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Thursday, September 17, 2015

CIVILIAN COURT-MARTIAL DEFENSE LAWYERS: Article 32 Changes - "Alas Poor Truth, We Knew You" by Thomas Becker


As you know, for years I have blogged about how misguided politicians and advocacy groups have set about to destroy the fairness of the military justice system, particularly in military cases alleging rape and sexual assault.  Justice is not the interest that motivates these groups. They seek predetermined outcomes that favor conviction and harsh sentences.  They presume guilt.  They dominate the public discourse by propagating the false narrative that the military is suffering from a "rape epidemic" and the military justice system is "broken"...because these groups can't accept that justice statistics aren't completely one-sided.  

You also know that the changes to military Article 32 hearings are a major part of this initiative to ensure predetermined outcomes in military justice cases.  

The outgoing President, and Congress, hold a blade to the neck of military justice, as they continue to threaten more changes if they don't see "improvement."  Improvement, of course, does not translate to fairness, it means just the opposite.  

A very thoughtful article is included in the most recent edition of The Reporter, which is published by the Air Force JAG School.  The article, which was authored by Mr. Thomas Becker, is titled "Alas, Poor Truth, We Knew You" and can be found on page 41 at this link:

Those who advocated for the changes to Article 32 hearings, and who continue to argue these changes were warranted, claim this was merely to make the military justice system "more like civilian systems."  This soundbite is such a fallacy, however, because it (intentionally) fails to make mention that while significant rights have been stripped from military members accused of crimes, none of the systemic protections enjoyed by civilians accused of crimes were incorporated into the military justice system to balance out the changes being made.  

The military justice system is a federal criminal justice system.  So, let's compare the newest iteration of the military justice system with its civilian counterpart in "felony" level cases:


At indictment, the accused has met:
1. A binding initial appearance before a federal judge;
2.  A binding preliminary hearing before a federal judge; and,
3.  A grand jury.

At referral, the accused has met:
1. An advisory preliminary hearing before a hearing officer in which the defense no longer has discovery rights.

*As described in the Becker article.  
Law enforcement agents are not prohibited or discouraged from fully investigating both sides of a case.
Military law enforcement are  discouraged and prohibited from investigating the background and credibility of a complaining witness.
Federal public defender does not have to ask permission to interview a complaining witness.
Defense has to ask permission to interview a complaining witness. 
Federal public defender has their own investigators and experts on staff.
Defense has no investigators or experts on staff. 
Federal public defender has their own money to employ additional defense experts for a case.
Defense has to request the government appoint and fund experts – which requests can be denied by the government.
Federal public defender can subpoena witnesses for trial.
Defense has to request the government produce witnesses to testify for the defense – which requests can be denied.  Defense cannot subpoena witnesses.
Conviction in federal criminal court requires a unanimous jury.
Conviction in a military court requires 2/3 concurrence of as few as 5 court members in a GCM. 
The President and Congress are not altering or threatening to change the federal criminal justice system based on “unacceptable” conviction rates. 
The military justice system is being altered by the President and Congress, and threatened with more changes, if more prosecution “friendly” conviction rate statistics aren’t achieved. 

The sad truth is that the disparity described above isn't accidental; it's what these agenda-driven politicians are seeking.  Thank you, Mr. Becker, for being a voice on the other side of a very unbalanced narrative...

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.  Also, see:

We 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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