In 1983, Congress gave Staff Judge Advocates (“SJAs”) veto power over general court-martial prosecutions. Specifically, Article 34, UCMJ, 10 U.S.C. 834, was amended to stop convening authorities from sending any specification to trial by general court-martial without first being advised by their SJA, in writing, that “the specification is warranted by the evidence.”

That statutory change was intended to be a check on commanders’ discretion. In his Jan 2016 Article, The SJA’s Article 34 Veto: A Force Awakening?, 224 Mil. L. Rev. 289 (2016), Military Trial Judge CAPT Gary Felicetti explains:

The dominant issue in 1983 was more justice for the accused. . . . Both the Supreme Court and the general public distrusted the court-martial process. [Accordingly,] the SJA [was given] de facto veto power over referral of any specification to a general court-martial.

224 Mil. L. Rev. at 297-300.

This was an unprecedented power, and an opportunity to allow trained lawyers to steer the military justice system towards public approval. It was an opportunity squandered.

Dilution of the SJA’s statutory power began almost immediately. With the promulgation of the Manual for Courts-Martial (MCM) and its Rules for Courts-Martial, Congress’ crisp statutory mandate was obscured by “ambiguous [] language and confusing cross-references that appear to reject the most explicit language of Article 34, UCMJ.” Id. at 301. Given that implementing guidance, SJAs persisted in behaving as if their duty when dealing with unwarranted allegations was to merely advise the convening authority, who would then decide the issue.

Even SJAs who saw through the regulatory muddying of the waters may have misinterpreted their obligation. They may have thought their task was to merely ensure that the charges sent to trial were supported by probable cause, as opposed to making an affirmative determination that a trial on the specification was “warranted by the evidence.” Merely applying a probable cause standard results in prosecutions that are “produced through a mechanistic process, where [prosecuting authorities] essentially outsource their intuition.” Erica Goldberg, Getting Beyond Intuition in the Probable Cause Inquiry, 17 Lewis & Clark Law Rev. 789, at *4 (2013).  As Judge Sol Wachtler famously told the NY Daily News in 1985, under the probable cause standard, even a ham sandwich could be indicted.

Again, the MCM may be to blame for this conversion of SJAs from vipers to venomoids (a snake which has been rendered non-venomous by surgery). Specifically:

The discussion to the rule on the SJA’s pretrial advice states, ‘[t]he standard of proof to be applied . . . is probable cause.’ [and elsewhere it is stated that the standard is] that there are reasonable grounds to believe that an offense triable by a court-martial has been committed and that the accused committed it’ . . .

Neither the ‘probable cause’ nor ‘reasonable grounds to believe’ standard appears in the relevant statute or any previous MCM. According to the MCM analysis, they are based on the ‘warranted by the evidence’ language in Article 34, UCMJ.

The SJA’s Article 34 Veto at 303.

It is indefensible that the MCM should assert that the statute’s discretion-laden “warranted by the evidence” standard really just equated to a mechanistic “probable cause” standard. The error of that interpretation became clear last year with the enactment of the Military Justice Act of 2016 (which was this blog’s # 1 Military Justice Story of 2016). To illustrate how that statute changed things – the current language of Article 34 reads as follows (emphasis added):

The convening authority may not refer a specification under a charge to a general court-martial for trial unless he has been advised in writing by the staff judge advocate that . . . the specification is warranted by the evidence.

The Military Justice Act of 2016 changes that language to instead read:

The convening authority may not refer a specification under a charge to a general court-martial for trial unless he has been advised in writing by the staff judge advocate that . . . there is probable cause to believe that the accused committed the offense charged.

130 Stat. 2907 (emphasis added).

There would have been no need for that change if, all along, “warranted by the evidence” was synonymous with mere probable cause.

By abandoning their statutory power and obligation to veto unwarranted allegations, SJAs risk failing to protect accused persons from overzealous prosecutions. But, more fundamentally, they risk failing to protect the credibility of the military justice system Congress entrusted them to safeguard. As Judge Felicetti puts it:

The last several years have been stressful times for the military justice system. More is almost certainly on the way. There have been genuine reforms, exploitation of bad and misleading statistics, and plenty of political opportunism. More than a few experienced practitioners think ‘the force’ of military justice—that is, discipline, efficiency, and justice—is out of balance.”

The SJA’s Article 34 Veto at 313.

Unfortunately, Judge Felicetti’s concerns from early 2016 seem to have been borne out. Last spring, the DoD Judicial Proceedings Panel warned that there now exist “serious questions about the fundamental fairness of the military justice process when it comes to the treatment of the accused.” And, just last month, in United States v. Reisbeck (CAAFLog case page), after having to remedy a convening authority’s intentional stacking of a court with jurors tailor-made to favor the prosecution, the United States Court of Appeals for the Armed Forces (CAAF) chided:

The duty to protect servicemembers against unlawful command influence is not ours alone.

To put the nature of the failure in Riesbeck into closer context, CAAF wrote, “the government’s case was weak[.] The government’s case was so weak, in fact, that the Article 32 Investigating Officer recommended the dismissal of the . . . charges against Appellant.” Slip op. at 17-18. That sounds like the sort of allegation “unwarranted by the evidence” which could have been vetoed by the SJA. If such a veto had been exercised, then perhaps what CAAF called “a stain on the military justice system” could have been avoided.  Reisbeck, slip op. at 4 n. 6.

Reisbeck’s example of SJA (and the military trial judiciary’s) failure to reign in rogue commanders does not stand alone. The deleterious effect that unchecked command authority has had on the respectability of the military justice system has led CAAF to mention the problem in so many cases of late that unlawful command authority was this blog’s # 5 Military Justice Story of 2017.

In 1983, Congress hoped that by empowering SJAs with prosecutorial discretion, they might be able to bolster flagging public confidence in the military justice system. SJAs were supposed to check commanders’ ability to pursue prosecutions which were, in their estimation, unwarranted by the evidence. Perhaps on account of the obscuring language used in the MCM, SJAs failed to embrace that statutory grant of authority. So next year it will be revoked.

That which is used – develops. That which is not used wastes away.  – Hippocrates

Once SJAs have been officially relieved of their veto authority, the only gatekeepers left to screen allegations will be – once again – convening authorities. But even they will operate under the probable cause standard which, as explained above, offers no meaningful room for the exercise of prosecutorial discretion. Accordingly, the military justice system’s handling of charging decisions is set to regress. And, it will regress a time when the DoD Judicial Proceedings Panel says there are “serious questions” about whether the system treats accused persons fairly.

This time, unlike in 1983, these “serious questions” about fairness in military justice are being posed amid the mobilization of a well-organized and mature legislative effort to strip commanders of their prosecutorial discretion altogether. That effort enjoys the support of a coalition of prominent lawmakers which, in an increasingly rare turn for this Congress, is actually bi-partisan. As of the date of this piece, 22 Democratic, 5 Republican, and 1 Independent Senator have co-sponsored Senate Bill 2141, The Military Justice Improvement Act of 2017 (currently read twice and referred to the Senate Armed Services Committee). The measure’s author, Senator Kirsten Gillibrand, explained the purpose of the bill:

We don’t want commanders making the decisions about which cases have to go forward to trial and which cases don’t because those commanders are neither lawyers nor prosecutors nor trained and they will have biases[.]

Additionally, unlike in 1983, the modern legislative movement to excise commanders from the military justice system has been publicly championed by well-funded interest groups like as Protect Our Defenders (POD). According to POD’s tax filings, the group took in a total of $7,487,410 in contributions and grants from 2012 through 2016 (figures for 2017 are not yet publicly available). In turn, from 2012 through 2016, POD spent $1,115,088 on public advertising and promotion. In 2016, for the first time, it spent $12,000 on lobbying.

[Update: POD contacted me to clarify that the “contributions and grants” the organization reported in Part I of their annual IRS Form 990 includes non-cash contributions such as pro bono legal services offered by lawyers to survivors of sexual assault. The more detailed statement of revenue found in Part VIII of those filings shows that POD’s revenue from 2012 through 2016 consisted of $4,134,833 in cash, and $3,352,577 in “noncash contributions.” (2/24/2018 at 7:20 a.m.)]

In 1983, public opinion against the military justice system’s perceived unfairness led Congress to force commanders to cede some of their authority to their SJAs. That effort at power sharing seems to have failed. And still, the old allegations that the military justice system is unfair remain. When the pendulum of public opinion (driven by a bi-partisan coalition that is backed by well-funded private advocacy groups) swings back, once again, towards vindicating the interests of the accused, it is likely to swing hard.

When that time comes, it seems unlikely that Congress will turn to SJAs for a solution a second time. Instead, if Senator Gillibrand’s bill and POD’s advocacy are harbingers of things to come, the next time Congress is looking to limit commanders’ discretion over the military’s system of justice, they may well make venomoids of commanders and SJAs, both. The nature of the public office of Staff Judge Advocate after such reforms would be fundamentally different, as might such an office’s staffing needs.

18 Responses to “Scholarship Saturday: A hope unfulfilled – the twilight of Staff Judge Advocate power”

  1. Zachary D Spilman says:

    The Military Law Review used to be available to the public for free, here

    The Army JAG Corps eliminated public access to this public document – along with the rest of the Army JAG community’s public documents, including everything from the Army CCA and the Military Judge’s Benchbook – earlier this year for no reason (discussed here). 

  2. Isaac Kennen says:

    I managed to find a copy that was archived by the Wayback Machine, here. I’ve updated the post with this link as well.

  3. NatSecLawGuy says:

    Good Morning Isaac,
    I disagree with your general interpretation that Congress amended Article 34 because of a displeasure with how SJAs have executed the authority.  The 2016 Amendments merely brought into line the legal standard for referral (i.e. issuance of an indictment) in military courts-martial to be in line with our civilian counterparts (a theme generally of the 2016 amendments).   Establishing the probable cause standard, which is both the policy of DOJ and the commonly accepted ethical standard, makes good sense rather than the relatively untested reading of unwarranted by the evidence (which could be interpreted lower than probable cause).  Thus, reading it as Congressional rejection of how SJA’s have employed their Article 34 authority, I believe is a bridge too far.
    I also disagree that Article 34 was to be employed as the conscience check on commanders.  Rather, Article 34 was to fill the legal and ethical knowledge gap commanders have by not being trained in the law.  The advice was intended to give the legal minimums for referral and an analysis as to whether those legal minimums were met.  While certainly an SJAs advice should go further, which most SJA written advices don’t because they are discoverable, the commander is not legally obligated to consider more than the legal minimums (i.e. whether probable cause exists to support the charges).  Further, it would be unwise to insert the rather politically unaccountable SJA’s discretionary decision as a legal limitation on the rather politically accountable commander’s discretionary decision. 
    While common wisdom usually describes Article 32’s as the military’s grand jury, I think more apt is that commanders fulfill that function in our system.  Judge Learned Hand described the grand jury as “the voice of the community accusing its members.”  See 1-1 Federal Grand Jury Practice and Procedure § 1.02 (2007).  Commanders, as politically accountable actors within the specialized military community, act as the “voice of the community” in making accusations within our military justice system.  Removing commanders from this process will only cause the fears Ms. Goldberg describes: a mechanistic prosecutorial decision.  But, instead of outsourcing intuition eliminate it.
    Finally, you seem to mistakenly infer the recent Congressional legislative proposals are aligned with the interests in the 1983 amendments to make the process more fair for the Accused.  Nearly all evidence shows the contrary.  The Congressional legislative proposals are intended to force additional prosecutions even where the equities that show the case is not warranted by the evidence.  Indeed, one could say Senator Gillibrand’s continual introduction of this legislation is a veritable sword of Damocles over commanders to force them to tow the line of Congressional views on prosecution of sexual assault offenses.  Indeed, Congressional micromanagement of Article 120 has arguably created a wholly separate process for those accused of sex crimes, vice any other offenses in the code (although the 2016 amendments helped to bring some balance amongst offenses in the code). 
    In sum, the characterization of Article 34 as a veto is far too powerful for what was intended: a prosecutorial decision meeting the minimum legal and ethical standards of the civilian community.   
     
     

  4. Isaac Kennen says:

    Good afternoon NatSecLawGuy,
     
    Thank you for your post! I hope you’ll entertain my response.
     
    NatSecLawGuy said:
     

    I disagree with your general interpretation that Congress amended Article 34 because of a displeasure with how SJAs have executed the authority.  The 2016 Amendments merely brought into line the legal standard for referral (i.e. issuance of an indictment) in military courts-martial to be in line with our civilian counterparts (a theme generally of the 2016 amendments).   Establishing the probable cause standard, which is both the policy of DOJ and the commonly accepted ethical standard, makes good sense rather than the relatively untested reading of unwarranted by the evidence (which could be interpreted lower than probable cause).  

     
    I have to disagree. 
     
    Probable cause is not the “policy of DOJ” for commencing or declining prosecution. The DOJ’s standard is set forth in U.S. Attorney’s Manual § 9-27.200 – Grounds for Commencing or Declining Prosecution
     

    The attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, that the admissible evidence will probably be sufficient to obtain and sustain a conviction, and that a substantial federal interest would be served by the prosecution, unless, in his/her judgment, prosecution should be declined because: 
    1.  The person is subject to effective prosecution in another jurisdiction; or
    2. There exists an adequate non-criminal alternative to prosecution.

    In comparison to that standard, a mere probable cause determination does not account for:
    1.  Whether the evidence is admissible at trial,
    2.  Whether the admissible evidence “probably” will result in a conviction,
    3.  Whether the admissible evidence “probably” will sustain a conviction on appeal,
    4.  Whether the prosecution would serve a substantial federal interest,
    5.  Whether that interest could be effectively served by prosecution in another jurisdiction; or
    6.  Whether there exists an adequate non-criminal alternative to prosecution.
     
    Those are substantial differences between the DOJ’s policy and a mere probable cause determination. The statute certainly does not bring the two practices in-line. Perhaps regulation will, but that is still to be seen.
     
    Neither is probable cause “the commonly accepted ethical standard” for charging decisions. The prevailing document for those ethical standards are the ABA’s Criminal Justice Standards for the Prosecution Function, currently in its Fourth Edition. The applicable standard to charging is Standard 3-4.3, Minimum Requirements for Filing and Maintaining Criminal Charges:
     

    A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes that the charges are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interests of justice. 
    After criminal charges are filed, a prosecutor should maintain them only if the prosecutor continues to reasonably believe that probable cause exists and that admissible evidence will be sufficient to support conviction beyond a reasonable doubt.
    * * *
    A prosecutor’s office should not file or maintain charges if it believes the defendant is innocent, no matter what the state of the evidence.

     
    Further guidance if provided in Standard 3-4.4, Discretion in Filing, Declining, Maintaining and Dismissing Criminal Charges:
     

    [T]he prosecutor is not obliged to file or maintain all criminal charges which the evidence might support. Among other factors which the prosecutor may properly consider in exercising discretion to initiate, decline, or dismiss a criminal charge, even though it meets the requirements of Standard 3-4.3, are:
    (i)  the strength of the case;
    (ii)  the prosecutor’s doubt that the accused is in fact guilty;
    (iii) the extent or absence of harm caused by the offense;
    (iv)  the impact of prosecution or non-prosecution on the public welfare;
    (v)  the background and characteristics of the offender, including any voluntary restitution or efforts at rehabilitation;
    (vi)  whether the authorized or likely punishment or collateral consequences are disproportionate in relation to the particular offense or the offender;
    (vii) the views and motives of the victim or complainant;
    (viii)  any improper conduct by law enforcement;
    (ix)  unwarranted disparate treatment of similarly situated persons;
    (x)  potential collateral impact on third parties, including witnesses or victims;
    (xi)  cooperation of the offender in the apprehension or conviction of others;
    (xii)  the possible influence of any cultural, ethnic, or socioeconomic or other improper biases;
    (xiii)  changes in law or policy;
    (xiv)  the fair and efficient distribution of limited prosecutorial resources;
    (xv)  the likelihood of prosecution by another jurisdiction; and
    (xvi)  whether the public’s interests in the matter might be appropriately vindicated by available civil, regulatory, administrative, or private remedies.
    * * *
    The prosecutor should consider the possibility of noncriminal disposition, formal or informal, or a deferred prosecution or other diversionary disposition, when deciding whether to initiate or prosecute criminal charges. The prosecutor should be familiar with the services and resources of other agencies, public or private, that might assist in the evaluation of cases for diversion or deferral from the criminal process.

     
    Thus, the ethical standard that U.S. Attorneys are supposed to consider when determining whether a trial is warranted couldn’t be further from a mere assessment of whether probable cause exists.
     
    The ethical standard applicable to the prosecution function – whether the lawyer involved is a town prosecutor, a county prosecutor, a state prosecutor, a federal prosecutor, or a military judge advocate – envisions much more than a mechanical application of probable cause. 
     
    The number of factors an ethical prosecutor (commander or otherwise) is supposed to account for are legion. Perhaps that is why ABA Standard 3-2.1 cautions:
     

    Prosecutors whose professional obligations are devoted full-time and exclusively to the prosecution function are preferable to part-time prosecutors who have other potentially conflicting professional responsibilities. 

    Not to mention, that same Standard advises:
     

    The prosecution function should be performed by a lawyer who is
    (i)  a public official;
    (ii)  authorized to practice law in the jurisdiction; and
    (iii)  subject to rules of attorney professional conduct and discipline.

     
    NatSecLawGuy said:

    I also disagree that Article 34 was to be employed as the conscience check on commanders.  Rather, Article 34 was to fill the legal and ethical knowledge gap commanders have by not being trained in the law.  The advice was intended to give the legal minimums for referral and an analysis as to whether those legal minimums were met.  While certainly an SJAs advice should go further, which most SJA written advices don’t because they are discoverable, the commander is not legally obligated to consider more than the legal minimums (i.e. whether probable cause exists to support the charges).  Further, it would be unwise to insert the rather politically unaccountable SJA’s discretionary decision as a legal limitation on the rather politically accountable commander’s discretionary decision. 

     
    For the reasons described above, I agree that Article 34 was amended in 1983 to “fill the legal and ethical knowledge gap commanders have by not being trained in the law.” To do that, the statute charged SJAs, who are bound by the ABA’s standards articulated above, with ensuring that charges are not sent to trial unless they are “warranted by the evidence.” You may be right that “the commander is not legally obligated to consider more than the legal minimums (i.e. whether probable cause exists to support the charges).” But, SJAs are subject to professional responsibility rules. That’s presumably why Congress trusted them to hold the line on unwarranted charges.
     
    As to whether it was wise for Congress to have “politically unaccountable SJAs [make the] discretionary decision” on charging, I’d say that the failure of SJAs to embrace that duty would suggest Congress’ trust was misplaced, and thus not “wise.” Perhaps that is why the ABA Standard calls for prosecutors to be “a public official.”
     
    NatSecLawGuy said:
     

    While common wisdom usually describes Article 32’s as the military’s grand jury, I think more apt is that commanders fulfill that function in our system.  Judge Learned Hand described the grand jury as “the voice of the community accusing its members.”  See 1-1 Federal Grand Jury Practice and Procedure § 1.02 (2007).  Commanders, as politically accountable actors within the specialized military community, act as the “voice of the community” in making accusations within our military justice system.  Removing commanders from this process will only cause the fears Ms. Goldberg describes: a mechanistic prosecutorial decision.  But, instead of outsourcing intuition eliminate it.

     
    I think your discussion of the Article 32 process as compared to the grand jury process is a bit of a non-sequitur. The apt comparison to the SJA’s veto is the standard used by civilian prosecutors to decide whether to take charges to a grand jury – not the standard used by the grand jury to indict. As explained above, the decision of whether to seek an indictment involves the exercise of discretion that is, ethically, supposed to account for a huge variety of equitable factors.
     
    The new UCMJ will be completely unlike the civilian jurisdiction because convening authorities, who are standing in the position that U.S. Attorneys occupy in the civilian world, will be merely applying the probable cause standard. And if they choose to not pursue a prosecution which is supported by probable cause, the statute requires them to explain themselves to their superiors. In an environment where those superiors are subject to Congressional ire for failing to pursue prosecutions, that is a recipe for weak cases going to trial despite equitable concerns that would suggest another disposition is in the interests of justice.
     
    NatSecLawGuy said:
     

    Finally, you seem to mistakenly infer the recent Congressional legislative proposals are aligned with the interests in the 1983 amendments to make the process more fair for the Accused.  Nearly all evidence shows the contrary.  The Congressional legislative proposals are intended to force additional prosecutions even where the equities that show the case is not warranted by the evidence.  Indeed, one could say Senator Gillibrand’s continual introduction of this legislation is a veritable sword of Damocles over commanders to force them to tow the line of Congressional views on prosecution of sexual assault offenses.  Indeed, Congressional micromanagement of Article 120 has arguably created a wholly separate process for those accused of sex crimes, vice any other offenses in the code (although the 2016 amendments helped to bring some balance amongst offenses in the code). 

     
    I concur. For the past several year, the legislative agenda has been focused on producing more prosecutions. But that will not last. Stories like this one recently published by the Washington Times are increasingly painting a counter-narrative in the public eye – one that asserts that efforts to make the military justice system more victim-friendly have resulted in making it unfair to accused, particularly accused men.
     
    The angle taken by these new stories alleging mistreatment of the accused is the same angle taken by older stories which decried mistreatment of the victim – that commanders are to blame.  Both types of stories posit that if we just remove commanders from the equation the military justice system would somehow self-correct.  I think the pendulum is swinging back towards concerns for the rights of the accused – as it historically tends to do in the military justice system. This time, unfortunately, either way the pendulum seems to be swinging, commanders seem to be in its way.
     
    NatSecLawGuy concluded:
     

    In sum, the characterization of Article 34 as a veto is far too powerful for what was intended: a prosecutorial decision meeting the minimum legal and ethical standards of the civilian community. 

     
    As described above, I don’t think a mere probable cause determination is the minimum legal or ethical standard for charging in the civilian community. The U.S. Attorney’s manual and the ABA Standards say otherwise.
     

  5. Smalls says:

    Zach,
     
    FYI – TJAGLCS Publications are available at https://tjaglcspublic.army.mil/tjaglcs-publications
     
    They do need to fix the Army JAGCNET outage though…

  6. Isaac Kennen says:

    Smalls,When you click on the “Military Law Review” banner at that site, you find 17 empty sub-folders. It looks like they’ve built a pretty storefront, but have yet to fill that structure with content. Hopefully, the existence of that shell is an indication that a remedy is in the works.

  7. (Former) ArmyTC says:

    In fairness, my SJA’s advice when cases needed to die was to have the Special Court Martial Convening Authority dismiss after the Article 32. No Arrticle 34 advice needed. No non-referral decision to be reviewed or second guessed. 

  8. Isaac Kennen says:

    (Former) ArmyTC,
     
    In the Air Force, that methodology wouldn’t work on account of AFI 51-201, Administration of Military Justice, paragraph 3.7.5:
     

    3.7.5. General Court-Martial Convening Authority Review of Initial Disposition Decision.
     
    3.7.5.1. Effective 27 June 2013, the Under Secretary of the Air Force directed that the Special Court-Martial Convening Authority with initial disposition authority provide the General Court-Martial Convening Authority in the grade of O-7 or above written notice of the initial disposition within 30 days following the date of the initial disposition decision, with respect to the offenses listed in paragraphs 3.7.1.1 through 3.7.1.4. (T 1). See Figure A3.19. A template notice is available at Figure A3.11.
     
    3.7.5.2. When disposition of the alleged offense is complete, the General Court-Martial Convening Authority signs the written review of the Initial Disposition Authority’s action. This responsibility is not delegable. A template review is included at Figure A3.12. This review is maintained by Air Force Office of Special Investigations or Security Forces Office of Investigations. Note: For additional review of General Court-Martial Convening Authority decisions not to refer a sex assault charge to court-martial, see paragraph 4.22.

     
    That regulation ensures that a Special Court-Martial Convening Authority’s decision to not forward a sex offense case for referral gets, as you put it, “reviewed or second guessed.”

  9. DCGoneGalt says:

    And almost no one wants to send a Sexual Assault Legal Review for higher review on a case that meets the bare-bones probable cause ta fats.  Which is why, other than victim non-participation, only absolute the worst of the worst cases don’t go forward.  The rest of the cases that a rational SJA and convening authority would otherwise decline to go forward with (based on the evidence and the law, if these decisions were made on such things), if not for the perception of pressure and concern for their own career get shot-gunned to probable cause-ish and resource-wasting acquittals.  
     
    IMO, SJAs have shown no more willingness to show integrity in their recommendations than commanders in their disposition decisions.  May as well keep convening authorities in control because, even though they are the “SME”, SJAs would do the same thing.  We could eliminate the issue by sending the cases to AUSAs to make the decisions . . . but they wouldn’t send forward more cases and would likely make decisions based on the facts and the law and that’s not a desired outcome.
     
     

  10. DawG says:

    Isaac, in my experience (Former) ArmyTC’s method of killing a case does work in the Air Force.  I did that several times as an SJA to a Special Court-Martial Convening Authority.  We sent notice of what we did up the chain to the GCMCA and the GCMCA duly noted what we did in a memo for record.  That is the end of the case unless the GCMCA wants to take the unusual step of preferring new charges or something similar.  The AFI does not give the GCMCA the power to do something to a case that has already ended, nor could it.  Furthermore, as you point out, the AFI requirement only applies in certain sexual offenses.  For all other categories of cases, (Former) ArmyTC’s method definitely works.

  11. NatSecLawGuy says:

    Good Afternoon Isaac,
    Thanks for the response, a couple of notes in reply.
    I stand corrected on the DOJ policy.  You are correct it presumes far more than probable cause. 
    However, I still believe the weight of ethical authorities, putting aside the aspirational ABA Standards you cite to, is that the professional responsibility or ethical standard for prosecution is probable cause.  See New York State Rules of Professional Responsibility Rule 3.8(a) (“A prosecutor or other government lawyer shall not institute, cause to be instituted or maintain a criminal charge when the prosecutor or other government lawyer knows or it is obvious the charge is not supported by probable cause’); California Rules of Professional Conduct Rule 5-110(A) (A prosecutor shall, “not institute or continue to prosecute a charge that the prosecutor knows is not supported by probable cause”); Air Force Standards for Criminal Justice Standard 3-3.9(a) (“It is unprofessional conduct for a trial counsel to institute, or cause to be instituted, or to permit the continued pendency of criminal charges when it is known that the charges are not supported by probable cause.”).  Even the ABA Model Rules of Professional Responsibility don’t impose a similar burden the ABA Standards do requiring a prosecutor to only “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”  See Rule 3.8(a).  The Air Force Standard does go a little further, by saying the trial counsel, “should not institute or permit the continued pendency of charges in the absence of admissible evidence to support a conviction,” but not nearly as far as either the DOJ policy or the ABA Standards.  Thus, absent specific jurisdictional guidance or policy the town/county/state prosecutors (and some federal prosecutors) are meeting the widely accepted ethical standard by ensuring probable cause is present to support the charges. 
    That being said, my comments should not be viewed an endorsement of prosecutions based on mere probable cause.  But probable cause and no more is what the ethical minimum is.
     
     
     
     
     

  12. Isaac Kennen says:

    DawG,
     
    I commend you and your special court-martial convening authority both for showing that sort of courage. It makes me proud to serve with you, whoever you are.
     
    But, in today’s environment, make no mistake – it was courageous. It may have been your duty, but demobilizing a sexual assault allegation in that manner is inviting the ire of some powerful legislators and public interest groups, and it also runs the risk having those entities team up with prominent media outlets to depict you and your convening authority (and by extension your families) in a less than generous light to your fellow citizens. So, thank you for sticking your neck out.
     
    As to your assertion that:

    The AFI does not give the GCMCA the power to do something to a case that has already ended, nor could it. 

     
    I am reminded of the sentence you wrote immediately preceding that one:

    That is the end of the case unless the GCMCA wants to take the unusual step of preferring new charges or something similar. 

     
    I think that’s exactly what general court-martial convening authorities are being pressured to do. This isn’t a hypothetical, either. You don’t have to look much further than the saga of United States v. Wright  to see that, at least during the time of the previous Air Force TJAG, the policy was “that sexual assault cases, absent ‘smoking gun’ evidence about an alleged victim’s credibility, should be sent to court-martial.”  
     
    In Wright, when the general court-martial convening authority refused to apply that standard, the case was taken from him and transferred to the National Capital Region, where a court-martial was convened. Wright ended up being fully acquitted by a panel of members, but the old general court-martial convening authority and his staff judge advocate were both nonetheless pilloried and forced to retire, with the general retiring at a lower grade. 
     
    The result of all that drama in United States v. Wright is still being felt today. That’s the whole premise for United States v. Boyce – the treatment of convening authorities in the Air Force has tainted the public’s perception that they can act independently. With the court-stacking that occurred in the Coast Guard in Riesbeck, it appears that convening authorities outside the Air Force might also be compromised by similar pressures.

  13. DawG says:

    Isaac, I recently retired so I made it through unscathed.  I never thought it courageous to do the right thing, but I did get frequently reminded that the military was only 1 more bad case away from seeing really drastic changes to the UCMJ.  I never really bought in to that.  Only time will tell.
    But you are right about GCMCA review; it is much more than a hypothetical.  What I left out of my original post is that in 1 of my sexual assault cases, there were new charges preferred.  The Art 32 PHO, myself, the SPCMCA, and the GCMCA were all okay with dismissal of the charges.  We followed the procedure I outlined above.  But the GCMCA’s commander (the MAJCOM commander) sent the case for review to a different command.  That commander preferred charges and the MAJCOM commander initiated a new Article 32.  The new PHO recommended referral and the MAJCOM commander referred the charges.  (You being in the Air Force will know how extremely rare that is; I hope it stays rare).  My office took the case to trial and won.  We expected a lot of motion practice and discovery regarding the irregular pretrial procedure and there was, but most of that was dropped before the start of trial so it will probably never be an appellate issue in this case.

  14. DawG says:

    (Important to add that I recently retired on my own terms after being offered I nice job I just didn’t want.  I wasn’t forced like in the Wright case.  But it does happen and many SJAs will definitely take the safe approach to sexual assault cases).

  15. k fischer says:

      I think the pendulum is swinging back towards concerns for the rights of the accused – as it historically tends to do in the military justice system. This time, unfortunately, either way the pendulum seems to be swinging, commanders seem to be in its way.
     

    Isaac, I too have felt the swinging of the pendulum at the post where I predominately practice.  I used to really really want the lawyers to take over the UCMJ, in order to decrease inherent UCI that results from the Post’s Commander referring charges to Court-martial.  In my last three trials, I have seen a lot more friendly faces towards me as a defense counsel.  I have felt more openness by panel members during voire dire to discuss false allegations and whether they believe them to be a problem in the military and society in general.  I’ve come to the conclusion that panel members understand that the lawyers are running the show in sex crimes prosecutions, no matter how often the SVP is referred to as the “assistant trial counsel.”  And, I have received better signals that panels are holding the Government’s feet to the fire.
     
    So, my desire that the UCMJ be made a lawyer driven system, so that panels understand it is a lawyer driven system, rather than a Post Commander driven system where the old man is not going to waste time trying an innocent man, is no longer needed.  Panel members have heard about TJAG for the AF and Navy essentially advise that all cases should be tried at Court-martial, even the most questionable ones, in order to appease Congress.  I think that many panel members going into the courtroom believe that it is up to them, and only them, to ensure that the Accused gets a fair trial because they know that the Article 32 hearing is not a filter to weed out bad cases now,  that law enforcement “start by believing” investigations likewise do nothing to prevent bad cases from getting before them, and Convening Authorities are too concerned about their careers or bad press for their Service to kill a case when the case is so weak that an acquittal is imminent.

  16. stewie says:

    The loss of the 32 as a filter was indeed the worst thing to happen among all of the changes that have happened IMO. Everything else was tolerable or at least could be dealt with, but once the 32 was rendered meaningless, neither side truly knows what they have until they get to trial in many of these cases.

  17. k fischer says:

    Stewie, 
     
    I don’t know if it caused the pendulum to swing the other way.  Loss of the Article 32 as a filter was bad for SJA’s in relation to Congressional pressure to ensure that every sexual assault allegation be tried at a GCM.  SJAs no longer have an excuse because unless a person recants their sexual assault allegation prior to the Article 32, then the PHO is going to find probable cause.  And PHO’s can recommend dismissal of charges in each and every case, but SJA’s are going to disregard that recommendation when there is a finding of probable cause based on “reasonable grounds.”
     
    I’m not sure that your average enlisted panel member is going to know that Article 32’s are a mere speed bump.  Many Officers who served as 32 Officers prior to the JAG attorney PHO requirement might harken back to their own experience when the 32 was a filter.  But, the O5s and O6s who have been in Command probably will and could educate others who are unaware of the changes.
     
    What I have seen in the recent pendulum swing since 2015 is sexual assault fatigue.  And, when you have an SVP who is making an argument that metaphorically it is raining, when the panel members clearly see that he is pissing on their leg, then they remember that.  They become skeptical for the next year.  They learn that the Government should not be trusted.  When they hear the CID agent testifying and calling the Complaining Witness the “victim,” then can’t bring themselves to admit the very simple concept that if the CW is lying, then the accused is the victim of a false allegation, then they see the biases in the system, understand how the Accused could be innocent and standing before them, and they adjust fire accordingly.  When they read the news and see Senator Gillibrand saying that lawyers should be running the show instead of Commanders because Commanders sweep sexual assault charges under the rug, yet, the TJAGs of two services are caught committing UCI, then those panel members are skeptical. 
     
    And, nothing is more satisfying than busting a new panel with the first case they see.  For the next year, the SVP is going to have to work to get that conviction.  If he brings another bs case, then he only digs himself into a deeper hole.  And, that’s great when the Accused innocent.  But, the sad reality for society is that the guilty don’t get convicted.
     
    When panel members see some of the ridiculous SHARP training migrate into colleges, then into society in general with some of the ridiculous allegations in the #metoo movement, then they are more likely to give the Accused the benefit of reasonable doubt, even when the Accused doesn’t take the stand.  You should read the discussions during the individual voir dire my last trial’s transcripts.  This is what the panel president said: 
     

    “I think recently there’s a — especially quite recently there’s a lot of allegations coming to fruition, some of them are years and years in the past, and I just — in my opinion I raised some issues with that when there’s no — when they’re not bringing any evidence or anything to the forefront, I think sometimes the people do it for immediate media attention or other genders maybe monetary, to sell a book or to get on the news.  So that’s my opinion.”
     

    Here’s another great quote from a different member:
     

    I think that Soldiers sometimes use programs within the military, i.e. EO, IG as a weapon against command teams or anyone else by making false accusations against them.

     
    When asked if he ever had a dependent make a false allegation against one of his Soldiers in his Battalion, he responded, “More than I can count.
     
    And another different member:

     
    Well just seeing mainly what I see on the news nowadays people will go back 20 years and make an allegation, and people are automatically presumed guilty based on those words from 20 years ago that something happened.  I just think a lot of it is possibly false and people jump to conclusions without any evidence.

     
    And, yet another different member:

     
    I mean you see it on the news.  You see what’s going on right now in Hollywood.  I mean, is it false, is it true, I don’t know.  But you can kind of see how in society it’s beginning to — it almost seems like they’re using it in a wrong way, and sometimes it’s a lie.  So, I do feel that it is a problem in society.

     
    Or words to that effect. We cut the O6 senior to the president to make it a 6 person panel.  Think about that, and how that goes against conventional wisdom of a 7 or 8 is good for the defense.
     
    To get back to the article:

     
    The last several years have been stressful times for the military justice system. More is almost certainly on the way. There have been genuine reforms, exploitation of bad and misleading statistics, and plenty of political opportunism. More than a few experienced practitioners think the force of military justice that is, discipline, efficiency, and justice is out of balance.
     

    I think military justice is out of balance, up to the point of trial.  I think that panels and CAAF are the last Jedi to bring balance that the Accused be given a fair trial.  I don’t think changing the Article 34 standards to recommend a Court-martial to probable cause has caused it.  If recent history shows, lawyers are just as, or even more so, susceptible to the political desires of the most vocal members Congress based on actions by TJAGs and SJAs.  Some of them took that previous “warranted by the evidence” standard to heart to recommend to their Commanders that charges be dismissed, but I think they just thought if the 32 IO finds probable cause, then a trial is warranted.
     
    I think that the balance provided at trial is because the GCM is no longer viewed as an arrow in a Commander’s quiver to rid the military of the scourge of rapists amongst it’s ranks.  Those on the Lindsey Graham and Claire McCaskill side believe that Commanders are best able to be in charge of all things UCMJ.  I think they bank on the presumption of legitimacy that charges referred by the GCMCA used to have.  Unfortunately, I think somebody ought to consider the perception that the GCM is now viewed as an arrow in Commander’s quiver to maintain his career when dealing with sexual assault allegations.  Because I think that perception exists and is causing the pendulum to swing to benefit the Accused at trial, both the innocent and the guilty.  And the more actions Congress, TJAGs, and SJAs take to stack the deck, the higher the acquittal rate for sexual assault charges in the military is going to climb. 
     
    So, keep it up the good work TJAGs, Senators Gillibrand and McCaskill, TCAP, SHARP, SWAN, POD, RAINN, and #metoo.  The more you disregard the rights of the Accused by focusing on complaining witnesses and conflating the ridiculous allegations with the ones that have merit, then the more panels are going to focus on the rights of the Accused when it matters the most for defense attorneys:  at trial.

  18. Garlan Burrisg says:

    This CAAFlog posting clearly reveals that my son, Major Erik J. Burris-US Army, is living a nightmare. An innocent man convicted and sentenced to twenty years in prison for crimes never committed. Our military leaders, in and out of the JAG Corp, enforce a policy having nothing to do with justice. I can not believe that this is occurring right under our noses. CAAF now has my son’s fate in their hands, and their only concerns are with wording, not related to the complete fraudulent control of the trial. Why, after an honest evaluation of his Article 32 investigation, did his case ever go to court martial? The person(s) pushing this to trial should face charges leading to capitol punishment, for this was treason. My son is not the only victim, but is an example of a worse case scenario!