So says Protect Our Defenders according to AP (story here). And while the folks at Protect Our Defenders apparently weren’t able to communicate how the MilJus system works to AP, see if you can spot the glaring error in the story, was the data provided to Congress about civilian declinations skewed?   POD released a report Monday allegedly debunking the military data:

The records were obtained through the Freedom of Information Act by the advocacy group Protect Our Defenders, which provided the documents exclusively to AP. Protect Our Defenders is scheduled to release a report Monday that criticizes the Pentagon’s use of the cases to undermine support for Senate legislation that would mandate a major change in the way the military handles sexual assault allegations.

Here is the POD report. I have not reviewed their analysis. But we will update with our thoughts. 

58 Responses to “Was DoD Data Used to Thwart MilJus System Changes Skewed?”

  1. Zachary D Spilman says:

    Last sentence of the AP report:

    Anybody can cherry pick cases.

  2. Zachary D Spilman says:

    From the POD report:

    Protect Our Defenders deploys a multifaceted effort towards reform. Every day, through policy reform, advocacy, public education, and pro bono support, we work to provide those who serve in our military a safe and respectful environment free from harassment and abuse, and to create a justice system that can fairly and effectively adjudicate these crimes. 

    And here I thought they were a 501(c)(3) organization.

  3. Zeke says:

    In general, no organization may qualify for section 501(c)(3) status if a substantial part of its activities is attempting to influence legislation (commonly known as lobbying).  A 501(c)(3) organization may engage in some lobbying, but too much lobbying activity risks loss of tax-exempt status.
     
    Legislation includes action by Congress, any state legislature, any local council, or similar governing body, with respect to acts, bills, resolutions, or similar items (such as legislative confirmation of appointive office), or by the public in referendum, ballot initiative, constitutional amendment, or similar procedure.  It does not include actions by executive, judicial, or administrative bodies.
     
    An organization will be regarded as attempting to influence legislation if it contacts, or urges the public to contact, members or employees of a legislative body for the purpose of proposing, supporting, or opposing legislation, or if the organization advocates the adoption or rejection of legislation.
     
    Organizations may, however, involve themselves in issues of public policy without the activity being considered as lobbying.  For example, organizations may conduct educational meetings, prepare and distribute educational materials, or otherwise consider public policy issues in an educational manner without jeopardizing their tax-exempt status.
     

    “Lobbying,” Internal Revenue Service (April 18, 2016).
     

    Whether an organization’s attempts to influence legislation, i.e., lobbying, constitute a substantial part of its overall activities is determined on the basis of all the pertinent facts and circumstances in each case. The IRS considers a variety of factors, including the time devoted (by both compensated and volunteer workers) and the expenditures devoted by the organization to the activity, when determining whether the lobbying activity is substantial.
     
    Under the substantial part test, an organization that conducts excessive lobbying in any taxable year may lose its tax-exempt status, resulting in all of its income being subject to tax.  In addition, section 501(c)(3) organizations that lose their tax-exempt status due to excessive lobbying, other than churches and private foundations, are subject to an excise tax equal to five percent of their lobbying expenditures for the year in which they cease to qualify for exemption.
     
    Further, a tax equal to five percent of the lobbying expenditures for the year may be imposed against organization managers, jointly and severally, who agree to the making of such expenditures knowing that the expenditures would likely result in the loss of tax-exempt status.
     
    Private foundations are subject to a different set of taxes on their lobbying expenditures; churches are not subject to excise taxes on excessive lobbying.
     

    “Measuring Lobbying: Substantial Part Test,” Internal Revenue Service (April 18, 2016).

  4. Zeke says:

    Protect Our Defenders Foundation is a California nonprofit Public Benefit Corporation. The Internal Revenue Service has determined that the organization is exempt from Federal income taxes as a not-for-profit charitable organization formed under Section 501(c)(3) of the United States Internal Revenue Code. The Internal Revenue Service has also determined that donations to Protect Our Defenders Foundation are tax-deductible for the donor as charitable contributions. There are no limits or restrictions on these donations.
     

    http://www.protectourdefenders.com/legal/

  5. Zeke says:

    Go ahead and complain. The Internal Revenue Service (IRS) is all ears – particularly about complaints alleging any abuse of the tax-exempt status granted to a non-profit organization. 
     
    To make a referral of an exempt organization, submit Form 13909, Tax Exempt Organization Complaint (Referral) Form.
     
    Form 13909, and any supporting documentation, can be submitted in a variety of ways: Mail to IRS EO Classification, Mail Code 4910DAL, 1100 Commerce St., Dallas, TX 75242-1198 Fax to 214-413-5415, or Email to eoclass@irs.gov. The IRS takes all complaints seriously and scrutinizes all referrals.
     
    For more information, go to: www/IRS.gov. 

     
    “Tell the IRS about Suspected Tax Exempt Status Abuses,” Internal Revenue Service (April 18, 2016).
     
     

  6. DCGoneGalt says:

    While you are 100% correct, the IRS doesn’t go after organizations that its political leadership agrees with.  You’ll have to settle for inoculating yourself with truth and mockery against the POD-People.
    POD People:  From the movie Invasion of the Body Snatchers.  A nomadic, parasitic group of aliens from a dying planet with no regard for the destruction they cause or the resources they drain whose sole purpose in life is to perpetuate their own survival.
     
     

  7. Alfonso Decimo says:

    DC: After the IG, the DOJ, and Congress found no evidence the IRS had political motivations for 501(c)(3) and 501(c)(4) scrutiny, the House Oversight Committee still forced the IRS to spend tens of millions of dollars on overly broad document requests. I don’t think we should pile-on the daily beat-down our Executive Branch workforce endures from Congress. As for the Protect Our Defenders organization, I suspect they have sufficiently savvy legal advisors who keep them w/in the bounds of their tax status. I think you bloggers have strayed a little from your generally righteous path with this particular string. 

  8. DCGoneGalt says:

    I almost shed a tear for the starry-eyed idealists of the IRS.  #Jk,lol.

  9. stewie says:

    My read of that report is it’s cherry picking of stats and facts to spin up the most negative possible viewpoint.  Now, is there probably some spin in the military’s version of reality? Sure. But the truth is probably somewhere in the middle, and my own personal experience supports that. We definitely took cases the civilians didn’t even want to investigate.  Some went to trial, some were investigated and dropped, and some were pled out (or pleaded out if you prefer).

  10. DCGoneGalt says:

    stewie:  Anyone who has practiced with military justice for more than a few years would seemingly have the same opinion.  While there may be exceptions, and incomplete/incorrect sexual assault information in the databases the Pentagon pulls their “facts” from, an honest person wouldn’t be able to credibly dispute that the military routinely takes forward cases the civilians wouldn’t give a second look at.  If you can practice military justice for decades and assert, honestly or not, that the military doesn’t do this not then, to rip off Jeff Foxworthy, you might be a POD Person.

  11. Lieber says:

    What Stewie said.  DCGoneGalt, sure.  But with that said, there aren’t any databases they could pull this info from.  At least in the Army, this info was collected via data calls.  And due to the PCS cycle, you’re relying upon memories of what happened in a case or trying to reconstruct what happened from whatever was left on the share drive by the CoJ’s predecessor.  So, yeah, there are going to be inaccuracies.  I’ve responded to any number of data calls over time (not all of them MJ related) and it works like this:
    congressperson or media person ask non-lawyer G/FO or PAO something.  PAO asks TJAG or SJA, depending, for the answer.  Data call goes out to FGs at whichever section or sections seem relevant.  FGs then ask CPTs to try to come up with the best approximation, which usually means reconstruction (if the data call is for something downrange then it usually means wholesale reconstruction).  the answer is then briefed back up the same what it came down.  Of course the question and answer will have changed somewhat during that process for various reasons.  then the G/FO giving the response to the congressperson or media person won’t be a lawyer and so forth…
    you’ll always be able to nitpick the accuracy of any statement made as a result of that process.  

  12. Mitch says:

    I can see how a layperson would read this report and think it’s worth the paper its written on.  Of course the military isn’t going to track every civilian case.  Most likely we’ve adsep’d the accused NLT the civilian preliminary hearing.  That analysis by POD is just one of many instances where they clearly lack an understanding of how our military justice system works.  No, the military is not “leaving dangerous offenders in its ranks.” 

  13. Advocaat says:

    I’ll keep looking for POD to debunk the 20K +/- incidents of sexual assault a year myth.  I suppose cherry conflation is acceptable?

  14. stewie says:

    Mmmmm…cherry conflation!

  15. stewie says:

    Well, to be fair, our sex assault process is akin to Aquafresh toothpaste, it does the job, but just barely.

  16. Alfonso Decimo says:

    Lieber has it right about the data calls substituting for accurate databases. In my experience years ago, the existing databases could not be reconfigured to spit out the very particular data-call flavor-of-the-month for Congress. We’d do a field data-call, then compare our numbers to the other services and other comparators to judge whether they were reasonably accurate. I understand we have better systems now, but the public doesn’t really want to know how we made the sausages back in the day!

  17. k fischer says:

    I would imagine that civilian jurisdictions are similar to SVP’s.  A few take cases that Simple Jack would know is bs for agenda driven or political reasons(like Mike Nifong), the vast majority are trying to do the right thing and take cases that have merit even when they are tough, and a few only take clear winners, leaving victims believing the system does not take care of them.  But, if I were a civilian prosecutor in charge of prosecuting a sexual assault allegation by one Soldier against another Soldier off post, and the SVP told me that the Army would court-martial him, then I would not hesitate to the let the Army prosecute.  The Army would have a far greater interest in the outcome than I would in that situation.  That is not an indictment of civilian prosecutors, nor is it something that the military should brag about.  Typically, it is a coordinated effort between the DA and the SJA’s office. 

  18. stewie says:

    well kf I’ve seen civilian jurisdictions mock an alleged victim openly, and arrest another one unfairly. I’ve seen an open and shut child molestation case sit for a year waiting for the civilians to do something before we finally took it.  I’m sure it’s a mixed bag, but I’m also sure there’s validity to what the DOD reported here too.

  19. k fischer says:

    Well Stewie, why did you wait a year to prosecute a Soldier for a child molestation case that was so open and shut?

  20. Weirick says:

    Assuredly the tax status of Protect Our Defenders will satisfy Senators Gillibrand and Grassley. This is clearly an IRS issue.  Nothing more to see in this story.
    http://wqad.com/2016/04/19/senator-chuck-grassley-calls-on-obama-to-investigate-sexual-assault-cases/

  21. stewie says:

    Because the civilians didnt’ release jurisdiction for that time period and we don’t tend to charge ahead when the civilians nominally say it’s still theirs.

  22. That Guy says:

    My problem is AP story and Protect our Defenders portray the Staff Judge Advocates as independently getting these cases from civilian prosecutors and that the commanders are just playing backgammon. I have seen coordination between SJAs and their GCMCA on these types of cases. There appears to be a fundamental misunderstanding of the relationship between SJAs and GCMCAs by elected officials. There aren’t rogue prosecutors chasing sexual assault cases on the footsteps of civilian courthouses, acting without care or without their commander’s intent.   The TCs caseloads are heavy enough, they don’t need to ambulance chase more cases.  Rather commanders want cases for the good order and discipline of a unit. They don’t want a bright line inability to prosecute alleged misconduct merely because it occurred off post. Alas, let us not think critically on stories that support one’s personal view of the world.  Sometimes I feel like I am surrounded by people taking crazy pills.

  23. Zachary D Spilman says:

    Alas, let us not think critically on stories that support one’s personal view of the world.  Sometimes I feel like I am surrounded by people taking crazy pills.

    My thoughts exactly.

  24. k fischer says:

    That Guy,
     
    POD’s problem with McCaskill is that she pushed a narrative that JAG’s are spineless cowards who don’t want to take tough cases out fear they will lose.  She says she’s seen it when she was a prosecutor.  She said that in 93 cases, JAG’s said “don’t refer, Sir,” but the brave Commander disregarded the JAG’s advice and referred anyways, so the victim saw their day in Court.  I think that narrative by McCaskill is disingenuous and POD called her out on it.
     
    Stewie, I will assume that the State in which this case occurred had a double jeopardy law that prevented the State from taking jurisdiction if the military already prosecuted, so you did not have a bright line concurrent jurisdiction.  In that case, I would have waited for the civilians, as well, so we could have gotten a second bite at the apple if the civilians screwed it up, rather than limit the accused to one prosecution under the UCMJ in case the TC screwed it up.

  25. The Silver Fox says:

    Exactly, k fischer!  I’m glad someone here sees that POD is defending JAGs.

  26. stewie says:

    I have no idea if the state had a double jeopardy law, I suspect not since why would they? However, Army policy is to generally not try a case that the state is actively working.  Once the state, finally, made the decision to not go forward, we did, and while I PCS’d before the completion I believe I recall it went well for the government.  We weren’t waiting to get a second bite, we were complying with the policy which says we don’t ordinarily get a bite if the state is actively chewing.

  27. k fischer says:

    Stewie,
     
    Washington has, or had in 1996, a law that prohibits prosecution of an accused for crimes in which the military or another sovereign has already exercised jurisdiction.  In fact, this law prohibited prosecution of a DUI in state court where two sailors received a previous Article 15 for the DUI.  So, if this incident occurred at Ft. Lewis, then I would understand why you would want to hold off on prosecution and allow civilians to draw first blood because if the accused faced court-martial and was acquitted, then the State of Washington could do nothing to him.  Of course, after about a year of a child molester being in the unit, Commanders get somewhat impatient and want the guy gone.
     
    The purpose for such laws is that some people believe that double jeopardy prohibitions should extend to prosecutions by different sovereigns.  Despite having argued successfully against a MTD for double jeopardy in US v. Tillery where Tillery had been acquitted of murder by the State of North Carolina, I can understand how some may support such a law like the one in Washington State.  And, if you are an unreformed Government hack who ascribes to the Blondie theory of prosecution, then you might have appreciated the fact that the double jeopardy in the US Constitution does not apply to prosecution amongst different sovereigns.

  28. k fischer says:

    SF,
     
    I would also go as far as to say having military prosecutors making charging decisions on 120 offenses could be more fair for the accused who also defend this nation.  POD seems to have been created to be a victimcentric organization, but could easily be an organization that wants UCMJ reform to protect both victims and the falsely accused.  Aren’t both parties “Defenders?”. I’ve defended falsely accused Servicemen who, while flabbergasted by how easily their case makes it to a GCM or they remain in jail or a suspect of a crime, abhor sexual assault and care about the rights of women who actually are victims.   

  29. The Silver Fox says:

    The preferral/referral charade needs to end for all crimes, or, at least for felony-level crimes.  JAGs should make and execute charging decisions, we should have juries selected at random, judges alone should sentence based on guidelines, and the CCAs ought not have factual sufficiency power.  After these changes, then the civilians we serve to protect, the victims of all crimes, and the accused we take to trial may take  our system seriously.  

  30. Advocaat says:

    SF, I always enjoy your point of view but is our federal system to be taken seriously when 98% or so of the cases are guilty pleas?

  31. Zeke Kennen says:

    If we were to require unanimous verdicts and a court-martial panel of sufficient size that it would be able to overcome the individual biases of its members, to have a sufficient number of people that between them all they will have remembered all of the important facts and judicial instructions (including the various “curative” instructions and rulings on objections that are given from the bench throughout trial that aren’t memorialized in a written final instruction), then I would agree with all of The Silver Fox’s recommendations.  But, without unanimity and a requirement for sufficiently large panels, I think we still need factual sufficiency review power at the CCA as a check on a system that would otherwise lack sufficient reliability at the trial level to constitutionally deprive a person of their liberty.  
     
    The fact that CCAs have so readily had to use their factual sufficiency power to correct erroneous convictions is proof, I think, that the trial level verdicts our system renders are insufficiently reliable.  
     
    Sending a person to jail, giving them a federal conviction, and requiring them to suffer the collateral consequences of such a conviction because as few as two people think he or she is guilty is insufficient due process given the liberty interests at stake.  At least with our current system, if there is a sufficiently high sentence in the case, the government has to convince a minimum of four other human beings that the accused did what the government says they did (a minimum of 2 panel members at a special court followed by a minimum of 2 CCA judges).  That’s, I think, the bare minimum.  I’m a little skeptical that’s constitutionally sufficient, to be honest.

  32. The Silver Fox says:

    I would tend to agree with unanimous verdicts, but I do think GOaD would be disrupted with hung juries.  So, a compromise has to be made, and I don’t think it’s a constitutional issue given U.S. v. Easton.  As regards the feds and the 98% guilty-plea number that was thrown out there, two things:  1) I don’t know if that number is accurate, and, 2) even if it is, it is because the feds get to pick and choose cases and, typically, they only pick winners.  So, to circle back to k fisher’s earlier point, it is actually federal prosecutors, not JAGs, that fear losing cases, Sen. McCaskill. 

  33. Concerned Defender says:

    Zeke Kennen says:
    April 20, 2016 at 7:58 PM  
     

    If we were to require unanimous verdicts and a court-martial panel of sufficient size that it would be able to overcome the individual biases of its members, to have a sufficient number of people that between them all they will have remembered all of the important facts and judicial instructions (including the various “curative” instructions and rulings on objections that are given from the bench throughout trial that aren’t memorialized in a written final instruction), then I would agree with all of The Silver Fox’s recommendations.  But, without unanimity and a requirement for sufficiently large panels, I think we still need factual sufficiency review power at the CCA as a check on a system that would otherwise lack sufficient reliability at the trial level to constitutionally deprive a person of their liberty.   The fact that CCAs have so readily had to use their factual sufficiency power to correct erroneous convictions is proof, I think, that the trial level verdicts our system renders are insufficiently reliable.   Sending a person to jail, giving them a federal conviction, and requiring them to suffer the collateral consequences of such a conviction because as few as two people think he or she is guilty is insufficient due process given the liberty interests at stake.  At least with our current system, if there is a sufficiently high sentence in the case, the government has to convince a minimum of four other human beings that the accused did what the government says they did (a minimum of 2 panel members at a special court followed by a minimum of 2 CCA judges).  That’s, I think, the bare minimum.  I’m a little skeptical that’s constitutionally sufficient, to be honest.

    Bravo and well spoken. Fully agree.  The biggest and perhaps most important change would be unanimous verdict, 6 member SPCM and 12 member GCM, or something of that flavor.  That is the weak part in the chain and it self-corrects a lot of the other nonsense. 
    The other component is to obviously make lawyers the ones making the charging decisions, not non-legally trained Commanders.  WTF would you have non-subject matter experts driving the decision making.  Perhaps have a handful of 1 star JAGs have the GCMCA authority, rather than the base commanders who are running a military mission, not a DAs office.  These JAGs perhaps handle regions so they are not emotionally vested.  More time and legal experience is committed on these very serious legal decisions.
    Currently the SJA spends what, a couple hours per week in the CG meeting (which is routinely bumped).  I’ve seen CGs make life altering charging decisions or separation decisions in a 5 minute review of the file.  That is an embarrassment to due process. 
     
     

  34. k fischer says:

    Silver Fox,  what does unanimity in a guilty verdict have to do with a hung jury?  If a hung jury will disrupt GOaD, then set the arbitrary 2/3’s to convict to unanimous.  If they aren’t unanimous , then the accused is acquitted.  Both can equally coexist. Then and only then would I consider FI be removed.  Plus, it will help people like Steele who don’t math well.

  35. The Silver Fox says:

    That’s not how unanimous verdicts work.

  36. DCGoneGalt says:

    k fischer:  If it ain’t unanimous to acquit or convict, then it’s hung.  That would be very disruptive because I honestly see most cases ending in hung verdicts.  I think/hope an 8 (SPCM) / 12 GCM split with 6 / 9 (or even 7/10) required for conviction accomplishes the safeguards necessary to avoid the factual sufficiency issues we have seen in the appellate process.

  37. k fischer says:

    DCGone Silver Fox,
     
    Does the military require a 2/3’s vote of not guilty for an acquittal?  No.  Why?  So there won’t be a hung jury b/c hung juries are disruptive.  So, the military requires a 2/3 vote for guilty, and if not, then the accused is acquitted.  In exchange for a non-unanimous guilty verdict, perhaps the military allows the CCA to review a verdict for factual sufficiency to help ensure that an innocent man is not sitting in jail.
     
    Nothing prevents a rule that says instead of 2/3’s to convict, a panel must be unanimous, otherwise the accused is acquitted….well, other than the argument, “that’s not the way the civilians do it” and “but…but….but, a guilty person might go free.”
     
    I am simply stating that if you are worried about hung juries and the disruption of countless retrials, then make the 66.6% to convict a 100% vote of guilty, and if not, then acquittal.    

  38. The Silver Fox says:

    Spoken like a true criminal defense attorney.

  39. k fischer says:

    Why thank you, Silver Fox.  That’s the most complimentary thing anybody has ever said to me, my sweet soft Hungarian devil.

  40. The Silver Fox says:

    Tombstone reference!  Slightly creepy, but A+ for taste in movies.

  41. Zachary D Spilman says:

    k fischer presents a good opportunity to highlight this excellent law review article:  Alexander Volokh, n Guilty Men, 146. U. PA. L. REV. 173 (1997) (available here).

  42. k fischer says:

    SF,
     
    It was a line that tied in your moniker, which is the name of a Broadway play, “The Silver Fox” with an Airman named Major Christopher Stanley who was in love with another woman, herself the victim of a loveless marriage.  The play was adapted from a play by the Hungarian playwright Ferenc Herczeg.  It ran on Broadway circa 1921
     
    Sounds like an Air Force sexual misconduct case, except that Maj. Stanley would have been prosecuted for rape when Helen Quilter’s husband found out about the affair.
     
    This is where you got your name, right?

  43. The Silver Fox says:

    Why, yes it is, k fischer.  

  44. Lieber says:

    I’m pretty sure our O-6 panel presidents know how to get unanimous verdicts.

  45. Joseph Wilkinson says:

    The other component is to obviously make lawyers the ones making the charging decisions, not non-legally trained Commanders.  WTF would you have non-subject matter experts driving the decision making.  Perhaps have a handful of 1 star JAGs have the GCMCA authority, rather than the base commanders who are running a military mission, not a DAs office.
     
    But lawyers are not experts on discipline, at least not particularly.  Commanders are.  Deciding when Soldiers need CM versus something less for a discipline issue is very much within the commander’s expertise, and just as importantly, within his responsibility.  If the troops go to war and don’t maintain discipline, the commander gets the blame…so he must have control over the tools of discipline. 
     
    But, you might protest, civilian felonies like rape and child molesting are not primarily about discipline.  If so, I agree.  The solution is to take those crimes out of military justice completely and give them to a real DA’s office.  In fact, if you have a group of senior JA’s whose job is to charge cases without being subject to a commander’s orders….they are <I>de facto</I> civilians regardless of what clothes they wear. 

  46. Concerned Defender says:

    It’s not the first time it’s been proposed to remove non-military specific crimes, which don’t impact GOAD, from the UCMJ.  That would never fly though so it’s nearly pointless to consider.   The military wants more, not less, power and jurisdiction.

  47. Zeke Kennen says:

    If it ain’t unanimous to acquit or convict, then it’s hung.  That would be very disruptive because I honestly see most cases ending in hung verdicts.  I think/hope an 8 (SPCM) / 12 GCM split with 6 / 9 (or even 7/10) required for conviction accomplishes the safeguards necessary to avoid the factual sufficiency issues we have seen in the appellate process.

     
    I agree DCGG.  And, I agree with the sweet soft Hungarian Devil (“The Silver Fox“) that unanimity is not constitutionally required.  Ballew (435 U.S. 223, oyez) and Burch (441 U.S. 130, oyez) make that pretty clear.  Indeed, Ballew and Burch make clear that a 12 member jury is not constitutionally required, either.  Some number less than that would also satisfy the constitution.  What is required is that those two factors be balanced in a manner sufficient to ensure due process of law under the Fifth Amendment.  In the civilian context, the balance of panel size and unanimity (or the lack thereof) must also be balanced to ensure that the right to a jury under the Sixth Amendment is observed, but that’s irrelevant for the military jurisdiction.  Here, we’re only concerned with making things sufficient reliable to satisfy the Fifth.So, in balancing panel size with the quorum required to convict, I think DCGG‘s suggestion of requiring a concurrence of 9 out of 12 members for a GCM to convict, and 6 out of 8 members for a SPCM, would be constitutionally sufficient.  The Supreme Court in Ballew said that the question of whether the right balance has been struck between the two factors – quorum and panel size – is always “a close one.”  But, it is the quintessential question for any jury-style justice system to answer.  As CD said, it is “the weak part in the chain and it self-corrects a lot of the other” concerns.  In my view, the current system, allowing 2 out of 3 for a special court and 4 out of 5 for a general court is insufficient.  I think a 3 of 5 member panel has too few members to be sufficiently reliable to deprive a person of their liberty, even if it were required to be unanimous.  I think that because the Supreme Court, in a unanimous decision, said so in Ballew, oyez.

  48. Former SJA says:

    Interesting sexual assault data report released earlier this week by the JPP:  http://jpp.whs.mil/Public/docs/08-Panel_Reports/05_JPP_StatData_MilAdjud_SexAsslt_Report_Final_20160419.pdf

  49. stewie says:

    Why are commanders inherently better at discipline again? JAGs certainly deal with it way more over the course of 20 years than any one commander does. Methinks there is somewhat of a mythos operating here. A necessary one perhaps, but one nonetheless.

  50. Observer says:

    Like most trial counsel, I prosecuted cases at court-martial based on incidents involving servicemembers in the local community, and were not taken by the local DA.  The last one I can remember, the DA declined based on lack of corroboration.  But I was a junior TC and wasn’t in that meeting, I never saw documentation of it, and I am almost certain that at least of the time in the Navy, there was no formal process. It was probably a phone call involving the DA’s office and the SJA/Senior Trial Counsel, who likely discussed the case the way lawyers do off the record, “DA: this is a #$% case, we don’t think we can win.  But I understand if you want to take it, this guy is bad news, and you might be able to prove it.  SJA/TC: yeah, it’s a tough case, but we think it’s worth a shot.”  And then maybe that was it?  Then when POD does their request, years later, there won’t be any record that the DA “declined” the case.  The Navy took it, and there’s no real record of what happened.  Couldn’t that explain some of the issues in this report?

  51. k fischer says:

    Stewie,
     
    Commanders are more effective at proactive measures to enforce good order and discipline, and JAG’s are better at reactive measures of enforcing good order and discipline.  So, for instance, an Infantry Commanders are less likely to understand the battlefield of the courtroom better than a Judge Advocate, just like an Infantry Commander has no business making medical decisions in a hospital. 
     
    So, when a Commander wants to Court-martial an Airman for, let’s say, hypothetically, enticement of a child and attempted sexual assault of a child who is actually an undercover OSI agent, but the OSI agent entrapped the Airman who had no predisposed attraction towards underaged females, then how is good order and discipline going to be affected if he is acquitted and he comes back to the unit?  I think a JAG would be in a better position to judge the merits of the case and determine whether or not the Airman will be convicted and whether or not the Airman’s Chapter 4 submission should be approved.  Because the last thing that a Commander wants is for that Airman to return to the unit and every other Airman sees that he beat the charges.  The Commander might want the Airman to be convicted and get jail time, but if there is substantial risk involved with making that happen, then a lawyer would be in a much better position to determine whether or not the Chapter 4 would be a good disposition that meets the interests of both parties.
     
    Former SJA,
     
    That is an interesting study.  What I find most troubling is that the report contained no analysis regarding false allegations and the rights of the accused.  I searched for “false” “wrongly” (for falsely or wrongly accused or false allegations) as well as “constitution” (for comment on the accused’s constitutional rights) and I found nothing in the 133 pages.  It appears that the JPP does not give a rats behind about the plight of the falsely accused, but rather, cares only about obtaining convictions and minimum sentences.
     
    The report at appendix A shows a decreasing conviction rate and an increasing rate of sentences that include no confinement.  That’s kind of an odd relationship.  On the one hand your conviction rate is decreasing, yet, on the other hand, for the convictions you do get, you can’t get any jail time.  I would imagine that a very poignant study relevant to today’s feeding frenzy on sexual assault prevention would be to try to figure out why this is occurring so we don’t waste taxpayer’s dollars on frivolous politically motivated sexual assault prosecutions that result in an acquittal, collateral damage to the falsely accused, and allow liars to hijack our system of military justice just so they can get custody of their child, VA disability, satisfy their vindictive motives because their husband of three weeks wants a divorce or their platoon mate made fun of them failing out of WLC, explain their adulterous actions, explain to their parents why they might be pregnant out of wedlock, get transferred to a different post across the country closer to home, or say that they were too drunk to consent, so they won’t look like a harlot.  (These are just a few motives to fabricate I’ve personally dealt with in cases just off the top of my head.)  It seems like this report is geared towards making the system tougher for accused, rather than protecting their constitutional rights or looking for the true reasons why a panel would convict someone of rape, then sentence them to no jail time.  Some simple explanations are that they had reasonable doubt, but they felt inherent UCI to convict, and now they feel guilty about it, so they give him no jail time.  Or, maybe they don’t like the guy because he is just generally creepy and don’t want to acquit him and send him back to the unit, so they use the Court-martial to avoid an admin sep, wrongly convict him, then give him a punitive discharge with no confinement.  But, how do you quantify this without polling the panel who does such a thing?  You can’t. 

  52. Philip Cave says:

    Couldn’t that explain some of the issues in this report?

    Yes.  Making policy off cherry-picked information is not good policy.

    The report at appendix A shows a decreasing conviction rate and an increasing rate of sentences that include no confinement.  

    Isn’t this in some way evidence of over-criminalization and BS going to trial to satisfy politicians?  Of course that’s just my incredibly cynical opinion.  And the politicians and advocates then spin that as the military not being responsive enough, and the circle — 

    Will the circle be unbroken

    By and by, by and by?

    Is a better home awaiting

    In the sky, in the sky?

    And see, http://www.jqpublicblog.com/air-force-sapr-fails-volume-one/

  53. Former SJA says:

    KF: I don’t read the bias in this report that you do.  The report also provides acquittal rates for cases that were tried at court-martial: 29% for penetrative offenses (42% if you add cases where the only conviction was on non-sex charges) and 20% for contact offenses (61% if you add cases where the only conviction was on non-sex charges).  For cases that were contested, the report says the acquittal rate was 61%.  Are these rates “good” or “bad”?  That’s subjective, but it is nice to see actual data.  The contrast between the increase in no-confinement sentences and decrease in convictions that you describe is also interesting, and I don’t think that relationship is odd.  Given the current environment and increasing number of cases that are going to court-martial, it’s not surprising.

  54. k fischer says:

    The contrast between the increase in no-confinement sentences and decrease in convictions that you describe is also interesting, and I don’t think that relationship is odd.  Given the current environment and increasing number of cases that are going to court-martial, it’s not surprising.
     

    FSJA, I’m assuming that you agree with Phil’s assessment above by this comment.  The JPP’s failure to address this issue shows the bias to focus solely on the failure of the UCMJ to produce convictions for each of the 4k+ assault allegations that are made each year.  However, I think the real story told by these statistics is that false allegations and bs prosecutions are occurring at an alarming rate in today’s military.  However, when you are trying to shape policy to toughen up the UCMJ to ensure convictions, then you certainly would not want to highlight this issue, which in my opinion is evidence of bias.

  55. Philip Cave says:

    KF, I also searched for “unsubstantiated.”
     
    Many interesting comments and points in the document.
     

    Without knowing more about the facts of individual cases, the JPP [Congress] cannot assess the appropriateness of case disposition decisions. Specific factors in each case, including the nature of the offenses, any mitigating or extenuating circumstances, the willingness of a victim to testify, and the strength of available evidence, affect disposition decisions. It is neither possible nor appropriate to make collective assessments based solely on the general nature of charges and the forum for disposition. 

  56. Philip Cave says:

    And, Congress:
     

    In their testimony to the JPP, victims’ rights advocates and career prosecutors suggested that case outcomes are not a fair or effective means of gauging the effectiveness of the justice system.
     
     The JPP agrees that without knowing more about the facts of individual cases and the judicial proceedings involved, it is not possible to assess the appropriateness of the outcome of case adjudications. 
     
    The JPP shares the perspective of a criminologist who observed that “it’s very difficult even to compare outcomes across jurisdictions in the civilian system because they vary so much on many, many dimensions.”
     
    Table 11. Bureau of Justice Statistics Data from State Courts in Large Urban Counties (May 2009) Cases involving an arrest charge of forcible rape
    Overall conviction rate for any offense 68%
    Conviction rate for rape 35%
    Acquittals 3% Dismissals 24%
    Sentence included confinement 89% (5% in jail)
    Mean confinement sentence 142 months
    Jurisdiction-specific research provides a wealth of detail about the criminal justice process and informs our understanding of the complex nature of sexual assault crimes. Experts explained, however, that the results from one jurisdiction may not be generalizable or applicable to another jurisdiction, and they emphasized the difficulty of obtaining nationally representative data in order to conduct a comparative study.
     
    Limited national data and systemic differences between the military criminal justice system and other civilian systems make comparisons of civilian and military punishments in sexual assault crime convictions inappropriate. 
     

    Assessment–Nobody has any idea of what really is going on–IMHO.

  57. Joseph Wilkinson says:

    It’s not the first time it’s been proposed to remove non-military specific crimes, which don’t impact GOAD, from the UCMJ.  That would never fly though so it’s nearly pointless to consider.
     
    But it has flown before….in fact it was the law for a long time, pre-UCMJ, at least for rape and homicide that occurred peacetime stateside.   (There was also a judge-created rule of “service connection” later on, but that did not work so well because it was a case-by-case determination instead of a bright-line rule.)   I like solutions that have been tried and worked.
     
    I worry because a lot of reform proposals I see seem designed to make the military prosecution function de facto civilian to do a better job on the rape cases…and forget the central, and necessary, mission of military justice in the process.
     
    Why are commanders inherently better at discipline again? JAGs certainly deal with it way more over the course of 20 years than any one commander does. Methinks there is somewhat of a mythos operating here. A necessary one perhaps, but one nonetheless.
     
    Well, I notice when I bring up an anecdote about a serious discipline issue in a combat zone, even very experienced lawyers have trouble seeing the issue; no commander would.  
     
    After four years of university and three years of law school, lawyers have their own priorities — fighting the Patriarchy, fighting the Invisible War, Saving the Planet or what have you…and some I’ve met seem to be fighting private wars of their own based on That Case They Should’ve Won.  And some are terrible know-it-alls. But in the Army at least, the bulk of the lawyers have never led troops nor ever been troops (I certainly do know some excellent exceptions).  
     
    In the military, we lawyers see only a little sliver of the whole picture that is “leadership and discipline.”   We do our part well, surprisingly well all considered, but shouldn’t mistake it for the whole.
     
    Also, on top of the “competence” issue, there is the “responsibility” part, which is at least as important…and here I agree with you, that a little “mythology” is necessary.  If a commander’s troops break under fire, or mutiny, he’s going to be treated as a failure for not having them in a state of discipline.  As long as he has the responsibility, he should have the rights to go with it.
     
    It’s a terrible idea for the commander to be stuck saying, “I tried to have the wrongdoers punished, but the JA’s didn’t want to.”  If he’s responsible to carry them through life or death situations, he ought to have the power to make sure they’re trained and disciplined enough to do it.  The commander’s orders are ultimately enforceable only through MJ.  Let an independent JA control MJ, and the commander can only enforce his orders if the lawyers feel like letting him.  Then whose fault is the disaster?