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tv   Sexual Assault in the Military Forum Panel 1  CSPAN  September 13, 2019 3:00pm-4:38pm EDT

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deniers. no plan. no 6 million. no leadership from hitler. no gas chambers. an the last point is that this was all made up by jews. >> and sunday 5:00 p.m. eastern a discussion about shakespeare influence on u.s. politics. at 6:00 on american artifacts the norman rockwell museum on fdr and the four freedoms. explore our nation's past every weekend on c-span 3. next on c-span 3, a look into sexual assault in the military. we'll hear from criminal law and military justice division chiefs from the army, navy, marine corps, air force and coast guard. they spoke at a meeting held by the defense department advisory committee on sexual assault in the military. this is 95 minutes.
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>> okay. thank you for joining us this morning. we're going to be looking at the perspectives of the services military justice division chiefs regarding conviction and acquittal rates, case of adjudication process and victim declination. thank you. [ inaudible ]
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[ inaudible ] forecourt mash sal 405 as currently drafted provide an effective check against charges for which there is no probable cause. >> i'll start with you. >> so, i think -- for the past several years the procedural
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requirements have change and statutory change for the requirement for the victim to testify. and as a result, in many cases that the government's most significant evidence. in the those cases where a victim chooses to not to testify, the government is basically making its case based on the paper file. and so i will say that those changes over time have, have reduced the procedural requirements of article 32 but i still think it's a valuable check. first off, there is an experienced judge advocate looking at the case and evidence. there's also the opportunity for the defense to present evidence at the case. and i as a former staff judge advocate have seen even in those diminished proceedings where an article 32 officer will make notes or make findings that are relevant for me to consider and
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highlight to the convening authority when i'm providing my advice on disposition. so, i think, it was built into the system for a reason. and i still think that reason exists currently. >> i would agree with the colonel. i would emphasize two points. first article 32 in its current form still features a neutral and detached preliminary hearing officer providing advice to the convening authority, the judge advocate making a recommendation as probable cause. that's still value added. additionally under the current rules, it does give the defense, the victim and the government the opportunity to provide matters for the sj and convening authority to consider so that we're not presented at the hearing itself. there's an additional avenue in which information that's important to the determination of probable cause to be brought
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to the decision maker. i agree. the article 32 still performs a valid function. one thing that's not captured in the timelines that were mentioned the 15 minute hearing. these preliminary hearing officers are taking hours of video interviews with victims and other witnesses or parties and sometimes even including the accused where there's an interrogation that's included. it's important when you put the 32 preliminary report into context that usually it involves an interview with the victim, a detailed interview with the victim that is usually an hour or two long that covers a number of issues. so that's just an important part that's included in the analysis of the preliminary hearing. >> i probably sound like a broken record because i'm going echo many of the sentiments. i think that a good point while the hearing itself seems
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somewhat abbreviated, that when you go back and look at the evidence that's being reviewed and the time spent doing that, sometimes, you know, victim interviews can be four to five hours long and they are reviewing every bit of those and they are all videotaped now because the military criminal investigating officers, investigation offices are videotaping both victim and suspect interviews. so all of that stuff is being provided and it's being -- it's being reviewed by that investigating officer. while the content of the hearing or maybe the actual hearing may be very abbreviated, i think going through that thorough investigation would take -- could take hours and hours. the other thing i would point out oftentimes i know the other services do this as well but in the air force particularly with sexual assault cases or penetrative sexual offense cases we have sitting military whys that will be the preliminary hearing officer. not only neutral and depatched
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but very experienced military judges who have been through the military and understand the probable cause standard extremely well who are able to then make a recommendation to the judge advocate that's well thought out and well reasoned. >> i guess for my view is that the article 32 has transformed itself from what it originally had intended. so the adversarial intent article 32 was more of a tool for the defense. yes, the io was there to look at the facts and evidence and make a determination. it was a discovery tool for the defense. also the defense could put on a v-very deliberate defense, mitigation andexte nurch ating evidence as well. it's changed again in 2019. from that standpoint the original purpose of article 32 has changed. probable cause hearing. for those purposes alone it's
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fine. does it perfect the government's case. i don't think that's the intent of article 32. it's put on as what is necessary to get to pc. talking to some ajs in the field they feel it's a paper review and they do last as little as 15 minutes where they hand in the record of the investigation. so from that standpoint i don't think it's very helpful. as far as the government is concerned it gives some notice to the defense. so while there may be some other features the other services talked about i don't want to not highlight there is some level of paper shuffle and i don't know how much, more informed the convening authority has. >> is the entire investigative file turned in, are portions of it turned in? is there a summary of it give
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tone the 32 officer? >> so, i just talked about that yesterday, about a particular case, and it was not a an adult sexual assault, it was a child sexual assault and the government put in a limited amount of rio and the defense wanted the entire rio submitted. so i think it's case by case. i speculate and i don't like to speculate but assume most of the time it's the full ryo. >> for the air force i know that we try to focus on the actual evidence that's contained within the rio. so we would point to more of the videotapes that were done from the mcio as well as any statements that are contained by witnesses that are not present to testify. but, for us, in our special
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investigations their thoughts and feelings that start at the beginning of the rio that doesn't go before the investigating officer because i don't believe that's relevant. >> similar spns fresponse for t marine corps. in some instances you might have an rio but in some instances we may look at a complete cell phone extraction that includes every text message that the accused sent for a one year period. we wouldn't provide that entire enclosure to the investigation we would pull an excertain from it. >> again for the navy case dependent. >> similarly with the army. the government puts on the evidence that it believes is relevant and helpful to obtain the probable cause and there could be be other parts brought in by other party that go with the other services. but, again, the government typically starts with those key relevant pieces of evidence.
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so, the section 832-a2 didn't b whether there's probable cause that's in the general provisions given the authority to the investigating officer, in some cases it's the judge advocate, sometimes not judge advocate but judge advocate advice sometimes a military judge or magistrate. if there's a finding there's not probable cause that doesn't result in a dismissal with prejudice, does it? >> no. it does not. that's, in essence, a recommendation that would go to the next level of convening thorkts whichever convening authority appointed that investigation for, there for their determination.
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i'm sorry to the point it's not bindsing. >> so that's consistent throughout the services? >> that's correct. >> so it's really not a true preliminary hearing in the sense of my federal courts or even the state courts who have omnibus hearings or preliminary hearings where if the government fails to show probable cause the neutral detached hearing officer if further investigation gives a new basis that's the end of the case, right? >> in our system that check is held at the judge advocate level. the judge advocate is the convening authority receive the preliminary hearing officer's report and if he or she determined there was no probable
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cause that would be determinative. >> is that true >> that's correct. >> yes, sir. >> yes. >> however, it's in role of the leg legal advisor. so it's not in the true sense a neutral detached as a magistrate judge would be. ate standalone system in which their recommendations or rulings cannot be adversely impacted on their careers, correct? there's that independence built into the system. >> i think, if i may, the original idea of article 32 and article 34 was to ensure there weren't baseless charges that went to court marshal and talking again pre-2014. so taken together, those vehicles were to ensure, again, baseless charges, maybe trivial
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charges that shouldn't see inside of a court marshal anyways, those kind of protections -- so some of the features carried over for example the waiver still remains with the accused. the accused says i waive my right to article 32. that doesn't have to be accepted by the authority but they do not and not required then you don't have a pc determination for article 32. still resides with the convening authorities and the advice of the sja. the sja can say we have jurisdiction and the there's probable cause these offenses were committed. just to ensure the very basic aspects of a case go forward. but the other features of conviction or what form and all those kinds of things are still reasonable determination and in the discretion of the convening authority. it's just that they are different in a civilian context. so we try to make an analysis or
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analogize. i don't think making a direct comparison is helpful. >> i would agree, and i would add a couple of opponents. as a staff judge advocate i really tried very hard to evaluate the evidence that was presented at the article 32 by the preliminary hearing officer. i tried to take a good fresh eyes and look what was going on. as a staff judge advocate you're not personally involved in the court so you're trying to pull yourself back and actually get a good perspective on not only what's going on in this particular case but you should be read into what's right for the discipline of the unit that you're serving. so i think a staff judge advocate and sometimes that goes awry, sometimes people get too close but the role for the staff
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judge advocate is to sit down and try to remain neutral and detached as well. the other part of that is i know for tariffs and the other services it's always a judge advocate who does an article 32. always a judge advocate that's preliminary hearing officer. we try hard to make sure that they have the right training and the right experience before becoming a preliminary hearing officer. but that's not always possible given timelines and what's going on. the staff judge advocate is not limited to the four corner of the document presented by the preliminary hearing officer. as previously mentioned the defense counsel, trial counsel and sbc or lbc, the victim's counsel can provide additional information to the staff judge advocate that's going to the convening authority. while the neutral and detached preliminary hearing officer gets evidence and can make a
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recommendation, the staff judge advocate is not limited to only that information that goes to the convening authority in determining whether or not there's probable cause. >> >> it's important to look at the historical context and the role of the commander and the role of the sja in that process. the commanding -- the convening authority shouldn't advocate their role in the process to the preliminary hearing officer. the sja does have essentially the veto power with that probable cause determination and are in a position to look at the entire evidence for a particular case and also give the commander an informed decision and that's really what this process, is
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designed to do. the article 32 process is to help give the commander an informed decision toechbd and then the sja also assists with that informed decision process. i think historical context is important because you look at the qualifications for the actual preliminary hearing officer and in most circumstances your staff judge advocate is more experienced than the hearing officer. there are services where military judges served as preliminary hearing officers but that's not a requirement. and in that circumstance you may have a preliminary hearing officer that has less experience than the sja who is looking at the same evidence, but is also using their experience by that commander with the informed decision. >> i would also say there are checks in place that either convention short or staff judge
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advocate shows interest in the case that individual can be disqualified from further participation in the case. it's a complex system of checks and balances. and i would agree that although different, the federal civilian system and the military system are different. both have pathways to a binding determination of no probable cause. >> i will let go a lot of the prior comments that my colleagues made in this, but the way i understood your question is to start with that. the staff judge advocate is not neutral or detached they are part of the prosecution and it is true that the prosecution arm falls under the supervision of the staff judge advocate, but i think that the staff judge advocate is overall responsible for providing the convening authority advice on the military justice system and they have an interest and they have an obligation to advise that
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convening authority on those interests of discipline that might warrant prosecution as well as justice in making sure that frivolous charges or baseless charges don't go to trial. so i think 32 informs that ultimate advice that experienced staff judge advocate provides to that convention authority in making a decision to refer a case to trial. and, again, the 34 -- the advice under article 34, 10 usc 834 is not just whether there is probable cause. that's in essence a low subjective standard of whether probable cause exists. the other value and the key portion of the staff judge advocate's recommendation under article 34 is the recommendation as to disposition. and so that's where the sja is saying yes -- if there's a finding by the satistaff judge
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advocate there's no probable cause the case can't proceed further. however, it's the recommendation where the sja is advising that convening authority based on that experience, based on the full review of the case file in terms of what's the right dispossible circumstance whether it's referral to a court marshal or taking some other action. >> thank you. we're going to be asking some questions and a little bit about whether the 32 officers finding of no probable cause should be binding, but i noted that in your introductory remarks these 32 judges were the most experienced, highly trained, very experienced military, experience, the right training, neutral experience until we start talking about whether their recommendations should be binding and then maybe not so much. so, my question for you before we get to that is, if a finding of no probable cause isn't
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binding, and if it's really kind of a paper chase at this point because i believe very few complainants actually elect to testify at the article 32 these days, kind of what's the point? like why not just then just go straight to the staff judge advocate if he's got access to more information, like why are we even bothering with having these very experienced people taken away from their other duties to look at hours and hours of video and read through hundred of pages of paper. i'll start with you, captain. >> i think it's a good question. again, i think i always like to go back again to why article 32 came into existence in the first place. it was a check of sorts against the plenary authority. it opened, the accused had a right to counsel, to cross-examination, to present
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evidence, lay out evidence, constitutional defense and affirmative defenses and that was useful for the convening authority because if there was a case on the margins they would want to have an article 32 flesh those out and maybe a case would go away, if you will, because there wasn't a strong inclination. now with probable cause determination it's less helpful in that regard, however i think it does give some level of protection to the accused again on those very basic tenets of what they are looking for. issues is a specification a crime, is there jurisdiction, lately retirees have become an issue of whether or not those are jurisdictional issues. just again floor developing, a very basic to ensure a case going to the convening authority has the basic nofgs jurisdictional and other
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substantive issues. i don't think there's effect for a case against the government or prosecution. i think a very narrow protection, again, for the accused. so in that regard it's helpful. if we're thinking as being more broad and more expansive then i would argue going back to the pre-2014 article 32 which was very informative for both the defense and prosecution and the convening authority. >> so, i believe that the preliminary hearing officer does provide fresh eyes on a case. i think they can take a look at the form of the charges. they can recommend particularly in penetrative sexual offenses the greater offense, whether or not there's sufficient force, whether or not there's not force, whether it should be a lesser offense. i do believe it still provides the daves forum to be able to provide evidence. i think that's the unique aspect
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of an article 32 is the defense has the ability to provide evidence to the preliminary hearing officer and, therefore, really directly to the convening authority to get whatever evidence that they deem is relevant and necessary in making a recommendation as to disposition of charges. before the person who actually is making that recommendation. i do believe it still has a value to our system. i will agree, however, that we got a lot more information in a prior iteration of the article 32. it was much more comprehensive. you had a better idea what disposition of charges, what the charges should look like, particularly in an era where the charges themselves have changed dramatically over the last probably, i think, 12 or 13 years. we've had many, many changes to article 120 over the course of
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that time frame and so having someone with fresh eyes look at it and make sure you're looking at the right charge time frame for that particular iteration of article 120 is important to look at. >> i agree. it does still have an important procedural function. the fresh eyes description is a good one. i think that in addition to the points already mentioned, you have the ability to conduct a detailed charging analysis of this process and focusing back on the informed decision for the commander and providing the commander with an informed decision the article 32 also provides the staff judge advocate with a more informed decision. it provides a forum for the accused to present challenges to a particular charge theory if there are charges. so the accused may not actually present case or testify or call witnesses, but it does give the
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defense the opportunity to present challenges to the charges themselves, and it would enable the sj toorch have a more informed decision. there certainly can be some improvements procedurally in our written comments we mentioned that the ideal scenario would be to have a military judge serve as a preliminary hearing officer. we have not advocated for that military judge's recommendation to be binding but in certain cases, in the marine corps where there is a complex charging theory or if we're looking at some offenses that involve murder allegations or long complex allegations we have brought in military judges to serve as the preliminary hearing officer and in those instances we do feel the commander and staff judge advocate are proswried tprovid provided with the most information. >> in every case which is article 32 and the defense and
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government can, depending on the facts of the case derived a benefit from article 32 in its current iteration. with regard to the system the current iteration in article 32 provides an opportunity for qualified judge advocate conduct a deep dive in the facts presented in the article 32 hearing to include what is commonly submitted several hours of investigative video, recorded interviews with the alleged victims, witnesses and sometimes the accused. that provides the preliminary hearing officer an opportunity to prepare comprehensive charging analysis for the benefit of staff judge advocate and the convening authority. now, if a case is particularly weak, whether or not -- whether or not the recommendation of no probable cause ultimately adopted by the convening authority the defense can still gain a benefit from that comprehensive analysis because a well written article 32 report can oftentimes provide a road
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map to acquittal at a contexted trial which can point out the flaws in the prosecution's case. but in a particularly strong case i would argue the government can use a well written report to its benefit because it can incentivize a guilty assembly if warranted under the facts because the defense will see from a qualified neutral detached judge advocate laying out why the case is so strong against their client. even under its current iteration article 32 does still provide benefits to all parties and most importantly to the system. so i'm actually going start by disagreeing by the marines on just one minor point and at my peril, i believe. just on the fact whether you should have judges, formal requirement for judges on 32 if that was taken away from that
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statement. that's a value. i've seen that in, for example, perhaps a capital case or something along those lines. as a matter of practice, i disagree with that. mainly from a logistics experience but also a logistics issue but i don't think it's necessary. i think at least in my experience we had officers in the rank of major who were judge advocates performing that role and they did a marvelous job and exactly what article 32 and rcm 405 were designed to get after. just on that point. but i will agree with my colleagues it's still of value, and on a number of different levels. the first one is for me as a staff judge advocate, i benefitted from a formal process by which the government presented its case, the defense had an opportunity to present its evidence and that was given to me in a report that i could then utilize in advise to a convening order. way too early in the full
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prosecution process to be required to be binding. there's a lot of work that captain monahan referred to in his statement after the 32. the case isn't complete at that point. sir, you made the point at the 32 if it were binding could it be dismissed with prejudice and the government could come back and try again. in the military process it would require to going back to the referral process in cases which could add time and delay. whereas, as captain monahan referred to, the government or defense can take that 32 and fix the issues in the case and fix their case as it proceeds further as long as there's probable cause and the recommendation is to dispose the case by general court marshas m.
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to have a staff judge advocate look at both sides of the case, have prosecutors bring their case to an outside party for evaluation and getting that analysis by that officer. >> several of you lamented that clearly there's value in this process, the process has changed. it's not what it used to be. so we heard a couple of suggestions about what you would like to see different, but from all of you, can you talk to us a little bit about recommendations to the 32 process that you each would like to see to make the process more meaningful and we can start with whom over. >> i can start. one issue might be to broaden the powers of article 32 officer to seek evidence that he
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believes or he or she believes is missing in the case. i would start with that. >> at the risk of being unresponsive, i would say, i would remind the committee that we are living in a time of great change in the military justice system just generally first we have the military justice act. so i have restraint on further great change to our system to allow the years and recent decade or so of changes to our system play out so that we can gather data before we make further significant changes to the system. but, of course, you know, i would not be opposed to relatively minor change at the margins but i'm a voice for restraint for further change. >> in all seriousness, i would
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respectfully ask caution on further radical change to our system because every change of significance has second and third effects that well meaning people may not anticipate. that's all i'm saying. >> how about the army's recommendation to go back to the days when the io had the responsibility to goph ferret o whatever. the pho had the legal authority to ferret out whatever they thought the pho needed in order to write the report instead today having to beg trial counsel to provide them the additional information. that's not a major change. >> i agree. >> for the record i didn't find that to be unresponsive.
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>> at the risk of agitating the colonel, i apologize, sir. so the recommendation on the military judge is certainly one that would require some study and analysis logistically to see if it would be possible. we're a smaller service, and have fewer cases to work with. so that is one that, i think, could use some analysis if that would even be feasible. but some of the things on the margins for the 32 that i think we could improve or continue to improve or the capabilities to conduct remote proceedings, improve technology in our courtrooms that we typically have these article 32 to perhaps open up the ability to call witnesses remotely that may not want to travel for a 32. that's one area we can improve the process. and it has gotten much better to hold these remote proceedings, but it also, i think, can be
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improved in certain circumstances. >> so, again, i'm just echoing a lot of comments. i would like to point out that the current process that we have is a floor not a ceiling. so i think that it's incumbent upon the services to push down to their young trial counsel that are presenting evidence that it doesn't have to just barely meet the probable cause standard and that's one of the things that we're constantly training our young judge advocates, again it's a floor. you are building your case for probable cause. the government in and of itself, we should be transparent, we should be pushing evidence out there and just because the victim in a case can elect not to testify, doesn't mean that there isn't buckets of evidence that either corroborate or doesn't that version of events.
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so to the extent -- i don't know that -- perhaps changes on the margin and i definitely agree broadening the powers there's a lot of step to include digital evidence that out there that would be nice to be able to reap. i do think that as the services that we really need be pushing information down that says look just because you can barely meet the probable cause or just because you have barely met the probable cause standard doesn't mean that's what this hearing was intended to do. and there's nothing wrong with adding more evidence and letting people consider more evidence in an article 32 investigation and we really should be beefing that up. i think internally making those requirements. i don't know that we need changes to the ucmj but i do think internally our services really should be pushing down information, looking what we need to do better.
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you need be adding more evidence. just because it's a floor doesn't mean you just barely clear that. you need to add what would be helpful to the convening authority to make that informed decision. >> i think it's a good question. i'll just add that -- i don't want to imply people are lamenting by the current 32. it depends where you stand. so if you are, perhaps, trial counsel or sja you find that very valuable. but there was a policy determination a few years ago that changed article 32 to take the equities of a victim in play. and allow her to stay in the system or see a case go to court martial because of the notion of 32 as it was currently constituted. back then anyways. the there's no perfect fit. what you do is there's pluses and minuses in every system. you have to know what you're losing out by changing and what
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you're gaining. there's no perfect, i think, system. again, talking historically, when the military first brought in lawyers i'm sure convening authorities and commanding officers weren't happy with that. a few years ago when sce were brought in people ernt happy but they are part of our system and culture of the military justice system and they are facilitating our policy objective. i wouldn't suggest we change article 32 just for changing it for lawyers. i think -- one last point. going back to prior to 2014, where we take those tough cases of article 32 to flush them out so they don't go to court marshall. if they were particularly weak cases. you'll see more cases go to court marshas martial and get a
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acquittal rate. if you want a 32 too be morrow bust the old system was probably better. i wouldn't say better but different. that's how i would look at it. >> we'll move on to section 2. if people want to come back and we have time. we have a lot to cover with this panel. >> the air force has a response for military justice decision says when a victim wants to participate in a court martial and standard of probable cause is met a case will typically be referred to court martial to allow the victim to have his or her day in court. how does this approach incorporate nonbinding guidance factors such as whether the admissible evidence will likely be sufficient to obtain and sustain a conviction in a trial by court martial. i would request, i think this question is designed to have the
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air force respond and then have the other services weigh in the weight they give that factor the ability to obtain and sustain a conviction. >> thank you. i know the air force is the outlier on this. because we look at the probable cause standard and the referral standard and take into consideration the wants of the victim and when we evaluate whether or not that probable cause standard has been met and we have the cooperating victim, we choose to go forward. i know that is not necessarily -- excuse me -- what every other service does and i respect that they have the right to differ in their opinion. what i would say to that is that we have a lot of cases that go forward and evidence is
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developed as we're going forward. evidence is accumulated. we're gathering information. and we are going out and again as i mentioned before we should be corroborating every fact of consequence that you can, that the victim asserts in her testimony. if you're doing that, you can get convictions in cases that you didn't previously think -- that you didn't previously think were a slam dunk or taken into consideration that there was -- that there was a probability or high probability of a conviction. and so if we're training our prosecutors to, to do their very best, and you have a credible, reliable, and a victim thats to participate, we feel strongly that probable cause standard allows us the to go forward in that case and give the victim the opportunity to say what they
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want to say in court before the military judge and members and whoever else happens to be present. >> go through and see what the rest of the services have to say. >> i would like to think our service is different, but i would suggest that probably the coast guard probably has a similar mindset with convening authorities. if you have a victim who is willing to participate in the military justice system and would like to see their case go court martial that's a huge, you know, ingredient in the convening authority's decision-making process. then the conviction, the likelihood of conviction is important, very important, significant, but probably not determinative. so in that regard i think it is a little problematic because convening authorities are not going to be be second guessed if
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they send a case to court martial. they will be if they don't, especially if you have a willing participant in a court martial case. there's a little bit of friction there that you cannot deny. i think if you look at this subjectively. some outside observers may view that as problematic. now they get a fair trial and that's what they are entitled to. so in that regard it's a fair process. but there are certain factors in there that may be different in these cases than in others. >> i agree with the coast guard's perspective that the strength of the evidence is certainly a factor. it's an important factor. i would say that the victim preference and the strength of the evidence in a sexual assault case are probably the two most difficult factors to weigh,
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considering the other appendix 2.1 factors in a sexual assault case moving forward to a court martial such as seriousness of offense moving towards a court martial. i also agree with the captain that in most cases, and similar to the air force, in most cases where the victim wants to move forward and the evidence, you know, may not certainly result in a conviction, we're going to lean towards moving forward to a court martial and a lot of that centers around the fact that determining the like llihood of conviction is so difficult at that stage of a trial when you haven't seen sworn testimony from any of the witnesses or the victim, and we're going err on the side of moving forward in that circumstance. now there are certainly some situations which you can look at the evidence and determine that it is very likely this is going to result in an acquittal.
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but in sex assault cases that situation is rare, very rare so we find ourselves in a similar position where we'll move forward in most of the circumstances where we have a victim thats to participate. >> so i believe the likelihood of conviction, the likelihood there's evidence to support conviction which is a factor in article 33 mandated nonbindi ii guidelines is very important consideration for convening authorities because as a system of justice we should take hard cases to trial. cases that may not -- you know it's not clear if a conviction would be obtained or not. we should take these hard cases to trial but on the other hand cases that, although meeting probable cause standard have a very low probablity of case it's
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not advisable to take those cases to trial. if we do take those case to trial that have a very low probablity of success then i believe if they inevitably result in acquittals there's no gain for the system. i believe the navy's program and their response has indicated that although all victims are different, our sbcs in the field when queried universally most victims feel a negative emotional effect after a full acquittal which is intuitively obvious, right? then you look at the accused, and i believe our defense counsel assistance program representative might testify that many accused who are found not guilty of sexual assault offense many times after that acquittal will leave the service because they feel that the service has turned a back on
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them through this ultimate process. then from a systemic process, from a systemic standpoint i also believe it's inadvise scrabble to take cases with a low probability of success to trial because that case macon zoom vital resources that might otherwise be dedicated to cases that have a stronger chance for success. those are my thoughts on the matter. >> so, to start, first off from the army's perspective, i would not characterize it as a policy or an advise best practice in the army that if there's probable cause and the victim wants to go forward we go forward as a matter of course. victim preference is, of course, a key consideration. it's listed in the nonbinding disposition guidance and it is a factor that weighs on sjas and advising convening authorities because they are in the interest of justice the victim's views
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and desires and matters are important. but that has to be considered in light of all the other factors that others have articulated in determining whether to take a case to trial. of course the admissible evidence to sustain a conviction. there is no mathematical formula i use or other sjas use, victim preferences, 65%, et cetera. it's all provided in the package that's advised, brought to the convening authority make a addition position decision on that case. that disposition, the decision to refer a case to trial is based on probable cause. as we've articulated throughout there is other evidence that is obtained. there are other investigative efforts that continue to take place or that case is approaching trial and one of those is input from the defense
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and that's one factor that as this process is proceeding, the defense does have a say in an adversary adversarial process, so they can choose to participate in article 32 or they could not. but certainly at trial they have evidence, they have a side of the story that comes out that affects conviction rates. and so, at the referral decision, there is a need to consider all the criteria in advising, but to just make a disposition decision solely -- to make a disposition decision, there's a lot that can change after that initial disposition decision. and i would be loathe to advise a convening authority in a case where a victim wants to participate and the evidence is otherwise strong to not go forward, because there's also a risk of criticism, i think as
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easily as there could be slides up there talking about conviction rates, there could also be slides up there talking about nondisposition rates. to where a commander is elected to do some alternative disposition or to not try a case that someone else thought was otherwise mery or the yous. >> i wanted to add one of the things we're seeing routinely these days is that the special victim's counsel and the area defense counsel or the defense counsel in the case begin talking and discussing alternative dispositions that would not otherwise happen if we weren't referring cases to trial. so i think we have a high incident of discharge in lieu of court-martial. we have a high incidence of ideas of how the victims and
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accused can both be satisfied with the process, but that only comes after referral. that's an important factor. i'm not saying the air force does it specifically to get to that. the idea is that we're going to trial. i think the reality is that there are alternate disposition that are available that are sometimes used and utilized b e based upon that decision to go forward in the case. >> if i can add, the system is designed for a military context. we talked about reasonable likelihood of conviction and low probability of conviction. those are easy calls and there's ambiguity in between there and we have a probable cause standard. i would envision a convening authority under probable cause to send a case of sexual assault to court-martial because for example you have a senior officer or commanding officer who is having an affair with a married subordinate for example and there might be issues with
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favoritism and frater anization and if the person wants to break it off there's the rank differential. so you send that to a court-martial because you have frat fraterniization and adultery. you may not get the conviction for assault, you may, there's always the possibility but the point is, those type of cases is where the military justice context is different from the civilian context sending a case to trial. those are the type of cases that the system is designed to ensure that convening officers have the ability to send a case, even though maybe the article 120 is not likely to get conviction. >> if i may piggy back on that a little bit. again, the trial and the court-martial system is the
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ultimate adversarial fact-finding process that we can utilize to get after -- not get after. i think to look at these very close, very difficult, very serious cases. and allow either a judge or a panel to look at the full range of evidence in an adversarial process to come to a finding of fact on a criminal offense. >> we jumped ahead a little more than we planned to. we're not letting off the hook on article 32 quite yet. i think you had a question about this section? >> i did. but it was raised. so i'm going to ask a question, it's been raised many times this term reasonable likelihood of conviction. which i'm curious what the definition is that you're using, because what the research tells us and experience is that this is an area where speculation typically takes over analysis
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and as you sort of rightly pointed out when you describe your practice here that determining a strong or weak case is -- could be subjective and can be based on how experienced you are at analyzing things. and i'm wondering, objectively, what is your test for determining that? >> i think you hit the nail on the head, ma'am. it is inherently subjective and it is based on our experience in the military justice system what we have seen in terms of how cases are presented, how evidence has been certifireceiv the fact finding, how evidence gets to trial, and also an evaluation of the case file, overall evaluation of the case, is there a readily available defense, is there inconsistent statements made, is there
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evidence in the trial that tends to negate guilt or that cuts against a story. and so, again, did reasonable likelihood of conviction is the -- in providing that advice, the staff judge advocate is looking at the entire case file, understanding the court-martial process, the dynamics of the particular case, because this applies in sexual assault, of course, but also in every case that we try, to make our best assessmentment, and it is that. it's an assessment, i don't think there can be, necessarily a mathematical or scientific approach to it. but our best assessment of the likelihood of success at trial. >> just in following up because you're saying with your experience in the courtroom and your experience with your panels, and that -- that makes me think that it could be leading to self-fulfilling prophesies of we put these cases
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forward, our panels don't like them, and therefore, when we're assessing reasonable likelihood of conviction, perhaps this is a case that shouldn't go forward, rather than thinking okay looking at the all the available and admissible evidence, looking at the elements of the case, should a reasonable, educated jury, panel, determine someone's guilt beyond a reasonable doubt, not will they based on our experience. i don't think you meant that, but i wanted to make sure i understood what you meant. >> i understand. i think that it -- again, we are applying -- rather than this specific judge or this specific panel, we are applying -- i will say this. i have applied and i believe others apply a standard of, you know, sort of what a reasonable fact-finder would have -- reasonable fact-finder would come out on this case. >> would come out or should come out?
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>> i think that's a good question. let me think for just a moment. >> you can think. i don't want to put you on the spot. >> that's a tough question, right, because now i'm substituting my judgment for the fact-finder, but i think -- i think should come out is fair. but again, that's not my call. and, also, at that stage in the trial, i have not heard all of the evidence. so i think it would be precocious a bit to say i know everything at this point i'm providing advice to say they were wrong, they come to the wrong conclusion should they come to a conclusion opposite of mine. >> thank you. >> i would agree at its core it's a subjective standard. i would agree that a workable objective standard would be looking at the evidence, based on your experience, what should
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a reasonable finder of fact return a verdict of, and i think that would be a working -- a workable approach to the issue. >> i think when we conduct our analysis and give recommendations to the staff judge advocate or when the staff judge advocate gives recommendations to the convening authority, the standard should be factual and legal sfish si to obtain and sustain a conviction. appellate courts to have a factual review that gives us the ability to look at what facts might have been reversed by the appellate court and then, of course, the legal sufficiency, when you're looking at the charging defense, looking at whether a legal standard has been met for incapacity, based
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on the fact pattern you have this is around the incapable of consent due to intoxication and situations you may have a blackout involved. and going to the actual case law to review factual and legal sufficiency would be a standard we should look at now. >> i'm glad the air force originally answered the question the way we answered. obviously reasonable likely -- that's not what we use. i'm not saying we shouldn't. i'm saying i think we look at the case in a much more clear-cut fashion and try to remain objective about what the probable cause standard means. and again, looking to, you know, the desires of the victim and wanting to go forward. but we do assess the credibility of the victim when making that
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recommendation. if there is a victim that is wholly contradicted by all the other evidence in the case, we're not blind to that. we don't just blindly follow the victim wants to go forward. we do assess the credibility of the victim and whether or not they're supported by other evidence in the case. i appreciate we have a much more clear-cut standard maybe not as -- probably as -- it's maybe not as -- falls to the subjectivity that, you know, reasonable likelihood of conviction is. >> i think it's one of those things if you're experienced trial counsel, prosecutor you're aware of what you have. i'm greek decent, my mom knows when it's done because she's done it so many times and i don't. i think when you see what you have, to say subjective, it's not just a layperson's perspective, they know the cases and they're aware of what
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evidence they have to get to the reasonable doubt standard. maybe you get an adverse ruling, maybe the testimony of your key witness falls apart at the last second, those things are reality. so if you're surprised from a far like i am in policy and headquarters, i can almost always project the ones that are going to have an acquittal. some cases, that's a good case and you're going to get a conviction and something happens in court and you're surprised by those. i think they should come back with a conviction, they didn't buy the argument the government has. that happens, it's part of the system we have. to say we don't tee up cases we pet pretty much know we aren't going to get a conviction, i think that happens in our system for sure. that's just a policy call and judgment call by the convening authority and the system allows for that. >> many of you talked about other evidence that's presented
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to the staff judge advocate after the preliminary hearing. my question is could you give us concrete examples of what type of evidence that might be and why prefer charges if you don't have that evidence prior to pref prefer ral. >> i'm going to defer to my colleagues. >> one example might be dfe, it -- >> that's a digital forensic examiner. >> digital forensic examination. there may be a discovery request that comes in this at trial that tells the government to look in a particular place for evidence and we look there and find some evidence, either inculp tour or exculpatory. and another example that i just had and now i lost it -- anyway. oh, witnesses that the defense
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may find that the government didn't have at the preferal stage. so as the defense starts to do their investigation they talk to witnesses that perhaps the government either didn't find, didn't know about, didn't interview, and bring forward sworn statements or eyewitness testimony that they didn't have at that time. and so, i think that's -- that raises an important point. there are times where just because a case was referred to trial does not prevent an alternative disposition down the line should the case change in a significant way. and so -- actually, i think this is raised -- i can't remember where it's raised in the written products but the issue of delay in investigation to adjudication of a case, and one concern that i had as an sja and still have in our system for many of the
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reasons that the colonel raised is if we wait until our case is perfect, we -- the -- it can be perhaps too long. and by preferring, it triggers processes that help us determine the right answer on a particular case. >> i agree. the electronic age, electronic evidence is something that does take time to develop due to the exam on the forensic examiners. additional witnesses may come to light as a result of that. and just the ebb and flow of the trial process or the pretrial process usually brings at least some amount of amount to the fore that was not present at the time of preferal. >> could that be a reason if they find a threshold constitutional issue, a probable cause, if a pho finds no probable cause, could that
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possibly be -- this additional evidence the sja could reverse that decision based on this new additional evidence? >> yes. certainly. >> in addition to the digital evidence, i've also seen evidence of mental health of the accused be something still pending at the 32 process. so the proceeding to examine the accused's mental capacity at the time of trial or the lack of mental responsibility could be something that's pending. one important note is during the trial itself, the defense does have the ability to raise an issue to reopen the article 32 process. >> i think mja, the military justice act of 2016 actually changed the landscape a little bit. prior to that, which just obviously we talked about earlier was implemented in january of this year, trial
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counsel did not have the ability to issue subpoenas until referral. so when you look at that landscape, how long it took to issue subpoenas in a case, there was so much information that you got, but you only got it after the case was referred to trial. and so, when we're talking about going out, especially with social media, that requires a subpoena, if you're looking at the victim's social media account, my children tell me it's not facebook, it has to be instagram because facebook is for old people, sorry if you ever facebook we're all old. but the instagram accounts that's owned, you have to reach out, we were limited to waiting until referral of the case. so there's really no way to quote/unquote perfect a case prior to referral because you didn't have subpoena power. so mja 16 has changed that landscape. but we don't know yet exactly what that's going to look like because all of those things have not been implemented. so we're waiting to see how it
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plays out. but there's lots of evidence that comes in -- that used to trickle in after referral, trying to make a probable cause, that's not necessarily helpful, obviously. but knowing that it's out there, knowing that those -- you know, you can go out and see maybe not an instagram but a facebook if you can see the post, see what people are saying. it's just going back and getting, you know, that provider to provide that information, that's incredibly important. >> so we basically have been reviewing cases, at least the case review working group, where we see this trend. and again we don't know what it means but we've seen a trend where the preliminary hearing officer finds no probable cause, the staff judge advocate says, i disagree there is probable cause. the cg refers to trial and it ultimately ends in acquittal on the substantive offense of
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sexual assault. i guess we're trying to find the why and there's a lot of variables i'm sure. >> one of the reasons you don't want the highly qualified or not so qualified article 32 judge finding of no probable cause be binding is because so much information comes in prior to referral. you've talked about information that comes in post referral, developed at trial. if you could just focus on that one chunk of time, what would -- what would come in that would take a no probable cause to a probable cause, nonbinding likelihood of success at trial referral decision? i understand things can come in post referral, defense can come forward, i don't think there's anything stopping defense from coming forward prereferral either. but could you just focus on that chunk of time in response to the question? >> for the air force, i think some of the things as i was saying before, the social media,
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so if somebody goes to a social media page and does a print screen, that's not going to be provided to the preliminary hearing officer, something somebody posted on social media, we may be able to look at it, but that's not going to have the necessary parameters for the preliminary hearing officer to look at that and say yes, that's something i can consider, it doesn't meet any of the standards. that's something that a staff judge advocate may be aware of. there are different things through the social media, different information. witnesses that were not available. so again as we talked about before, we have a lot of -- we -- i think all of the services are still deploying at a high rate and people are deploying and going overseas, to the extent you cannot get them back or they didn't make a statement in the case but may have evidence, if they're willing to write a letter or provide evidence if the trial counsel is able to find them or the defense counsel is able to
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find them and provide evidence, they can give that to the convening authority but it's not something considered by the preliminary hearing officer. so all of that evidence, if you will, can be gathered up and provided to the staff judge advocate, and therefore, to the convening authority in making that decision. but that may or may not be something that could be considered by the preliminary hearing officer, based on whatever the rules of evidence that apply to that preliminary hearing. >> just one thing to offer is, at least under the new rules. oftentimes the 32 preliminary hearing officer doesn't have the full benefit of victim's testimony because of the election to not participate in a preliminary hearing. and that is -- the trial counsel and the special victim's assessment of the victim may weigh in the judge advocate's
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decision and their opinion may weigh different than the article 32 officer. i also, too, would be curious -- i don't have the data in front of me to understand the number of cases, you know, how statistically significant the difference is in cases where they found no probable cause to where they did find probable cause and then it still ended up, as a result, in acquittal. that's because of the wide gulf that differs between probable cause and beyond a reasonable doubt. so even in a case where there is, you know, the 32 determination that there's not probable cause is a strong signal to everyone involved in the process that this case is a difficult case and there are issues with it that everyone needs to look for. just because there's probable cause found does not equate to a conviction at a criminal trial because of the beyond a reasonable doubt standard. so i'm a little bit -- i would be concerned about, you know,
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assigning -- i'd just be -- that needs further study from my perspective. >> i hail from state court, criminal defense. and we have preliminary hearings that are binding and can be overruled with legal process by the prosecution. the concern i have with some of the things that you're pointing out as problems of proof, availability at the 32, is that if it were binding, wouldn't you be inclined to be ready and take the time, if you need continuances and be ready with that information? we have media, we have all kinds of things that you're talking
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about available at the prelim. and if it was binding, that might, one, get you all ready, and, two, influence this number of cases that you're dealing with post 32 where your angst over it's close, it's weak, she should have a right or he should have a right to have his day in court or her day in court, meanwhile, there is a suspect that's having to deal with the consequences. and waiting for that trial, when it could have gone at the 32, is something to balance. so the question i have is, would a more binding affect at the 32
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alleviate some of these concerns as i've just described? and get rid of some of these weaker cases where you can turn to the victim and say, you know, we don't have anything more to provide to overrule that judge or that magistrate? because if it's just another set of eyes, that doesn't really help you make that decision. the decision is still in your lap. so your thoughts? >> i think that forcing the government to have its case, in essence, complete at the 32, i can't say that there's not value in that, right. i mean, the obvious, it appears to be common sense that the government should have its strongest case as early as possible. i am -- would be concerned about
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two things. and the first is, is -- let me just -- i think i'll say, my concern is that that may be unnecessary delay in waiting until the -- it may cause unnecessary delay in waiting for that 32 to -- the case can continue to improve as it's working through the process. there is a value at least in the military justice system of allowing a case to proceed versus waiting too long before an initial disposition decision. >> i certainly take your -- sorry -- >> i'm sorry? >> i certainly take your point as far as it may force the government's hand to have a better case to present prior to going to the 32. but i think if we were to go in that -- go down that road it would negate the role of the
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staff judge advocate who does possess the check, he or she holds the probable cause check in his or her hands. and in our system, although we have -- we do have qualified preliminary hearing officers serving in this all of our cases, often times they are not as experienced as the staff judge advocate. so it might be more appropriate for the staff judge advocate to retain that role to serve as the probable cause check. >> ma'am, i'll loop back around to answer your question, i'll loop back around. it's what additional evidence is the convenining authority considering to sway them in that small window? and in my experience, i haven't seen new evidence really being the thing that might sway a convening authority to move forward. it's contrary analysis by the prosecution, who is working with the sja to provide that informed
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decision. so i haven't seen many instances where there's evidence that's outstanding that comes in after the article 32 that serves to sway the proceeding. and so that moves over to your question, ma'am, that really it -- if it was a binding proceeding, than that process would require the convening authority to abdicate that role of making the decision and cut the sja's decision and informed decision and advice out of the process. >> ms. cannon, you really have hit on probably every debate we have had internally within our office probably for the last five years. because this is a -- it is a difficult decision. we talk about binding versus nonbinding, whether or not it should be a military judge, whether it should be just an experienced judge advocate that has, you know, lots of military justice experience and trying to get to the heart of that. as many of you know, you put
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four lawyers in a room together, you're going to have four different opinions. and so -- but i think on something as important as probable cause, i would like to see cases that -- that only meet the probable cause standard. i would like to see that disposition or that the preliminary hearing officer's disposition have more weight. what i would really like to see is that staff judge advocate then take into consideration and try to figure out really what's out there. i think mja 16 is just so new right now and we're still relying on the old version where there was so much information and evidence you didn't get until after referral or that you were actively trying to get. but our 120-day standard is real. it is not a joke. we see cases dismissed -- >> 120 day standard to speedy trial? >> yes, sir.
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yes, sir. my apologies. we see cases all the time dismissed because you didn't meet the 120-day standard and you have to start from scratch or the case goes away. generally speaking if you can show why the delay but just pure the government was assembling its evidence, that's not sufficient. so the idea they're trying to move the cases and to get a preliminary hearing, to get an article 32 investigation, you have to have preferred charges and preferring charges is the trigger. unless the person is in pretrial confinement and sometimes they are. so you're moving fast and you don't have the ability to delay beyond while you're waiting for a forensic examination of a cell phone or for subpoenas to go out to various places you haven't yet received. so there's lots of stuff that comes in if that you are waiting for. but if you say we're not waiting for that, we can't wait to do a 32, ef to gwe have to get movin
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because the military judge is checking, there's a tick tick tick on that clock and if you're not showing what you're doing to further the case along, in all likelihood your case could go away. and it could be a no kidding win for the defense in a case that should have been a win for the government. i do understand where you're coming from, i'm a three-time defense counsel. i understand that. you know, the article 32 process, i think is a good one in trying to mete that out. but right now, the way -- and i do think it's a good way of the staff judge advocate who has the benefit of knowing what's going on, who has maybe additional evidence, says -- and again, just disagrees with the foe, i think you have to give them that benefit. and there is really no mechanism right now for coming back in and saying, oh, here's this extra evidence because by then the clock has ticked to a point
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where that case is going to go away because of speedy trial. >> i go back to my earlier comments about the original idea of an article 32 was to protect the accused from the plenary authority of the convening authority. so the idea of having an open forum with cross-examination and being able to provide evidence to make sure there wasn't baseless charges that were going to go forward or a valid defense that wasn't going to go forward. so now in this moment we're trying to push something more civilian like, which is great, but the question i have is if we make the military justice system more civilian like then why do we need a military justice system? if you gain something, you lose something. the more time we have in our system, the more time we have somebody under our rules. so i think already now we have a
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system that's taking a little bit too long under what it was originally envisioned. and the more process we have, the more likely these cases are going to take even longer and you have an accused that's going to be in the service for a longer period of time. so i would not want to have that. the other idea again is while these systems operate wonderfully in peacetime, we have to envision a system that can operate in armed conflict and foreign avenues. so that is an important facet of our system that it's mobile, it's not just here in time of normal normalcy, if you will. >> it was interesting hearing about the abdication of the sja's responsibility. i don't like binding or nonbinding. i like probable cause as a -- it's a constitutional issue, i hope we would all agree about that. so in a way it's inherently binding or should be inherently
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binding because it's a basic constitutional issue. so i don't think, from a comparative standpoint, that the 93 u.s. attorneys, you know, nationwide, feel that every time a grand jury votes to bill or no bill a case their responsibility is being abdicated. and that decision is resting with -- i mean, i have a pig farmer sitting on my tuesday grand jury and we vest the pc determination in him and in the schoolteacher from erie county and in american citizens all across the country. so, you know, why can't the military trust a judge advocate to make a determinative, binding threshold issue on probable cause at the preliminary hearing? and i -- i would like to tip my hat to at least the navy and the
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marine corp., who acknowledged in their answers, that if it were binding, this would afford due process protections to the accused. and shouldn't we all be concerned about due process? i mean, i think that that's really the heart of the issue when it comes to this. it's not about changing things or take things away, it's really about making things better. isn't that what we should all be working forward? forward? >> i think if the foe finds no article 32 for a specification, and now does that bar the convening authority from taking njp action? administrative action? that's very important. to tie the hands of the convening authority from all other action because there's no probable cause, whether it's a 120 or article 92 lawful general order, whether the person was absent from their duty or sleeping on post, that's a very important facet so maybe you can't get a conviction or
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court-martial but i want the ability to take that to article 15. in our system, article 151 preponderance. so i would be careful because having the article 32 be jurisdictional process in our system would be problematic and if there are defects in article 32, those are issues that could be raised at appellate level and a case is overturned. i think the nature of the article 32 was not envisioned to be something like that. i agree with you, we all want due process but this is military due process, this is different than constitutional due process. so there is -- they go hand in hand but it's slightly different. >> i would just offer, ma'am, that there is a judge advocate that it is put in this process to determine whether or not probable cause is met. it's just, it's the staff judge advocate not the preliminary
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hearing officer. so if the staff judge advocate says there's no probable cause, then the commander cannot refer the charge. >> i'm speaking about if the preliminary hearing officer, who's also a lawyer tethered to a bar who took -- who's licensed by a bar, why cannot -- why can't that opinion be determinative? i'd like to use the word determinative of the constitutional issue of probable cause? that's really only what i'm getting at. >> i have two final questions and then i'm going to delay our break for five minutes. so if the staff has anything. my two questions are, again, there's been talk about how things would abdicate the role of the commander in making the decision. but realistically, if the staff judge advocate has said there is probable cause, how often does the commander feel comfortable in saying, i'm not going to
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forward it? i'm not going to refer this to a general court-martial because if my understanding is correct, that has to go up to the secretary? has that ever happened that you know of where the staff judge advocate has said, yes, pc and the commander, in exercising his role, has said i'm not going to refer it? that's one question. second is, how often are members administratively discharged after an acquittal on a sexual assault charge? start with you. i realize they're completely unrelated, but -- >> candidly i don't know if the army has collected data on the secretary of the army review after a convening authority's decision to not refer after a staff judge advocate's advice to refer. i believe that it is exceedingly rare, anecdotely, because it is
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a check on that convening authority's discretion, and understand that will be reviewed by a higher level. so i do believe it's exceedingly rare. to your second question, ma'am, if you could reiterate your second question. >> after a full acquittal of a sexual assault charge, how common is it for the member to be admin stristratively dischar from the service? >> again, based on our army regulations, if there is a full acquittal, absent other evidence or other misconduct, that would be a barrier to administrative separation for that particular offense. so that would be rare. would they -- might they be separated for other misconduct they commit or other bases, again, i don't specifically have the data for that. >> to answer the second question first, i believe we have similar policies in the navy. to the first question i'm not
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aware of any case in which an sja found probable cause and made a recommendation to go forward to trial did a general court-martial convening authority go to the secretary of the navy and not refer thereby triggering the policy of having to go to the secretary of the navy. >> i agree for the first question, it's very rare. i do know that it has occurred, but in the instance where i've seen it happened, there was an additional victim preference that was provided after the article 32 process, and after the -- after the actual probable cause finding was made, prior to preferral, there was a small period of time. then for the administrative separation, i agree that the service regulations do prohibit acquittals moving forward for enlisted personnel. the -- for officers, after an
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acquittal, there can be a show cause separation proceeding. but i have not seen that occur after an acquittal for sexual assault. >> ma'am, to go to your first question. the staff judge advocate's recommend designati recommendation is not limited to whether there's pc, it's pc and a recommendation and a couple other things whether or not to go forward. in the air force we have not had a convening authority. we have had staff judge advocate's say there is pc but i do not recommend you go forward for the following reasons and then lay out reasons and the convening authority did not go forward. we did not have the situation to my knowledge, yes, pc, yes, go forward, and then the convening authority said no, i'm not going forward. we have not had to go to the secretary as of yet. to your second question on administrative discharges, in
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the air force, the underlying facts that led rise to the acquittal cannot serve for an administrative discharge, however, if there is other underlying misconduct. i have seen subsequent misconduct then trigger an administrative discharge. i would also, i guess this is not the era for this because if there is -- if there is a conviction of any sort of sexual offense, it automatically requires the -- a discharge from the court-martial. but in a prior lifetime, as a defense counsel, we had -- i did see convictions of sexual offense that then were not -- did not receive a discharge, but then that could not be used as a basis to trigger an other than honorable conditions discharge, they were limited to getting a general discharge for that member. >> i have the same sentiments
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for both questions. i think the issue going back about the policy of an acquittal goes back to the article 32 and if you find no probable cause that has triggering repercussions for administrative avenues so i would envision a system -- i don't mean to go back, but if you find no probable cause in an article 32 that's binding that the commanding officer be barred from taking other administrative actions that's not a system i think we would want. but i echo the same things that my colleagues did. >> we have time for one staff question. >> i'm sure there's just a short answer. in practice, how do the staff judge advocates convey information contained in the article 32 reports to the convening authorities? does is sja do the report orally or do they sit and read the report. is there anything in the service
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regulation that requires or dictates how the article 32 information is conveyed to a convening authority? >> i'm happy to start with that. so the 32 report is in the file, and i will say that in a case where there is a negative article 32 officer finding that's highlighted in my article 40 -- or i'm sorry my article 34 advice so it draws the convening authority's attention and it depends on the case and the convening authority whether they read everything or whether i summarize that for the convening authority. >> i would agree in the navy it's case -- it's case by case. it depends on variables such as the convening authority and the staff judge advocate, how much the convening authority reads and mouhow much is orally brief to him or her.
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>> i would agree with my colleagues. >> that was short and sweet. >> i think, generally speaking, in my experience, staff judge advocates provide both written advice and oral advice to the convening authorities. in my experience, in assisting three different convening authorities, they've read every word of that article 32 investigation and had questions for me about it, why is there a difference if there is a difference in the foe's advice. so they are, i think, very, very cognizant of what's going before them, very interested in making sure they make the right decisions for the right reasons. and i've seen them be very thorough. i had one convening authority that had tabbed the 32 report so we could go in and sit and talk about it and had questions about different back -- this was pre2014, but very aware of what's going on and interested
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to know why there's a difference. >> i would echo that, that's true. i think it's a very dynamic process, talking to the sjas on the field, they're detail oriented, read everything, near everything, and have a lot of questions. this is not a routine oriented exercise, definitely. i would just suggest it is dynamic and a give and take, back and forth and they have to feel comfortable with the decisions they're making. >> thank you all very much. i'm going to try to compress our break from 15 minutes to 10 minutes so we can try to keep staying on track. thank you so much for coming.
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the house will be in order. >> for 40 years c-span has been providing coverage from washington d.c. and around the country, created by cable in 1979, cspan is brought to you by your local cable or satellite provider. cspan your unfiltered view of government. in this portion of a defense department advisory committee meeting on military sexual assault we'll hear from several military special victim's counsel and program managers from the army, navy, marine corp., air force and coast guard, they explain the military legal process when it comes to sexual assault and reasons why some victims choose to not move forward through the military justice process.


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