Articles Posted in Sex Offenses

Sixty years after Congress created the UCMJ to protect accused servicemembers from abusive and arbitrary punishment, a significant faction in Congress now believes it must be almost completely dismantled and restructured because is is not being used aggressively enough. Multiple federal organizations and a fair number of outside parties consider the notion of due process in student disciplinary hearings, the result of courage in the civil rights era, as an obstacle to be overcome or circumvented in the name of “accountability.” The federal government has used its formidable authority to shape institutional responses to sexual assault, but the aggressive rush to “fix” the problem subordinates notions of due process, truth-seeking, and even the presumption of innocence. Fueled by an underlying assumption that too few perpetrators are sufficiently punished, the poignant and emotionally-charged environment of sexual assault threatens otherwise broadly accepted principles of justice. And in that setting, it is difficult for anyone in a position of both power and publicity to argue for policies that will be seen as making it harder to punish rapists. Nonetheless, the “obligation to govern impartially is as compelling as [the] obligation to govern at all.”[1]

MAJOR ROBERT E. MURDOUGH, BARRACKS, DORMITORIES, AND CAPITOL HILL: FINDING JUSTICE IN THE DIVERGENT POLITICS OF MILITARY AND COLLEGE SEXUAL ASSAULT.  223 MIL. L. REV. 233 (2015).

[1] Berger v. United States, 295 U.S. 78, 88 (1935).

There are some interesting articles for military justice practitioners in the Summer 2015, MLR.

Barracks, Dormitories, and Capitol Hill: Finding Justice in the Divergent Politics of Military and College Sexual Assault
3.  By Major Robert E. Murdough.pdf
Rudderless: 15 Years and Still Little Direction on the Boundaries of Military Rule of Evidence 513
4.  By Major Michael Zimmerman.pdf
Open-Ended Pharmaceutical Alibi: The Army’s Quest to Limit the Duration of Controlled Substances for Soldiers
5.  By Major Malcolm Wilkerson.pdf
A Better Understanding of Bullying and Hazing in the Military
7.  By Major Stephen M. Hernandez.pdf

Regardless of the type of case, motive to falsely testify of a primary witness is almost always of some relevance.  The recent case of Nappi v. Yelich, from the Tenth highlights that.

The Sixth Amendment’s confrontation right, which applies equally to defendants in state prosecutions, “means more than being allowed to confront the witness physically.”  Davis v. Alaska, 415 U.S. 308, 315 (1974).  It includes a right of cross-examination, which provides “the principle means by which the believability of a witness and the truth of his [or her] testimony are tested.”  Id. at 316; see also Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) . . ..  To be sure, a trial judge has discretion to limit or preclude inquiry into collateral, repetitive, or “unduly harassing” subjects.  Davis, 415 U.S. at 316.  But this discretion has limits and “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross‐examination.”  Id. at 316‐17.

The state court’s conclusion that cross‐examination of the state’s main witness’ motive for testifying was a collateral matter was contrary to clearly established Supreme Court precedent.  See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1989) (ruling that preventing cross‐examination on a subject the “jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony” violated the defendant’s Confrontation Clause right); Brinson v. Walker, 547 F.3d 387, 392 (2d Cir. 2008) .

And for the sexual assault case:

In Olden v. Kentucky, defendants were prosecuted for, among other things, rape; the defense was consent and that the victim had a motive to lie to conceal her extramarital relationship.  488 U.S. 227, 228‐30 (1988) (per curiam).  The state court prevented defendant from exposing this alleged motive to lie, but the Supreme Court concluded that this ruling “failed to accord proper weight to petitioner’s Sixth Amendment right to be confronted with the witnesses against him.”  Id. at 231 (internal quotation marks omitted).  Here, as in Olden, the testimony of a witness whose motive was at issue was “central, indeed crucial, to the prosecution’s case.”  Id. at 233. “If the purpose of cross‐examination is to explore more than general credibility, the subject of inquiry is not collateral.”  Dunbar v. Harris, 612 F.2d 690, 693 (2d Cir. 1979).

The Real Cost Of Having Commanders In Charge Of Military Justice

This article has appeared in Task & Purpose as a result of United States v. Woods,  decided by the Court of Appeals for the Armed Forces on 18 June 2015.

Incredibly, a senior naval officer was appointed to be the president of a court-martial panel when in a questionnaire prepared when first told she’d be a court-martial member in the future, the member answered thus about the presumption of innocence.

In this case, the convening authority selected [x] as the senior member of the panel that would try Appellant for sexual assault, despite having access to her preliminary member’s questionnaire, in which [x] stated her belief that “enforcement of ‘you are guilty until proven innocent’ (just the opposite as in the civilian sector) is essential because the military needs to be held to a higher standard just for reasons of our mission.” During voir dire, [x] elaborated on this response, but reasonable observers could interpret her responses as confusing rather than clarifying her views (emphasis added).

On the surface, this looks bad for the line officer convening authority.  Although I’m sure there are many out there cheering for the member who in their minds got it right on the presumption.  Once you understand how the naval service selects members for a panel, you can see that they lawyers and the legally trained staff were more at fault than the convening authority.

So—I disagree with The Weirick that the existence of MJIA would have prevented United States v. Woods from happening.  Or at least, I disagree with The Weirick’s or Mr. Christensen’s implication that Woods would not have happened if MJIA were in place.  That is because it was likely the indifference or negligence of the very legal professionals running the system at best or their hubris.

In all of the Services, the staff judge advocate office (SJA) under the supervision of the SJA and the senior prosecutor, collect nominations for service as a court-martial member.  Only in the naval services do they also obtain a fairly detailed questionnaire.  The other Services include a brief summary of the person’s record.  These documents are collected into a binder and a “standing” court-martial order prepared for the SJA.  Most general court-martial convening authorities will appoint a panel for six months or a year.  Once the panel documents are prepared, they are taken to the convening authority for review, discussion, and then appointment (been there done that).  The appointing documents and the supporting questionnaires then sit in the binder for the term of those members appointment, for all to see.  The problem would not likely have arisen in the Army or Air Force because they don’t bother with questionnaires.

So the legal personnel failures are:

  • Someone didn’t read the questionnaires; the staff only collected, copied them, and put them in the binders.
  • The SJA didn’t read them.
  • The chief of justice or MOJO didn’t read them.
  • The TC didn’t read them.

Or worse.

  • The SJA read them but ignored them.
  • The chief of justice or MOJO read them but ignored them.
  • The TC read them but ignored them.

Either way, if the legally trained staff had done what the defense counsel did . . . ?

OK, so the commander failed to catch the error that his fully trained legal staff failed to catch.  That does not now justify saying that if MJIA were in place the Woods case would not have happened.  That’s silliness to be expected of some.

I am in favor of the MJIA and enactment of the O.’Callahan / Relford factors for jurisdiction.  But I cannot in good conscience use Woods to argue for those changes.  This convening authority was failed by his staff.

The version of the facts contained in the majority opinion is far more convincing than are the facts contained in the record of trial.

It is not unusual for an appellate opinion to be selective in reciting the facts of a case relevant to the decision.  This can be attributed to several factors, most of the factors are benign and unintended, sometimes a cynic might argue the facts cited are deliberately selective.  But here is the relevant part of the dissent for counsel’s takeaway in alcohol related sexual assault cases.  The noted confusion must be addressed with the fact-finder through evidence perhaps, and certainly through argument.

It appears to me that the parties at trial misunderstood the relationships between volitional behavior, consent, mistake of fact as to consent, intoxication, and lack of memory. The question is not whether the alleged victim remembers what happened, but whether she participated in the sexual activity of her own volition at a time when she had too much to drink. Chief Judge Everett‘s concurring comments United States v. Baran, 22 M.J. 265, 270 (C.M.A. 1986), are directly applicable to this case:

The victim’s] inability to recall what happened does not signify that at the time of intercourse she was unable to give consent. As this Court recognized long ago, alcohol may affect a person’s memory and inhibitions without depriving him of volition; and proof of amnesia does not conclusively establish that someone was unconscious or lacked mental responsibility at the time of the events they have forgotten.

United States v. Grier, ARMY 9700651, 1998 CCA LEXIS 589, 19-20 (A.C.C.A. Dec. 11, 1998)(Johnston, J., dissenting).

Navy Times recently interviewed the Director of NCIS.  Here is a question I found interesting and thought I’d share.

Q. There have been a number of recent cases in which inspector general investigations concluded NCIS agents weren’t following procedures. What are you doing to improve that?

A. I think if we have needed to we have tightened up quite a bit. I will give you an example: Some of the things we were cited for were actually minor deficiencies or violations of our own internal policies.

So there was a case where there was a bunch of sailors in a barracks shower. And one sailor bumped into another sailor in the shower. A few days later one of his buddies said he should report that as a sexual assault. So it gets reported. We get the referral a month after the incident, and what do we have for evidence? We have an empty barracks shower and we have no witnesses to interview. We have no suspect to interview. Part of our standard process is to photograph the crime scene and sketch the crime scene. Well, it’s a barracks shower. No one photographed the crime scene. But that gets reported as a deficiency in our investigative process.

Well, it is an investigation that clearly doesn’t have any merit that is never going to be prosecutable at any venue. In that case you can see where agents will think, well, I am not going to go through all the steps because there is really nothing here for me to do. So what we have encouraged is, because of the additional scrutiny from IG and others, is that it doesn’t make any difference; follow every step of our protocol regardless of the case. Do it anyway so at the very least we can say there is no prospective merit here — we did everything we were supposed to do.

You likely have clients as I do who are waiting months for an investigation to be completed.  Part of the answer maybe the lack of discretion afforded trained investigators to decide what effort needs to be put into a case.  Triaging is not allowed.

Being drunk and being incapacitated aren’t the same – no matter how hard military sexual assault trainers try to convince you otherwise.  Such training is not just wrong – it is – IMHO – knowingly false.

Which brings us, finally, to the drunk sex issue. So, is Sokolow suggesting that all women who say they were raped while they were drunk were not really raped? He is not. “If there’s a no, I don’t care if there’s alcohol involved, it’s rape. What I’m saying is the fact that a woman was drunk can’t be the sole criteria for whether she was raped or not,” Sokolow explains, “and frankly, a lot of schools were getting this wrong. There is a vast difference between drunk and incapacitated.”

Brett Sokolow, Meet the Man Telling Colleges How to Fix Their Rape Problem, The Cut, 21 October 2014.

These are words many don’t wish to hear but they are legally, and more importantly medically true.  Unfortunately military trainers persist in teaching false information about “one drink.”  This is not old news.  A number of years ago the Air Force had a sex scandal and came out with new training.  As a result of that training and other erroneous training, the Department of Defense was forced to come out with this little bit of accurate information.

 dd

       I got this off the web for www.sapr.mil back then, it ain’t available anymore on the current website – I wonder why?  The cynic tells me it isn’t helpful to the government meme.  Here is a link to the rest of the image.

screenshot-by-nimbus has published a symposium – articles related to military justice, specifically sexual assault cases.  Both sides will find something in the articles. Of particular interest are two articles:  Major Seamone’s article about secondary affect on military justice practitioners from over exposure to sexual assault cases, and Colonel Schenk’s disagreement with the statistics and compilation of sexual assault statistics.

Major Evan R. SeamoneSex Crimes Litigation as Hazardous Duty: Practical Tools for Trauma-Exposed Prosecutors, Defense Counsel, and Paralegals, 11 Ohio St. J. Crim. L. 487 (2014).

Lisa M. SchenckInforming the Debate About Sexual Assault in the Military Services; Is the Department of Defense Its Own Worst Enemy?, 11 Ohio St. J. Crim. L. 579 (2014).

In United States v. Blouin, ARMY 20101135 (A. Ct. Crim. App. 28 May 2014), the court has, in my view, taken a broader view of what qualifies as CP for the purpose of a guilty plea.  However, the court is not taking an unknown or unvisited trail.

Blouin was charged with possessing CP in violation of 18 U.S. Code Sec. 2256(8), to which at trial he plead guilty.

As is common in these type of cases, the prosecution threw up a whole bunch of alleged (173 to be exact) CP images, without really understanding what they were doing.  And they compounded this with offering 12 images as a “sample.”  This caused the military judge to reopen providency, because he found only three of the images were likely CP.

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