Last month the Associated Press produced a report titled: Opaque military justice system shields child sex abuse cases.

Focusing on child exploitation prosecutions (a particularly heart-wrenching kind of case), the report broadly condemns the military justice system and the Department of Defense for failing to make court-martial records easily accessible to the public, with the authors asserting that “while child sex crimes may not be swept under the rug, the Defense Department does not make it easy for the public to learn about them.” Of course, blaming the system or the DoD is nonsensical, as it is Congress and the President that make the rules.

In part, the report notes that “records from most federal court cases are available online through the Public Access to Court Electronic Records system, known as PACER. The military does not have a comparable repository.” This is certainly true. But implementing PACER (or an equivalent) is hardly simple, as it would require standardized rules for the handling, marking, and redaction of trial-stage documents in order to permit public release. Even the Associated Press admits that not everything should be public knowledge, as it does not provide the names of the child victims whose stories it uses to add emotion to its report. The military justice system currently relies on the Freedom of Information Act (FOIA) to address redaction and release, protecting the privacy rights of victims, witnesses, and even the accused. That process isn’t fast, but it’s what the law requires.

Notably, the report makes an early issue (in the third paragraph) of a Naval Criminal Investigative Service investigation that the Associated Press sought under FOIA but NCIS refused to release on privacy grounds. “The report was released only after AP appealed,” the report explains. However, a whopping nineteen paragraphs later it is revealed that:

The Naval Criminal Investigative Service initially said releasing its 198-page investigative report on DeSmit would constitute “an unwarranted invasion of personal privacy.” The AP appealed the denial, and the Navy judge advocate general’s office overruled NCIS, declaring the agency’s decision overly broad and instructing it to release all material within the report not exempted from disclosure. NCIS investigations, which include evidence from the crime scene and witness interviews, are not court documents but are used by military leaders to decide what action to take against a service member.

(emphasis added). How a PACER-like system will provide better access to things that are not court documents is anybody’s guess.

The House version of this year’s National Defense Authorization Act included a provision relating to “public availability of records of certain proceedings under the uniform code of military justice” that would have required publication of materials including “any motions and documents filed in connection with the proceeding.” I noted that provision in this post and you can read it in this document (it’s at section 556). However, the provision did not make it into the final bill. The AP report makes no mention of this provision, and sheds no light on why it wasn’t included in the final bill.

Yet the report does highlight one odd fact: court-martial results published by the services lack information on pretrial agreements:

After DeSmit’s conviction in January, the Marine Corps summed up the case in two sentences.

“At a General Court-Martial at Okinawa, Japan, Chief Warrant Officer 4 D. E. DeSmit was convicted by a military judge alone of conspiracy to commit sexual assault and rape of children, aggravated sexual abuse of a child, sexual abuse of a child and possession of child pornography. The military judge sentenced the accused to 144 years of confinement, a reprimand and dismissal,” a summary of the court-martial released by the Marine Corps read.

And that’s all the service would have said publicly, had the AP not pressed for more.

The pretrial agreement in the DeSmit case capped confinement at 20 years. While this fact likely would have been disclosed eventually (in the CCA’s opinion during mandatory appellate review), the published results present an incomplete picture of the sentence.

The publication of court-martial results is a relatively recent phenomenon. It’s unclear why those results don’t include information on pretrial agreements; seemingly crucial information. Sadly, the Associated Press seemingly made no effort to discover the reason.

There are good reasons to want greater public access to military justice records. Like any system, there’s still room to improve military justice. But the AP’s claim that the system is “opaque” and “shields child sex abuse cases” is overblown.

12 Responses to “The perception of opacity in military justice”

  1. Tom Booker says:

    Last I checked, courts-martial were open to the public.  A reporter curious about how a trial progresses, and how it ends (including discussion of pretrail agreement terms), could just show up and report.  It may be a bit of a challenge when the trial occurs underway (I presided over 4 in 2012), but I think the vast majority of trials occur INCONUS and ashore.
    Zack is right to point out the PACER/FOIA problem.  I would take it a step further to observe that the judicial branch is not governed by FOIA or PA, although I believe the courts of the United States do take steps to protect privacy nowadays that they might not have taken some time ago.  Because the armed services (and all military courts, even CAAF) are part of the executive branch of government, they must abide by FOIA/PA protections.
    Respectfully, LTB

  2. Advocaat says:

    I think everyone understands there are special considerations for child victims that favor PTAs.  In this case, however, I’m having a difficult time understanding why the CA agreed to 20 years (which missed the ballpark, zip code, and time zone based on the adjudged sentence) when it appears many of the charges would not have required any victims to testify.  Isn’t failing to prove a spec or two in favor of a greater term of confinement the far better COA if the accused pleaded NG?  Can anyone familiar with the case lend some insight, please?

  3. Zachary D Spilman says:

    We see what you did there, Advocaat.

  4. k fischer says:

    What did he do there, Zack?  I must have missed it, as I am not a very smart man……  I would tend to disagree with Advocaat regarding the offenses not requiring the vic’s testimony.  I don’t see how sexual abuse of a child could be proven without the child testifying and it seems that sexual abuse of a child is what this case is about.  
    I would be interested in knowing what sentence the TC recommended because sometimes Military Judges will sentence above what the Government recommends as an expression with the disgust they have with the accused or to send a message to the accused that if he ever does something like this again, then this is what he could be facing.  Ultimately it makes the Defense Counsel look like a superstar because he cut a really good deal.  I don’t put a whole lot of credence in a 144 year sentence when the Judge knows that a deal is in place, notwithstanding his ignorance of the quantum.

  5. Zachary D Spilman says:

    In response to a post about transparency, Advocaat wonders why the convening authority agreed to a (mere) 20 year confinement cap in a particular case and seeks inside information. That’s – at a minimum – ironic.

    Of course, the convening authority is unlikely to have penned a memo explaining his reasoning for agreeing to the cap, and questioning the convening authority could raise concerns of unlawful influence. A better question is whether the prosecution supported the cap. Perhaps there’s a prosecutorial merits memo.

  6. Smith says:

    I looked at the Court-Martial results on the USMC homepage today and for the October 2015 results, PTA provisions are included. Still missing from the results however are mixed pleas and mixed findings information. In reading the results, the public and potential members could be left with the belief that there is an all or nothing requirement for convictions/acquittals.

  7. jkiel says:

    Two days later, I am still trying to figure out why commanders should be removed as convening authorities because of what is released and not released to the media after the trial.  Dumb article, as usual.

  8. Advocaat says:

    Zack, my comment stemmed from the fact AP missed the boat.  Completely.  I’d like to hear from a Marine how on earth the CA arrived at a 20-year cap for the actions described in the article, and CAAFlog performs a public service by providing a means to get that insight in a way FOIA (and AP) does not.  I don’t recall hearing of any case where the MJ pulled the stick north of the PTA quantum by 124 years.  There might be a good reason for such a disconnect and, if so, I’d like to hear what it was.  Until then, this case is further evidence that CAs are out of their league in courts-martial decision-making, which is the larger political narrative.

  9. (Former)ArmyTC says:

    The accused was a CW4…from experience negotiating PTAs in cases involving senior, retirement eligible accused, the low cap was probably a negotiation point to keep dismissal on the table. I had to negotiate a PTA for an officer with 32 years to sexual abuse of a child to a low confinement cap to make the dismissal palatable. In that case the adjudged sentence was much more than I asked for. I speculate that the MJ came down the way she did to ensure he didn’t beat the cap.

  10. John O'Connor says:

    Agree with (Former)ArmyTC.  I too suspect that the sentence reflected the existence of a deal, and the MJ’s likely sentiment that “you negotiated a deal, and you’re not going to do better than your deal on my account.”  My admittedly dated experience was that adjudged sentences were generally lower if the accused went in without a deal.
    I’m sort of surprised by a criticism of a twenty-year sentence.  That’s still a loooong time.  I would think there would be a dozen better examples of serious misconduct being underpunished. 

  11. Dew_Process says:

    @ JOC – I agree – 20 years is indeed a long time, especially since the majority of it will in all likelihood be served in a very inhospitable Bureau of Prisons facility versus the relatively benign USDB.  The BoP will have a copy of the Results of Trial [showing the 144 year sentence, as well as the final CA Action and his conviction and sentence will be “leaked” to the general inmate population within weeks of his arrival. Unlike the DB, “rehabilitation” programs in the BoP are few and far between and it’s far more difficult from my clients’ perspectives to make parole when in a BoP facility than in the DB or other RCFs.  I’m not taking any position on whether or not the 20 year deal is/was appropriate, only pointing out that the accused may be in for a rude awakening when he wakes up some morning at the DB with a Con Air ticket to hell.

  12. Phil Cave says:

    Echo DP.
    I routinely advise USDB clients not to request transfer to FOP.
    Having been to a number of military “parole” hearings in an FCF and can say they are not nearly as friendly or open to hearing information compared to the military C&P Boards.  Although unlike military boards you do get a hearing where the client is present.