Criminalizing Failure

Most current and past members of the Armed Forces have heard the rumors of soldiers being punished for having a sunburn that prevents the proper wear of the uniform and performance of duty.

Most of us also understand the need to deter self-injury as a means of avoiding or shirking duty.

But, how about the rash of attempted and successful suicides in the military? Where do those fall?

Here, the Marine Corps shows that they have no tolerance for failure.

The court was hearing the appeal of Marine Pvt. Lazzaric Caldwell, who was convicted of “self-injury” after he slit his wrist in a barracks in Okinawa in 2010.

He was convicted under the Uniform Code of Military Justice’s Article 134, known as the General Article, because the judge found his self-injury was prejudicial to good order and discipline and brought discredit upon the service.

At least one judge on the military’s high court agreed with that argument. “You don’t think that the public will think less of the military if people are killing themselves? …There’s literature out there that these things come in waves,” said Judge Margaret Ryan.

Underpinning the case is the question of why the military criminalizes attempted suicide when it does not treat successful suicide as a crime.

“If [Caldwell] had succeeded, like 3,000 service members have in the past decade, he would have been treated like his service was honorable, his family would have received a letter of condolence from the president and his death would have been considered in the line of duty. Because he failed, he was prosecuted,” noted Navy Lt. Michael Hanzel, the military lawyer representing Caldwell.

Thanks again to JMo for this heads-up.


Azimuth Check: Getting Tough On Military Sexual Assault

A few random splatterings of brain goo on the blog page…

Military Sexual Assault

Can we just get this over-with and summarily convict every male who wears a uniform in the Armed Forces? While we’re at it, let’s make it retroactive to the American Revolution. I know, I know. I’ll pack my toothbrush.

Every 3-4 years since I started my involvement with the military in 1992, sabers rattled concerning the “epidemic” of military sexual assaults against females (particularly those serving in the military). At those times, Representatives, Senators, and Victim Advocates tout statistics that show that ungodly numbers of women in the military are subjected to rape and sexual assault during their tenure. However, I have yet to see a publishing of the source of the statistics or the methodology used to arrive at the percentages and numbers. Those are always conveniently hidden or omitted. A good example is the recent CNN opinion article authored by Representative Jackie Speier. Ms. Speier also notes several conversations and interviews with alleged sexual assault victims. The especially relies upon these alleged victims to support her claims.

Don’t get me wrong. I know that people, even those in the military, have been assaulted and even raped. That is, perhaps, the most reprehensible, disgusting crime (short of various crimes against children). An actual victim of sexual assault must overcome a litany of challenges, physical and mental, in their lives. My heart goes out to each of them.

That is, my heart goes out to everyone who was actually a victim of sexual assault.

Having said that, I have questions for Ms. Speier.

1. What independent source gave you your statistics? Were they independently verified? How carefully were the surveys conducted? Would they support your conclusions if scrutinized by a team of educated and bright economists?

2. As for the specific individuals whom you claim were victims of sexual assault, did you read the entire case-files? Did you read all of the evidence, including the evidence that might not be favorable to your political goals? Did you consider the evidence that casts doubt upon the claims of your “victims?” Did you interview the commanders/attorneys who supported a declination of prosecution to understand their rationale? Did you verify to see if those individuals considered all the evidence (remember, this includes evidence potentially unfavorable to your assertions)? Did you weigh it using the legal standards of probable cause and beyond a reasonable doubt?

Ms. Speier makes the following statement:

But the incidence of unpunished rapes will continue and so will the damaging effects these illegal acts have on troop morale and preparedness. This epidemic requires an overhaul of the military justice system.

Unpunished rapes? That begs another question: Ms. Speier, what of the cases you reviewed would have, undoubtedly, resulted in a conviction beyond a reasonable doubt? Now, this will require that you analyze all the evidence and obtain statements, not just through your alleged victims, but from the commanders, investigators, and military lawyers themselves.

Did you do this type of homework before declaring an “epidemic?”

I was directly involved with the survey that occurred in the Army in 2008-09, having been interviewed by the team sent to evaluate the effectiveness of military prosecutions of allegations of sexual assault. From this independent survey of all Army installations, the Army created a corps of highly-trained, experienced Special Victim Prosecutors and Special Victim Investigators.

Among us military defenders, the same comments are made after each round of evaluation: “Well, they’re stacking the deck against us again.”

When I prosecuted cases for the military, I was typically the only government counsel in the courtroom. Now, there are no less than two at the government table along with a slew of paralegals and investigators sitting behind the bar passing notes back and forth with counsel, working the case as a team.

Well, fine. We defenders are accustomed to change. We’ll adjust. Now, let’s get back to the criticism of the military’s policy from the perspective of the largest service, the Army.

I hear the same things all the time:

  • Commanders are soft on sexual assault.
  • There isn’t enough oversight on reported sexual assaults.
  • The Army doesn’t care about women.
  • Prosecutors are not involved enough and lack sufficient discretion.

So, let’s examine the typical life of an unrestricted report of sexual assault in the Army:

Note: There is an option in the Army for the “victim” to make a restricted report that does not get investigated if their wish is to receive support but not seek prosecution of their alleged attackers. They are given support through victim advocates, counselors, chaplains, and medical/mental treatment, but their report is kept confidential. The choice to make a report “restricted” is reserved to the alleged victim.

  1. Report made and referred to the Army’s Criminal Investigation Division (CID). It is typically assigned at least two Special Agents, one of whom is a certified Special Victim Investigator.
  2. They investigate the case and gather all evidence relevant to the case (usually). This includes statements and any physical evidence. If necessary, they enlist the help of a Sexual Assault Nurse Examiner. Search warrants (called search authorizations in the military) are obtained, if necessary.
  3. They present the case to a military prosecutor (usually a Captain). This individual determines whether further investigation is warranted or whether reasonable grounds already exists or whether the case lacks sufficient evidence to move-forward). This is merely a recommendation. They also consult with a Special Victim Prosecutor (usually a Major).
  4. The CID agents take their completed report to their boss, a Chief Warrant Officer. This individual also reviews the file, notes any deficiencies, and either deems it final or sends it back for further investigation.
  5. The investigation is sent to the immediate commander of the suspect (usually a Captain). It simultaneously is sent to the supporting JAG office. The military prosecutor consults with the Special Victim Prosecutor. They analyze the evidence and consider drafting charges. Before doing this, they usually consult with the Chief of Justice (usually a Major), the Deputy Staff Judge Advocate (usually a Lieutenant Colonel), and the Staff Judge Advocate (usually a Colonel). All of these people are lawyers. They all share their thoughts and input on the potential case.
  6. Charges are drafted and taken to the immediate commander. The commander and prosecutor usually discuss the charges, the nature of the evidence, strengths, and weaknesses of the case.
  7. Charges are formally preferred against the suspect. They are then sent immediately to speak to qualified counsel at Trial Defense Services.
  8. The preferred charges are then taken to the next-level commander (usually a Battalion Commander at the rank of Lieutenant Colonel). They are also briefed as to the nature of the case and evidence and allowed to give their recommendation as to final disposition. They usually enlist the advice of their senior enlisted advisor, a Command Sergeant Major.
  9. The preferred charges are then taken to the next-level commander (usually a Brigade Commander at the rank of Colonel). They are also briefed as to the nature of the case and evidence and allowed to give their recommendation as to final disposition. They usually enlist the advice of their senior enlisted advisor, a Command Sergeant Major. They almost always order an Article 32 Investigation. This is the equivalent to a civilian grand jury or preliminary hearing.
  10. Usually, a neutral Major is appointed to act as the Article 32 Investigating officer. They receive a neutral attorney advisor to assist with the proceeding.
  11. A hearing occurs in which the Article 32 officer must determine whether reasonable grounds exist to move the case forward to court-martial. Present at the hearing are the investigating officer, prosecutor, Special Victim Prosecutor, Defense Counsel, Accused, and a paralegal who records the proceeding. Evidence is considered in the form of testimony and documentary evidence. Normal rules of evidence do not apply. Anything that is relevant (and not cumulative) may be considered. This usually favors the government.
  12. The Article 32 investigating officer makes his recommendation. His recommendation is not binding. The recommendation is sent through the entire command for recommendation until it reaches the Commanding General (usually a Major General) who evaluates everything and additionally considers the recommendations of the Staff Judge Advocate and his senior enlisted advisor (Command Sergeant Major).
  13. OK, I’ll stop here… get the point, but there’s still a lot more to this process. I probably left a few bits out in my haste to get this section complete. Please forgive me for those.

So, let’s recap the players in this drama.

Involved are:

  • The alleged victim.
  • At least two investigators.
  • At least 5 lawyers. (one Captain, two Majors, one Lieutenant Colonel, and one Colonel). They do not order prosecution (or no prosecution), but their recommendations are strongly considered by commanders (at least in my experience).
  • One independent investigating officer (usually a Major)
  • Four commanders (Company Commander, Battalion Commander, Brigade Commander, and Commanding General).
  • Oh, forgot to mention that the average case also involves input from at least two Victim Advocates. Sorry, forgot that. They are usually civilian Dept. of the Army Employees who specialize in counseling and responding to victims of sexual assault.

As for the alleged victim, they are provided certain services regardless of whether allegations are founded or unfounded. This includes, but is not limited to:

  • Victim advocates and the resources of the victim advocate office.
  • Chaplains and the chaplains office.
  • Family advocacy representatives.
  • Medical professionals at the on-post clinics and hospitals.
  • Mental health professionals who have special training in treating all types of PTSD.
  • They are allowed (even mandated by most commands) to take advantage of these services during duty hours.
  • If PTSD is diagnosed (or other mental/physical injuries), the individual may qualify for medical retirement and/or disability through the Veteran Administration.

So, my final question for Ms. Speier: What more would you like? How is the Army failing? Does the system lack oversight? Does it not involve informed, dispassionate decision-makers?

More often than not, the evidence does not bode well for the alleged victim. Every seasoned military prosecutor/practitioner has a story of someone who recants their story when it is discovered that it was concocted in order to save a marriage or reputation. When military lawyers and commanders examine a complete investigation, they look at all the evidence, even the stuff that doesn’t bode well for the prosecution. They try to weigh it as accurately as possible, often war-gaming how the evidence will play at trial.

Did you do the same, Ms. Speier?

Sometimes alleged victims don’t recant, despite the overwhelming evidence against their claim. Everyone has different motivations. We all know this.

Let me reiterate something. I feel for the true victims of sexual assault. I really do. However, I want to emphasize a word in the second sentence of this paragraph: true.

Now, I want you to imagine what it is like for some young man (or, could be woman, but the vast majority are men). He goes out one night, has fun at a club, and goes home with an attractive young lady. They mess-around. They have sex. Everything is fun for them. The next morning, she leaves.

As she is leaving from in front of the barracks, her nosy neighbors just happen to be driving-by on the way to church. They see her leaving the barracks area with disheveled clothes and messed-up hair. They send an email to her husband, on temporary duty at another military base.

Husband calls, enraged. The young lady panics. She says she remembers nothing. She was drunk. She was taken advantage-of. The story gets bigger, and the hole deeper.

Husband is angry. Husband wants blood from the dirtbag who raped his wife. He calls his command. The dominoes start to fall. Eventually, the young man from the club stands in front of his commander’s desk holding a paper with charges printed upon it.

Now, a young man finds himself in the Trial Defense Office. He trembles. This is the beginning of his journey. Everyone in his military unit knows that he is the “guy accused of raping a girl.”

You want to know what hell is like? Ask this guy?

And remember, this is only the beginning for him.

What kind of trauma does he experience? How has this changed his life? A night of consensual sexual pleasure has disintegrated into a completely altered existence.

At the end of the day, even if he is cleared of the charges, he is simply ordered to get back to work.

Oh, and he probably has less rank after he is punished for adultery.

There are no counselors. There are no advocates. Shame remains. Lost months are gone. The memory stays forever.

If we’re going to care for victims, Ms. Speier, let’s take care of them all. This young man is a victim of the false report. Know what else, Ms. Speier? Every woman who is actually sexually assaulted falls victim to the skepticism fueled by this young lady’s false report, too. I would argue that false reports of sexual assault are almost as harmful to true victims as the act itself.

Has anyone ever considered the possibility of an “epidemic” of false claims? Ms. Speier emphasizes the effect of an unpunished rape on good order and discipline. Well, what effect does a false claim have upon the same?

Returning to the more immediate victim, we have this young male soldier who suffered a horrible and only partially-repairable harm. Unfortunately, his story doesn’t inspire votes. It’s not the story you tell when you want to show that you are getting tough on crime and caring for suffering soldiers.

And that’s a damned shame.

On Totalitarianism

Most people abhor totalitarianism. That’s a good thing. The bad? Most just hate the totalitarianism of others and would prefer to substitute their own.

What do you remember about Basic Training?

During Basic Training, some soldiers write home about firing rifles and machine guns.

Some soldiers write home about their new, snazzy uniforms.

Some write about how good it feels to be a member of the Armed Forces, prepared to fight and win our nations wars.

Yet, others write home about raking leaves in the middle of the woods.

All in a day’s work.



Who are these people, and why are they giving legal advice?

WWE Champion John Cena poses with Marines at C...

I bet John Cena has as much legal training as one of the Marine Corps' "non-lawyer counsel." Image via Wikipedia

OK, Marines, something fishy is going-on (I’ll avoid, for the moment, any double entendres on the word “fishy”).

When one client tells me something strange, I consider it akin to a lightning strike.

When two tell me something strange, I consider it a mild aberration.

When three tell me something strange, I consider it a possible systemic problem.

Then, when I hear it consistently and repeatedly, I consider it a serious flaw in the system.

This flaw, as I see it, is the use of untrained, unlicensed “non-lawyer counsel” by the United States Marine Corps.

First, let’s start with a bit of background.

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Criminal Defense Attorneys: Know the Collateral Effects on Military Members

Joint color guard showing the organizational c...

Image via Wikipedia

All Criminal Defense Lawyers (CDLs) should understand, generally, the military systems for disposing of misconduct.

Yes, I know you are busy. Yes, I know that I am asking you to become generally familiar with a markedly different system of criminal justice. Trust me when I say it will pay dividends and allow you to better represent your clients.

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