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Scholarship Saturday: We hear drums, drums in the deep

1/2/2021

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It’s been a little over 9 years since the Sundance Institute decided to fund production of The Invisible War, a documentary film by Kirby Dick concerning sexual assault in the U.S. military. The Invisible War ended up winning the Audience Award at the 2012 Sundance Film Festival (as well as other awards), but its greatest impact was felt in the nation’s capital. Pre-release screenings of the film were held for members of Congress, their staff, and senior Pentagon leaders.

With the release of The Invisible War, the military establishment was called to a reckoning for its perceived inability to appropriately handle sexual assault. That campaign of scrutiny, driven by data that has, at times, tended to be more anecdotal than empirical (discussed in detail in this column, here), has prompted a dramatic erosion of command authority. Secretary of Defense Leon Panetta’s 2013 decision to deny junior officers the authority to dispose of sexual assault cases was a reaction to having recently viewed The Invisible War.

That contraction of command authority is still in place, but it was only the beginning. Later that year, Congress enacted Section 1702 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2014 (Public Law 113-66), thereby gutting the efficacy of Article 32 pretrial investigations while simultaneously sapping commanders of their authority under Article 60 to grant clemency in any serious case, not just sexual assault cases. That expulsion of command from the post-trial process was made complete by Title LIX of the NDAA for FY 2017, which has made commanders mere surplusage in the post-trial process for serious offenses.

These dramatic raids executed against command authority in the military justice system have invited a wholesale reexamination of the foundations of the military justice system. Command authority over the military justice system has never sat well, but that is not the only feature of the system that has been in tension with the American sense of justice. As the Congressional Research Service commented only a few months ago:
A perennial concern has been the perception of a lack of complete judicial independence, as well as commander’s control over courts-martial, in part by choosing which charges to prefer against whom and by exercising post-trial clemency.
Report R46503, Military Courts-Martial Under the Military Justice Act of 2016, Congressional Research Service (August 28, 2020) at 1.

In our eagerness drive commanders out of the handling of sexual assault cases, we have awoken skepticism towards the military justice system at large. The system now stands to be overrun by inequities “older and fouler” than injustice in one class of cases.


Inequity 1: Commanders are more prone than is appropriate to prosecute sex offense cases despite insufficient evidence.

A subcommittee of the Judicial Proceedings Panel [JPP] first warned in 2017 that sexual assault cases were being prosecuted despite lacking evidence:
The consensus among [both government and defense] counsel interviewed during [the JPP’s] site visits was that the combination of a less robust Article 32 process, pressure on convening authorities to refer sexual assault cases to court-martial, and the low standard of probable cause for referring cases to courts-martial has led to cases being referred to courts-martial in which there is little chance for conviction. Many counsel felt that the result has been a high acquittal rate in sexual assault cases, which, in turn, has caused military members to question the fairness of the military justice system.
Report on Barriers to the Fair Administration of Military Justice in Sexual Assault Cases, Subcommittee of the Judicial Proceedings Panel (May 2017) at 22. (The JPP subcommittee’s report was discussed in detail in this column, here.)

The JPP subcommittee’s fears in 2017 that commanders routinely abuse their prosecutorial discretion in sexual assault cases, to the detriment of the accused, was borne out when the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) completed its October 2020 Report on Investigative Case File Reviews For Military Adult Penetrative Sexual Offense Cases Closed in Fiscal Year 2017. The DAC-IPAD report found that, in cases that went all the way to verdict, the file materials upon which commanders made their prosecution decision only satisfied the probable cause standard 89.4 percent of the time. When those case file materials were evaluated against the higher “sufficient admissible evidence to obtain and sustain a conviction” standard that is used by United States Attorneys Offices, they only met that bar 68.9 percent of the time. Report at 56.

The work of the JPP subcommittee and DAC-IPAD show that, perhaps, the practice of commanders improperly pursuing cases for which there is insufficient evidence is a greater threat than the poorly-evidenced narrative that commanders shield suspected offenders from justice.

Inequity 2: Court-martial guilty verdicts are not required to be unanimous, and the command picks the members of the court-martial who sit in judgment.

The practice of commanders pursuing improvident prosecutions is made worse by the fact that, because verdicts are not required to be unanimous in the military, it is easier to get a conviction in a military courtroom than any other court in the United States. Those two inequities put together – a pattern of pursuing improvident prosecutions coupled with the ease of obtaining a conviction when there is no requirement for unanimity – raises, substantially, the risk of wrongful convictions for military members. This risk has captured the attention of prominent military justice advocates, like David “Bull” Gurfein, a retired Marine and the CEO of United American Patriots, who has taken to the media of late to make complaints such as this:
The UCMJ has some key aspects which do not afford military personnel the same degree of presumption of innocence that you’d see in a civilian court. For example, the jury. In a civilian court, you need a unanimous jury verdict. In a military court, you don’t. Even for capital cases, where you may be putting people away for life, they only need three-quarters of the jury to get a conviction. So the scale is ticked against the accused.

But it’s actually worse than that. The convening authority (the person who oversees whether or not you go to this court-martial) actually oversees the prosecution, the defense, and the judge, and selects the jury. So, the jury comes from those who serve under his or her command.
Ellis, Asher, David Gurfein: Advocating on Behalf of Accused American Service Members, MerionWest (December 30, 2020). (This column has previously covered the work of United American Patriots as regards service members accused of war crimes, here.)

Mr. Gurfein’s concerns regarding the lack of a unanimity requirement in military verdicts appear to be supported by the United States Supreme Court. As this column covered, here, in 2019 the Supreme Court’s decision in Ramos v. Louisiana abolished non-unanimous verdicts in criminal cases in all civilian jurisdictions, with Justice Kavanaugh observing during oral argument that:
[The practice of allowing non-unanimous verdicts] is rooted in a – in racism, you know, rooted in a desire, apparently, to diminish the voices of black jurors in the late 1890s.

There has not yet been a case presented to the Supreme Court to test the Ramos decision’s application in the military jurisdiction. However, there does not seem to be a good rationale for why an exception should apply. The allowance of non-unanimous verdicts in trials by court-martial appears to be a vestige of the past, overripe for reevaluation.

Inequity 3: Military judges lack the independence required of true judicial officers.

As noted above, the Congressional Research Service has advised Congress that "the perception of a lack of complete judicial independence" is "a perennial concern" for the military justice system.

The Congressional Research Service is right: the lack of judicial independence in the military has, indeed, been a matter of great concern. As this column covered, here, the Court of Appeals for the D.C. Circuit’s 2019 decision on a writ petition in the Al-Nashiri case aptly demonstrated the problem of having an executive branch officer pretend to be a judicial officer. In that case, the D.C. Circuit Court of Appeals disqualified then-Chief Judge of the Air Force, Vance Spath, from serving as the judge in Al-Nashiri’s military commission on the basis that Spath was applying for a post-retirement job as an immigration judge in the United States Department of Justice (DOJ) while simultaneously presiding over the Al-Nishiri case, where DOJ attorneys were participating.

If Spath’s applying for a job with the DOJ while DOJ lawyers were appearing before him was a judicially-disqualifying conflict of interest, then it is hard to imagine how a military judge – who already has a job with the DOD while DOD lawyers are appearing before them – would not have an even worse conflict of interest.

Indeed, as this column has covered in the past, here, a consensus has started to form in the international community that having criminal cases presided over by military judges is no longer permissible. Our friend, India, recently argued, for example, in the Jadhav case, that a trial which is “presided over by a judge who is independent of the executive” is an “indispensable element of due process as it is understood in present times with the evolution of human rights jurisprudence.” Further, India argued that the fact that an accused may have the right to seek judicial review of military proceedings in the civilian courts “can hardly be a substitute” for providing an independent judge in the first place. Reply of the Republic of India, Jadhav Case (India v. Pakistan), April 17, 2018, at 52.

With decisions like the D.C. Circuit Court of Appeals’ in Al-Nashiri and statements from our close strategic partners such as were made by India in the Jadhav case, the continued use of military judges who, under Article 26 are “assigned and directly responsible to” the same Judge Advocate General who oversees prosecutors, is increasingly indefensible.

Inequity 4: The Department of Defense has proven unable or unwilling, year after year, to address racial disparities in the administration of justice.

The military justice system’s failure to address its racial disparities is long-standing, and has been commented on in this column before, here.

As far back as 1972, a “diverse collection of civilians and military officers” were commissioned to study the problem. Everett, Robinson, The New Look in Military Justice, 1973 Duke L.J. 650-701, 662 (1973). Their 4-volume Report of the Task Force on the Administration of Military Justice in the Armed Forces concluded that the military justice system suffered from intentional discrimination, but also from systemic discrimination that resulted in a racial disparity in punishment rates. In its opening memorandum, the Task Force diagnosed the causes of that systemic discrimination as being:
[T]esting, assignment and promotion practices, minority officer shortage, insufficient funding and support for DoD equal opportunity and human relations programs, unfairness and the perception of unfairness concerning military justice[,] [. . .] off-base housing and recreation segregation, over-regulation of personal appearance and group expression, policies which unnecessarily limit communication to the English language, peer group pressure resulting in social polarization and ‘reverse discrimination.’
The Task Force then set out four volumes worth of recommendations.

It is therefore inexplicable how off-guard the DoD appears to have been taken by the May 2019 General Accountability Office (GAO) report, “Military Justice: DOD and the Coast Guard Need to Improve their Capabilities to Assess Racial and Gender Disparities” (GAO-19-344). That GAO report found that the military services have failed to reliably collect the data necessary to track whether they are making progress towards addressing racial and ethnic disparities in the administration of justice. Nonetheless, from the data available, the GAO was able to determine that racial and gender disparities exist in investigation, disciplinary actions, and punishment imposed against service members in the military justice system. Further, the GAO concluded:
[Although] DOD and the military services have taken some steps to study racial and gender disparities in the military justice system over the last several decades[,] they have not comprehensively studied the extent or causes of any disparities.

GAO’s findings are damning. It is indefensible for the military services to have not attempted to comprehensively study the causes of racial disparities they have known about since at least the Task Force’s report in 1972. The response that the Air Force gave when watchdogs like Protect Our Defenders sought data regarding the problem raise concerns of a different sort: Air Force Concealed Materials Showing Racial Disparity in its Ranks, Advocacy Group Says, Military.com (Pawlyk, Oriana, 27 May 2020).

It is in that context – the military services’ demonstrated inability or unwillingness to adequately address racial disparities in the administration of justice – that Congress began drafting the NDAA for FY 2021. With the President’s veto of that legislation now rendered barren, the following provision will come into effect, tasking the Comptroller General to review the military justice system’s handling of its racial inequity problem:
SEC. 547. Comptroller General of the United States Report on implementation by the armed forces of recent GAO recommendations and statutory requirements on assessment of racial, ethnic, and gender disparities in the military justice system.

(a) Report Required.—Submit to the Committees on Armed Services of the Senate and the House of Representatives a report, in writing, on a study, conducted by the Comptroller General for purposes of the report, on the implementation by the Armed Forces of the following:

(1) The recommendations in the May 2019 report of the General Accountability Office entitled “Military Justice: DOD and the Coast Guard Need to Improve their Capabilities to Assess Racial and Gender Disparities” (GAO-19-344).

(2) Requirements in section 540I(b) of the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116-90, 133 Stat. 1369; 10 U.S.C. 810 note), relating to assessments covered by such recommendations.

William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, H.R. 6395, 116th Cong. § 547 (2020) (vetoed by the President; veto overridden by the House of Representatives by a vote of 322 Yea, 87 Nay, and 21 not voting; veto overridden by the Senate by a vote of 81 Yea, 13 Nay, and 6 not voting).

Essentially, the Comptroller General has been tasked by Congress to grade the Department of Defense’s and Department of Homeland Security’s racial justice homework on 7 questions. Those 7 questions can be grouped into 4 bins: data collection, analysis, corrective action, and reporting.

The data collection tasks DOD and DHS are to be graded on are:
  1. Whether the Secretary of the Army (SECARMY), Secretary of the Air Force (SECAF), Secretary of the Navy (SECNAV), and COMDT have developed the capability to present servicemembers’ race and ethnicity data in their  investigations and personnel databases using the same categories of race and ethnicity established in the December 2018 uniform standards for the military justice databases [the creation of uniform standards for military justice databasing was required to be complete by 23 December 2020 per the NDAA for FY2017, Public Law 114-328 § 5504, 130 Stat. 2962] (GAO-19-344 at 68-69);
  2. Whether the SECARMY, SECNAV, and COMDT have considered the feasibility, to include the benefits and drawbacks, of collecting and maintaining complete information for all nonjudicial punishment cases in their respect service databases, such as information on the servicemembers’ race, ethnicity, gender, offense, and punishment imposed (GAO-19-344 at 70); and
  3. Whether Commandant of the Coast Guard (COMDT) has modified the Coast Guard’s military justice database so that it can query and report on gender information (GAO-19-344 at 68).

    The analysis tasks the DOD and DHS will be graded on are:
  4. Whether the SECDEF has issued guidance that establishes criteria to specify when data indicating possible racial, ethnic, or gender disparities in the military justice process should be further reviewed, and that describes the steps that should be taken to conduct such a review (GAO-19-344 at 70); and
  5. Whether the SECDEF has completed an evaluation to identify the causes of any racial, ethnic, or gender disparities identified in the military justice system (Public Law 116-90 § 540I(b)(3)(A), 133 Stat. 1370).

    The corrective action task DOD will be graded on is:
  6. Whether the SECDEF has taken steps, as appropriate, to address the causes of any racial, ethnic, or gender] disparities identified in the military justice system (Public Law 116-90 § 540I(b)(3)(B), 133 Stat. 1370 and GAO-19-344 at 70).

    And, the reporting task DOD will be graded on is:
  7. Whether the SECDEF has ensured the Joint Service Committee on Military Justice, in its annual review of the UCMJ, considered an amendment to the UCMJ’s annual military justice reporting requirements to require the military services to include demographic information, including race, ethnicity, and gender, for all types of courts-martial (GAO-19-344 at 69-70).

In summary, the attention that the military sexual assault crisis has brought to the military justice system has awoken a sense of scrutiny that extends well beyond the handling of sexual assault cases. Continued commander involvement in the system is now held at risk. The continued use of executive-branch judges in courts-martial is assailable. The persistence of non-unanimous verdicts appears vulnerable. And, the failure of the Department of Defense to adequately address its racial disparities has been given to the Comptroller General for study. The coming years may bring great change to the practice of military justice that make the evisceration of Article 32 and Article 60 appear like minor wounds. Indeed, it appears that in rendering Article 32 and Article 60 inert, proponents of reform are just getting started:

They have taken the Bridge and the Second Hall. . . . We cannot get out. . . . Drums. Drums in the deep.
Tolkien, J.R.R. The Fellowship of the Ring. New York: Houghton Mifflin Company, 1994 (Chapter V, The Bridge of Khazad-Dum, Galdalf the Grey reading the Book of Mazarbul’s last entry).

Isaac Kennen

Scholarship Editor

7 Comments
Scott
1/3/2021 07:24:51 pm

Wow. This was one great article.

Hopefully the new “reforms” will not be as destructive as the old reforms. Especially the destruction of Article 32 - that is the worst of all. Would also add the virtual elimination of access to evidence under MRE 513.

The potential new “reforms” you mention though (independent judges / unanimous verdicts) do seem like actual improvements.

Reply
Cloudesley Shovell
1/4/2021 09:40:50 am

A comment on the first inequity: Inequity 1: Commanders are more prone than is appropriate to prosecute sex offense cases despite insufficient evidence.

This is no surprise. Commanders exercising GCM authority are, after, all, human beings. They are not some special class of being that has risen above humankind. Therefore, they respond to incentives.

And what are those incentives? We in the military justice community are well aware of those cases where some hapless commander has crashed and burned at the end of his career after having run aground on the rocky shoals of Congressional fury for having not been unrelentingly vicious in the prosecution of a sexual assault case.

Conversely, I am not aware of a single commander who has been subject to any career consequences for prosecuting a weak case that results in acquittal.

Remember when a certain congresswoman complained that there were too many acquittals in sexual assault cases, and that Art. 120 needed to be amended to make convictions easier? I sure do.

Be brutally honest with yourselves, my fellow very courageous lawyers: What would you do if you were a GCMCA in this current political climate when confronted with a weak sexual assault case? What if you were the SJA? The trial counsel?

Kind regards,
CS

Reply
Philip D. Cave link
1/4/2021 01:02:34 pm

@The Admiral.

A CA is not bound by the rules of professional ethics as an SJA and TC are. One would hope those ethical rules would give pause for the lawyers in making appropriate decisions and recommendations. But they too are subject to incentive are they not.

Franklin made a bad decision in his first case of note. In his second he made a good decision which was supported by his SJA. Not satisfied, outsiders removed the case from him and gave it to another commander who did refer Wright to trial after a recommendation from a different lawyer (SJA)--a trial in which Wright was acquitted. For Franklin that resulted in his retirement (at if I recollect) a lower grade. What's the lesson here?

Generally, I understand that an AUSA takes a case to trial not just based on probable cause but a reasonable belief that they can prove the case BRD. I'm not aware of too many AUSA's taking it in the shorts for not going to trial.

To have confidence in a military justice system it seems to me that a CA, SJA, TC ought to be left to make those difficult decisions without the politician lurking over their shoulder. No matter how fair the process really is, until the politicians stay out of the weeds there will be many who perceive military justice to be unfair in execution. An unfair system is not supportive of good order and discipline quite the contrary. For good discipline the crew need to believe and understand that discipline will be imposed justly.

Admiral, I don't know I've answered the question merely to state plus ça change, plus c'est la même chose.

Reply
Cloudesley Shovell
1/4/2021 04:22:47 pm

Yes, concur generally with your remarks, especially plus ça change, plus c'est la même chose.

"Reform" is a loaded word. Consider the non-unanimous verdict, which is discussed, but the "only one vote" rule is not. An accused subject to the "reform" of unanimous verdict may find himself convicted after long deliberations when in fact the first vote of the members would have acquitted him under the old rules. It's a change, but is it necessarily reform?

What I do know, in my very very limited trial experience, is that I'll take military members over a civilian jury any day of the week.

Kind regards and Happy New Year,
CS

Barney Greenwald
1/6/2021 06:09:15 pm

Regarding Equity #1, referring Courts-martial that are ridiculously weak is counterproductive in achieving convictions. After the panel acquits the accused, then they are likely to be skeptical in future courts-martial particularly when they believe that the SVP has not been an honest broker. In fact, their skepticism might even cause them to allow a guilty man to go free.

Reply
Scott
1/8/2021 09:52:37 am

Yes, the bias fostered against 120 cases as a class by 10~ years of prosecuting weak cases is a real issue.

The perception that going forward to court-martial is always the “victim friendly” course of action is short sighted and shallow. The true victim friendly course of action is to pursue meritorious cases and have the courage to give an honest assessment when a case lacks prosecutorial merit.

Reply
N. White
1/25/2021 05:53:44 pm

Zeke,

Great article as always. Having been a civilian litigator these past five years, I just recently wrapped up a pro bono case defending an Army Major accused of 120 offenses and it has brought back a flood of feelings about the flaws of our military justice system.

From my time as both an Air Force trial prosecutor, a trial and appellate defense counsel, and having served an IO/PHO in dozens of cases, my opinion is that, at least for the Air Force, I never thought we were particularly good at prosecuting "real" felony cases, other than CP cases, which were overwhelmingly guilty plea confession cases in my experience. I don't know if that was lack of experience or lack of institutional knowledge, but whenever a non-120/non-CP case came along, we just weren't very good at it.

I think a big part of the reason for these shortcomings is it takes a lot of effort to really drill down on the evidence, piece together the facts, and paint a picture of what happened to determine whether a crime was committed and how serious that crime was. That all happens at the investigative stage – the show in the courtroom should just be a scripted play. In 120 cases, the investigation was typically just a slew of interviews of all the folks the dorm or party or whatever and that, plus some background checks and other random investigative steps, was about all you'd get.

This brings me to the main point I want to make that never seems to get addressed in all the scholarship and thoughts we have about the military justice system and 120 cases in particular. I have found that the investigative steps taken in 120 cases and "real" felony cases are wholly inadequate and almost criminally negligent in their incompetence. I have seen OSI, CID, and NCIS investigations in this regard and found many of them lacking. When we talk about failings and the need for reform, why don't we focus on what happens before the charging decisions are made and the prosecution occurs?

Somehow, Article 32 gets eviscerated, Article 60 gets wiped out which, in times of war, has some real value as Dwight Sullivan and I discovered when we assembled briefing materials for the AF Judiciary Director (as was her XO and an app defense counsel at the time) for her meetings with members of Congress when the Franklin/Wilkerson debacle occurred, and other procedural changes to the Code are made.

We've made all these changes to the "system," but I haven't seen any meaningful effort to reform or improve the investigative agencies. And for all the talk about the flaws of the commander-centric military justice system, I think the biggest flaw in the entire military justice system is the so-called independence of the investigative agencies (OSI/CID/NCIS).

Ostensibly, these agencies are independent of command to avoid UCI. But I found with my dealings with OSI that the independence made the special agents completely unaccountable for their wholly inadequate investigations. As a three-time chief of military justice, there was nothing I could do to get most of the agents I worked with to do their jobs properly and gather all the facts. Whenever I received an OSI report for a case I knew was going to verdict, it was basically starting from scratch. We really need to address the mediocrity of these investigative agencies and re-examine whether their independence is actually a detriment. And I don’t say this in a vacuum - I had great experiences and success working with Security Forces Investigators. Unfortunately, they only got to handle the low-level stuff. I could tell SFS investigators what investigative steps they needed to take, they would do them, and we'd have a ready to prosecute case. OSI viewed the prosecutors as an extension of command and a threat to their independence, rarely followed my guidance/suggestions, and with one particular Det while in Europe, basically viewed us as the enemy. So, Zeke, more scholarship on the failings of the investigators. The facts that only 68.9 percent of 2017 cases met the USAO standard tells you all you need to know about why we need to look at the investigative stage of the process and less on what happens in the court room.

Some quick passing thoughts on the Inequities. I think Inequity 1 is spot-on. The Admiral is right and I was always saying before the Wilkerson case that it was only a matter of time before something like the Wilkerson case happened. It was (and still is) far easier in the political climate for a CA to refer charges and let the panels acquit then to not refer in the first place. And it was only a matter of time where a CA would have a case where he truly believed in the accused’s innocence and the jury convicted. That’s what happened in Wilkerson. And of course, Franklin did it in a case where it was a fellow F-16 driver who was guilty and where Don Christensen put on what heck of a case. And because the CA was blinded by his own biases, this became the ca

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