It began a year ago, in January 2013, when Representative Jackie Speier (D-CA) introduced the “Protect Our Military Trainees Act” that, according to her press release, was “in response to the widespread sexual abuse by Air Force training instructors at a San Antonio Base,” and would “protect trainees from assault and sexual advances by instructors.”

Never mind that sexual harassment in the military is prohibited by innumerable regulations, or that coerced sexual activity “through the use or abuse of military position, rank, or authority” has met the statutory definition of a sexual assault since October 2007, or even that this definition was expanded in 2012 to include “a[ny] communication or action that is of sufficient consequence to cause a reasonable fear . . . [of] being subjected to the wrongful action contemplated by the communication or action.” Congress was getting curious about sexual assault in the military, and it didn’t like what it saw.

Actually, it really began a year before the Congresswoman’s proposal, when we encountered the “uninformed, dishonest, or both” propaganda film “The Invisible War,” and the politicization of the military’s response to sexual assaults became . And these days, “you never want a serious crisis to go to waste.”

So there was Congress, geared up to address the military sexual assault crisis, when the Wilkerson case (our #5 story of this year) threw gasoline onto the bonfire. An explosion of legislative proposals soon followed, with Representative Speier and Senator McCaskill each introducing bills to limit a commander’s post-trial powers, and the Senate Armed Services Committee conducting hearings on March 13 and June 4.

The House Armed Services Committee was also concerned, with leaders writing a letter in March to the recently-appointed Secretary of Defense, Chuck Hagel, on the topic. A veteran of Vietnam and a two-term Republican U.S. Senator from Nebraska, Secretary Hagel replied in April with his own proposal to limit the Article 60 authority of commanders, including “eliminating the discretion for a convening authority to change the findings of a court-martial, except for certain minor offenses that would not ordinarily warrant trial by court-martial.”

Senator Hagel’s April proposal was prophetic, but before the prophecy would be fulfilled, the Naval Academy checked in. In June we first noted a sexual assault allegation involving three male members of the Academy’s football team, an intoxicated female midshipman, and an off-campus house party in 2012. The allegation led to an Article 32 investigation that more closely resembled a three-ring-circus than a quasi-judicial proceeding. Press reports say that the midshipman was grilled for over 30 hours by defense counsel, with absurd questions such as “how wide she opened her mouth during oral sex and whether she had apologized to another midshipman with whom she had intercourse ‘for being a ho.'” Soon after, both the House and the Senate put Article 32 in their sights with proposals to limit the scope of the investigation and to change it from a full-blown investigation to a mere preliminary hearing.

So, about that prophecy. On December 26, 2013, it came true.

That’s the day the President signed the National Defense Authorization Act for Fiscal Year 2014, enacting into law its 38 military justice provisions, including ten changes to the Uniform Code of Military Justice. Of these ten changes to the Code, nine appear in Title XVII of the legislation, under the caption “SEXUAL ASSAULT PREVENTION AND RESPONSE AND RELATED REFORMS.”

The new laws are simultaneously broad and cautious. For instance, Congress rewrote Article 32, eliminating the pretrial investigation that has been part of military law since it was added to Article 70 of the Articles of War in 1920, and replacing it with a lesser “preliminary hearing.” But that change won’t be effective until a year from now. Congress also eliminated the convening authority’s unfettered ability to modify the findings or sentence of a court-martial as a matter of “command prerogative,” limiting what General Dwight Eisenhower called “a terrific burden” in 1947 (about six years before he became the 34th President). General Eisenhower assured Congress in 1947 that such a change would lead to “resentment–and very deep resentment.” We’ll see what happens after that provision takes effect, six months from now.

Ultimately, of the ten different ways Congress changed the text of the UCMJ, five won’t have immediate impact. Of these five, one doesn’t take effect for a year (the new Art. 32), and three don’t take effect for six months (restriction of post-trial discretion, and the mandatory minimum provisions). The fifth (allowing appointment of an active duty retiree to CAAF) is effective immediately but won’t matter until the next vacancy at the court; hopefully to occur no earlier than the end of Chief Judge Baker’s term in September, 2015.

The five remaining changes take effect immediately. They are:

Creation of Article 6b, establishing 14 “Rights of a Victim of an Offense Under [the UCMJ].” These rights parallel the eight rights identified in the Crime Victims’ Rights Act (18 U.S.C. § 3771). The new Art. 6b is effective now, but the Secretary of Defense has a year to recommend pertinent changes to the Manual for Courts-Martial, and to implement his own governing regulations.

Elimination of the 5-year statute of limitations for the offenses of sexual assault (Art. 120(b)) and sexual assault of a child (Art. 120b(b)). This provision is effective now, but only for offenses committed on or after December 26, 2013.

Modification of the requirement of Article 46 for “equal opportunity to obtain witnesses and other evidence” to explicitly require that “defense counsel shall make any request to interview the victim through trial counsel.” The new rule also provides that if an alleged victim so requests, then “any interview of the victim by defense counsel shall take place only in the presence of trial counsel, a counsel for the victim, or a Sexual Assault Victim Advocate.” This rule is effective now.

Creation of a new subparagraph (d) to Article 60, providing the victim the “opportunity to submit matters for consideration by the convening authority.” Congress also prohibited consideration of any matters “that relate to the character of a victim unless such matters were presented as evidence at trial and not excluded at trial.” These rules became effective at enactment on December 26, 2013, and will likely cause significant post-trial delay in cases tried before that date but not yet acted upon by the convening authority.

The long-overdue repeal of the prohibition against consensual sodomy in Article 125. Forcible sodomy is still prohibited, and the offense of “bestiality” is added (perhaps in recognition of the weirdest military justice story of 2011).

Of everything that happened over the past year, these new laws enacted in the last days of December are our #1 military justice story of 2013. As the sun rose on 2014 this morning, and 2013 began its fade into history, we’re taking stock of these new provisions and watching to see of they will extinguish the flames of crisis sparked two years ago. Stay tuned.

39 Responses to “Top Ten Military Justice Stories of 2013 – #1: Changes to the UCMJ”

  1. Mike says:

    And the acquittal rate will continue to rise. Sure would hate to be a SVP; every loser case is going to trial

  2. Former DC says:

    I can’t wait to see Appellate Defense attack the constitutionality of these changes. The part about access to the “victim” is especially vulnerable. Lots of precedent that disagrees (mostly state courts, but on federal constitutional grounds, and how often do the real federal courts handle sexual assault?). Note, for example, a reading of that provision would prohibit an investigator from looking at the “victim”. I smell a Golden CAAF here. I predict it won’t go well for the Government. 

  3. Lampwriter says:

    “The Congress shall have the power to. . . make rules for the government and regulation of the land and naval forces.”  U.S. Constitution, Article I, Section 8.

  4. Lampwriter says:

    “When it is necessary to modify or renew fundamental doctrine, the generations sacrificed to the era during which the transformation takes place remain essentially alienated from that transformation, and often become directly hostile to it.”  – Auguste Comte

  5. Former DC says:

    The Fifth Amendment still applies, which limits Art 1, Sec 8. As for the rest, funny, I thought that was the whole point of the Comstitution: to prevent modification of “fundamental doctrine”, and thus, prevent tyranny. 

  6. k fischer says:

    Re: Modification of the requirement of Article 46 for “equal opportunity to obtain witnesses and other evidence” to explicitly require that “defense counsel shall make any request to interview the victim through trial counsel.”
    I recall when I was a magistrate at Ft. Benning, the SJA’s office and TDS had a rather contentious relationship.  One incident concerned a TDS counsel who had a “prohibited” ex parte conversation with a victim in the absence of the trial counsel which ruined the Government’s case and resulted in an acquittal.  At least now the Government has something to base this on, rather than a wild imagination coupled with a mistaken interpretation of AR 27-26. 
    Some questions I have are whether the Victim’s Counsel will be a stovepipe organization?  Seems like their relationship with the SJA’s office might could get a little contentious.  Otherwise, it seems like the Victim’s counsel is a part of the prosecution team.
    How long will it take for a “victim” to confide in their counsel a fact that indicates a lack of victimhood, and then the Victim’s lobby to start blaming military lawyers for talking the the victim into recanting or withdrawing their allegation?  Congress has certainly made Commanders the bogeyman in this crisis, when I think we all know that the vast majority of sexual assault investigations and prosecutions are JAG driven.  Oh, the irony if SWAN starts screaming like Jack from Lost “We have to go back!” 
    Along the same vein, how long will it take for a Battalion Commander to be relieved or face court-martial for obstruction for trying to talk a victim out of reporting?  That will probably happen pretty soon, and when it does, TDS becomes the good guys if it is a questionable case.
    Will the military judge’s benchbook be amended to require the victim’s counsel to enter an appearance on the record announcing by whom they were detailed?  Seems like the victim’s counsel is a lot like a guardian ad litem.
    If so, will the counsel be required to be present at all 32 hearings and courts martial where the victim testifies? 
    If so, what happens when the witness testifies to something different than what they told the victim’s counsel?  Wouldn’t they have to ask for a recess, counsel their client, then withdraw if their client insists on committing perjury? 
    Is the victim’s counsel a part of the “prosecution team?”  If so, then I think a Giglio obligation is triggered.  If not, then I think Congress has found a way around the prosecutor’s duties under Giglio.
    Seems like a lot of these steps hinder the defense’s ability to search for the truth…… 

  7. Peanut Gallery says:

  8. stewie says:

    Lampwriter.  With respect, your first post is hard to fathom.  What is your point? Yes, we all know that Congress has the power to make laws wrt the Armed Forces.  We also know that the Constitution limits those powers.  Congress can’t write a law re-instituting segregated forces.  (well they can write it, it just won’t stand up).  So citing the power to make laws in an area where the proper analysis is whether or not other sections of the Constitution allows the specific laws in question to stand is…baffling.
    As to your second post…the first question is in fact one of “necessity.”  Those changes must actually be necessary.  Second question is, are the fundamental doctrines affected fundamental for a very good reason?  If so, then “direct hostility” is a pretty reasonable response to those changes.

  9. k fischer says:

    Stewie, I think that Lampwriter is actually making a counter-intuitive point.  Specifically, that Congress and the Victim’s lobby are following the lead of the Socialist philosopher, Auguste Comte who also said this:
    “If it is true that every theory must be based upon observed facts, it is equally true that facts can not be observed without the guidance of some theories. Without such guidance, our facts would be desultory and fruitless; we could not retain them: for the most part we could not even perceive them.”
    I think a lot of people are hostile to the changes to the UCMJ because it is the supposed answer to the crisis of sexual assault that plagues the military.   Lampwriter astutely points to Comte, which I would ask based on the quote I cited: Is the theory that the military suffers from a sexual assault crisis one based on fact, or are the facts based on the theory the military is suffering from a sexual assault crisis?   For instance, take the survey showing 26,000 sexual assaults in the military in 2012 that is touted as a “fact” by Senator Gillibrand, but also questioned.
    Brilliantly played, Lampwriter.  Way to pique my interest by citing some obscure Philosopher that I’d forgotten about to show that the men whom will be sacrificed when the doctrine is changed will be justified in their hostility towards the implemented change because of theories that are used to drive the facts.  I’m not so concerned when Comte’s theories are used in business; it is a concern when it permeates issues of national defense as Peanut Gallery’s post shows…..

  10. RKincaid3 says:

    This is frustrating.  Does the UCMJ, as a system or as a process, call for or allow lynchings or hangings?  Does it even distinguish between the two?  Is that not the central question being discussed over the last year?  Is the purpose of the UCMJ to effectuate justice or discipline?  Is it an outcome-based success story—or something greater?  According to Congress (and many of those who post here), both justice and discipline are only served if we subjectively like the results of trial, the fairness of the process be damned.  Is this an “ends justify the means” system and worse, if so, is that the best we can do?
    Where are the calls for implementing within the UCMJ some true justice reforms?  Why is it that the most common criticisms are those viewed through the lens of two camps: 1) those that think the UCMJ is unfair to an accused; and 2) those who think it unfair to victims?  Both of those traditional criticisms ignore the pink elephant in the room: that the UCMJ (notwithstanding its name) is an unfair process designed as a commander’s discipline tool, not a justice system.  A review of its history since the Crowder-Ansell debates nearly 100 years ago reveals that the system is well over due for another evolutionary reform on its long, slow march to becoming a true justice system.
    It seems to me that with the learned people frequenting this website that we would get more real substantive suggestions for improving the “justice” of UCMJ than simply the traditional (and tired) old complaints about whether the UCMJ is more or less unfair to an accused or a victim.  The UCMJ is unfair to both sides because its goal is command discipline, not justice, and as such, it is not concerned with collateral consequences upon the society it governs.  In such a system, the accused and the victim are simply pawns in the larger game of commander disciplinary authority—and a commander’s goal is not justice, but combat readiness.  That means that all other considerations are subordinated, by necessity, to the commander’s need for combat effectiveness.  As such, the injustices of the UCMJ, whether foisted upon an accused or a victim by Congress or by a commander misusing the authority given him by Congress, will remain insuperable. It will remain so until such time as the UCMJ process itself instills confidence in the outcome, which then buttresses its own legitimacy.  And that won’t happen until those operating in and those responsible for the UCMJ quit looking through a subjective lens at the outcome as a measure of systemic success.
    After a year of political handwringing and questionable tinkering, and with a full new year surely to be filled with more of the same, I wish all would remember the principle espoused in this classic quote from Hang ‘Em High:

    Jed Cooper: You’re lynching those boys. Why?
    Judge Adam Fenton: Why? Because of you, Cooper. Because of that beautiful, that magnificent journey you took to bring three killers to justice. Because if the law didn’t hang them, the next posse that goes out will say, “Hang ’em and hang ’em high, there’s no justice in Fort Grant.” And if there’s no justice in Fort Grant, Cooper, there will be no statehood for this territory.
    Jed Cooper: Well, I don’t care how you slice it – whether there’s nine men out in the plains with a dirty rope or a judge with his robe on in front of the American flag – those boys are going to be just as dead as if they’d been lynched.
    Judge Adam Fenton: That’s right, Cooper, just as dead – but they won’t have been lynched. They would have been judged. And if you can’t see the difference, you’d better take off that star right now!

    For all of us in the military justice world (and all the politicians making the mil jus rules), if we don’t know (or worse, can’t tell) the difference between a lynching and hanging, and thereby urge systemic changes beyond those that simply fit our clients’ respective needs, then we are part of the problem and need to turn in our badges.
    Because this last batch of Congressional changes is urging lynchings disguised as hangings.  The same would be the case if Congress was implementing changes favorable to an accused.  It is a Uniform Code of Manipulated Justice, not true justice in the Anglo-American tradition.

  11. rkincaid3 says:

    I think Lampwriter’s point was that so long as the court’s give unquestioned deference to the Congress ability to “make rules for the government and regulation of the land and naval forces,” then continued deference in this area will be norm, even on some of those terrible changes that were foisted upon the military with the last NDAA.  
    Until Congress makes clear its intent that the UCMJ is to effectuate justice, the courts will continue to defer to Congress and the military (the commander), even when such deference leaves in place largely problematic policies that anywhere OUTSIDE the unique military environment would be facially unconstitutional.

  12. stewie says:

    So, in effect, you believe it sarcasm?  Way too dead-pan for a sarcastic writing.  Needs a little more, a winky face, something.

  13. k fischer says:

    You mean dead-pan like Steven Wright?  Actually, I was the one being sarcastic.  I think lampwriter was attempting to be a little snoop smarty-smart by quoting some 19th century French philospher to make the point that Congress can do what it wants and the military will resist change because of the good ole boy system.  

  14. phil cave says:
    As I recently argued, “profoundly inadequate.”
    But, will there be a true move to fully investigate, or will this be another shrill call for even more biased investigations.

  15. JTS says:

    K fischer,
    Great questions.  We had many of the same at the SVC course.  We didn’t have many answers then, and we are really just now dealing with these issues as they come up (I’m an ex-TC, now SVC). 
    I know in the Army, TJAG does not want to stovepipe the SVC program because LAO Attorneys already are “adversarial” to the command.  However, I think as the program develops and SVCs start to advocate in ways that SJAs aren’t thrilled with, the necessity of stovepiping will become inevitable.  I’ve already been in one situation where an SJA wasn’t thrilled with my advocacy, and I thought I had done it rather gently.  Fortunately, he wasn’t my SJA.
    The Brady/Giglio issue is the one I’m most worried about myself because I’m one of these rare guys that tends to think Brady/Giglio is the ultimate duty of anyone involved in the MJ process.  Right now, we are not considered part of the prosecution team and the advice we’ve been given is that its privileged and we don’t disclose (one of the reasons why we have to have a third party in the room if we are talking to a counsel for one of the sides with the victim).  However, I think this is ripe grounds for appeal the first time an issue like this surfaces.  I guess the best analogy would be what duty do GALs owe in a Child Care proceeding, but that obviously isn’t a criminal court.
    Fun times and more sawing of wood to follow.

  16. Dude says:

    Here is the text of the provision regarding defense counsel working through trial counsel to interview victims:

    (b) Defense Counsel Interview of Victim of Alleged Sex-Related Offense- (1) Upon notice by trial counsel to defense counsel of the name of an alleged victim of an alleged sex-related offense who trial counsel intends to call to testify at a preliminary hearing under section 832 of this title (article 32) or a court-martial under this chapter, defense counsel shall make any request to interview the victim through trial counsel.
    (2) If requested by an alleged victim of an alleged sex-related offense who is subject to a request for interview under paragraph (1), any interview of the victim by defense counsel shall take place only in the presence of trial counsel, a counsel for the victim, or a Sexual Assault Victim Advocate.

    I think the actual language does not compel such a drastic a change in practice as some may think.  DC is only required to request victim interviews through TC if three conditions have been met: 1) there is a TC detailed to the case, 2) that TC has notified DC of the victim’s name, and 3) TC has notified DC of the government’s intent to call the victim to testify at an Article 32 hearing or at trial.  This wouldn’t prevent DC from interviewing victims prior to preferral without coordination through TC, and without the presence of TC/SVC/VA at the interview.  Some might also argue that there’s not anything in the statutory text that applies to defense investigators interviewing a victim without jumping through these silly hoops.

  17. Dude says:

    Further, there’s nothing in the statute that remedies the fact that a TC who sits in on a DC interview with a victim becomes a witness in the case.

  18. phil cave says:

    Thanks Dude (sorta pun intended).
    This perfectly captures for me the errors of the ill-informed bungling around the UCMJ.
    Prior to REFERRAL of charges there is NO TC/Trial Counsel.  Let me try that again – there is NO trial counsel.
    What people mistake (or fail to recognize) are personnel policies where a person may be detailed to a billet with trial counsel duties, and which generally encompass more than Trial Counsel duties, are two different animals.  Please read Article. 27(a)(1), and as I note below, then compare it to RCM 405(d)(3)(A), and tell me where in Article 32, UCMJ there is an equivalent detailing rule.
    However, in litigation I will follow the appellate dictum that Congress (like judges) knew what it was doing, etc., etc., etc.
    As those who have done 32’s with me know I do not refer to the Government Representative as the TC.  That is for various reasons, one being they are not a TC.
    Being a TC is actually a job with responsibility at trial – for those who haven’t, check out RCM 701.  Not so until referral and not so at a 32.  At the 32, it is is rare that a judge advocate is not appointed to represent the interests of the government under RCM 405(d)(3)(A).
    A GR at a 32 has NO authority to do anything, and could be a bump on the log if they wanted.  The authority and responsibility at a 32 belongs to the IO.  This is different from when charges are referred and the TC is, for example the first wicket for funding witnesses.  (I find it quite funny when I request the IO to produce certain witnesses and I get a letter from the GR telling me that’s denied – duh.)  
    Now I’m well aware that the courts are going to disagree with me.  And we are going to be in a 120 situation.  Remember under the new 120 how judges were encouraged to violate the statute by ruling out the burden shifting.  The same will happen here.  But, it does nothing but continue habits that have existed for a long time – habits like not reading the UCMJ, habits like not reading the MCM, etc., etc., etc.  And it all becomes more confusing and bandaid-ish.
    Now, as to the issue of TC at my interviews.
    I have never objected to a SVC or VWAP rep being present at my interview.  And I really don’t understand why Congress could not stop there.  But that’s another matter.  I actually did a interview some time ago with the TC present (yes there were some reasons for that – I was hoping to convince the TC to recommend dropping a particular specification and that seemed to be a way to get at the TC).
    But, what is the TC’s answer to the equal protection argument?  Why do sexual assault accused’s have less rights than others, to prepare and have a quasi-private interview with a government witness?
    A little history if you please.  Let’s go back to 1965, wow, almost 50 years.
    United States v. Enloe, 15 U.S.C.M.A. 256, 35 C.M.R. 228 (1965).  “We, too, are compelled to conclude that, in light of the provisions of the Manual and the Code regarding equality of access to witnesses and evidence and the lack of need for the consent of opposing counsel to pretrial interviews of witnesses, it is beyond the authority of the United States to interpose itself between the witness and the defense counsel and require, as a condition of granting such interviews, that a third party be present.”  See also, United States v. Irwin, 30 M.J. 87 (C.M.A. 1990).  
    I’ve always thought of this as a Killebrew/Irwin issue, but I guess no more if you are accused of sexual assault ONLY.  So, challenge number one, that part of the change is unconstitutional and denies due process and equal protection.
    Agree with Dude, the TC is and can legitimately be designated a defense witness (and move to recuse the TC because they are a witness).
    Discovery, please provide a copy of all notes of what was said during the interview.  It is not privileged and it is not work-product.
    Q:  Ms. x, how many drinks did you have?
    A:  20.
    Q:  TC, is that what she has told you in your interviews?
    Now the TC has one or two responses – yes, no, I decline, oh, and an ethical obligation (something about candor to opposing counsel as well as those Brady/Kyles thingies).  So, you get to not only interview the CW but you also get to interview the TC and get discovery – thank you Congress.  (Reflect back to my comment above where I “allowed” a TC to be present for a CW interview; there can be more than one motivation to do something.)
    So then you say to TC, I’d like to be present for your interviews please.  Seems that’s allowed for under Article 46, they didn’t take away all the equal access and apparently access now includes presence at interviews of certain witnesses by opposing counsel. 
    I was joking with a colleague about the usual civilian attorney question, “how’s business.”  So, the answer can be, “it was slowing down along with the war, but then along came Congress.”
    As to the SVC, I am of the opinion that they have an ethical duty of candor, it may not be Brady or Kyles, but it’s there.  An SVC cannot knowingly lie or allowed the client to lie at court.  The question becomes how do you know that to make an issue of it.  The SVC is in the same ethical position as the DC when a client tells you they intend to lie on the witness stand, or tells you enough that you believe it will be a lie.  I think this is something that not all SVC’s may have thought about, ethics don’t go away with a duty to zealous advocacy.
    Let the SVC and the CW have the file, who cares.  It takes away a TC argument at trial and may actually be helpful to the defense.

  19. k fischer says:

    Thanks for the thoughtful response.  So, is the Army assigning SVC duties as an add-on to Legal Assistance attorneys? Or am I making a mistaken inference from your comparison to Legal Assistance?  I would imagine the conflicts between a SVP and SVC would be rare, as their interests should parallel.
    Phil, I lived your vignette at a 32 in GTMO.  The TC told me that the vic was concerned about me questioning her husband because she had not told the husband that she was kissing the accused one week prior to the alleged rape.  So, at the 32 she made it sound like her husband knew everything about the accused.  I ask her if she told her husband about making out with the accused a week before she accused him of rape.  She said she told him everything.  I pointed at the TC and said, “Really?  Because that’s not what you told him [pointing at the TC], is it?  Didn’t you tell CPT Honestcaptain that you were worried about your husband finding out about you kissing the accused a week before you say the accused raped you?”
    So, the TC objects to me going down that road because of attorney client privilege, in that she thought, albeit mistakenly, that the TC was her attorney.  The case was dismissed, but the hearing was chock full of quasi-frivilous objections such as that one.  It was a bs case, and the first time I heard the term “re-victimizing” the victim, as it seemed with every objection I was accused of re-victimizing the victim.

  20. Christian Deichert says:

    I can’t speak for the Army at large, but I know that our two SVCs are also legal assistance attorneys. I believe this is the trend, but to be honest I haven’t really been tracking — have enough fish to fry.

  21. RKincaid3 says:

    Amen, Mr Cave!  Amen. It is a crying shame that those who deign to tinker with the rules don’t first undertake to understand that with which they tinker.  And that affront is further exacerbated by the fact that the tinkerers also apparently don’t bother to think through the 2nd and 3rd order effects of their tinkering.  The end result:  more trouble embedded within the UCMJ which undermine confidence in the system itself.  So much for Congress being presumed to know what they are doing.  

  22. johnny says:

    Unless the Army chose to create a separate stovepipe organization for SVCs, Legal Assistance Attorneys was really their only option, right?  Wouldn’t all other attorneys have a conflict since they represent the government (e.g. Administrative Law)?

  23. Mike says:

    Defense lawyers will have a field day with all of this.

  24. k fischer says:

    They could have created/added an SVC billet, like all the legal instructor billets at the Army/Wayne’s World Schools of Excellence.  
    Btw, did you get another carton of cigarettes for Christmas this year?  Hey, smoke up, Johnny!  (Johnny Bender is much better than John Andre, no?) 

  25. Lampwriter says:

    “It seems to me that with the learned people frequenting this website that we would get more real substantive suggestions for improving the “justice” of UCMJ than simply the traditional (and tired) old complaints about whether the UCMJ is more or less unfair to an accused or a victim.”
    RKincaid3, your comments over the past month have been an important addition to the discussion over what CAAFlog rightly lists as the #1 story of the year.  Many people are observing ripples and waves; you are pleading to get people to try to perceive the tides.  You pointed out the importance of the Crowder-Ansell debates.  I would also add the Morgan-Weiner debates leading up to the passage of the UCMJ (as described in William Generous’s excellent book, “Swords & Scales), which describes Professor Morgan “winning” on every major point of reform except for the one that mattered most, command control.  
    Even further back, our military justice system owes much to George III.  To quote another 19th century French writer, de Tocqueville, in favorably comparing the American justice system to continental justice, “When an absolute monarch has the right of trying offenses by his representatives, the fate of the prisoner is, as it were, decided beforehand.”  Such a system, wholly rejected by American civilian law, is time-honored tradition in American military justice.  
    Does the U.S. military have a “justice” system?  It’s a good question.  The U.S. Supreme Court has consistently said no, that military justice is a necessary “rough justice,” but without overturning or significantly limiting it.  CAAF, on the other hand, has viewed themselves as shepherding a real justice system, and developed doctrine such as unlawful command influence in attempting to reconcile the irreconcilable.  Confusion about whether the military has a real justice system persists:  even LtGen Franklin’s SJA wrote last year that courts-martial are not criminal trials.  Those who have suffered life-altering consequences from court-martial convictions, however, would certainly disagree with him.

  26. stewie says:

    Long time watcher of this website and I don’t recall folks talking about the entire system needing an overhaul before the 07 changes, which suggests to me the whole system doesn’t need an overhaul.  We simply need to return to the way things were before Congress decided to do everything in its power to increase sexual assault convictions.
    The system was fairer, the better cases went to trial, the conviction rate was higher, fewer bad cases/innocent accused were put at risk.  We had a “real justice system” back then.  We are losing that when it comes to sexual assault cases now.  The military is never going to look exactly like the civilian system, unless we simply disband the military justice system as some propose and give it all to the civilians.
    And I don’t think that is going to result in anything better for Soldiers in the long run.

  27. RKincaid3 says:

    Thanks, Lampwriter.  Unfortunately, it appears that many people are of opinion that I am just tilting at windmills, which I probably am.  Thanks, too, for the recommended additional readings. Look forward to the additional research.  
    Back to the subject of whether systemic changes to the UCMJ are needed, it’s too bad that some simply can’t see the forest for the trees.  Maybe we should start a separate discussion about all the problems with the UCMJ that existed prior to 2007.  Would it be a very short discussion due the apparent lack of pre-existing problems?  Such a development might disabuse us of the naive belief that there are greater concerns beyond those of our individual client’s immediate needs.  Oh wait…we know what the problems were 2007.  They were the same problems we have now—systemic. By design. Integral. Innate. 
    All the post-2007 changes–up through and including the latest NDAA–are not THE problem.  They are symptoms of a larger underlying disease.  Ask any doctor–treating the symptoms but ignoring the disease–can kill the patient.  Remedial treatment of the underlying cancer is better for the patient–and everyone (Soldiers) who rely on that patient (patient).  Pretending that there is no cancer is not an option for reasonably responsible people–which necessarily explains Congress’ continued failure to do more than treat the symptoms. 

  28. RKincaid3 says:

    Sorry, but I must make the following correction: the following sentence is corrected as indicated: “-and everyone (Soldiers) who rely upon that patient (UCMJ).”

  29. stewie says:

    And yet we weren’t talking about those “systemic” problems back then.  Saying the word systemic doesn’t actually say anything.  I to this day still do not understand what specific changes you propose.  You’ve listed out a couple of minor tweaks in other threads that are in no way systemic changes. 
    Unless your argument is that the “systemic” problem is that Congress has control over an Article I court system or that you think Article I court systems are somehow inherently the problem, then the solution is an Article III replacement.  You seem to want a military justice system free of any and all involvement by Congress (or commanders) that exactly mirrors the civilian justice system.
    So, why have a military justice system at all? Just send everything to Article III courts (or state courts).  Boom, problem solved, no “systemic” problems.  Of course, you’d still have other issues but no commanders, no Congress.  I don’t think you’d have any more “justice.”
    No, the 07 changes and beyond actually are the problem. The forest and the trees were fine, were they perfect? No, but they were acceptable.  The 07 changes and beyond are burning down the trees and the forest.

  30. RKincaid3 says:

    Sigh.  Young Grasshopper, quickly as you can, snatch the pebble from my hand.
               [Young Grasshopper tries to do so and fails]
    When you can take the pebble from my hand, it will be time for you to leave.  
    Until then, focus on your studies; learn that which you do not know; comprehend that which you do not understand; and some day you might see the fire through the smoke that blinds.

  31. stewie says:

    Sigh indeed.  Certainly lack of self-confidence and humility are not problems you have. Kudos.

  32. RKincaid3 says:

    Stewie- I don’t know who you are, but I luv you, man!  Happy New Year!

  33. Just Sayin' says:

    there is a lot of bungling here, to be sure, however, I’m a little surprised that people are balking at the idea of limited access to victims (and I say victims in general, not just sexual assault).  Newsflash, in civilian courts, the defense counsel doesn’t get open access to victims either.  Though we use a victim services representative as a go-between who works for the state judicial branch, not the state’s attorney.
    Seriously, does anyone here actually believe that zealous advocacy requires badgering a crime victim?

  34. phil cave says:

    Who says a pretrial interview of a prosecution witness is “badgering” a crime victim?
    Multiple police and prosecutor interviews are not badgering, but a single defense interview is?
    Not tracking that one, sorry.
    Lack of reasonable access to crime victims is a flaw in the state system, not the other way around.

  35. Former DC says:

    JS: Regret to tell you, but in many states, like say, Florida, the defense has an absolute right to access to all witnesses, including the complaining witness (aka, the victim). As a matter of fact, they can, and routinely do, compel them to depositions. True, not every state is like this, but it’s still very common. In almost every state, the prosecutor is required to turn over discovery beyond Brady material. Some forbid confidential files. And yes – a fair trial means a fair access to all evidence, including EVERY witness.

  36. stewie says:

    I think the solution here is a great expansion in the use of depositions.  This will replace the same process at a 32, the victim can’t say no if it’s ordered by the CA (won’t happen) or the MJ (much more likely), and since it’s a depo no cries of “badgering.”  Plus we get it as prior testimony.
    JS, your point is perplexing to me.  Do you think the solution for “badgering” is basically no access to the victim at all without ten people in the room?  I’m also curious as to how often badgering every happened in the past days? My experience on both sides is that the victim usually wouldn’t talk to the defense anyways, which wasn’t as big of a deal when we had a legit 32 process, but now starts to be pretty important when:
    1. the victim is questioned by CID not about facts but about how the assault made her feel which allows the victim to make a nebulous easily filled in statement.
    2. No more 32/limitations on questioning mean the victim might not make another statement until trial.
    3. The rules change that allows the victim to sit in the courtroom means the victim can watch the other witnesses testify then fill in the gaps in her story.

  37. Lampwriter says:

    Agitation for systemic reform has been around for a while, and certainly before 2007.  The following two comments come from the 2001 Cox Commission report:  
    “As many witnesses before the Commission pointed out, the far-reaching role of commanding officers in the court-martial process remains the greatest barrier to operating a fair system of criminal justice within the armed forces.”
    “The combined power of the convening authority to determine which charges shall be preferred, the level of court-martial, and the venue where the charges will be tried, coupled with the idea that this same convening authority selects the members of the court-martial to try the cases, is unacceptable in a society that deems due process of law to be the bulwark of a fair justice system.”

  38. RKincaid3 says:

    On October 19, 2009,CAAFLOG stated that:

    Judge Cox indicated that the commission concluded that the military justice system is structurally sound. The commission decided against proposing any changes to the convening authority’s role in the system. He specifically indicated that consideration was given to recommending that the charging function be reassigned to lawyers, but the idea was rejected in recognition of the military justice system’s dual role as not merely a criminal justice system but also a tool that commanders use to ensure good order and discipline and mission accomplishment. The commission also chose not to reengage on issues that have been thoroughly debated, such as the oft-raised proposal to remove commanders from the member selection process.”

    Convening a commission to consider revisions, but then removing from consideration the two (arguably) most important issues, robs the commission of its authority.  For commissions to be effective, they must of necessity be fully empowered to consider ALL OPTIONS–even the so-called “Holy Grail” of commander authority, with which no one (except Congress) dare tamper.  As such, it is time for a new commission–FULLY EMPOWERED–to consider all options.  The specifically excluded issues must be considered and treated appropriately, especially given that the UMJC does NOT (and never really has) played a “dual role” as both a criminal justice system and a disciplinary system.  That myth has long been destroyed.

  39. just sayin' says:

    so now a victim advocate = 10 people? not following that math.