Court-Martial Trial Practice Blog
The SVC also testified at the post-trial Article 39(a), UCMJ, session. When asked by the trial defense counsel if it was the “standard in practice as an SVC to meet with the military judge ex parte,” the SVC stated, “Generally, yes. We’re usually not included in [R.C.M.] 802 conferences, so generally the judge will speak with us, kind of one-on-one, sometimes before the trial begins and discuss just kind of administrative matters.” The SVC did not recall having a post-trial feedback session with the military judge.
Slip op. at 2.
In United States v. Turner, the AFCCA had several issues before it, two being:
(1) the military judge abused his discretion by not sua sponte recusing himself; (2) the circumstances of this case create the appearance that the Special Victim’s Counsel (SVC) attempted to influence the action of the military judge in reaching the findings or sentence[.]
The piece at the top comes from testimony at a post-trial hearing.
We thus readily conclude that ex parte communications
between a military judge and an SVC are generally proscribed.
Slip op. at 5. At a time when there is great concern about the fairness of sexual assault related courts-martial, why? Well the AFCCA concludes:
When viewing the military judge’s pretrial communications with the SVC in the context of this trial, a reasonable person observing the proceedings would not doubt the court-martial’s legality, fairness, and impartiality. Therefore, the military judge did not abuse his discretion by failing to sua sponte recuse himself.
It’s a disturbing practice, but it’s OK because no-one cares.