course is for SVPs, SVCs, CID agents, TCs, and anyone else who wants to go.  Teaching there are people like Dr. David Lisak, Dr. Jim Hopper, COL Ricky Malone, etc.  My presentation started off as an hour, and now I usually go for about 2.5 hours.  I go over all concerns TDS counsel have about these cases and what we’re up against. I’m not even one of “us” anymore, but I still feel the obligation to speak for the military defense bar.  I’ve had many students who’ve heard my spiel thank me for it and I hope I’ve gotten through to some of them.  If any of you want the presentation, or want to give me things to add, just google “the writesofweiss” and I think you’ll figure out who I am—if it’s not already readily apparent.   Also, consider contacting Mr. Strand.  He is a strong critic of the Reid Technique, etc. and is open to new ideas about how to make things fair for accused at the level when CID gets involved.  He wants all interviews of accused, witnesses, and alleged victims recorded. 
    Concerning, the entire Article 32 debacle, when I last served as SDC for three years at a large installation, I advised our counsel many times to waive the hearings.  And we did.  And we got acquittals.  And this was before all the changes that Congress made. 
    At this point, however, from the defense point of view, it’s hard to see what the point of these hearings is any longer.  If the alleged victim does not have to testify, you have no discovery ability, you can’t get into MRE 412 anything—including motive to fabricate, etc.—then why even have them?
    That said, I’ve served as PHO since then and I take the hearings very seriously and put significant time and effort into them.  I can’t speak for what others are doing, but that’s how I do it.  If I were king of the world, I would make the Article 32s full blown investigations, make the PHO’s a full-time professionalized position, have them fall under the trial judiciary, and have them serve as military magistrates also.  I would also make their recommendations binding on the convening authority.  With no defense investigators, no requirement for a unanimous verdict, panels hand-picked by the convening authority, enormous political pressure to refer cases and get convictions, stripping convening authorities of the ability to set aside findings and sentences in any meaningful way–the system is a mess.  We should revamp the system to make the pre-referral realm more meaningful, so that discovery, motions, etc. can take place then.  The PHO can deal with all of those issues pre-referral.  If the case gets referred, then there’s no need for all the scrambling before trial.   
    The old Article 32 was one thing that at least made the system have some semblance of fairness.  The idea that the civilian justice system is anything we should try to emulate is just depressing.  We’re defending the “best class of criminals in the world” as I heard at my first TDS conference. 
    The notion that we’ve improved by making the Article 32 more like the federal system is a slap in the face to everyone who’s sworn to defend the Constitution.  There are no Article 133 or Article 134 charges in the civilian federal or state systems, no convening authorities, etc.  Our service-members got more protections, like Article 31 rights and the old Article 32 Investigation because of those imbalances.  
    Oh well.  Life goes on. 
     

  48. Concerned defender says:

    It would be interesting to hear the response by the pro-prosecution side if one were to suggest the requirement to be “more like” other criminal jury systems, and require for instance a unanimous guilty verdict to convict.  I bet that wouldn’t go over so well… 
    As for waiving the 32… has anyone seen or attempted an argument about the right to confront an accuser at the investigation stage?

  49. stewie says:

    What would be the basis of said argument? It’s certainly not a constitutional right, and now, it’s not a statutory right.
     
    I suspect some pro-government folks would be ok with unanimous verdicts, others would not.
     
    I disagree that you can’t talk about motive to fabricate even under the new rules…that goes directly to probable cause. Any JAG PHO who says it doesn’t is not the world’s best attorney by any stretch of the imagination.

  50. Thewritesofweiss says:

    Of course motive to fabricate goes towards probable cause…but Congress has now said that although MRE 412 applies, thst 412(b)(1)(C) does not. So, according to the lawmakers, evidence of motive to fabricate, which would fall under the Constutionally required exception….should not come in at the Article 32 now! That seems ridiculous…but it looks like it’s the plain meaning of the new article 32 regime. Or am I wrong ?

  51. stewie says:

    motive to fabricate does not, in and of itself, fall under that exception. That exception only goes towards sexual conduct/proclivities of the AV, i.e. it has to be sexual in nature to even get into the realm of 412.  Relationships can be talked about without getting into the sexual nature of them. They were dating, she was married, they were “close”…none of those involve sex or 412. Were I a PHO, I wouldn’t be able to consider sexual stuff but I absolutely would consider that she was married and had a motive to fabricate her relationship to her husband, because that isn’t 412.

  52. stewie says:

    insert “because of” after that last “fabricate.”

  53. thewritesofweiss says:

    Stewie, I understand. And as a PHO, I would allow it.  But I’m telling you: 1) the AV probably is going to testify anyway; 2) the TC/SVP is probably going to object to DC calling any witnesses since it “doesn’t relate to the limited purpose of the hearing” in their view; 3) the motive to fabricate, if it has anything to do with sex, a sexual relationship, a marriage, etc. will, in the argument of the SVP/TC/SVC be “412.”  At this point, the fact that a woman has ever had sex with anyone else at any point in her life is “412” from what I’ve seen in recent years. By the way, other than evidence of motive to fabricate, what do you believe the Constiutional exception envisions?

  54. stewie says:

    The TC objected to this kind of evidence BEFORE the change. TC are always going to object to anything that isn’t, the AV said it happened, what more do we need here?
     
    I agree, most of the time, the AV isn’t going to testify (I’m assuming that is what you meant to type).  For awhile, until SVPs and TC realize that their witness is woefully prepared for trial, then I think you’ll see the smart ones more willing to ask their AVs to come to the 32, particularly when they can listen to the tapes of everyone who testifies after. But that’s outside the point of this conversation.
     
    Sure, the TC is going to object to calling any witnesses. And if were still doing rock…err, I mean non-JAG PHOs then that would be a major issue because most would go along with that. While some TC-friendly JAGs may too, I suspect more JAG PHOs will agree when the DC is calling a legit witness.  It will run the gamut, it’s worse, I don’t like it, the old way was better for both sides.
     
    But IF one has an Art 32 hearing, and IF the AV testifies, then you should be able to get into motive to fabricate with simple tweaks to how you present it. It’s harder than before when all you had to do was say the magic word “discovery”, but nothing a smart DC can’t work around.
     
    The constitutional exception is just that, anything that is required by the Constitution. That can be motive to fabricate, it can be mistake of fact as to consent (see e.g. the case whose name escapes me of the guy who came across a foreign national having sex with another GI in an alleyway, and then took “his turn.”) , it can be anything that leads to a defense or suggests consent or mistake of fact as to consent, or goes to credibility.