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.
Protect Our Defenders (POD) has this to say about the recent vote on Sen. Gillibrand’s Military Justice Improvement Act.
Last week, 50 U.S. Senators stood with survivors and voted for Senator Gillibrand’s Military Justice Improvement Act (MJIA).
For two years in a row, a majority of the Senate has told the Pentagon to fix the arbitrary and biased military justice system. Unfortunately, this common-sense legislation was blocked with a threat of a filibuster, as it was last year, requiring 60 votes to pass instead of a simple majority.
As a defense counsel, I’m always looking for ways in which the prosecutor has opened the door to relevant evidence, but which for some reasons has been excluded or can’t be offered. MRE 412 comes to mind, as happened to me at trial in United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011).
But, BUT, as a defense counsel, I’m equally conscious of how I can do something to open the door. I might have successfully litigated a motion in limine to exclude evidence. But now I have the key and have to be careful I don’t give it to the prosecution to use.
There are other ways the defense can open the door to otherwise inadmissible evidence. United States v. Martin just decided by NMCCA is a case in point. Although the appellate court ultimately found the proescutions questions plainly wrong, the damage was done and they court found no prejudice.
Here is a link to the MCM changes effective 17 June 2015.
A former client directed me to the Air Force Reporter, Vol. 42, No. 1 (2015).
In reading about an aspect of his case, my eyes rolled down to this. It is on page 50.
CASE 2 Prior to a court-martial, a Special Victims’ Counsel (SVC) advised a client that the SVC would not be attending the trial in person due to a personal conflict, but that if the client needed anything to let the SVC know. The SVC did not notify supervision and did not make arrangements for another SVC to attend the trial in their absence. The court-martial started with several motions that involved the client. Following the motions hearing, the client contacted the SVC and requested that the SVC attend the remainder of the court-martial. The SVC attended the remainder of the court-martial proceedings.
We often hear of prosecution misconduct going unchallenged or undisciplined. Two events this week are noteworthy though in efforts to hold prosecutors accountable.
Armstrong v. Daily, et. al., is a case out of the Seventh. The M-W Journal Sentinal extracts this:
He brought a civil rights suit against the prosecutor on his case, John Norsetter, and two crime lab workers, Karen Daily and Dan Campbell. All three sought to have Armstrong’s suit dismissed on immunity grounds, but the 7th Circuit U.S. Court of Appeals affirmed the trial judge’s refusal to grant that request:
The Georgia Supreme Court extends Padilla
In Alexander v. State, decided on May 11, the Georgia Supreme Court agreed that a failure to advise on parole issues from a guilty plea was ineffective assistance under Strickland v. Washington.
Military lawyers know there are two specific areas they must ensure adequate advice about to clients: the possible impact of sex offender registration and possible adverse citizenship and immigration decisions. Now–at least in Georgia–you can add one more: impacts on clemency and parole.
Listen up: “Every occasion of a proved false allegation has an insidious effect on public confidence, sometimes allowing doubts to creep into when one shouldn’t exist.” Said the judge on sentencing.
That’s right, the failure to hold people accountable for false accusations harms true victims.
Col Christensen of POD says this doesn’t happen and that people don’t make false allegations for these reasons. Sorry mate, read this.
Ask the prosecutor in this case.
In re Kline.
Military prosecutors are bound by Service rules of professional responsibility. Those rules are based on the ABA Model Rules.
1 May 2015 saw the release of a number of reports and memorandums regarding military sexual assault. Some initial takeaways (which in my view certain people are either deliberately ignoring or misreporting).
No POD, the conviction rate is not 5%– the conviction rate is 67% for penetrative offenses, and 84% for non-penetrative (conctact) offenses.
If POD is claiming only a 5% conviction rate, then they are presuming guilt in each allegation made, regardless of the truth of the claim and the amount of evidence available.
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