Marine Major Mark Thompson, who faces new charges (discussed here) after he invited the Washington Post to look into his court-martial conviction (discussed here), elected to not participate in the Article 32 preliminary hearing in his case yesterday.

The Marine Corps Time reports (here) that:

Kevin McDermott, the civilian lawyer for Marine Corps Maj. Mark Thompson, called the hearing at Quantico Marine Corps Base a “show trial.” After Thompson was advised of his rights, he and his lawyers walked out of the hearing, making themselves “voluntarily absent,” in military jargon.

Additionally, the Washington Post reports (here) that:

Marine Maj. Mark Thompson’s friends warned him to leave his case alone. But he couldn’t, a fellow Marine later told investigators.

The former U.S. Naval Academy teacher was fixated on proving that he had been unfairly convicted in 2013 of having sex with two female midshipmen. So he brought his allegations of injustice to The Washington Post — a decision that led to revelations in the case and serious new charges against Thompson.

“I knew it was stupid. There were people who tried to talk him out of the Post article, but he wouldn’t hear it,” Maj. Michael Pretus told investigators in a recording played Friday at Thompson’s preliminary hearing in Quantico, Va. “He was on an obsession course. You couldn’t get him to talk about anything else.”

Yesterday, of course, was Friday the 13th.

50 Responses to “Major Thompson skips his Article 32”

  1. afjagcapt says:

    I’m open to other opinions, but looks like posturing for the future panel to me.

  2. Lone Wolf says:

    I don’t see how this helps with a future panel. If they think it’s unfair shouldn’t they participate so they can challenge it later? 

  3. Bill Cassara says:

    There are many sound tactical reasons for such a move. Kevin McDermott is no dummy. I am sure he has good reasons.

  4. Charlie Gittins says:

    I walked out of one once with my client when after every objection the IO had to take a break to “consult with her legal advisor.”  If she wasn’t up to the task, why appoint her.  And she was a judge advocate.   I told “it was clear [she] had no clue what she was doing and we waive the hearing.  Good day.”  Got up and left.  MDW at Fort McNair.

  5. Outlaw Biker says:

    Always sound strategy to advise, counsel, or allow your client to walk out of a hearing he was ordered to attend.  Wonder what would have been the response if LtCol Subervi had ordered Maj Thompson to sit down, as should have happened.  There is no right to “waive” your appearance at a probable cause hearing, any more than there is a right to waive the hearing itself.  Wonder what his defense to the additional charge of Art 86 will be?  

  6. k fischer says:

    OB,
     
    I don’t know if the Navy instruction is similar to the Army Regulation, but in the Army, an accused can waive appearance at an Article 32 hearing and is entitled to be present if he does not waive the Article 32 hearing.
     
    AR 27-17
     
    d. Accused. The accused has a right to waive an Article 32 preliminary hearing. If the hearing is not waived, the
     
     
     
    accused is entitled to be present throughout the duration of the proceeding.
     
    So, if there is a similar NAVINST, then I think that ordering Maj. Thompson to sit down at a hearing he has a right to waive and has a right to be present at if he does not waive, which to me indicates he has a right to walk out and not be present, would be an illegal order.  But, I wouldn’t be surprised if an Article 86 spec showed up on the charge sheet considering how military prosecutors like to take a perfectly clear conspiracy and perjury case and muddy it up with appellate issues involving a gray area charge.

  7. k fischer says:

    ALNAV 86/14:
    (5)  Presence of accused.  The further progress of the taking of evidence shall not be prevented and the accused shall be considered to have waived the right to be present whenever the accused:          (A)  After being notified of the time and place of the proceeding is voluntarily absent;
     
    I don’t think the Accused has an obligation to be present at the hearing.  This appears to indicate that he can waive his right to be present at the hearing by voluntarily absenting himself from the proceeding.  The convening authority can still hold the hearing, so the accused’s waiver doesn’t mean that the hearing won’t be held, but that says nothing of his right to appear.

  8. Outlaw Biker says:

    Accused can request a waiver, as happened here.  Request was denied.  It’s not a right.  After that, the accused can be required to be wherever the officer who convened the Art 32 preliminary hearing wants him to be.   If he wasn’t ordered to be at the hearing, then of course he can walk if he wants.  Ordering his presence prevents any serious litigation over whether addtional charges recommended by the PHO, based on evidence adduced at the hearing, complied with paragraph (f) of section 832 of the statute.  Thus the PHO might have wanted to create a record of the accused being advised and understanding the consequences of his absence as a knowing and intelligent waiver.  Best practices here, people.  That’s all we’re talking about.  Lawyers can thereafter choose to be jackwagons all they want.  Emotionally immature disrespect for the process (“show trial”) does nothing to improve this accused’s position.

  9. stewie says:

    OB, you’re wrong. Just admit it now before you triple down. kf just listed the relevant part…granted you two posted simultaneously so you may have missed it. There is a right to waive, and the PHO has no authority over the accused, just the proceeding. As noted by others, if he leaves or doesn’t show up, the hearing goes on. If he waives, the hearing does not happen. That’s the “tactical” difference folks are talking about between the two choices.

  10. Vulture says:

    How is it that it took so long for something like this situation with Major Thompson to come up?

  11. Alfonso Decimo says:

    So, the title to the post, “Major Thompson skips his 32” is inaccurate. He didn’t “skip” it, he appeared with his lawyer and waived his right to be present. What is this, the New York Post?

  12. stewie says:

    Other than the initial rights reading, he skipped the hearing. I don’t think it’s inaccurate.

  13. Outlaw Biker says:

    Stewie,  Sorry, but I’ve never seen a right to waive in writing.  There is no right waive in the Navy or the Marine Corps, unlike the Army provision referred to earlier.  As I mentioned earlier (tripling down here), if the CA directed the accused to be present, to what could he point as a defense to a UA charge for walking out during the proceedings where his presence was directed?  The fact that the hearing can continue in his absence is not the same as a “right to waive.”  It is merely a government authority to proceed and use the results as validly as if he had attended.  You may gloss over that and say that practically speaking, it’s the same thing, since CAs have traditionally not required it.  But you missed the significance of my hypothetical.

  14. k fischer says:

    OB Bro,
     
    I admit when I am wrong on occasion, which is rarely because I am so brilliant, not to mention humble.  But, I know that I am right when Stewie comes to my defense.  Of course, there is a first time for everything, so Stewie and I could be wrong at the same time and we have chugged on down to mamby pamby land like a couple of jackwagons and have become overconfident…….
     
    I can think of on example of why he might want to leave with his attorney.  What if he had a civilian attorney who was charging by the hour?  Why wait around for a hearing that has a predetermined result and run up your client’s fees?  Particularly if it’s not like his presence would do anything of value under these circumstances?  Why pay me for a “show trial?”  I wouldn’t call that an emotionally immature reason for leaving.  And, it might do nothing to improve this particular accused’s position, but I also don’t see how it hurt his position or how his presence would have improved his position.

  15. stewie says:

    Can you point me to where “the CA directed him to be present?” He literally cannot do that, because he has a right to not be present, and can clearly waive it. I’m not missing the point of your hypo, I’m thoroughly discounting the premise of your hypo. A 32 is not a trial. The accused doesn’t have to be at one, can leave it, can waive it.

  16. MMQB says:

    OB, I’ve been doing military justice for about 17 years now, and I’ve never heard of the scenario and interpretation of the law/rules you offer; I myself have been an IO (PHO) about two dozen times and I’m pretty certain I’ve advised the accused he had a right to the 32 investigation/hearing, and that he could waive it if he wanted to. I’ve also read the in absentia warnings as an IO/PHO/MJ countless times, advising an accused that he had a right to whatever hearing we were discussing, but that if he voluntarily absented himself after it began, it could continue in his absence, through sentencing if it were a court-martial. I never once in my career considered that I could “order” any accused to not waive his rights to be present, to not leave, or to be somewhere, etc. That’s the command’s responsibility, if they think it’s a legal order. If an accused purported to walk out during his court-martial, I would take him through the various rights and in absentia advisements again (only to protect the record) and if he persisted in wanting to waive his right to be present, I’d welcome him to pound sand.  But I wouldn’t order him to do anything; I don’t know that it would be a legal order, and I wouldn’t want to get reversed by a paternalistic CCA or CAAF.  I think your post is a result of thinking Thompson punked the IO/PHO; maybe he did, but I’ve never heard of any law or rule that requires a criminal defendant to sit in a courtroom during his case. 

  17. Concerned Defender says:

    I don’t have all the answers, but just thinking about my own practice, I don’t think I would ever waive or not attend.  Why not at least sit there, continually object at every opportunity, take notes, gather evidence and information, and cross examine folks to get them on the record to create more false statements.  It’s a unique opportunity to gather intel.  Why would you want to skip it?  It seems like it weakens – rather than strengthens – your position.  It does not give you higher ground IMO to skip it; the opposite is true.  Rather, by attending and objecting 100 times, you embolden your position that you lost every objection and this is a blackball against your client.  Skipping it makes you look like you’re not taking the process seriously or that you’re  a lone wolf cowboy unaccountable to your leadership and the UCMJ.  
    Perhaps I’m wrong and I’m open to improving my viewpoint.  I just see no upside to skipping it or waiving it, with the trivial exception of saving a few hundred dollars in legal fees.  I’d call that penny-wise and pound-foolish.  If that was a real consideration, simply ask your detailed counsel to come and inform your civilian counsel that your detailed counsel will handled the “show hearing” and take notes and cross examine and object every time.  It’s all recorded anyway, just get a copy.  But why roll over and make it easy on the government to proceed.  I fight for every single inch. 

  18. k fischer says:

    OB,
     

    As I mentioned earlier (tripling down here), if the CA directed the accused to be present, to what could he point as a defense to a UA charge for walking out during the proceedings where his presence was directed?

     
     
    From the PHO Guide found here.
     

    (Rank and name of accused), you have the right to be present throughout this preliminary hearing, so long as your conduct is not disruptive. Further, you are advised that should you voluntarily absent yourself from this preliminary hearing, you shall be considered to have waived the right to be present.
    Do you understand these rights as I have explained them to you?

     
    I would point to this part of the script where the PHO advised him that if he voluntarily absented himself from the hearing that he could waive his right to be present at the hearing.  So, I believed that he had a right to voluntarily absent himself from the hearing as the PHO instructed him.

  19. Concerned Defender says:

    As a follow up, I’ve gathered so much good stuff at Art 32s that I’ve literally gotten entire cases dismissed (at least 2 that I can think of that included allegations for sex crimes, one of which was SIX allegations of  rape and sex assault), gotten Chapter 10s as alternate disposition, filed many motions (some of which won, others lost, and some of those created appellate issues).  
    Art 32 is fertile grounds for a defense attorney. 

  20. stewie says:

    Not so much anymore. The Article 32 changes significantly reduce a DC’s ability to “win” at the Article 32. That doesn’t mean it’s impossible, but it’s a lot less likely then it was pre-changes.
     
    Another concern is that an alleged victim under the new rules doesn’t have to testify and can watch everyone else testify and/or receive the audio tapes prior to trial, thus allowing her to hear what everyone else says and modify her testimony at trial accordingly, and if she’s made a relatively nondescript initial statement, it will be hard for a DC to call her out for it or note inconsistencies (because there won’t be any).
     
    There is still value in locking down a key witness at a 32 of course, and sometimes the alleged victim will testify, but there are plenty of reasons to waive a 32 hearing these days vice before the changes.

  21. Vulture says:

    Stewie.  If I can beg your pardon:  Maybe that is why they skipped out.  They already have a bunch of testimony, presumably from the other trial.  If they can’t get the same kind of input that is available from that venue at the new 32 proceedings, why show up at all?

  22. (Former) ArmyTC says:

    OB,
    Guess you didn’t read Article 32 itself?

    No charge or specification may be referred to a general court-martial for trial until completion of a preliminary hearing, unless such hearing is waived by the accused.

    10 U.S.C. 832(a)(1)

  23. (Former) ArmyTC says:

    Guess I posted too soon…fat fingers.
    Anyway, the right to waive isn’t just in writing, it’s in writing in the statute. Now, I’m not sure how they do in the Navy and Marine Corps, but I’m fairly certain that the statutory right to waive trumps any regulatory prohibition against waiver.

  24. Joseph Wilkinson says:

    It’s a unique opportunity to gather intel.  Why would you want to skip it?
     
    One possibility: You have a strong Article 10 or other speedy trial issue, and don’t want to give the Government “free time” based on the 32.  Another:  You’ve seriously out-prepared the other side and don’t want them to spot weaknesses in their case (or on their charge sheet) until later.  Obviously METT-TC dependent for the reasons you point out.

  25. Bill Cassara says:

    A Commander can no more order an accused to attend a 32 than to speak to CID.  The government then has to choose whether to go forward without the accused.  I walked out of a 32 once when the government announced they wanted to investigate new charges.  Fortunately, the government wasn’t smart enough to know they could still hold the 32, so they left as well.  Under the new 32 rules, I waive as often as I attend.  In many cases, it is just an opportunity for the government to put on a show trial.  As I said, Kevin’s a smart dude.  I am sure he has his reasons.

  26. Zachary D Spilman says:

    I don’t see any reason why competent authority could not order an accused attend an Article 32. It’s the equivalent of ordering an accused to report to CID for questioning, Bill Cassara, something that occurs regularly. That’s a far cry from ordering an accused to give a statement to CID (or testify at the 32).

    And the right to waive is not the right to prevent or avoid, Charlie Gittinsk fischer, stewie, and others. There’s no statutory or rule basis to prohibit the conduct of a 32 despite a waiver; it’s just usually not done because of the obvious waste of time. For this reason the non-binding discussion section commentary to R.C.M. 405(a) states:

    The accused may waive the preliminary hearing. See subsection (k) of this rule. In such case, no preliminary hearing need be held. However, the convening authority authorized to direct the preliminary hearing may direct that it be conducted notwithstanding the waiver.

    (emphasis added).

    Outlaw Biker‘s point that competent authority could make the 32 the accused’s appointed place of duty is fundamentally sound. It’s just unusual and not (apparently) what happened in the Thompson case. 

    As for using the 32 as a show trial, maybe trial counsel just need the practice. Any publicity concerns, however, may be resolved by closing the proceeding, or portions of it, to the public. See R.C.M. 405(i)(4).

  27. stewie says:

    Huh? 1. You are citing nonbinding discussion for the premise you are seeking to argue. 2. It actually wouldn’t be an obvious waste of time to conduct a 32 without the accused for a number of reasons. For example, the GOV could conduct a 32, get key witnesses to testify, have the alleged victim come in, watch them, and get a preview as to what they will say on the stand. 3. It’s not just unusual, I’m pretty sure no accused has ever been ordered to a 32 hearing by a CA.
     
    DA PAM 27-17: “The accused has a right to waive an Article 32 preliminary hearing. If the hearing is not waived, the accused is entitled to be present throughout the duration of the proceeding.”
     
    I read that apparently differently from you. My reading is that if the hearing is waived, it doesn’t happen. If it isn’t, then the accused is “entitled to be present.” It says nothing about required, or place of duty. Your reading would suggest that the accused is only “entitled to be present” IF he doesn’t waive the hearing, but if he does waive the hearing then he is not…which is an absurd reading, certainly more absurd then my reading.
     
    The addition of the waiver rule was a big deal in TDS circles at the time. There WAS a concern that the new Article 32 would allow the GOV to have the 32 with or without the accused because of the absence of waiver language initially. The addition was made I’m pretty sure to alleviate that concern. Even the language about “voluntarily absent” only makes sense if the accused is not required to be there. You cannot “voluntarily absent” yourself if you are required to be there.  There is nothing anywhere that supports the idea of the CA ordering an accused to a 32 or being AWOL if they don’t report.  Not law, not logic, not common sense.
     
    Usually, the most common sense and logical interpretation is the correct one.
     
    Even if we buy the CID analogy you make, that only gets the accused in the door…the moment it starts, he can leave, just like he can leave CID by refusing to answer any questions.
     

  28. Zachary D Spilman says:

    I’m not using the discussion to argue my point, stewie. Rather, I’m highlighting that the discussion reaches the obvious conclusion: There’s no statutory or rule basis to prohibit the conduct of a 32 despite a waiver.

    As for an order for an accused to attend, there’s no statutory or rule basis to render such an order unlawful.

  29. stewie says:

    Where is the statutory or rule basis that says a commander can’t order a Soldier to attend his daughter’s Sunday dance recital?

  30. Lieber says:

    CD’s reminiscences over the “old” 32 notwithstanding, there are all sorts of sound reasons to waive a 32 now.  A.  there is often no testimony of any value at the 32 (since the vic isn’t testifying).  Lots of 32s now are pure paper drills with no witness testimony at all.  B. the PHO is always a JA which means that a lawyer is spotting potential new charges for the government (a stated purpose of the 32), C. the PHO is a government lawyer who might spot deficiencies in the charge sheet or evidence, point them out in the report with the result that the government will fix them.  Why on earth would the defense show up to a 32 unless the vic shows up (who the gov advises not to show)?

  31. stewie says:

    Let me stop being cryptic, the point in asking that question is that we don’t ordinarily determine the lawfulness of an order by whether or not there is a statutory or rule basis that says you can’t give that order. We instead ask does the order serve a valid military purpose, and if so, does it nevertheless violate public policy, due process, the rights of the accused or some other reason why it’s not valid. We certainly start with a presumption that an order is valid, but that’s only a presumption.
     
    Your analysis would completely eviscerate the right to waive.
     
    Accused: I waive the hearing.
    CA: Got it, we are still having the hearing, and I order you to be there.
     
    That’s an absurd result, and arguing for an absurd result is a pretty weak argument.

  32. RY says:

    ZS…I often agree with you but not here. The language is “entitled” not “required.”  Entitlement is the benefit/option of the accused.  It is his right.  Sure an accused can waive and the government can still hold the hearing.  But a commander cannot order an accused to defend or prepare his defense in a specific way.  Whether to participate, waive, be present, or not are all strategic decisions for the defense.  Because it is his right, the commander cannot lawfully restrict it, but because he can decline it, he cannot lawfully be ordered to do it.  It’s that simple. 

  33. stewie says:

    I can think of a reason Lieber. There’s a witness the defense thinks is helpful, or who they fear might be helpful now but later, or for whatever reason they want to lock that witness down now.   Or maybe the only real useful witness for the government is the alleged victim and she isn’t testifying, but there are other witnesses the DEF think might be helpful to them.
     
    But I take your larger point that the vast majority of the time, waiver is the preferred option now.

  34. Zachary D Spilman says:

    Well, stewie, I think we agree that an accused’s waiver of the 32 doesn’t prevent the hearing from occurring anyway, so that’s a starting point.

    As for being entitled, RY. The statute doesn’t say that:

    No charge or specification may be referred to a general court-martial for trial until completion of a preliminary hearing, unless such hearing is waived by the accused.

    Article 32(a)(1) (emphasis added). Notably, Article 32(d) provides an list of rights of the accused that does not include a right to be absent or to waive. Expressio unis est exclusio alterius.

    Also, I was wrong to cite the discussion to R.C.M. 405 above, as the Rule itself addresses this:

    Waiver. The accused may waive a preliminary hearing under this rule. However, the convening authority authorized to direct the preliminary hearing may direct that it be conducted notwithstanding the waiver. Failure to make a timely objection under this rule, including an objection to the report, shall constitute waiver of the objection. Relief from the waiver may be granted by the convening authority who directed the preliminary hearing, a superior convening authority, or the military judge, as appropriate, for good cause shown.

    R.C.M. 405(k) (emphases added).

    Paragraph 1-4.d of DA PAM 27-17 (hardly a robust source of regulation; particularly as its own summary section states that “it does not purport to promulgate Department of the Army policy”) states that an accused is “entitled to be present” at a hearing that isn’t waived. That is – at most – a prohibition against excluding the accused. It’s not a right of the accused to absent himself. And even if it were, it’s not Army policy. 

    As for an order to attend, we’re deep in hypothetical space. Such an order is certainly far more related to a military purpose than your suggested order to attend a dance recital, stewie. I also think that an order to merely attend is unlikely to prejudice an accused in any meaningful way, but that’s fact-dependent. However, I wouldn’t advise a client to disobey an order to attend a 32. Rather, I’d focus on the underlying issue (pretrial publicity, denial of the right to present evidence, etc.).

  35. stewie says:

    1. I would absolutely advise my accused to ignore such an order and would LOVE for a CA to attempt to convict at trial on that.
     
    2. We aren’t “deep in hypothetical space;” we are squarely in the real space where we determine the lawfulness of an order. You do not analyze whether the order is absent solely by looking to see whether some rule gives a right to be absent. That certainly might answer the fundamental question quickly, but the fundamental question is, is there a valid, military purpose to such an order. That’s it, that’s the analysis.
     
    So explain to us the valid, military purpose for ordering an accused to attend a preliminary hearing that he has waived, doesn’t want to attend, and has no reason to attend? What is the valid military purpose in forcing him to pay for a civilian attorney for time that neither he nor the civilian attorney want to spend it on? Or to drag in military defense counsel who could be doing other things?
     
    There’s no benefit to the GOV or the military in having a non-participatory accused there, since, as you say, they can have it without him. So, what’s the valid military purpose for the order?
    3. Your interpretation of “entitled” is certainly different from mine.
     

  36. k fischer says:

    What is the valid military purpose in forcing him to pay for a civilian attorney for time that neither he nor the civilian attorney want to spend it on?
     

    I hate to sound like Brian’s little brother at the beginning of “Breakfast Club” when his mother is telling him, “Well, Mister you better figure out a way to study,” but “Yeah…..”

  37. k fischer says:

    The above referenced scene can be viewed here at 1:50.  My wife shares the same name as Molly Ringwald’s character, and that is  Alanis Morrisette ironic, right there. 

  38. stewie says:

    as usual, I’m not quite sure what you mean with that reference kf, but I’m going to assume agreement because it flatters my ego to do so.
     
    At the end of the day, there’s a reason no one has piped up to talk about the time when their CA ordered an accused to appear at an Article 32 hearing.

  39. RY says:

    ZS – Art 32(d) does not reference the right to be silent either so is that not a right then?  Nothing in that section expresses Congressional intent that this is exclusive list of rights.  Your reading of Art 32 makes the waiver hollow.  An accused is entitled to the hearing.  If the accused waives it, then the hearing is not required.  If Gov’t wants to do the hearing anyway, it is not required anymore beacuse of the waiver.  What interest is advance in forcing an accused who waived the hearing, to attend the hearing that is not required, and call it a valid order?  That’s a strained reading of congressional intent. 

  40. Elsa of Arendelle says:

    Let it go!

  41. Zachary D Spilman says:

    The right to remain silent is in Article 31(a), RY. You, however, are manufacturing a right not otherwise in the code or rules. 

    An accused might be ordered to attend a 32 for the purpose of enabling an in-person identification of the accused by a witness. Such an identification (and the Preliminary Hearing Officer’s observations of the witness’s demeanor while making the identification) might be an essential component of establishing probable cause. Enabling such an identification is a perfectly valid reason for competent authority to order the accused to appear. The argument that the accused could waive the hearing and then refuse to appear in order to thwart that in-person identification is nonsensical.

  42. k fischer says:

    An accused might be ordered to attend a 32 for the purpose of enabling an in-person identification of the accused by a witness.
     

    Yeah, getting a DA photo out of the accused’s personnel file for purposes of identification makes too much sense.  Much better to require the accused to be there, even after he has waived it, and even after he has been instructed that he could voluntarily absent himself from the hearing and he would waive the hearing.  Then, you can add another charge that will be reversed at the appellate level under the rule of lenity wasting countless hours of judicial resources for a bs charge.
     
    However, I do subscribe to CD’s philosophy that there is usually a really good reason to appear at an Article 32 hearing.  With the old rules, I would go through the CID report and each and every name contained therein would be placed on my witness list, so I could develop my script for the play I was going to direct in front of the panel members.  With the new rules stating that the PH is not for the purpose of obtaining discovery for the Defense requiring DC’s to explain the relevance of the witness, just so the government could coach them prior to them testifying if found to be relevant, I see less and less reason to have the Article 32.  With the eviscerating changes made to the Article 32, I don’t see why they just don’t go all in and change it like a civilian grand jury in most states where the accused does not have the right to be present before he is indicted.
     
    Stewster, it was a compliment, Bromigo.  You have an ego?  Inconceivable!

  43. Zachary D Spilman says:

    I never suggested it was a facial identification, k fischer

  44. stewie says:

    ZS, now you are just reaching. The argument that the accused could waive the Article 32, then be ordered to appear to facilitate an in-person identification is nonsensical. I mean, I suppose it’s clever-ish? You’d make an outstanding outside the box SVP regardless. But it’s definitely outside of the box…
     
    if the box were on Pluto (which is still not a planet).

  45. RY says:

    ZS – so you argue the absence of the right (to be not be present when an accused waives) from Art 32 (d) means there is no right.  I point out the absence of a right in Art 32(d) we know exists to prove this list is not exclusive and wasn’t intended to be.  Your response is that right exists somewhere else.  Of course it does, but Congress didn’t put it in Art 32(d).  That shows your premise is flawed.  I am not manufacturing a right…I’m applying the common use of waiver.  Waivable = optional.  Your reading and OB’s is optional only if the government agrees.  The statute does not require government agreement, but rather allows the government to do it without him if he opts for that.
     
    WRT to your argument about identification.  It’s an out of court identification.  Doesn’t have to be at a hearing.  That’s why lineups and such exist.  Even if it was a valid purpose, explain how that would require participation in the hearing he has waived? 

  46. slyjackalope says:

    Zach, you definitely have my support to close this thread.  The arguments are getting ridiculous for an issue that will probably never come up.

  47. k fischer says:

    Zach
    Re: Not a Facial identification
     
    No way Beulah Ballbreaker could make tape in the Corps…..

  48. Vulture says:

    That portion of the trial, identification, should take place at the arraignment.  If we are able to back speedy trial motions up to the point of the 32, I am all for having the Accused have to show up.

  49. k fischer says:

    MG Balbricker speaking with SecDef about ordering LCpl Tommy Turner to appear for a non-facial identification at a PHO.
    Balbricker: Now, Mr. Carter. I know this is completely unorthodox. But I think this is the only way to find that Marine. Now that penis had a mole on it – I’d recognize that penis anywhere. In spite of the juvenile snickers of some, this is a serious matter. That seducer and despoiler must be stopped; he’s extremely dangerous. And, Mr. Carter, I’m certain that everyone in this room knows who that is. He’s a contemptible little pervert who… Mr. Carter: MG Balbricker! Balbricker: Well, I’m sorry, but I’ve got him now, and I’m not going to let him slip through my fingers again. Now, all I’m asking is that you give me five Marines for a few minutes. The chain of command can be present – Tommy Turner and any four Marines you see fit to choose and we… and we… can put a stop to this menace. And it is a menace. [pause] Balbricker: Well, what are you gonna do about it? Mr. Carter: Five young Marines in the nude, a CID line-up so that you can identify his tallywhacker. Please, please can we call it a “tallywhacker”? Penis is so ppp… penis is so personal. Balbricker: We can put hoods over their heads to avoid embarrassment. Now listen: we have got to do it, as distasteful as it is. I know it’s him. That [pause] Balbricker: “tallywhacker” had a mole on it. And that mole is the key to it.

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

    An order to appear at your own Article 32 hearing, which you don’t want to be at for whatever reason, is no more lawful than would an order for you to be represented by military defense counsel, who you don’t want.  You have the right to be represented by TDS, free of charge, but you can voluntarily give up that right, just like you can voluntarily give up your right to be present at your Article 32 hearing.
     
    You can’t lawfully order me to do something that I have a constitutional, statutory, or regulatory right to refuse to do.  Likewise, you can’t lawfully order me to stop doing something I have a constitutional, statutory, or regulatory right to do, like audio-record a conversation we’re having under a one-party consent law.
     
    If you give me an obviously unlawful order, then I have a duty to disobey it.  So I don’t see an order to appear at your own Article 32 hearing going anywhere, except creating more embarrassment for the person giving the order and the people trying to enforce it.