Court-Martial Trial Practice Blog
The Gazette of Colorado Springs has an article on the current USAFA sexual assault case. It’s worth the read because of its misinformation, or perhaps lack of understanding. So here goes with some comments.
1.People are upset because it’s odd the hearing was closed for quite a bit of time. Duh. Of course it’s closed:
But a series of contentious, closed-door hearings has delayed the case.
The arguments have centered on the privacy of the alleged victim. Defense attorneys want to admit evidence about the woman’s sexual past and have sought access to medical records, including those from a psychotherapist.
It’s closed because of UCMJ art. 32 and the Rules of Evidence–all of which Congress and the President by Executive Order have directed, and which POD has called for. How then can the military be criticized for what the law, good sense, and sensitivity to the complaining witness requires?
2. It’s a paper 32–hello that’s all too common and may become even more common now that a complaining witness can refuse to testify. Duh
Protect Our Defenders weighed in on the Chubb case in May after one of the stranger preliminary hearings in the academy’s history. During the hearing to determine if there was sufficient evidence to court-martial the highly touted football recruit from Georgia, neither prosecutors nor Chubb’s attorney’s offered witnesses.
The entire proceeding was handled on paper, which wasn’t made public.
In 35 years of military justice practice I’ve had (as a prosecutor or defense counsel) plenty of paper 32 drills. Who among you hasn’t? This will happen more likely to happen in sexual assault cases these days because the CW can refuse to testify. The evidence for the probable cause then becomes witness statements, emails, texts, and audio recordings. That’s the way it works–and frankly that’s what Congress wants, so it is possible to avoid fair hearings.
3. Brian Purchia, a spokesman for the Washington, D.C., advocacy group, said the prosecution’s handling of the hearing raised concern.
Really. And he has how much military justice experience? Did he not talk to POD’s ED retired judge advocate Christensen before he made this statement? Sure, it may be unusual because he does not recognize the Rules are changed as a direct result of the Congressional actions and the very advocacy of POD the organization he represents. They can put in a FOIA request can’t they. True, it may get refused for various reasons.