Article 32: Why the Bad Rap?

In the wake of the Article 32 investigation for 3 Naval Academy Midshipmen, many advocates used the long and detailed cross examination by defense attorneys as a rallying point to advocate for a completely revamped system for determining whether reasonable grounds (essentially probable cause) exist to send more serious cases, those facing greater than 1 year of confinement, to trial.

While I’ve never really practiced in any jurisdiction outside the military (I did, but it was very, very brief and unremarkable), I have a general understanding of the non-military ways of conducting a probable cause determination for felony offenses.

One is the grand jury. This is a group of people who listen to evidence presented by a prosecutor. In most cases, a judge presides over the proceeding to ensure that rules, policies, and procedures are followed. These proceedings are closed.  Most people presume that the prosecution portrays the case in the light most detrimental to the accused, but I’ve heard of the opposite occurring. You just never know, and, since it happens behind closed doors, there is no way to know exactly what happens. They make a decision based on the weight of the evidence, and their decision is binding.

Because of the expense of keeping a grand jury empaneled, many smaller jurisdictions use a process called a preliminary hearing. I saw many of these in Kansas when I interned in a DA’s office. Accused and counsel are present, and, as with a grand jury, the prosecution attempts to prove that probable cause exists to move the case forward to trial. However, defense counsel is allowed to test the evidence, cross examine witnesses, and present evidence. The rules of evidence are relaxed, and judges understand that part of the process is to allow defense counsel to conduct discovery on the record. A judge presides over the proceeding instead of a grand jury,  and he or she makes the probable cause determination. They generally grant the defense a great deal of leeway during cross. The judge’s decision is binding.

The Article 32 investigation is similar to a preliminary hearing, except that any commissioned officer may act as the investigating officer (presiding over the entire proceeding), and the recommendation of the investigating officer is merely a recommendation. It is not binding. The legal burden for the prosecution is essentially the same, and, as with a preliminary hearing, defense is permitted to use the event as an opportunity for discovery. While it is called an investigation, it occurs in a hearing environment.

As a prosecutor, I loved the Article 32 because it afforded me a chance to test my case, solidify my evidence and witnesses, and provided me with a dress-rehearsal for trial. In many ways, I viewed the investigating officer as a sample of someone who could be assigned to an eventual panel (jury), and I judged their reaction to each witness and every shred of evidence. That opportunity is golden and cannot be replicated.

As a defense counsel, I loved the Article 32 because I could use it as a bargaining chip in plea negotiations. If one occurred, it gave me an opportunity to conduct discovery, locking witnesses to their statements on the record.

Either way, I saw a lot of benefits.

Now, let’s turn our attention to the Naval Academy hearing for the 3 Midshipmen former football players. You should know a few things:

1. The Article 32 investigation could have been presided-over by any commissioned officer. Even those with no legal training could have been appointed. In this case, an actual military judge was appointed. This is very unusual, and shows that they are taking this situation very, very seriously. In almost 10 years, the only time I’ve heard of military judges presiding over an Article 32 investigation is in cases where the death penalty was possible and being sought by the government. To put it into perspective, I had a premeditated murder case where the Article 32 investigating officer was a Medical Service Corps officer with no legal training. That was fine in the eyes of the law. In fact, he was extremely capable and conscientious.

2. The prosecution and defense may object during an Article 32. Generally, the rules permit all evidence, but it must be relevant and not cumulative. The investigating officer has access to a neutral judge advocate to provide advice, if necessary.

3. The investigating officer for the USNA football sexual assault case recommended that the case not proceed to General Court-Martial. As stated before, this is merely a recommendation. It is not binding.

4. After he makes his recommendation, it is sent to the General Court-Martial Convening Authority (GCMCA). For the Naval Academy, this is the Superintendent (essentially the equivalent of a university president or chancellor). However, it doesn’t go directly to him. Before it goes to him, it is reviewed by the prosecutor(s), the Chief of Justice, and a few other more senior JAGs who review the findings, recommendations, and evidence. Then, the GCMCA’s legal advisor, usually a Navy Captain or Marine Colonel, makes a recommendation. In more serious cases, this recommendation is made both in writing and in person during an office call with the GCMCA. From what I’ve read, the GCMCA’s lawyers recommended not proceeding to a General Court-Martial.

5. The GCMCA declined to prosecute one Midshipman (consistent with recommendations by the military judge and JAG lawyers). However, he ordered a General Court-Martial for the other two former football players. This, of course, went against the recommendations of his JAGs (according to the reports I’ve read).

Now, consider this.

Advocates on behalf of military sexual assault victims want the Article 32 process and trial determination controlled by lawyers.

Think about that for just a second.

Suppose the Naval Academy cases were controlled by lawyers familiar with criminal justice and the Uniform Code of Military Justice, as many victim advocates demand. That would be those Navy Lieutenants, Lieutenant Commanders, Commanders, and Captains sitting in the JAG office as well as possibly a few peers from elsewhere across the Navy.

Would the USNA football player case be proceeding to trial, considering the recommendations of the GCMCA’s staff judge advocate as well as that of a military judge?

Ain’t that interesting?

I was recently talking to a friend who is a Chief of Justice at a military installation. At one point, I lamented the fact that not a lot of folks were looking for civilian counsel at court-martial. They responded “Yeah, well, that’s because all the government defense counsel look like heroes because of all the acquittals they’re getting at court-martial for sexual assault cases.”

So many cases were being forced into court-martial, not because they were good cases, but because of the pressure to prosecute every sexual assault allegation.

I responded “But what about all the new rules, laws, special victim counsel, additional prosecutors, special investigators, and all the other folks you guys added to your team?”

The Chief of Justice snipped, “None of that changes the evidence. Bad facts is bad facts. You know that.”

Yep, I guess I do.


4 thoughts on “Article 32: Why the Bad Rap?

  1. “Think about that for just a second.

    Suppose the Naval Academy cases were controlled by lawyers familiar with criminal justice and the Uniform Code of Military Justice, as many victim advocates demand. That would be those Navy Lieutenants, Lieutenant Commanders, Commanders, and Captains sitting in the JAG office as well as possibly a few peers from elsewhere across the Navy.
    Would the USNA football player case be proceeding to trial, considering the recommendations of the GCMCA’s staff judge advocate as well as that of a military judge.

    Ain’t that interesting?”

    No and no.

    The problem is not with an Article 32-like hearing. The problem was with the way this particular hearing was conducted — a symptom of all the things that are wrong with the current system. 24 hours of cross-examination for a rape victim?

    And I draw the exact opposite conclusion with respect to the GCMCA’s decision to overrule his lawyers. For one thing, it shows that his decision was driven by political considerations.

    The system is deeply flawed and needs to be changed. Senator Gillibrand’s legislation would take these decisions out of the chain-of-command where they belong.

    • You are basing your opinion of the entire system on one case in which you are absolutely not a neutral and detached observer.

      In Kansas, cross examination at a preliminary hearing could last just as long, if the judge allowed it. So, the same potential for possible abuse exists (as with any in which a human being is caused to referee an adversarial proceeding). When I was handling felony prelims as an intern, I can’t tell you how many times a judge overruled my objections to lengthy, redundant, and seemingly irrelevant defense questioning with the phrase “I’ll allow it for the purpose of discovery.”

  2. Sadly, I think this is another case of politicians using the military as a tool to further their ends. Looking at a recent Gallup poll, I find that the most revered public institution is the military and the least revered is Congress, so the politics of the situation is not lost.

    Eric, I agree with your post. Having recently separated from active duty, I saw the change from a military defense attorney perspective on the inside. Having been a former State DA, I can also say the cases the military is taking to court-martial would never have been authorized in State court. As noted, this is leading to a ton of military acquittals — cases that would NEVER have been taken to court previously because the evidence wasn’t there.

    Mr. Koehler, I am concerned about your conclusion that the witness is a “rape victim.” As far as I know, criminal defendants are still presumed innocent until proven guilty, and no one has proven a rape. I have performed both as a prosecutor and a defense attorney under the military and I personally believe that the military justice system is not broken as your post implies.

    Which brings me to my next point: terrible prosecutions don’t serve anyone. I have stood with crime victims through the criminal process. Crime victims aren’t served by a public trial that ends in an acquittal. In fact, many violent offenders feel emboldened by an acquittal in a way they don’t by a failure to press charges. Bottom line: the decision to take some one to trial should depend on the evidence. If the evidence isn’t there, it isn’t there, no matter what Congress thinks. This is a decision that should be made on the evidence on a case-by-case basis.

    • Mr. James:

      Okay, then, ALLEGED rape victim. (And really?)

      According to press reports, the accuser in this case was cross-examined for 24 hours over four consecutive days, including two days over the weekend after she had pleaded for a day to rest. And she was asked about whether or not she was wearing underwear on the night in question and how wide she opened her mouth during a blowjob. I have yet to hear anyone explain why any of that might have been justified.

      I am always wary when people preface their arguments by describing their experience. It is as if they ask us to accept arguments on the basis of simple say-so. In this case, you assert that “many violent offenders feel emboldened by an acquittal in a way they don’t by failure to press charges.” Is this based on personal experience or are there more concrete data available to support this assertion?

      As for my argument that the system is broken, you needn’t take this from me. Take it from (at least) the last two secretaries of defense who have said virtually the same thing. Their emphasis has not been on denying there is a problem but in fashioning an appropriate fix to the system. Again, I support the Members of Congress who believe that the best fix would be to take these matters out of the chain of command.

      Finally, this is not meddling by members of Congress but fulfillment of their constitutional duty to provide oversight over the military. That the GCMCA was influenced by political considerations in this case, I think, suggests the very opposite of what you seem to be arguing. In fact, whatever the merits of this particular case may be (I have no idea), it shows how desperately reform is needed.

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