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Wednesday, September 21, 2016

REQUIEM FOR THE MILITARY “JUSTICE” SYSTEM – Lessons from U.S. v. Lt Josh Seefried

As published in the Huffington Post:

The court-martial acquittal of Air Force Lieutenant Josh Seefried for alleged sexual assault has been widely reported on in the Washington Blade and Huffington Post. I was Josh’s lead trial defense attorney and I remain incredibly gratified that justice was finally achieved in his case. Justice in Josh’s case was his trial acquittal. Yes, justice can include acquittals and cases dropped before trial - despite what misguided politicians and advocacy groups seem to argue.

I am a former active duty JAG attorney, and my civilian law practice is exclusively focused on defending military members in the military justice system. I have devoted more than 20 years to this system, and I am a huge supporter of our military and the rights of those who volunteer to serve our country and accept the considerable risks and sacrifices inherent in that service.

But when military members face criminal accusations in the military justice system, particularly rape or sexual assault, they now enter a legal system in which politicians are attempting to rig the outcome to ensure their conviction and harsh sentence. Despite the historic position that Democrats concern themselves with due process and equal protection of defendants in criminal justice systems, the leaders in this movement to destroy the military legal system as a system of “justice” are Democrats. One of the ways they have attempted to rig the system is by changing the nature of Article 32 hearings, and not providing any due process protections to fill the void.

Before a military case can proceed to a general court-martial trial (akin to a “felony” trial), the case must first be considered in a pretrial Article 32 hearing. The officer presiding over this hearing provides a non-binding recommendation to the Convening Authority (a senior level commander) about what should happen with the allegations, which could include proceeding to general court-martial trial, being heard in a lesser judicial or administrative forum instead, or being dropped altogether. The Convening Authority then takes action on the case, and decides how it will proceed, if at all. The Convening Authority does not have to follow the recommendation of the officer presiding over the Article 32 hearing.

In Josh’s case, the Article 32 hearings were conducted under the old rules. Those old rules defined one of the purposes of Article 32 hearings as an opportunity for the defense to gather discovery for case preparation, and the rules allowed witnesses to be called and questioned under oath for that purpose. Witness questioning during the Article 32 hearings also provided critical information for Convening Authorities about the strength or weakness of the case, which informed their exercise of “prosecutorial discretion.” These hearings were actually called, and conducted as, “investigative hearings.”

After both Article 32 investigative hearings in Josh’s case under the old rules, the presiding O-6 Investigating Officer recommended Josh’s case be dropped. However, these hearings occurred when the military justice system was under intense political scrutiny. Because of the political climate and the adverse career consequences for commanders and Convening Authorities, such as Lt Gen Craig Franklin and Lt Gen Susan Helms, who dared to exercise their prosecutorial discretion in a manner that was not politically palatable, commanders now serving as Convening Authorities have learned their careers depend on them appearing to be unwavering in their support of complainants to the exclusion of any other interest – such as the fairness of the system, due process, the state of credible evidence, prosecutorial discretion, the rights of the accused, etc. So, despite the recommendations that Josh’s case be dropped, made by an experienced and respected Article 32 officer, Josh’s case continued to trial.

The Seefried case was likely the last case in the Air Force in which both Article 32 hearings were conducted under the old rules – whereby the hearing was conducted as an investigation and the complainant and key witnesses were called to the stand and questioned under oath in the hearing. This witness questioning revealed additional evidence that was necessary for our defense. The Article 32 questioning also resulting in transcripts that we used in case preparation and trial. Those Article 32 transcripts proved to be crucial in confronting and refreshing the recollections of witnesses at Josh’s trial, to include the complainant and the former co-accused. The outcome of Josh’s case was due, in large part, to the information we were able to discover and develop through questioning witnesses in his Article 32 hearings.

When the President and Congress changed the law and rules governing Article 32 hearings, ending the practice of conducting them as investigations and reducing them to largely meaningless paper-shuffles to only establish probable cause, they “justified” the change with the argument that civilian criminal justice systems don’t have pretrial investigations as broad in purpose as the military’s Article 32 hearings. While that may have been true, what the politicians conveniently left out of their argument were all of the due process protections that do exist within civilian criminal justice systems that do not exist within the military. So, when Article 32 hearings as investigative hearings were done away with, politicians did not fill that void with any of the due process protections that exist in civilian criminal justice systems. Their agenda to try to rig the system was obvious to those of us who practice within it.

For example, consider the differences between the federal criminal justice system and the military criminal justice system (which is also a federal system). Here are some of the resources and protections federal defenders have in their cases that military defenders do not have:

- A binding initial appearance before a federal judge;

- A binding preliminary hearing before a federal judge;

- A grand jury;

- Law enforcement agents who are not prohibited or discouraged from fully investigating both sides of a case;

- Real prosecutorial discretion which allows cases to be dropped if not supported by credible evidence;

- Federal defenders do not have to ask permission to interview complaining witnesses;

- The “State” in federal cases does not appoint an attorney to represent complaining witnesses separate from the federal prosecutors;

- Federal defenders have their own investigators, experts, and financial resources for more professional assistance; 

- Federal defenders have the ability to subpoena witnesses;

- Convictions in federal court require unanimous verdicts; and,

- The President and Congress are not constantly tinkering with the federal system to try to improve case outcome statistics.

With regard to each point above, the defense in military cases does not have this protection or resource. The virtual loss of Convening Authority (prosecutorial) discretion and traditional Article 32 investigative hearings are only a couple of the dramatic changes to the military justice system in the recent years which have been marked by a political maelstrom that continues to result in systemic changes to the detriment of military defendants. As a result, it is exceedingly more difficult for the defense in military criminal cases to investigate and present relevant evidence. That appears to be precisely what the politicians intend. If trials are truly searches for the truth and justice, and aren’t simply a meaningless exercise meant to achieve a predetermined conviction, the idea that rules are being changed to limit the ability of the defense to investigate and present information on behalf of our clients is not only unjustifiable, it is un-American. 

Josh’s case was a stark reminder of, and requiem for, the due process protections that used to exist within the military justice system, which were casualties of the recklessly false political narrative that branded the military as full of sexual predators who benefited in the past from a “broken” justice system. That system has now been deeply damaged by changes pushed by political agendas. This is America - where we, as a society, rightly concern ourselves with the fairness of our justice systems which should have procedural rules predicated on the fear that an innocent person could be convicted of something he or she did not do. With regard to the military justice system, what we see instead are politicians constantly instituting new changes in an effort to make it increasingly difficult to defend military members who face criminal allegations. 

Josh Seefried was innocent. If he had gone through this case under the new rules in the military justice system, he might very well be sitting in a prison cell right now. Is that really the “justice” politicians are seeking for our military members?

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