In an era when victims’ interests and the failures of the Department of Defense to adequately address sexual assault within its ranks are constant messages, perhaps SSgt Marks’s experience will remind us of the traumas suffered by the innocents accused and serve as a caution to those wielding the awesome power to prosecute.

That’s the final sentence of a compelling article in the most recent issue of the Air Force Reporter: Major Christopher J. Goewert, The Accused The Unacknowledged Victim of the Military’s Robust Prosecution of Sexual Assault, The Reporter, Vol. 43, No. 1 (2016) (direct link to article).

The article describes a sexual encounter, a subsequent (and lengthy) investigation, and the eventual acquittal of an Air Force accused (SSgt Marks is a pseudonym):

The investigation continued for over a year as determined agents located all of the party-goers and obtained statements which painted a picture of a consensual group romp—a spur of the moment orgy, which was embarrassing in retrospect, but to the guests was not criminal. SSgt Marks was duly charged with wrongful sexual contact and indecent acts.

The author’s use of the term duly charged is, itself, a little terrifying. But the article includes details of actual terror experienced by the accused:

My mind overflowed with the thoughts of what could happen: the odds were not in my favor. I was worried that everyone would believe her because she was saying she was a victim and wouldn’t believe in me. I felt like the decision was already made and I was fighting a losing battle—it was like I saw a wrongful judgment would be forced on me and there was nothing anyone could do to change it. I broke down and cried a handful of times. I became fatalistic about it.

21 Responses to “Scholarship Saturday: The plight of the accused”

  1. Concerned Defender says:

    Haven’t yet read the article, but I could have probably written it.  Spent significant time in this profession representing those accused of sex assault, typically wrongly.  You win some, lose some, and win some much later.  And often a “win” is just avoiding a conviction to hedge bets.  The destruction of the 4th (5th and 6th) Amendments have been a travesty.  The “war on drugs” eroded the 2nd Amendment and 4th Amendment.  Now the “war on sex assault” is destroying due process.  We live in an era where an allegation is so damaging that along is hard to overcome.  A conviction often occurs on paltry “evidence” or what passes as “evidence” these days.  And tainted MJs and Panels assure almost certain convictions, largely through SHARP mandatory brainwashing and pleasing the command and climate.  It’s become a sham of a system desperate for intervention to return to a semblance of fairness.  
    Before mandatory prosecutions, we could often save a veteran with a chapter 10 if they were willing to just get out of danger.  I’ll tag the article for future reading.  Thanks for sharing.  

  2. k fischer says:

    Brace yourself.  False accuser sympathizers are coming to defend the system.

  3. Dew_Process says:

    The present preoccupation with sex crime and victims of crime has given rise to a new type of victim: the falsely accused. These victims rarely receive the attention from policy-makers that they deserve, although the collapse of some recent high profile investigations into allegations of historic abuse has belatedly prompted a more skeptical approach to some complainants.  I believe that victims of false accusations now deserve more consideration.

    From across the Pond, a similar ARTICLE. 

  4. Dew_Process says:

    And while we’re on this topic, while previously posted somewhere on CAAFlog, is this article, Defending the Indefensible? The Increasingly Difficult Job of Defending Soldiers Accused of Sexual Assault, available HERE. 

  5. President Comacho says:

    At what point do Trial Counsel risk a bar complaint of prosecuting cases without sufficient credible evidence? Or is the standard all they need is some evidence to go to trial and the credibility determination is up to the fact finder? In some of the cases that are going on which almost inevitably result in acquittals, should defense counsel be filing bar ethics complaints? Should Trial Counsel refuse to take part citing state bar rules? If a military lawyer recommends dismissal despite the incredibly low threshold of a 32, how is it not improper for a licensed prosecutor/TC to prosecute? I understand the commanders could care less about ethics rules – they are risking their command and next promotion by not sending everything to trial but it seems the TCs have a duty to say “I cannot take part in this case due to the responsibilities that my state bar imposes on prosecutors.”  Just thinking out loud.  Would a swarm of bar complaints be appropriate which would then shed light on this significant issue in military justice practice? I have yet to come across anyone on both sides of the isle who doesn’t see the same issues. I’ve never filed or even thought about a bar ethics complaint in my encounters but could see it being a requirement with some of these cases.

  6. President Comacho says:

    by isle I mean aisle. 
    I spoke with a TDS attorney the other day and he said that someone at DCAP calculated that the conviction rate for sex crimes is around 30% in the Army – anyone tracking this? have documentation of this? I know of at least one reporter that would be interested in this calculation if true. Would love to hand it to him and see if he wants to write on the subject.  

  7. Concerned Defender says:

    Military prosecutors are in a very tough spot, and it’s created by weak SJAs and weak TJAGs which contributed greatly to this problem before Congress.  The Commanders prefer and refer charges; but it’s the legal officers who make recommendations and often in writing.  I certainly did this when I disagreed with my leadership and they generally took my advice.  I’d draft a “do not proceed” memo that was generally followed; in fact I’d say always because I cannot recall when it wasn’t.  Rarely is a commander so compelled to prosecute if a strong TC or SJA says, “Sir, there is no strong evidence and if you lose, you will look foolish and it undermines the MJ process.  Please consider these other attractive options…”   But I’ve rarely met a courageous TC or SJA, frankly.  
    If I were again a TC or SJA, and was handed a case with extremely tenious or weak evidence, I’d make darn sure I followed my bar obligations to not prosecute frivolous or weak cases.  And I’ll take a poor OER over sending an innocent man to trial and a bar grievance any day of the weak.  The Army, for most of us, was a short term profession whereas a law license is a quarter million dollar career investment for the long term.  
    If you’re a DC and screw up, you can be assured of an IAC and bar grievance.  Why wouldn’t a TC and Chief of MJ, and SJA, and any other lawyer on the action expect a grievance in such cases as we’re discussing.  Yes, I believe if every wrongly accused who was later acquitted filed grievances, the aggregate of these would wake up the military prosecutors who otherwise risk nothing by taking a garbage case to trial.  

  8. stewie says:

    Last I checked, the conviction rate for contested sex assault cases was right around 50%, but that was a couple of years ago, so it could be 30% this year, I don’t know. So what would a “good” conviction rate be?

  9. DCGoneGalt says:

    stewie:  I don’t think there is such thing as a good conviction rate.  Civilian prosecutors have a high conviction rate because they can carefully choose which cases they take to trial and how they work plea deals.  If the voters (hell, even at the federal level they are politically appointed) aren’t satisfied (too high or too low) with the conviction rate they can vote to change it.  The purpose of the military justice system is to enforce good order and discipline, not gain convictions.  Congress has placed pressure on commanders and commanders have agreed with Congress (in deed of not in  thought) to increase the number of cases that go to trial because of a perception that legitimate cases were being swept under the rug.  IMHO, a small minority of legitimate cases may have fallen through the cracks but now too many cases that have no business going to trial are going to trial and the conviction rate has therefore gone down.  Some may see that as a bad conviction rate, I see it as a logical result of sending more weak cases to trial in order to ensure there is a publicly visible handling of more cases.  If you want a better conviction rate then you have to trust commanders and lawyers to exercise their best judgment on which cases serve good order and discipline and are strong enough to be worthy of the use of time and resources used in the trial process.  Again, IMHO, at present commanders and lawyers are not doing this because they have been unable to withstand the pressure placed upon them.  I happen to see that as undermining good order and discipline but fully understand Congress and POTUS exercise control over the UCMJ and the military.  

  10. Advocaat says:

    I tried to feel sympathy for an NCO who joined in group sex with a mixture of Airmen and civilians, but I couldn’t quite get there.  I then tried to empathize with his feelings of helplessness, but I didn’t see proactive steps of any kind (e.g., take a polygraph and tell the world, dude).  Finally, I compared this accused with former clients who didn’t have the luxury of calling both live and video feed audiences to testify at trial.  I ended up disliking the accused, the accuser, and the Air Force with the exception of the MJ/panel members who voted to acquit.

  11. Dew_Process says:

    Notably, while the military seeks to increase prosecution of sex crimes for the reasons articulated on this thread, a large group of members of the American Law Institute are complaining about the attempts to “over-criminalize” such cases via the Model Penal Code.  HERE is a statement released by them earlier this morning which hopefully the MJWG takes note of.

  12. stewie says:

    Well, I get it sort of DCGG, but at the same time, there has to be a definition of good and bad vis-a-vis conviction rates doesn’t there?
    We know 0% isn’t good, and we know 100% isn’t good because that means either we are erring too much one way, or erring too much the other way.
    We know it’s probably not going to be as good as the conviction rate for all other offenses, so we should expect it to be lower than those offenses.  But after that, the question is what’s the range where we all go, this is probably working decently well at finding a balance?  Is it in the 50s? 70s? 30s?

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

    The only “good” conviction is one fairly obtained.  I heard conviction rates in sexual assault cases were around 66%.  The conviction rate would probably be higher if the military stopped taking BS cases to court.

  14. Burt Macklin says:

    This article reads like a bad romance novel – gives credence to the “every lawyer is a failed poet” maxim. 

  15. DCGoneGalt says:

    stewie:  OK, I agree with you that if you have a conviction rate that sits around 0% then that would be a “bad” conviction rate.  But I don’t feel a rate approaching 100% is necessarily a “bad” rate.  The Government gets to pick and choose which cases go to trial.  If you count guilty pleas in civilian jurisdictions in addition to trials then the rate of some sort of conviction in cases is climbing to a point where you would have to call it a “bad” rate.  Commanders have a good order and discipline rationale for sending cases to trial that is not present in the civilian sector.  Even setting aside the political pressure to aggressively prosecute sexual assault allegations, that means commanders are more willing to send cases to trial even with a full understanding that the case will likely result in an acquittal.  Logically, I understand and agree with this.  Where I diverge is that I see in some instances commanders (and lawyers) that are not even bothering to exercise rational judgment by sending some cases to trial that have no business going to trial because they do not have the integrity to exercise their best judgment in the face of the political pressure.  However, I honestly don’t think the military conviction rate is “bad” because I agree with Tami’s assessment that the only “good” conviction is one that is fairly obtained.  It is a good thing that many cases that would never be given a second look by the civilian system result in acquittals in the military.  There may be exceptions to the rule, but the nature of the “reforms” to the UCMJ and the pressure placed on commanders means that more bad cases will go to trial and that they will result in acquittals (despite the efforts to “educate” military members through SHARP briefs and standdown days).

  16. stewie says:

    Given that even the government is composed of humans (no, really!) then it’s not possible in my experience for humans to for very long pick cases well enough to guarantee that said 100 percent conviction rate doesn’t involve innocent folks getting a bad result.
    So yes, I think in practice, if you have a 100% conviction rate, that probably doesn’t say good things about your system.
    It seems to me some percentage somewhat less than 100, but significantly greater than 0, is the most likely to balance the desire to catch the guilty while not also scarfing up the innocent.  What I’m seeing though is someone on here listed 30% as if it was evidence of something bad…as if it meant that the government was taking too many cases to court, with the insinuation that a higher percentage was preferable.
    I’m trying to honestly figure out, ok, what should that higher percentage be then…while also thinking it can’t be at or near 100%.

  17. Concerned Defender says:

    Civilian prosecutions would be FAR more difficult.  First, your panel pool is going to largely be haphazard mix of law abiding and legally indifferent folks.  You need a 100% vote to convict with this haphazard group, some inherently defense friendly.  One of them can hang the jury.  As it’s been said, it’s hard to get 6 people to agree on pizza toppings, nevermind reaching “beyond a reasonable doubt” on a criminal allegation.  And the Judge is going to be a far more fair minded individual in my opinion.  The jury and judge aren’t rated by or under the implied orders of the base Commanding General or Congress or the POTUS.  Getting a conviction in that system would be very difficult, as it should be.  THIS is the reason garbage cases aren’t brought to trial.  
    Conversely, look at the advantages Trial Counsel have.  First, a totally stacked panel, in general, with at minimum implied command influence from the General (who preferred or referred the charges and convened the darn trial and ordered the panel members to that duty), and implied influence from Congress, Sec Army, and the POTUS (for sex offenses specifically).  And for sex crimes, there’s heavy brain washing on SHARP.  The responses I’ve seen grown adults give during Voir Dire (the honest ones, not the closeted hiding responses) are staggering;  I’ve heard adult male NCOs in the E8 or E9 range or senior officers of the 05 flavor say a woman cannot consent if she has a sip of alcohol.  And this panel pool is generally law-abiding individuals heavily invested in the “system” and law and order, discipline, accountability, etc.  Most are on their way to retirement and vested in the system.  Next, TCs need essentially a simple majority; need to convince only 4 out of 6 to convict, or 7 out of 10, etc.  Finally, of the dozen or so MJs I’ve practiced before, most were slanted toward the prosecution, for the same pro-military indoctrination the panel suffers from.  Not all, but most.  And some didn’t even hide it. I’d say that the conviction rate in such a system should be in the 80%+ and probably in the 90s percentile given these clear advantages.   
    If you required a unanimous vote to convict in the military, you’d dispense with the garbage cases.  These would result in administrative actions, as they should.   I won’t be shocked when Congress tries to rewrite the burden to convict in CM to a preponderance, remove the Defense counsel opportunity to Voir Dire or strike, and force the accused to testify under oath. 

  18. DCGoneGalt says:

    CD:  I think our experiences differ quite a bit, but I’ll take most military judges over the state elected civilian judges I’ve dealt with any way.  And people can complain all they want about ADCs but I will take an assigned ADC, a military paralegal, and forensic tox/psych from the military to aid me in my defense than the state public defender I may or may not be entitled to in state cases.  With that being said, I also fully understand that many people facing the risk of trial in the military wouldn’t even have had charges brought against them in the civilian sector.  
    Which is why I wish Article 32 would have been strengthened to ensure it acted as a filter to weak cases to allow commanders (and lawyers) to hang their hat on a reason for screening cases since some apparently don’t have the integrity to exercise rational judgement in the face of political pressure.  Alas, Article 32 was instead eviscerated and turned into a subway turnstile for any case the government wants to take to trial.  When a defense attorney says they are going to attack a case at an Article 32 nowadays I just picture a bull charging at a matador only to have the cape waived aside as the bull is stabbed in the back.  The next round of reforms should require preliminary hearing officers to yell “Ole!” to conclude the hearing.

  19. Joseph Wilkinson says:

    As it’s been said, it’s hard to get 6 people to agree on pizza toppings, nevermind reaching “beyond a reasonable doubt” on a criminal allegation.
    Yet hung juries are not all that common in civilian cases.  Doesn’t that suggest that the majority, or the most determined person, or the loudest mouth, is able to browbeat the minority into going unanimous?
    With that being said, I also fully understand that many people facing the risk of trial in the military wouldn’t even have had charges brought against them in the civilian sector.  
    That may be the most important protection of all in a “he said-she said” sex case, since humans in general are coin-toss bad at spotting a liar from demeanor alone.  With the best system and the best judge in the world…once you get to trial, it’s Lady-or-the-Tiger  (I would give these cases to the civilians and also require corroboration of any accusation.) 

  20. k fischer says:

    Does this victim of a false allegation tug at your heartstrings?  Because he’s like a lot of my clients.