Last week, Senior United States District Court Judge James L. Graham issued an order allowing part of a long-running civil rights test case, John Doe v. The Ohio State University, to go forward to a jury. John Doe is an expelled medical student who is suing a Ohio State University Sexual Violence Support Coordinator, in her personal capacity, for money damages, under 42 USC § 1983 (a Bivens action). His theory is that, as a public employee, Spiert had a duty to protect his Constitutional right to due process. John claims that Speirt violated that right when she allowed his disciplinary board to be misled by false testimony from her client, the person he is alleged to have sexually assaulted.

The alleged victim, Jane Roe, was also in medical school. She received notice from the school that she was going to be expelled for having failed her first year of medical school a second time. After receiving that notice, Jane met with Spiert and reported that John had sexually assaulted her. At Jane’s academic board hearing, Spiert was in attendance and spoke on Jane’s behalf. Spiert also witnessed Jane’s testimony before the board that her difficulties in school were a result of having been sexually assaulted by John.

The academic board then decided to let Jane have a third try at her first year of medical school. The board expressly asserted that Jane’s distress at having been sexually assaulted weighed heavily in its decision.

John’s disciplinary hearing came next. Spiert attended John’s hearing too, “as Jane Roe’s advisor.” She witnessed Jane testify at John’s hearing, falsely, that “[the academic board’s] decision to keep me in school and to allow me to continue next year in the fall was already decided before my decision to report this assault.” Spiert also witnessed Jane assert to the disciplinary board that “[reporting] doesn’t give me any benefit other than holding [John] responsible and meeting an ethical obligation – or responsibility, rather.”

At the time of the disciplinary board, John had not been provided any evidence which would have allowed him to rebut those assertions. As a result, one of the disciplinary board members asked John directly: “[T]here seems to be no motivation for Jane Roe to make this up. Why do you think she claims she doesn’t remember what happened?” John merely replied that he couldn’t speak for Jane. Spiert remained silent. John was expelled.

When the true facts concerning the timing of Jane’s report came to light, John filed suit against Spiert, asserting that she had a duty, as a public employee, to ensure that the disciplinary board hearing his case was not misled by evidence she knew to be false. Spiert moved to dismiss John’s suit under a qualified immunity theory.

Judge Graham’s order denies Spiert’s motion. The order finds qualified immunity must yield to the requirements of the Constitution. And, specifically, the court found that “[t]he Due Process Clause is flexible; it calls for such procedural protections as each particular situation demands.” Order at 14. Then, the Court held:

A reasonable jury could find that Natalie Spiert knew or should have known that Jane Roe lied or misled the disciplinary board. [T]he board might have reached a different conclusion on Jane Roe’s credibility if it had been presented with all the facts. . . . The motion for summary judgment is denied as to Natalie Spiert because there is a genuine issue of material fact.

Order at 15.

The idea that an advocate should have to alert a tribunal to their client’s misrepresentations is, of course, not novel. ABA Model Rule 3.3(b): Candor Toward the Tribunal requires:

A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

The Navy’s Rule of Professional Conduct 3.3, the Air Force’s Rule of Professional Conduct 3.3(b), and the Coast Guard’s Legal Rule of Professional Conduct 3.3(b) all track the ABA Model Rule nearly verbatim.

Army Rule of Professional Conduct 3.3(a)(2) applies a somewhat different standard. It appears to only require an attorney to disclose a fact that would undermine the client’s testimony if the fact is “material,” and then only when failing to disclose would “assist” the client in committing the fraud:

A lawyer shall not knowingly . . . fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.

But, whatever their differences, these professionalism requirements for lawyers all differ in important ways from the order issued in John Doe. First, the professional rules regarding candor all use a full-knowledge standard. In contrast, John Doe found that the Constitution requires government-employed advocates to instead use a “knew or should have known” standard when deciding whether to correct a client’s misrepresentations to an adjudicative body. Order at 15. Thus, a government-employed victim’s counsel who should know that her client is lying on the stand, but doesn’t actually know that to be true, might be able to avoid professional sanction under the Rules of Professional Conduct; but she could still face monetary damages in her personal capacity under John Doe.

Second, the rules of candor have tended to be viewed as addressing the duties that a lawyer owes to our tribunals. The rules are focused on maintaining the integrity of the profession of law. By doing so, they serve society at large. But, John Doe‘s focus is very narrow. It instead focuses on the duties that a public-employed advocate participating in a public adjudicative proceeding owes to that particular accused in that particular situation. Unlike the rules of professional responsibility, John Doe’s order is not concerned with protecting the legal profession – it is concerned with supporting and defending the due process rights of a particular accused under the Constitution. That is a substantively different view, and purpose, altogether.

Of course, the Constitutional imperative in John Doe has more bite outside of the military, where Feres v. United States does not hold dominion. But, Feres should not be viewed as the impenetrable wall it is sometimes assumed to be. After all, the doctrine only bars suit “where the injuries arise out of or are in the course of activity incident to service.” Feres, 340 U.S. at 146.

Interpreting what “incident to service” means is the very stuff of judicial discretion. In finding that injuries have not been “incident to service” courts have held:

When a soldier commits an act that would, in civilian life, make him liable to another, he should not be allowed to escape responsibility for his act just because those involved were wearing military uniforms at the time of the act.

Durant v. Neneman, 884 F.2d 1350, 1354 (10th Cir. 1989) (emphasis in original); Lutz v. Secretary of Air Force, 944 F.2d 1477, 1487 (9th Cir. 1991).

With that precedent, a public-employed victims’ counsel in the military might not be as safe from civil suit as he would like for committing an act which, he should have known, would violate the accused’s constitutional rights and which “would, in civilian life, make him liable to” the accused.

45 Responses to “Scholarship Saturday: Do government-employed victims’ counsel have a duty to protect the accused?”

  1. Shawn says:

    Perhaps the only topic more fraught than rape is false accusation of rape.  The incidence of false accusations is widely reported to be a mid single digit percentage greater than 2% and less than 10%.  Does “guilty beyond a reasonable doubt” not mean that no other logical explanation can be derived from the facts?

  2. Philip D. Cave says:

    Some random thoughts.
    So, where the falsely accused and prosecuted sues the SVC along with the false accuser in a civil action, does that mean that the DoJ should decline to represent the SVC because the SVC is acting outside the scope and course of their official duties?  And would the argument above extend to SAVI and SARC reps who more resemble Spiert?
    Are the ethics rules a defense (I complied with my ethics rules) or do they establish liability because there is an express duty and that’s further evidence of why they knew or should have known?  Is the following from Lutz relevant (a la discussions of TC accountability or perceived lack thereof):

    On August 1, 1989, the district court addressed and denied the sergeants’ renewed motion to dismiss both the Bivens and common law claims against them based on the Feres doctrine, finding that “the defendants’ actions were not ‘incident to military service,’ ” and that because “[t]he only disciplinary action taken by the Air Force was against Major Lutz … [t]he Court [would] not be second-guessing military discipline by evaluating defendants’ conduct at issue in this case.”
    . . . 
    Here, the district court focused exclusively on the question of whether the suit would require the civilian court to second-guess military decisions and impair essential military discipline. It found as a factual matter that because there was no “Air Force disciplinary decision based upon investigation of the defendant’s (sic) conduct at issue in this case,” Lutz’s lawsuit would not require “second-guessing military discipline,” and the Feres doctrine should not bar her claims.

    Emphasis added.
    You might take a look at West v. Rieth, 2016 U.S. Dist. LEXIS 82487, aff’d 705 Fed. Appx. 211, 2017 U.S. App. LEXIS 12316—Lutz might be an outliar.
    Any Code 14 people out there with thoughts?
    Some parts of society, some in the legislative branch, and some in the executive have determined that any method no matter how perverse, illegal, unethical, or unreasonable may be taken to prevent the greater evil and in the process ignore the harm to the innocent and other collateral victims.  That’s not the country intended but it is the one we live in.  I appreciate that might be seen as a dystopian view developed over 38 years around MJ, like Brother Bill.  Best I can say is to paraphrase the Navy core values: Honor the intent, have Courage in defending, and have the Commitment to ensuring a fair trial–regardless of which part of the room you are sitting in.
    Out here!

  3. Cloudesley Shovell says:

    Phil Cave, et al:
    This is all interesting in theory.  One wonders if it would ever get so far as an actual civil suit, as a practical matter.  As for the law, Feres has been under criticism for years, most notably by Justice Scalia, but also others.  I do recall that long ago and far away while working FTCA issues, no small amount of care was taken to avoid litigating a case that could spell the end of Feres.  I also seem to recall that lower courts were getting much more willing to make findings to avoid the application of Feres, as it rests on very dubious grounds.  Whether Feres would even apply to a lawsuit as contemplated by the original post above is an interesting question.
    It’s one thing to say that a service member cannot sue for injuries sustained in what is obviously military training; it’s quite another to say that Feres bars a suit when a service member, while on leave, is hit in a crosswalk by a negligent military recruiter driving a rental car to an appointment while TAD. 
    Kind regards,

  4. Philip D. Cave says:

    Agreed, “Admiral,” which is why I recommend reading West, it’s close to being on point, in a different circuit.

    Plaintiff, Luke T. West (“West”), was at all times relevant to the pending motion a service member in the United States Marine Corps.  West alleges that Rieth and Parrott, who were also U.S. Marine Corps service members at all relevant times, conspired with others to lodge false complaints and accusations of sexual harassment and sexual assault against him. According to the complaint, such false allegations were personally motivated by a desire to remove plaintiff and another individual from their positions and to obtain favorable transfers.  The allegations included that “plaintiff had sexually assaulted [Rieth] at the Marine Corps Ball in November of 2011 by massaging her thigh at the Finance Section leadership table for approximately 2 minutes,” and that plaintiff “sexually assaulted [Parrott] by grabbing her and attempting to kiss her in two specific instances, first in the hallway of a hotel and then in a hotel bathroom at the MFR Marine Corps Ball in November of 2011.”  He alleges that these false allegations were “designed [to] take advantage of the charged political climate surrounding sexual assault allegations in the military for purely personal gain.” According to the complaint, Cuevas was the “Sexual Assault Response Coordinator for Marine Forces Reserves,” and Bartucco and Stucker were “civilian victim advocates for Marine Forces Reserves.”  They are alleged to have been civilian employees working in one of the Marine Force Reserves Sexual Assault Prevention and Response [SAPR] offices, which offices are “civilian in nature, operate independently of their parent military commands, and do not answer to, and are not under the control of, those parent military commands.”  Plaintiff alleges that Cuevas, Bartucco, and Stucker facilitated the filing of Rieth’s and Parrott’s allegations, either knowing that such allegations were false or with reckless disregard for the truth of such allegations.

  5. Cloudesley Shovell says:

    Phil Cave —
    I’m a long retired dead Admiral, and no longer have access to those fancy online legal systems, and am too busy searching for my emerald ring to saunter down to the nearest law library, wherever that may be.  Thanks for the excerpt from West.  It will be interesting to see how this area of law develops.  I detect these days a bit of a legal backlash against what might be seen as some overzealousness in the the arena of intimate relations between the sexes.
    Kind regards,

  6. Philip D. Cave says:

    Yes, admiral, but you are an excellent example of avoiding the rocks and shoals pour encourager les autres.

  7. Alfonso Decimo says:

    I watched the DON’s victim advocate program from it’s early beginnings while working at JAG HQ, in my post-courts-martial career. I don’t really know much about it as it now exists. However, if court-martial practice is supposed to mirror the civilian sector, victim advocates should be in support of the prosecution team, like “Pretrial Services” in state courts. As such, they would clearly have Brady (and Giglio etc.) obligations. So, in addition to all the civil and criminal liability referenced above, the prosecuting authority (and government trial counsel) should be accountable for what actions do they take to ensure the victim advocate discloses any exculpatory information to them.

  8. Dew_Process says:

    The Ohio Rules of Professional Conduct [RPCs] are applicable to Ohio lawyers and Ohio RPC 3.3(b) states:

    A lawyer who represents a client in an adjudicative proceeding and who knows that a person, including the client, intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable measures to remedy the situation, including, if necessary, disclosure to the tribunal. [Emphasis is original]

    That is the language from the ABA’s Model Rules.  But, this case was a civil, summary judgment motion decision and the Judge’s opinion framed the issue as follows:

    A reasonable jury could find that Jane Roe lied when she said the academic committee had already decided to permit her to repeat the first year of medical school for the third time and that she had nothing to gain by reporting the assault and no motive to lie. A reasonable jury could find that Natalie Spiert knew or should have known that Jane Roe lied or misled the disciplinary board. [Emphasis added].

    Anyone who has ever represented a client in a Title IX proceeding, knows that “Due Process” is an alien concept when a sexual assault is alleged. The media accounts are interesting, see HERE, and HERE. 
    Spiert – to my knowledge – is not a lawyer, so the RPCs don’t apply to her as they would to a SVC, for example. Yet, if you are the Accused, it probably doesn’t matter all that much . . . .

  9. Javert says:

    The long pole in the tent for this, as I see it, is SVCs are not obtaining testimony except in very limited circumstances.  In my jurisdiction (NY) I would have an affirmative duty to disclose to a tribunal any false testimony by a witness that I have testifying, but if I have not entered an appearance before the tribunal, would that not be covered under my duty of confidentiality?  

  10. Dew_Process says:

    @ Javert:   If you are a SVC, licensed in NY for example, I don’t think that entering an appearance or not, changes things in view of the wording in Rule 3.8(b) [NY RPC], which states:

    A prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant or to a defendant who has no counsel of the existence of evidence or information known to the prosecutor or other government lawyer that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence, except when relieved of this responsibility by a protective order of a tribunal.

    An SVC would seem to be an “other government lawyer” by definition.  The Air Force significantly departed from the Model Rules language and Rule 3.8(b), is AF Rule 3.8(d), which requires only the Trial Counsel to:

    make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the trial counsel, except when the trial counsel is relieved of this responsibility by a protective order of the tribunal.

    That (arguably) eliminates the SVC from the disclosure requirements in the Air Force. The Army Rule is the same as the Air Force’s; as is the Navy’s and Coast Guard’s rules.
    There is no principled reason for the Services’ Rules of Professional Conduct to substantially deviate from the ABA’s Model Rules other than to eliminate “other government lawyer(s)” from the requirements of Rule 3.8 – unless facilitating false or misleading testimony as in Ms. Spiert’s matter, is the goal by eliminating SVC’s from the process covered by the Services’ Rule 3.8.
    One irony is the scenario where a SVC is an admitted New York lawyer (or other jurisdictions that adopted the Model Rule 3.8(b) – can they “hide” behind the Service rule and claim that the duty to disclose does not apply to them? Or, does their State of Licensure’s rules bind any and all actions as an attorney in uniform or not?  At a minimum, it is an interesting paradigm.

  11. Wahoowa says:

    To correct the record: a Bivens suit and a § 1983 suit are two different things. Bivens is for federal actors, § 1983 is for state actors. Bivens is, essentially, a common-law cause of action; 1983 is statutory.

  12. Defense Wizard says:

    To answer the larger question, they should. If an SVC can shield the CW from investigation, but the prosecution goes forward anyhow, they should have a duty to justice. Justice calls for ten guilty person to go free before one innocent person is wrongly accused. More to the point, the CW’s liberty is not at stake in a criminal trial. To answer Shawn’s question, it seems there are a lot of gray areas between false accusations and guilt, and a lot of that is occupied by reasonable mistake of fact and alcohol. How many times have we encountered a story where a CW says “I can’t remember what happened,” and an Victim Advocate says “well, if you can’t remember, it was certainly rape!”

  13. K fischer says:

    Back in ’09 the military opened its doors to many SJW’s who trained the JAG with a bent on feminist ideology because I think they wanted a paradigm shift on how sexual assault cases were handled.  They weaponized “I can’t remember” to get cases to trial, and justified it as alcohol induced or trauma induced.  In too many cases “I can’t remember” is actually the equivalent to ” I don’t know, Drill Sergeant” which was very effective to get through basic when asked “What were you thinking Private????”  This was a lie because  I knew exactly what I was thinking, I just didn’t want to say what I was thinking because what I was actually thinking was stupid and would make me look bad.  Same thing with some Vics who say “I don’t remember” to those many key points that indicate a willing and consensual encounter.  Then, the SVP gets up there and argues that the Accused is lying and an evil person, and some schmuck gets convicted.  It happens too often.
    btw Does anyone know of a Mil Per message that says promotion boards from 2016 on look at Sharp complaints, meaning that if you were accused and fully acquitted then the promotion board would see that you faced a court martial for an Article 120 offense?

  14. Nathan Freeburg says:

    Kyle, I don’t know about a MILPER, but in the Army, if you are fully acquitted of a 120, your OER or NCOER still has to give you a no-go on SHARP and mention the 120 allegation. If you were acquitted of murder, treason or any other non sex crime, your evaluation cannot reflect those allegations in any way. So the promotion board will still see the substantiated allegation.  AR 623-3, paragraph 4 I think.
    Unamerican and absolutely moral cowardice on the part of the Army. Like I tell my clients, you are presumed guilty until proven innocent and if you are in the Army and it’s a 120 you are still guilty by regulation. 

  15. stewie says:

    What’s your solution then Nathan? Most of the time, your OER/NCOER is going to come before you get acquitted but with a substantiated allegation. I would note that you can have a substantiated allegation in your eval and NOT have a court-martial at all by the way. Different standards for an administrative action vice a criminal action. So, given all of that, should someone who has a substantiated allegation nevertheless have a go for SHARP because hey, they haven’t been convicted at a court-martial yet? What if it’s enough to be a SHARP allegation but not enough to take to trial? (Low level sex harassment/contact?).  Do you just leave it blank until trial, if there is one? I can certainly understand giving a right to a Soldier to go back and petition to change their eval explicitly upon acquittal, but I’d note again, the standard for an eval is at most preponderance, if that…way, way lower than criminal trial. I’m not sure it’s all that “cowardly” to recognize that fact.

  16. k fischer says:

    That’s a very good point, IF criminal investigators did a good job instead of this trauma informed sexual assault investigation psuedo-science method Russell Strand teaches that CID completely jacks up and uses to NOT investigate whether or not the vic is lying.  But, they don’t do a good job.  They “Start by Believing” just like End Violence Against Women International requires them to do (EVAWI’s honorary board includes a former Army HQE).  And, if you start by believing, then you are not inclined to begin with a stance that the individual is innocent until proven guilty because you would have to assume he is guilty.  And, so you have all these investigations where CID, OSI, and NCIS do a great investigation to get her story out, but do nothing about his or those allegations that are questionable on their face.
    But, I don’t see why “Being investigation for Rape” must go on one’s NCOER or OER. Why not leave it within the discretion of the Command?  Ohhhhh.  The Command can get gigged on the OER if they don’t uphold SHARP, too.  It’s not enough for men to go to jail for sexual assault offenses they committed.  We need a system where allegations can completely ruin men’s careers, too, and the career of anyone who doesn’t do as they are told by the Senator from New York who has very high level people shaking in her boots.

  17. Nathan Freeburg says:

    Stewie, I am asking why someone acquitted of a 120 doesn’t have the same rights as someone acquitted of murder or fraud. My suggested solution is that they be treated the same way and the same way they were before. The regulation specifically states that if you are acquitted at a court martial the allegations cannot be referenced on your evaluation. (Whether for integrity or anything else.)  And you can go back to an evaluation to have them taken off. Except for 120’s. Read the regulation. It’s cowardice. Pure and simple. 

  18. Nathan Freeburg says:

    to be blunt: you are better off being accused of murder or treason or espionage or desertion and then being acquitted then if you are accused of a grab-ass and acquitted. Justify that one. (With an explanation other than that congress pays attention to grab ass cases but not murder or desertion.)  

  19. stewie says:

    Being investigated for rape doesn’t go on your eval…a substantiated investigation does go on your eval. So your proposal is what? Leave it to the discretion of the command? You are going to have results all over the place. Some folks will have it who don’t deserve it, some who do deserve it won’t have it. How is that better than requiring a substantiated investigation? Why wouldn’t a substantiated investigation be enough? There is not and never has been an “innocent until proven guilty” standard for administrative actions. Sure, one can make the argument that we need to do better with our investigations on multiple levels, but the solution is not I think to effectively either not note it all unless there’s a CM conviction, or “leave it up to the commanders.”

  20. stewie says:

    If an investigation substantiates that you probably murdered someone, then the problem is probably more that the rules don’t let you mention that then the fact that it does let you mention sex assault. I don’t think the solution is saying the only way you can mention a substantiated sexual assault investigation is through court-martial. What about all of the “grab-assing” that doesn’t make it to trial? We just don’t put that on evals? Come on.

  21. Nathan Freeburg says:

    huh, none of that has to do with what I wrote.
    we were talking specifically about C-M acquittals. Explain to me why four years ago they changed the rules for sex cases and only sex cases. AR 623-3, 3-19. 
    (I understand that your argument is that all acquittals should be career-ending. Which I also disagree with, but it doesn’t change the fact that a murder or fraud or desertion acquittal are not career ending but any acquittal  with the word “sex” in it is. As a matter of regulation.)

  22. Nathan Freeburg says:

    its really fun to explain to a client with 17 years of service that being acquitted at their court martial (on bullshit allegations) didn’t save their retirement. But if they had been charged and acquitted of something more serious they would retire. 
    Justify that.

  23. Ed says:

    Just tell the client its the fault of the junior senator from New York. I’m sure that will make the client feel great.

  24. k fischer says:

    What exactly is substantiated?  Titled in CID?  A “meets criteria” finding at FAP?  That’s the criteria to have your career ruined?

  25. stewie says:

    kf, for an OER substantiated would mean either a completed/founded CID or 15-6 investigation. And yes, it is and has been the criteria for “having your career ruined” since like forever. You can have your “career ruined” with a GOMOR the standard of which is more or less “was the CG crazy when he wrote this?” It’s not BRD, it’s not preponderance, it’s not even really probable cause. You can have your “career ruined” with one timely mediocre but not referred OER (oh you wanted a top block going into your primary zone? Sorry). Let’s not get silly and pretend that the standard for evals and reprimands and “career ruining” things is, has, and was always way low…has nothing to do with sexual assault.
    Nathan, I said nothing about thinking all acquittals should be career-ending and if you are going to be silly like that I’m not going to continue engaging. I made it pretty clear that the issue is that just because one is acquitted BRD at a trial does not mean that they cannot face a lower administrative sanction.
    Or do you believe when OJ was found not guilty of murder at his criminal trial that means he must have been innocent therefore his subsequent civil trial “conviction” was a travesty?

  26. Nathan Freeburg says:

    the issue is with sex being treated differently from other offenses. And yes, acquittal should make a difference. 
    Riddle me this: A. an enlisted service member is convicted at a C-M but not sentenced to a discharge. By regulation, the worst a separation proceeding can then give her is a General. Or, B. let’s say she was charged with a 120 and fully acquitted at a C-M. She could get an OTH. Or, C. she was charged with murder and then acquitted at a C-M because her confession was suppressed. She retires with an Honorable. 
    Why are “SHARP” allegations different? And who hacked Stewie’s account?

  27. Nathan Freeburg says:

    the issue is with sex being treated differently from other offenses. And yes, acquittal should make a difference. 
    Riddle me this: A. an enlisted service member is convicted at a C-M but not sentenced to a discharge. By regulation, the worst a separation proceeding can then give her is a General. Or, B. let’s say she was charged with a 120 and fully acquitted at a C-M. She could get an OTH. Or, C. she was charged with murder and then acquitted at a C-M because her confession was suppressed. She retires with an Honorable. 
    Why are “SHARP” allegations different? And who hacked Stewie’s account?

  28. Nathan Freeburg says:

    ”made it pretty clear that the issue is that just because one is acquitted BRD at a trial does not mean that they cannot face a lower administrative sanction.”
    actually one can’t face a lower administrative sanction. Unless it’s a “SHARP” offense. 

  29. stewie says:

    Oh FFS Nathan by lower administrative sanction I meant you know anything that isn’t a court-martial, and since I know you knew that, it seems like we’ve reach the summit of Mount Pedantry.
    Your riddle is pretty silly because an admin separation board has a HIGHER standard/burden of proof ALSO. It’s also a significantly worse deprivation. So it has higher rights/stricter rules tied to it. An eval is about the lowest level. There’s also no prohibition about giving a GOMOR for something someone has been acquitted of at trial.
    And you can get a GOMOR for non”SHARP” offenses. You can also just get a mediocre OER that doesn’t mention anything and kills your career anyways. All this really is, is “I hate the way we do sexual assault stuff.”
    Sex assault is hard to prove BRD. It’s one of the hardest offenses to prove. That’s a good thing as we don’t want false positives i.e. innocent folks going to jail. But am I crying because someone got a negative block check on an OER? Not really, no. There are mechanisms to address that. You have OER appeals. You have the ABCMR. If your transcript establishes that she was lying, you’ve got an avenue to address it. If it’s CLEARLY “bullshit” allegations then use the process available. I think the solution as I’ve stated, and I’ll state again is to get rid of blanket rules that say offenses can’t be mentioned if there is an acquittal. Because you are dealing with two completely different standards.
    And that person with that negative block check probably retires with the same discharge as your hypo. And BOTH of them are probably getting a Grade Determination Review Board which…wait for it, is going to have a lower standard than a court-martial.

  30. Nathan Freeburg says:

    this is why we civilians get hired.
    Traditionally, we have seen a full acquittal at a court martial (or a criminal trial in most cases) as meaning that you can move on with your life or career without adverse consequences. That’s why you can’t do a separation board after an acquittal.  Despite it being a lower standard.  That’s why an evaluation can’t mention an allegation that you were acquitted of.  Despite it being a much lower standard.  Yes, an unethical commander could still wreck someone’s career…but most didn’t.  I’ve had multiple non-120 acquittals move on with their military careers and get promoted.  Because that’s how it’s supposed to work.  I’d even say that’s the American way.  If you don’t think it should work that way for any acquittal, then say it.  (BTW what did Alberto Martinez’s NCOER say after he walked in 2008?  I know he ETS’d with an honorable.). 
    I simply don’t comprehend how you can defend treating sex-related acquittals (which includes allegations of reprisal etc) differently than other acquittals.
    Then the Army secretly, slimily and cowardly put in an exception to the above for sex related cases.   (You’ll notice the other services didn’t…so far.) Next they’re coming for BRD in those cases…and the confrontation clause.  And don’t pretend there are actual avenues for redress.  Not once the word “SHARP” comes into play.  That dog won’t hunt.
    As for “substantiated investigation”, we all know how that works.  Service member gets accused.  They invoke.  Now you have a substantiated allegation.  Whether CID or 15-6.  And an acquittal doesn’t reverse that.  
    I’m a lawyer.  And I believe in the presumption of innocence.  A person is innocent until they are tried.  After they are tried they either remain innocent or become guilty.  And that doesn’t change based on what are you are charged with just because some other offenses are “harder” for the government to prove — never mind the constant brainwashing of panels and judges; structural, implicit UCI and explicit UCI; special military positions for failed civilian prosecutors, etc.
    Here’s a story: two junior soldiers are accused of raping a young woman.  They assert it was a consensual three-way and that the video they recorded will prove it.  Government doesn’t get around to watching the video until the eve of trial.  Charges dropped.  (It was clearly consensual.)  Good news story, right? Here come the indecent acts charges (an unconstitutional charge post-Lawrence but nevermind).  Hadn’t enough been done to them already?

  31. stewie says:

    The American way is plenty of folks get OJ’d. They face huge sanctions at a lesser hearing after acquittals. Are you spun up about that too?
    A CM >> Admin Sep Board >>>>> eval block check
    The presumption of innocence is for CMs. It’s not for eval block checks after a substantiated investigation.

  32. Nathan Freeburg says:

    You’ve refused to answer the question over and over. Because you know I’m right. I’m done here. 
    (And, yes, as a defense hack I get plenty spun up about the American justice system in general.)

  33. k fischer says:

    Stewie, I think your OJ analogy fails on this issue.  OJ was indicted by the State of California making him the defendant in a criminal case.  OJ was sued by the Estate of Ron Goldman and Nicole Brown making him the defendant in a civil.  Different parties were involved with different interests.
    In the issue Nathan is addressing, the United States Government is the party taking the action which is adverse to the Serviceman.  You see, the United States Government has a plethora of actions it can take against a Servicemember under the UCMJ or Regulations.  When its representatives choose to try a Serviceman on bs Article 120 charges at a GCM, then the Seviceman faces the most severe adverse consequences the Government can impose.  When a panel handily returns a unanimous verdict of not guilty because “none of them believe any of this stuff happened,” (Nathan knows of the case to which I refer), then the Serviceman should be given permitted to continue with his career as a vindicated man because the Government had lesser forms of adverse actions it could have chosen short of the worst possible action against the Serviceman, a GCM, that it rolled the dice on.   
    You would agree that in the military, the standard is not “Innocent, until proven guilty.”  Because if it were, then once the Serviceman was found not guilty, then he would be innocent and not face any more adverse actions by the United States Government. 
    And, to get back to the point of this article, the Serviceman has really no recourse against the Government or the SVP.  No Bivens action against the Nifongian SVP because the Serviceman is barred by Feres.  SOCO provides cover because it doesn’t want to disrupt the status quo.  After being flagged for a year and a half in case where Forrest Gump would have agreed that the Accused was actually the falsely accused in the case where his civilian defense counsel destroyed the false accuser on the stand with evidence known to the SVP who did his best to keep it all suppressed, the actual victim in the case, the falsely accused Serviceman, keeps getting kicked in the balls where the act continues to prevent him from being promoted because he was falsely accused of a sex crime, instead of a drug hot, murder, or a DUI. 
    Why is there an exception to sex?  Because senior Judge Advocates across the Services have their knickers in a wad because they fear the wrath of Claire and Kirsten.  It’s as simple as that.  The United States Government continuing to pound away at an acquitted Serviceman to appease Congress is not justice.

  34. k fischer says:

    And another thing to all Judge Advocates out there:  If the appeasement of Congress enters into the calculus of what action you should take or advise to be taken on a sex case (US v. Barry), or if you allow bs Rape charges to continue to a Court-martial, just so you can get a conviction and/or mileage for sentencing on a conviction, for a lesser offense, for example fraternization, (US v. Thompson), or if you fail to investigate or allow CID to do a half-hearted investigation and turn a blind eye towards exculpatory evidence and witnesses (US v. Stellato/US v. Chinchilla), then you are a selfish coward who has the integrity of Mike Nifong. These kind of tactics can cause innocent people to get convicted of crimes they did not commit and ultimately make the system weaker.
    And, you are most certainly a hypocrite because deep down inside you know that if the situation were reversed and you were sitting in the chair of the falsely accused in a bs SA case, then you would hate the system in it’s current state.  And, (to get back to the OP), you would hate the fact that you had no recourse against those individuals who could have prevented you from being shredded up by the machine of Military Justice if they had an ounce of integrity.

  35. stewie says:

    1. The point is that we allow, as a matter of routine, throughout all levels of our systems, state, federal and military, different standards of proof/burdens for different levels of deprivations. The fact that one is acquitted at the highest level does not mean one cannot be punished at one of the lower levels. It happens routinely.
    2. We don’t know why panels return verdicts, we just know that the government failed in their burden. Now maybe we need to change the system so that we have not proven guilty with innocent like the Scots do. I’d be in favor of that actually. But we don’t. You can have your beliefs in a particular case, and you could even be right, but overall, we don’t get into the deliberative process, we just care about the result.
    3. Being found NG does not mean “does not have to face any more adverse actions.” It means two things…you can’t be tried again, and you can’t be given a separation board for the same offense. (Of course, you can always be given a board for something not tried, which also happens quite a bit). It does not mean, cannot have received a negative block check on an eval.
    4. Most of the time, these eval block checks happen before the trial because the eval has to cover the reporting period/alleged misconduct. If an eval happens that is outside of the period of alleged misconduct, then simply appeal it as invalid. If you think the CM established innocence, then appeal it with a normal OER appeal. There are routes to take.
    5. And I’m sure there are several things that I, personally, would change were I both given the power to do so and “sitting in that chair.” That doesn’t equate to being a hypocrite if you think something different isn’t the world’s greatest tragedy. Plenty of things “t’aint fair.”
    But sure guys, I give up…when do we storm with our pitchforks and flaming torches over eval block checks? Is it at noon? Because I have a thing at noon, but I’m free after one.

  36. Cloudesley Shovell says:

    For those of you, like me, who thought that Nathan Freeburg must be misreading the Army Reg (he isn’t), here it is.  You can look it up yourself.  I bolded the sentence at issue, which has been clearly added to paragraph 3-19 long after the original paragraph was written, because it is utterly inconsistent with the rest of 3-19.  3-19, after all, prohibits the inclusion of unproven derogatory information.  So what is the threshold of evidence or burden of proof for something that is supposedly “substantiated” and required to be included in OER yet unproven at an Art. 15 with its preponderance of evidence standard, let alone a court-martial? Got me.  Takes a better lawyer than me to split that hair.
    Kind regards,
    3–19. Unproven derogatory informationAny mention of unproven derogatory information in an evaluation report can become an appealable matter if later the derogatory information is unfounded.a. No reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.b. References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting an evaluation report to HQDA. For example, rating officials are not prohibited from commenting on a court-martial (judicial), if completed, but the comments should focus on the behavior that led to the court-martial rather than the court-martial itself. If the rated Soldier is acquitted at a court-martial, or found not guilty at a nonjudicial punishment proceeding under Article 15, Uniform Code of Military Justice (UCMJ), comments about the underlying incident will not be included in the evaluation, subject to the following exception. Rating officials will ensure that evaluations document any substantiated findings, in an Army or DOD investigation or inquiry, that a rated Soldier committed an act of sexual harassment or sexual assault; failed to report a sexual harassment or sexual assault; failed to respond to a report of sexual harassment or sexual assault; or retaliated against a person making such a report.
    c. This restriction is intended to prevent unverified derogatory information from being included in evaluation reports. It will also prevent unjustly prejudicial information from being permanently included in a Soldier’s AMHRR, such as—(1) Charges that are later dropped.(2) Charges or incidents of which the rated Soldier may later be cleared.d. Any verified derogatory information may be entered on an evaluation report. This is true whether the rated Soldier is under investigation, flagged, or awaiting trial. While the fact that a rated Soldier is under investigation or on trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain’s reference to verified derogatory information. For example, when an interim evaluation report with verified information is made available to a CDR, the verified information may be included in evaluation reports. For all evaluation reports, if previously reported information later proves to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the evaluation report in accordance with chapter 4.e. Evaluation reports will not be delayed to await the outcome of a trial or investigation unless the rated Soldier has been removed from his or her position and is in a suspended status (see paras 3–54 and 3–55). Upon completion of the trial or investigation, processing of evaluation reports will resume. Evaluation reports will be completed when due and will contain what information is verified at the time of the “THRU” date of the evaluation report.f. For OERs and NCOERs, when previously unverified derogatory information is later verified, an addendum will be prepared and forwarded to HQDA in accordance with paragraphs 3–36 and 3–38. Rating officials will initiate such an addendum to the OER or NCOER verified misdeeds or professional or character deficiencies unknown or unverified when the OER or NCOER was submitted. The addendum will ensure that the verified information will be recorded in the Soldier’s official records. However, it will not be submitted until the completion of the investigation, imposition of punishment, or verification of the information (see DA Pam 623–3 for instructions on how to prepare an addendum memorandum).

  37. stewie says:

    The standard of proof for the Army for an Article 15 is Beyond Reasonable Doubt, not preponderance.
    The standard for an eval is a substantiated investigation. One is way smaller than the other.
    I’ll go back to you can go two ways. You can include nothing or you can include everything (thus instead of worrying about a conviction or BRD finding at an Article 15 you can focus on a substantiated investigation, or you can just say only a guilty verdict at a CM or A15 goes on the eval).
    I don’t think the latter makes much sense because, again, plenty of folks will have substantiated investigations that end up with no CM at all. Those folks will have those comments there. Make it all based on substantiated investigations, not on CMs. If someone wants to challenge it because they feel a latter proceeding proved their innocence, provide a route via OER appeals or DASEB for GOMORS or ABCMR.
    But no I don’t think creating a bifurcated right that only those who get A15s and CMs can take advantage of (we rarely give CMs for sexual harassment for example or for failing to report or respond to same) makes sense.

  38. K fischer says:

    Quite frankly, I could accept it going either way.  The “bifurcation” problem that I see (and I think Nathan opposes) is the different treatment between sex and no sexual offenses.

  39. stewie says:

    kf, see, that’s my point. This isn’t REALLY about oh my goodness he got acquitted how could you do this minor administrative action that hurts his career you moral cowards?!!
    It’s about “I don’t like the importance we place on sex assault.” Got it, and understand, but if the Army wants to emphasize some crimes over others for minor administrative actions, that’s their Bobby Brown. Don’t have to agree with it, but it’s not some major moral cowardice.

  40. k fischer says:

    It’s a little about it.  I like the policy where they keep it off the ER until a conviction.  If they didn’t, then I wouldn’t like it, but I could understand.  But, to carve out an exception for SA offenses?  My hypothesis is that they did that to appease Congress because they are afraid of what Claire and/or Kirsten might think.  

  41. Nathan Freeburg says:

    As I’ve been saying over and over, it is about treating some accused differently than others, purely for political reasons; thus moral cowardice (doing something that you know is wrong purely because you’re afraid).

  42. stewie says:

    But how does that work kf?
    Scenario 1 (which encompasses a lot of these cases that are short of sexual assault): it never goes to trial or A15. Do we just never then put it on the eval because there is no conviction? I’m assuming you’d say, well, no, of course not. Of course a substantiated investigation that leads to say a GOMOR or whatnot can lead to a no block check on an eval.
    Scenario 2: eval occurs close in time to the substantiated allegation (since they cover a year or less in most cases). Court-martial takes longer, maybe even much longer. But eval is due when it’s due, and you can’t ordinarily go back later and add in negative information once it is done (so no you cannot keep it off until conviction unless conviction somehow happens before the end of the rating period).
    So what’s not to like about saying once an investigation is substantiated, it goes on the eval??
    OK they appeased Congress. So what? I’d prefer no exception at all, or to at least fold in something that says offenses that carry a punishment of x number of years or more are accepted. But ultimately, it’s their call, and it isn’t the end of morality to do so.
    Some accused get treated differently than others in all sorts of ways. Some offenses carry mandatory minimums while others don’t. Some carry discharges while others don’t. Some entail greater rights (and greater deprivations) by view of the type of court-martial they have to be assigned to (e.g. sex assault offenses, murder, go to GCM or the fact that Officers can’t be tried by a SPCM but enlisted can). You can disagree with some of that or not, whatever, that doesn’t make it “moral cowardice.”

  43. Isaac Kennen says:

    This discussion of whether the government ought to be barred from issuing a service member a poor performance report for the same offense of which they were acquitted brings to mind the issue of federal civil forfeiture proceedings, which, likewise, can be initiated after a federal acquittal:

    Collateral estoppel would bar a forfeiture under § 1497 if, in the earlier criminal proceeding, the elements of a § 1497 forfeiture had been resolved against the Government. Ashe v. Swenson, 397 U. S. 436, 397 U. S. 443 (1970). But, in this case, acquittal on the criminal charge did not necessarily resolve the issues in the forfeiture action. For the Government to secure a conviction under § 545, it must prove the physical act of unlawful importation as well as a knowing and willful intent to defraud the United States. An acquittal on the criminal charge may have involved a finding that the physical act was not done with the requisite intent. Indeed, the court that tried the criminal charge specifically found that the Government had failed to establish intent. To succeed in a forfeiture action under § 1497, on the other hand, the Government need only prove that the property was brought into the United States without the required declaration; the Government bears no burden with respect to intent. Thus, the criminal acquittal may not be regarded as a determination that the property was not unlawfully brought into the United States, and the forfeiture proceeding will not involve an issue previously litigated and finally determined between these parties.
    Moreover, the difference in the burden of proof in criminal and civil cases precludes application of the doctrine of collateral estoppel. The acquittal of the criminal charges may have only represented “an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused.'” Helvering v. Mitchell, 303 U. S. 391, 303 U. S. 397 (1938). As to the issues raised, it does not constitute an adjudication on the preponderance of the evidence burden applicable in civil proceedings. See Murphy v. United States, 272 U. S. 630 (1926); Stone v. United States, 167 U. S. 178 (1897).

    One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 234-235 (1972).

    I’d say that if the federal government has the constitutional authority to force an acquitted defendant to nonetheless forfeit the same property that was contested in the criminal trial, then the federal government probably also has the power to give an acquitted service member a poor performance review based on the acquitted allegation.  Of course, civil asset forfeiture is highly contentious. For example, just a few years ago the editorial board of USA Today described the practice as “government at its absolute worst.” 

  44. K fischer says:

    How about Lilly Livered?  Wish washy?  Feckless? Misandry?

  45. stewie says:

    Nope, none of those things either…just a choice, like any number of other choices that involve lesser deprivations (by far in this case) that require lesser burdens of proof.