While not shocking in light of prior studies of the MilJus system, if the Judicial Proceedings Panel‘s April 2017 report recommendations are followed, the services will need to make an investment of money and training in the MilJus system. The report is essentially an update/supplement to prior recommendations in the JPP Subcommittee Report on Military Defense Counsel Resources and Experience in Sexual Assault Cases  (Dec. 9, 2016).  The JPP’s April 2017 report is based in part on the JPP Subcommittee’s site visits to service prosecution and defense offices.  The Executive Summary states:

The JPP deliberated on the Subcommittee’s report and had the opportunity to question the JPP  Subcommittee members who attended the installation site visits. As a result of this deliberation, the JPP’s report summarizes and adopts the information presented by the Subcommittee, provides additional information from Service responses to a JPP request for information, and adopts the Subcommittee’s recommendations, with modifications.

The JPP makes four recommendations in the area of defense counsel resources and experience, several of which had—in some form—been recommended by its predecessor panel, the Response Systems to Adult Sexual Assault Crimes Panel (RSP) in its June 2014 report to Congress. The JPP recommends that the Services provide independent defense investigators, ensure sufficient staffing and resourcing of Service defense offices, place expert witness approval and funding authority in the Service defense organizations, and ensure that lead defense counsel in sexual assault cases have sufficient litigation experience, setting a minimum tour length for defense counsel of two years.

The report is available here. [Updated link to the JPP’s Report on Military Defense Counsel Resources and Experience in Sexual Assault Cases and updated post to reflect some of the JPP’s statements]

4 Responses to “Judicial Proceedings Panel Report Released”

  1. k fischer says:

     
    At page 26:

     
    If the victim is given the opportunity to receive financial compensation through forfeitures, panel members may see it as a motive for the victim to lie. They are particularly likely to make this assumption if the victim has financial debts of his or her own at the time of the assault—as is often the case, since victims are typically young.122
     

    At page 21:
     

     
    The prospect of restitution payments could become fodder for the defense to impeach the victim at trial (i.e., as providing a financial motive to lie), especially in light of existing stereotypes about women’s readiness to fabricate sexual assault allegations.109 Defense efforts to make the victim’s financial circumstances an issue might result in a trial within the trial, given the existing liberal rules of discovery.110
     

    So, the concern is not that financial compensation will actually be a motive to lie.  Their concern is that financial compensation will be viewed as a motive to lie by the panel members or might be fodder for dirty defense counsel to, [notwithstanding M.R.E. 608] create a “trial within a trial.”
     
    Later on there are two comments that discuss false allegations that might result from compensation without tying it into how a panel might be less inclined to convict.  But, the way these concerns are phrased above is troubling for this practitioner whose experience has resulted in him forming the opinion that innocent men are being prosecuted to placate Congressional concerns that enough men aren’t prosecuted for sexual assault.

  2. DCGoneGalt says:

    A panel may see compensation as a motive to lie because IT IS A MOTIVE TO LIE.  That doesn’t mean what is being said is a lie in order to get the compensation, only that the compensation itself is a motive to lie.
     
    Especially in light of existing stereotypes . . . FML.  Yeah, like the existing 2% False Allegation Stereotype.
     
    Civilian defense counsel should be happy . . . because with active duty brains shut off and unable to even consider (or if able to consider, unable to speak aloud) what will be exploited by defense counsel and what is a rational consideration of the panel the civilian defense counsel will have a never-ending stream of work with a good shot at acquittal.  Meanwhile, SJAs can just practice saying “there is probable cause to refer” like a robot and signing their name to pretrial advice.

  3. k fischer says:

    DCGG,
     
    Actually, I am going to embrace the ridiculous cases that get preferred.  It’s good for business, and I find that innocent people will spend their hard earned money on a civilian counsel.
     
    But, as a taxpayer, I just wish that those who are being paid to conduct this panel would at least address the adverse consequences a false allegation has on the actual victim, i.e. the falsely accused, such as being flagged for promotion, pcs, and training, being taken out of their job, and the position in which they are placed having to decide whether to spend tens of thousands of dollars hiring a civilian attorney.  In addition to the military accused, false allegation could negatively affect national security and mission readiness, if the falsely accused is an integral part of a unit.
     
    For instance, I would feel a bit better about this panel’s findings if it included something like this:
     

    The prospect of restitution payments could create become fodder for the defense to impeach the victim at trial (i.e., as providing a financial motive to lie), especially troubling in light of existing stereotypes about  previous numbers that indicate a women’s readiness to fabricate sexual assault allegations in the military is 8 times the national average.109 Defense efforts to make the victim’s financial circumstances an issue might result in a trial within the trial, given the existing liberal rules of discovery.110 False allegations create severe adverse consequences for the actual victim, i.e. falsely accused Serviceman, who is flagged and could be passed over for promotion resulting in separation.  And, if the falsely accused is an integral member of the unit, then false allegations could affect mission readiness.  Finally, false allegations hurt morale when the actual victim suffers an injustice and members of the unit see this injustice of being falsely accused.  And, false allegations beget false allegations when other individuals in the unit witness how easy it is to make a false allegations particularly where no negative ramifications for doing so exists.

     

  4. k fischer says:

    [Strikethrough button doesn’t work for some reason]
     
    The prospect of restitution payments could create a financial motive to lie, especially troubling in light of previous numbers that indicate a women’s readiness to fabricate sexual assault allegations in the military is 8 times the national average.  False allegations create severe adverse consequences for the actual victim, i.e. falsely accused Serviceman, who is flagged and could be passed over for promotion resulting in separation.  And, if the falsely accused is an integral member of the unit, then false allegations could affect mission readiness.  Finally, false allegations hurt morale when the actual victim suffers an injustice and members of the unit see this injustice of being falsely accused.  And, false allegations beget false allegations when other individuals in the unit witness how easy it is to make a false allegations particularly where no negative ramifications for doing so exists.