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Monday, March 03, 2014

Civilian Court-Martial Defense Lawyers: The Air Force Pats Itself on the Back Regarding the Special Victims’ Counsel (SVC) Program in Military Rape and Sexual Assault Court-Martial Cases, Part II (UCMJ Article 120)

As I mentioned in the previous blog post,  this was the original comment I posted in response to the Stars and Stripes and articles regarding the Air Force SVC program in rape and sexual assault court-martial cases (UCMJ Article 120):

“With all due respect, this is a very one-sided article (more of a promotional article than a balanced account) that doesn't seek to discover the continuing problems caused by SVCs for the fairness of this criminal justice system - some of which were detailed, with specificity, in the USAF Trial Defense Division's appellate brief in the LRM case. The SVC program makes Air Force lawyers, in many instances, still act like non-lawyers. In other words, when discovery and evidentiary rules and case law are clear, we are still seeing SVCs cast that aside to advocate for the alleged victim's nonlegal objection, regardless of what the law says. While that might be appreciated by alleged victims, how are nonlegal arguments contrary to the law really considered to be "success?" It is also important to understand that all the LRM decision stood for was the narrow proposition that SVCs could speak to the court in a limited capacity on behalf of alleged victims. It did not rule on the substance of SVC actions/representation - such as being obstructionist with regard to witness interviews, discovery, etc. While I won't paint every SVC with a broad brush, because I have seen improvement and have dealt with SVCs who still understand the requirements of the law, there have been plenty of problems, that continue to this day, with regard to SVCs forgetting that they are still lawyers and, as lawyers, the procedural rules and law applies to them as well.”

This initial comment was followed by this back and forth:

Oh...I don't know...maybe about the same way as some commanders in the past have forgotten that they aren't lawyers, judges or even legal experts...or perhaps the way some juries have waived just punishment because of the stars on someone's shoulder.

Just saying...give the program a's been a learning process for everyone. There are always going to be high and low points in a learning curve.

Richard Stevens 

The point is that instead of a one-sided cheerleading article, how about accurate, balanced journalism that describes both sides of the issue? I deal with these cases and SVCs constantly, and I can assure you there are two sides of this story. The public narrative about the issue of alleged sexual assaults in the military has been so skewed in the media and in Congress that it would be nice, at some point, if there was more focus on balance and accuracy, and less on saying and printing what sounds best in the court of public opinion/perception. If you really are a skipper, don't you want to know the whole story?

I am not military. I do believe that both sides of ANY debate should be heard and also in print. It is the only way that people can make a fair and impartial decision.  So please, DO put your side in print and allow people to judge for themselves. Why do you believe this issue has been so "skewed" by Congress and the press? What is your response to the allegations of advocacy groups like PROTECT OUR DEFENDERS? Why do you feel that the Military Court of Appeals was wrong to decide that the legal arguments of counsel representing the victim should be heard in court? 

Thank you. 

(This last comment was rejected by the moderator)

Skipper. I've been writing about these issues since the early 2000s, when the Air Force Academy scandal occurred. There is not enough room in a comment section of one story to address all of this. Feel free to type "rape" into the search function of my blog and you will see many posts about the topic. Protect Our Defenders is just what you say it advocacy group. The ideals upon which the entire American criminal justice system is based - presumption of innocence, due process, fundamentally fair trials - have given way in the military to the mantra (by politicians, military leaders, media stories, advocacy groups) that every allegation must be true. If a case isn't prosecuted the system has failed. If the prosecution results in an acquittal the system has failed. If the sentence isn't harsh enough the system has failed. If clemency has been granted the system has failed. That the statistics of allegation vs. conviction show the system is "broken." This is the only criminal justice system in American in which "jurors" come into court having been inundated with these messages from their employers/superiors. Few in the public discourse give voice to how legally incorrect military sexual assault briefings about alcohol result in scores of military cases in which complainants allege rape/sexual assault in scenarios that aren't rape or sexual assault. SVCs in many cases are making arguments and taking actions to oppose legally authorized evidence gathering, pretrial investigation, and trial arguments. This is all the perfect storm for how innocent military members get convicted, go to prison, and have their lives ruined. The goal in all of this is not for a fair military justice system. The goal now is a one-sided system that attempts to ensure the opposite - that the accused gets prosecuted, convicted, harshly sentenced, gets no clemency and has increasing obstacles to presenting a defense. So many of the voices being heard and published on this issue are either not voices of those who are dealing first-hand with these cases, or are not voices of those who can tell the other side of the story.  

As I have said before regarding this issue:  It is a very sad chapter in the history of the military justice system.

For more information about the military justice system, particularly cases alleging rape and/or sexual assault in violation of UCMJ Article 120, type “rape” or “sexual assault” into the search bar above the blog posts.  We also offer free consultations for a case you may be involved in.  Just call us.

Thank you.    

By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, P.C.

Blog postscript: Attorney Frank J. Spinner and I (attorney Richard V. Stevens) are former active duty military lawyers (JAG). Our perspectives and advice, therefore, are based upon our experience as military defense lawyers and as civilian criminal defense lawyers practicing exclusively in the area of military law and military justice. This blog addresses issues in military law, military justice, military discipline, military defense, court-martial practice, the Uniform Code of Military Justice (UCMJ) and other military and/or legal topics. Nothing posted in this blog should be substituted for legal advice in any particular case. If you seek legal advice for a particular case, please contact The Law Offices of Richard V. Stevens and The Law Office of Frank J. Spinner for a free consultation. These military defense law offices are located in Northern Florida (Pensacola, Ft Walton, Destin, Eglin AFB, Hurlburt Field, Duke Field, Panama City, Tyndall AFB areas) and Colorado Springs, Colorado (FT Carson, Peterson AFB, Air Force Academy, Schriever AFB, Cheyenne Mountain Air Force Station, Buckley AFB areas), but our military defense law practices are worldwide – we travel to wherever our clients are stationed or serving and need us. 

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