As recently discussed on this blog, the Judicial Proceedings Panel (JPP) is one of three entities chartered under the Federal Advisory Committee Act to conduct an independent assessment of the military justice system. In May of this year, a JPP subcommittee published its Report on Barriers to the Fair Administration of Military Justice in Sexual Assault Cases. The report offers a stark assessment regarding the perceived failure of the military justice system to treat service members accused of sexual offenses fairly:

Congress, the Department of Defense, and the White House have all worked to change the military system so that victims of sexual assault are treated with respect and are not further victimized by the criminal justice process. Other changes have been put in place to counter the perception that sexual assault predators were being protected from prosecution by military commanders.

Many of these changes have been valuable. One possible sign that they are having an effect is the increase in the past few years of the number of sexual assault cases being reported. While its cause cannot be identified with certainty, many believe that it indicates greater confidence that the criminal justice system will help the victim and vigorously prosecute the accused.

As constructive and important as these changes have been, they have also produced an unintended negative consequence: they have, as the Subcommittee was repeatedly told on its site visits, raised serious questions about the fundamental fairness of the military justice process when it comes to the treatment of the accused.

Report at 4.

The report’s conclusion is that:

The consensus among [both government and defense] counsel interviewed during the installation site visits was that the combination of a less robust Article 32 process, pressure on convening authorities to refer sexual assault cases to courts-martial, and the low standard of probable cause for referring cases to courts-martial has led to cases being referred to courts-martial in which there is little chance for a conviction. Many counsel felt that the result has been a high acquittal rate in sexual assault cases, which, in turn, has caused military members to question the fairness of the military justice system. In addition, some counsel worried that when the word gets around that sexual assault cases are going to courts-martial supported only by weak evidence, military juries may be much more skeptical of the charges and the prosecution and thus may be more likely to acquit. Perhaps inevitably, as Service members become aware of weak cases and high acquittal rates, victims may become more reluctant to make unrestricted reports.

Report at 22-23.

The report concludes that the crux of the problem is that an increased number of weak sexual assault cases are being taken to trial. According to the report, there are several origins to that problem. But, in sum, the problem appears to boil down to the military justice system’s inability to ensure that the military officers charged with controlling that system are adequately informed about the state of the evidence prior to sending a case to trial. Exacerbating the problem, the military justice system has been unable to ensure those officers perform their duties without regard for their own personal career interests.

First, the report comments that the new Article 32 preliminary hearing process “no longer serves a useful purpose.” Report at 5. With the dilution of Article 32, there is no longer “a formal written process for ensuring that the convening authority is made fully aware of the strengths and weaknesses of a case and has guidance for deciding an appropriate disposition.” Report at 23. The report recommends some process be created to fill the void left by the now all but useless Article 32 process in order to ensure the convening authority is “given enough information to make a proper decision, since the convening authority, like prosecutors in civilian jurisdictions, are responsible for determining which cases are prosecuted and which are not.” Report at 24.

The specific process recommended by the JPP to better inform convening authorities is to make a Staff Judge Advocate’s pretrial advice to the convening authority non-discoverable to the defense. The hope is that allowing those public officers to operate in secret will promote their integrity. Report at 26.

Second, and related to the first issue, the JPP report posited that convening authorities have, of late, tended to refer cases to trial regardless of whether the evidence supports such action. Report at 12-14. The report voices concern that convening authority disposition decisions appear to be influenced by pressure from superiors regarding their own personal career interests. Id. To remedy this problem:

The JPP Subcommittee recommends that Congress repeal provisions from the National Defense Authorization Act for Fiscal Year 2014 and Fiscal Year 2015, sections 1744 and 541 respectively, that require non-referral decisions in certain sexual assault cases to be forwarded to a higher general court-martial convening authority or to the Service Secretary. The perception of pressure on convening authorities to refer sexual assault cases to courts-martial created by these provisions and the consequent negative effects on the military justice system are more harmful than the problems that such provisions were originally intended to address.

Report at 27.

A third problem noted by the JPP subcommittee is that some prosecutors have voiced ethical reservations regarding the standard applicable to referral of charges:

[C]ounsel told the Subcommittee that once probable cause is established, counsel are compelled to go forward with a case even when they do not believe there is reasonable likelihood of success at trial.

Report at 16. “Trial and defense counsel alike believe that the probable cause standard is too low,” and that, at least in practice, the standard they are asked to apply for pursing prosecutions does not comport with Section 9-27-220 of the United States Attorney’s Manual. Report at 14. Perhaps more importantly, lawyers have expressed their belief that they have been asked to pursue prosecutions that would not be deemed appropriate by their licensing authority. Id.

The report noted that, despite these lawyer’s expressions of concern, at least in one Service, not a single prosecutor has sought guidance from that branch’s ethics office. That Service has, in turn, taken the lack of complaint as being evidence that no problem exists.  Report at 15.

But the JPP did find the probable cause standard to be a problem, and:

The JPP Subcommittee recommends that Article 33, UCMJ, case disposition guidance for convening authorities and staff judge advocates require the following standard for referral to court-martial: the charges are supported by probable cause and there is a reasonable likelihood of proving the elements of each offense beyond a reasonable doubt using only evidence likely to be found admissible at trial.

Report at 26 (emphasis added).

Aside from these more fundamental concerns, the report also identifies some collateral matters which, in the subcommittee’s view, has impaired the fair administration of justice. Those items include the inability of prosecutors to prepare victims for testimony at trial due to the representation of special victims counsel, the tendency of Sexual Assault Prevention and Response training to inspire cynicism regarding the credibility of victims, and a view among court-martial panels that victims may make false sexual assault allegations in order to gain the benefit of their Service’s expedited transfer program.

23 Responses to “Scholarship Saturday: DoD’s Judicial Proceedings Panel raises “serious questions” about how the military justice system treats the accused in sexual assault cases”

  1. 46&2 says:

    Does the “incentive” to prosecute created by the mandated reports for non prosecution equal the “appearance”  of unlawful command influence? 
    Does the Air Force OPR grading an officer’s handling sexual misconduct in their unit meet the burden of more than a mere allegation of unlawful command influence?
    Does not meeting the licensing standard of conduct violate due process?….
     
    DC should zealously present all these issues in order to ensure the record these misjustices as applied to the whole effect on justice.
    “It is more important that innocence go free than guilty be punished.” John Adams
     
     
    I suggest CA/SJAs start ferrying jurisdiction to civilian authorizes as an act to carry out Justice IAW their ethics.  

  2. stewie says:

    The destruction of the Article 32 process FAR outweighs the problems of all of the rest of the 120 changes combined IMO.
    The system has gone from pretty good, to flawed but defendable, to just a mess now.

  3. Philip D Cave says:

    Agree with Stewie as to the 32.  The change in the 32 has made a mess for the prosecution and CA as much as for the CA.
     
    And we should follow the practice in federal court when the judge finds no probable cause–the PHO no PC finding would be binding.  The AUSA is not prevented from coming back if they find new and additional evidence after the initial no PC ruling.

  4. DCGoneGalt says:

    Does Congress care?  Nope.
     
    I would name the last 7 NDAAs the “Civilian Defense Counsel Full Employability Acts

  5. GCMSJA says:

    1. The issue is that vocal members of Congress seem to criticize any non-referral of a sexual assault case as not taking the complaint seriously with no regard to the state of the evidence.  That message, through changes in the NDAAs and brutal Congressional hearings where service chiefs were excoriated, of ‘you had better start taking these SA complaints seriously’ has come through loud & clear to commanders.  Thus, a SA complaint where a victim makes a sworn statement and wants to participate will almost ALWAYS go to an Article 32 these days.
    2. Art 32: While it may be watered down, it serves as a useful tool because it is normally an O-4 or O-5 who is not even remotely associated with the command and thus impartial.  What the PHO says matters, at least in my command.  The PHOs are normally very serious individuals who take their duty seriously and thus their report gets a lot of weight.  If the victim gave a sworn statement, wants to participate, and the PHO finds PC for a SA that case is getting referred to a GCM 99.99% of the time.
    3. This non-sense about commanders being concerned about their careers is a bit ridiculous.  Name one commander who makes serious decisions with no regard for their career?  Of course, they care whether their decisions will impact their career.  It is human nature and foolish to believe that they would not think about that.
    4. I don’t care if the DC sees my Art 34 advice.  I don’t have anything to hide.
    5. I think the proposed change to Art 33 [shouldn’t it be to Art 34 – the SJA’s advice?] would go far to correct the system.  If referral to a GCM of a SA would not be possible unless the SJA opined that the TC will reasonably be likely to prove each element of each offense BRD using evidence likely to be admissible, that would be a big deal.  Especially combined with removing the review by higher authority for cases that were not referred.  Of course, if you think about it, this would be very similar to what certain Senators want: they want a lawyer to be able to control whether a case gets referred or not.  This would essentially give the SJA a veto on referral.  Does that go too far?
    6. I concur that the system is being undermined by putting non-meritorious SA cases ‘through the process’.  We are building a venire that is immediately cynical about a SA case when they hear about it.  We are essentially forcing TCs to prove their case ‘beyond ANY AND ALL doubt whatsoever’ before a conviction may be obtained.  Changes need to be made to restore confidence in the military justice system.

  6. Naive says:

    So let me get this straight…the TJAGs and their JAGs (all with ethical obligations) know they are sending innocent people to prison (or in the alternative, sending innocent people to court-martial with no conviction) and NO ONE has the internal fortitude to stop it? 
    The TJAGs next move will be to ask for more money for more lawyers. Here is a money saving idea; let the civilian authorities handle criminal cases because the military legal system has shown they are not capable. Nothing like putting your “brothers” in prison because you’re scared of Congress. Brave. 

  7. Dre says:

    @ Mr Cave
    the fact that SJAs and TC can some how come up with some evidence to overcome a no PC ruling my PHO tells how unfair and vicious the military law is. Some DCs have even recommended boycotting the article 32 because of this problems.

  8. J.M. says:

    they have also produced an unintended negative consequence

    This is my skeptical face.

    The hope is that allowing those public officers to operate in secret will promote their integrity.

    Hope is not a plan. And nothing good can come out of making any part of a court martial secret. If you don’t want anyone to see what your recommendation is, there might be an integrity issue. Let’s look at the numbers.
    Page 8: 

    The Services provided case information and documents showing that out of 416 sexual assault cases that went to general court-martial in fiscal year 2015, 54 cases involved an Article 32 investigating officer or PHO recommending against referring one or more sexual offense charges to court-martial and the convening authority electing to refer the charge(s) to a general court-martial despite that recommendation. In all these cases, the staff judge advocate’s pretrial advice to the convening authority was to refer these charges to general court-martial. In 45 of the 54 cases in which the Article 32 investigating officer or PHO recommended against referring one or more sexual offenses to trial, the accused was ultimately acquitted of those offenses, though the accused may have been convicted of other offenses.

    Wow, a 17% success rate on cases where the PHO recommended against sex assault charges. If the SJA would have recommended NOT pursuing charges if they had been able to make that recommendation in secret, there’s an integrity problem. And with a 17% success rate, I don’t know if their judgement can be trusted. But I’m sure most of those remaining 83% got nailed for adultery or some other pissant charge, so the reported numbers show that something was done. 
     

  9. Givemeabreak says:

    @gcmsja
     
    i have been a long time reader of caaflog but never posted. Having witnessed first hand the lack of fortitude and “leadership” from CAs and sja’s I say this with the most serious of tones. There is a toxic atmosphere regarding SA in the military.  IMO, if TCs, SJAs and CAs were doing their duty as they should, conviction rates for SA offenses would be 90+%. I don’t think I need to explain why I make this point. 

  10. Givemeabreak says:

    Fotgot to make the point about core values… as long as they don’t interfere with my career progression or I might catch heat from congress…
     

  11. Anonymous says:

    In my case the PHO, an O-6 MJ, opined that the credibility of the CW was to be called into questioned and it would be extremely hard to prove a SA was committed BRD. Do you think the CA took that into consideration? No, he did what his O-6 SJA told him to do, refer to a GCM where I was acquitted, but not after my life and my family’s life was ruined.
    Until Commanders, at all levels, show some testicular, or ovarian, fortitude and realize they have options other than prefer, refer, and approve adjudged sentences, then maybe their power of prosecuting Article 120 offenses should be sent to the civilian court system, where a Grand Jury isn’t watered down. My Art 32 hearing was a waste of 30-minutes. It was TC, DC, two SVC’s, a MJ, and me. So what did the government do after they didn’t receive a favorable PHO report? File a motion to have it suppressed.

  12. stewie says:

    Anonymous, the saying “you can indict a ham sandwich” is a saying for a reason. If you think the civilian GJ system is somehow a better process for an accused, I’ve got a bridge to sell you. The only benefit of the civilian system is that they tend to not take bad cases to trial because they often turn down taking decent cases to trial since they only want sure-fire winners, particularly during election season…of course, you could also face a prosecutor that wants to make a name for themselves, so it’s really a mixed bag at best.

  13. Lieber says:

    Stewie,
    I’m going to have to partially disagree.  Although GJs are usually rubber stamps, the binding nature of their rulings is still a massive difference (having personally seen the PHO’s recommendations ignored multiple times by SJAs/GCMAs).

  14. Anonymous says:

    My accuser lied on a statement saying she never had sex with me, then the next day went to the SARC and said I assaulted her. The SARC told her to go to OSI and tell them that she lied. During her OSI interview her SVC informed OSI his client wouldn’t be making a written statement nor providing her cell phone for them to look at. She declined to go to the Art 32 hearing. It was always going to trial.
    How much is that bridge?

  15. k fischer says:

    The only benefit of the civilian system, Stewie?  I think you left out unanimous verdicts, randomly selected juries whose boss isn’t the one who selected them, a DA who has not been ordered by the State’s Attorney General that all victims are to believed and their cases tried unless smoking gun evidence exists that the accused is innocent, and US Congressional control over the purse strings of the prosecutor’s office and their promotions who are aggressively communicated the need for prosecution in cases involving one class of victims. 
     
    With regards to this Scholarship Saturday Article, (which was very well done Isaac), I’ve had a case of heartburn over how military justice has been handled since they took out the element of consent from Article 120.  I mean it was bad enough that evidence of a complaining witnesses sexual history was inadmissible under 412, but evidence of the accused’s sexual history was perfectly admissible under 413.  Then, the Army carved out senior Captain and Major TC’s for SVP billets, while the Accused was stuck with their Captain TC’s, no defense investigators, and no commensurate increase in billeting for TDS offices.  The AF started giving complaining witnesses attorneys, so defense counsel couldn’t question them.  Congress decimated the protections provided at the Article 32.  They created standing in complaining witnesses to influence prosecutorial discretion. Congress combated ways to defend sexual assault cases through access to psychiatric records under MRE 513 and making it a crime to surreptitiously record under Article 120c.  They started holding up promotions for prosecutorial decisions they did not like, or they threatened to take prosecutorial discretion away from Commanders.  They have thrown obscene amounts of money towards SAPRO to provide ridiculous training, which if this money is not used, it is lost.
     
    I think that even pre-triple axel Lexie Winston would be able to see that this would lead to a disaster where Courts-martial do not appear fair to the Accused.  And, similar to Robbie Benson’s line “We forgot about the roses” that caused Lexie to stumble after her comeback routine, this article highlights how the DoD, Congress, SVP’s, SJA’s, TJAG’s, and MJ’s have forgotten about the falsely accused and how the whole system of “justice” has been centered around how they can get a fair trial, so we don’t have innocent Servicemen sitting in jail for bs.  I think all the aforementioned are perfectly fine with that possibility because they see them as “collateral damages” in the war on sexual assault.
     
    But, I do like Recommendation 2, in that it will force SJA’s to actually look at the evidence they believe will be admissible at trial and actually consider if there is a reasonable likelihood of a conviction beyond a reasonable doubt at trial.  Obviously, Recommendation 1 advocating for defense investigators is very important. 
     
    I don’t understand why Recommendation 5 providing confidential advice to the CA was made.  SJA’s advice ought to be transparent.  That provides two checks and balances.  The CA would have to cover up improper advice and the SJA would have to choose to make improper advice.  If everything was secret, then there is a higher likelihood that improper advice would not be disclosed.  And, no, after reading US v. Barry and US v. Boyce with a view towards the system we have today, I don’t think anyone can presume that SJAs or TJAGs act ethically, or that MJs decide things for the right reasons. 
     
    But, I think the most troubling part of this report is this:
     
    “[S]everal counsel expressed concern that they may be violating their state bar ethical rules by prosecuting cases
    in which they feel the charges are not supported by probable cause or in which there is no reasonable
    likelihood of proving the charges at trial.
     
    Judge advocates overwhelmingly reported a perception of pressure on convening authorities to refer
    sexual assault cases to court-martial, regardless of merit.”
     
    For those Army SVP’s who feel, or have felt, this way.  AR 27-26, Rule 3.8 also requires this:
     
    “A trial counsel….is responsible to see that the accused is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. ”
     
    So, if you get to the end of the trial, and you don’t feel that you have presented sufficient evidence to sustain a conviction, then remember your obligation of candor under AR 27-26, Rule 3.3, and tell the panel that the Government has not met it’s burden.
     
    And, Anonymous @ 8:11 a.m., I am disappointed to see that my last two clients were not the only ones whose life, and whose family suffered, because of a false allegation by an incredible witness in the current process of “justice” we see in the military.
     
     
     
     
     
     
     
     
     
     

  16. Anonymous says:

    At the end of my trial the STC came over to me and said “You’re a good guy, I personally never believed the sexual assault allegation.” I realized this individual had a professional oath to do their job, however it was unnerving that it really went to trial because of possible career backlash and jeopardize people’s Commander’s potential promotions. A good way to get rid of that jeopardy is not make it one at all and take it out of Commander’s hands.

  17. k fischer says:

    GCMSJA,
     
    Regarding your question at point #3.  I’ll give you two:   Lt Gen Craig Franklin and Maj Gen Susan Helms.

  18. k fischer says:

    Anonymous,
     
    Congrats on keeping your composure enough that you did not throat punch the STC after that comment.  Their professional oath is to prevent cases like yours from going to trial.  The TCs hide behind the fact that the UCMJ is a “command driven” system, so they lament how they are required to try cases because the Convening Authority makes them.  Well, the Convening Authority should never controlled what a TC says at trial and if that STC made closing arguments, then I probably would have lost my mind after hearing that.
     
    I had an SVP tell me on a Friday one week before an acquittal that “the only one who should be bragging about a victory in a case was the Government.”    The next case I had with this SVP two years later made as much sense as a football bat, so after that acquittal he came over to counsel’s table to shake my hand.  I was so disgusted with him, I refused to shake his hand, particularly after my client was called a monster during closing arguments.
     
    I think just as many cases would go to trial if military lawyers were calling the shots, but at least they would have to own the decision.  The way the system is now, they get to plan B the Convening Authority as if the CA’s are referring cases against the SJA’s advice.

  19. Anonymous says:

    I was acquitted of the Art 120 and Art 93 (verbal sexual harassment) of another girl I had a consensual sexual relationship with.   In essence both girls were my friends, we had sex (not together) years ago, we stopped and moved on with our lives, but remained friends.  I was an E-7, the girl who accused me of the SA was a E-5, the other girl was an E-2, we were in the same unit, but I wasn’t in their direct chain of command.
    An investigation started on me for an Unprofessional Relationship, the E-5 was called into the First Sergeant’s office, lied and said we never had sex, called the E-2 since she was the E-2’s supervisor and friend and told her I was being investigated and that she had lied, went to the SARC the next day and said she lied, was told to go to OSI and tell them she lied.  The E-2 was TDY for training, pulled into the First Sergeant’s office there, asked the same questions about having sex with me, lied and said no, came back to home station and claimed I sexually harassed her at the time.  The E-5 then retained an SVC and told the E-2 to do so as well.  The E-2 was granted an Expedited Transfer to a base by her hometown before I even had my Art 32 hearing.  The E-5 was granted an Expedited Transfer four months AFTER my trial after receiving some counseling paperwork for an unrelated event.
    I was eventually found guilty of Art 93 (verbal sexual harassment) because the E-5 and I, who had a consensual sexual relationship, would tell dirty jokes to each other.  However once she started accusing me of SA, I was the worst person in the world in her eyes and the terrible things that I said in a joking manner in private via text and whatnot became criminal.  I was found guilty of Art 92(3) Dereliction of Duty because apparently that’s the one way SJA’s can shoehorn criminality for Senior Enlisted members having consensual sex with Junior Enlisted members who aren’t in their chain of command in the Air Force.  I was sentenced to reduction to E-5 and a Reprimand.
    A month after my trial my CO informs me he’s going to recommend my separation via Administrative Separation board.  I go to a board where I watch the E-5 SVC piss off the Legal Advisor of the the “standing” of SVC’s in discharge boards and then have a private meeting with the base’s SJA…which infuriated my DC.  I was not retained and separated at 16 years, 3 months, 9 days with a General UHC discharge.  Did my accusers ever get in trouble for lying?  No.  Did one of them get in trouble for committing perjury during the motions hearing?  Well of course not, those are sealed per 412.  I had a MJ with one of the worst reputations in the USAF on my trial make a disgusting face when she read the panel’s verdict, most likely the result due to being acquitted of Art 120.
    Did I make mistakes?  Sure, I should’ve never dipped my pen in company ink.  But you don’t give someone the death penalty for speeding, and you certainly doing lie in court to get them to the death penalty.  After my trial my DC sent the CA 72-pages of texts, pictures, and documents showing that me and my accusers were friends, that they were lying and had lied, and the facts for clemency.  He approved the adjudged sentence in two days.  Do I think that a Lt Gen read 72-pages of clemency submission from one case at one base in his command?  Absolutely not, he looked at his O-6 SJA and did what he was told to do by a JAG.  The less than stellar legal office at my base was also in a quagmire, they forced my CO to serve me discharge paperwork six days before I hit 16-years of service. In the Air Force if you’re sent to a discharge board/proceeding, the Air Force Personnel Center gets to review the board results and can overturn them since you’re considered a “legacy Airman.”  However since the appellate review hadn’t happened on my case yet, yet they sped to have me sent to an Admin Sep board, I couldn’t be separated until the appellate review had happened, which of course I didn’t waive.
    I have the unique experience of not only being the accused, something I never wish on anyone, and also I’ve sat as a panel member on another case at my previous assignment.  And what goes on in that deliberation room is exactly what you’d think.  
    “We need to send a message that we can’t tolerate this kind of stuff.”
    “Well he had to of done it, he’s here at a court martial.”
    “The Wing Commander knows I’m on this panel because he selected me.  If this kid gets acquitted, it might affect my career.”
    There are phenomenal JAG’s in the military, just like there are phenomenal people in all kinds of jobs.  However all of YOU have someone’s life in your hands.  Regardless what your personal beliefs are, that’s someone’s life.  When you make a miscalculated step, you’re not the one who sitting in confinement later that night.  
    In closing I think the Article 120’s need to move to the civilian courts.  Until the careerism piece is put aside and not indirectly (or directly however you want to view it) influenced by certain people in Congress, accused are not going to get a completely fair trial.  I think there needs to be more accountability for misconduct by JAG’s.  Just reading about the Navy TJAG and SJA for the CA who is not testifying against both makes me sick.  What makes me sicker is hearing other JAG’s state that the TJAG and SJA probably won’t testify. 
    I learned that Commander’s don’t run their base, the JAG’s do.

  20. Anonymous says:

    Just wanted to also say that I read this blog the entire year, and even now, I went through my ordeal.  I learned so much of the military justice system, how JAG’s think, opinions, research, it was amazing.  So much so I actually would like to be a lawyer, which is where I’m going to use my G.I. Bill towards.  I saw a lot of injustices during my trial, I want to be the voice of those who can’t speak out.   And contrary to a lot of legal opinions, the VA does their own determination of credible service for VA benefits.  Since I had multiple Enlistments of honorable service, which it also states on the bottom of my DD-214, I get to keep my G.I. Bill.  You troops that only have one Enlistment, and are given less than a Honorable Discharge, are the ones who lose it per the VA.

  21. Christian Deichert says:

    Probable cause has never been enough to send a case to court-martial, I don’t care what the rules say.  I like how the US Attorney Manual raises the floor; I wouldn’t mind seeing that codified in AR 27-10 or even the MCM, but even without it being an official rule, it’s still a better standard.
     
    I did work for an SJA who, in what I assume was an attempt to protect the GCMCA, felt that probable cause was sufficient and that it was not his job to stand in the way of panels and/or judges determining the worth of a case.  I made sure that the cases we sent up were well above that threshold.

  22. stewie says:

    Lieber,
     
    Will have to disagree with your disagreement at the risk of you disagreeing with my disagreement of your disagreement.
    Given the almost complete practical control a prosecutor has in front of a GJ, the binding nature of it is meaningless. If the prosecutor wants an indictment, an indictment will happen 99 percent of the time. I suppose if you have a very very scrupulous prosecutor, in theory, a GJ could be better than an A32 solely because most 32s won’t even happen due to the SA changes since the value to the accused is almost minimal and the harm pretty high since the AV can get the tapes without testifying…but that’s in theory and I think practice wins out most of the time.
     
     

  23. k fischer says:

    I really like this quote:
     
    “In addition, a senior defense counsel told the JPP that as a prosecutor, he has seen situations in which there was almost no probability of winning at trial, and when this information was presented to the convening authority, the convening authority still elected to refer the charges to court-martial. He added that sending fatally weak cases on to court-martial was very demoralizing to the trial counsel.”
     
    Nothing like focusing the concern on how those poor trial counsel who knowingly argues to a panel that they should convict the accused based on insufficient evidence are being demoralized, rather than the fact that an innocent man is likely to go to jail and be dishonorably discharged.  But, I like seeing this quote because this is why I choose to go panel on cases I know are bs: I want to demoralize the Government from the TC to the SVP to the SJA.  It’s one thing for the SVP to argue to a Military Judge who sees the case as “part of a process” that works.  It’s easy because they are of the same mindset. 
     
    It’s another thing to get in front of a panel of peers and argue that a man should be convicted based on evidence that even the SVP knows is insufficient to sustain a conviction, then have to see the panel members afterwards on post with them looking at the SVP the way they look at trial defense attorneys.  And, when they go in front of the panel again, the SVP doesn’t get the benefit of the doubt.  Word gets around pretty quickly when an SVP is demoralized like that.  He or she gets a pretty bad reputation for not being an honest broker.  SJA’s have to go to the CA and explain why that case they took to trial that the 32 officer recommended dismissing turned out so badly at trial after the Old Man hears from the panel members during command and staff how he wasted their time.  Nothing like hearing through the grapevine that the GCMCA has lost faith in his SJA.
     
    During trial you need to get every piece of evidence you possibly can to help your client, and extend no quarter to Government counsel when the case is ridiculous. The Rule of Proportionality does not apply to battles in the courtroom; you can never have too much evidence in favor of your client at trial.  TC will try to argue that you have enough evidence to argue what you want without the really good stuff coming in.  Don’t feel sorry for them.  They are one of the reasons why your client is sitting next to you and why you are defending him instead of going home and having dinner with your spouse.  Fight to get the really good stuff in, so the panel members look at the SVP like they want to throat punch him during closing arguments. 
     
    MJ’s will try to contain your presentation of relevant evidence and tell you have enough and that the rest is too prejudicial under 403.  Don’t let them beat you into submission during the 802, so you are weak on the record during the 39(a).  Call witnesses when you have motions.  Put their testimony on the record during motions hearings and the stakes will be much higher if the MJ wants to keep it out.  Plus, you will have a much better appellate issue when you lose in front of the type of MJ whom a Defense victory is an impossibility.  Set the battlefield with a panel on bs cases, proceed with shock and awe, then burn SVP’s out early in their tenure.  This scorched earth policy should help you in future battles.