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Monday, September 30, 2013

What just happened at the Naval Academy?

I have been following the military prosecution of several Naval Academy midshipmen for sexual assault, partly because news stories seem to reflect a yawning gulf between this case and our general understanding of the federal rape shield statute (which I just taught last week). I turned to my colleague Eric Carpenter, who writes on sexual assault in the military and had a long career in the Army JAG Corp.

The military just concluded a hearing at the Naval Academy into whether three midshipmen committed criminal sexual offenses against a female midshipman.  According to the government, the woman attended a party and became drunk to the point of blackout and possibly passed out.  Later, she heard rumors and saw social-media that led her to believe that these three men has sexually assaulted her while she was too drunk to be capable of consenting. The defense claims she was capable and did consent.

While the facts as reported by the media are disturbing, lawyers who read reports of the hearing should find something else alarming – the female midshipman was questioned by three defense counsel for over twenty hours, and the questioning went into areas that would often be off-limits due to rape shield rules.  Reports are that she was cross-examined on whether she wore a bra or underwear, “felt like a ho” afterward, and how wide she opened her mouth during oral sex.

What’s going on here?  What was that hearing and do rape shield rules apply to it?  Why is a sexual assault victim testifying and subject to cross-examination in the first place? 

What happened was something unique to the military – a hearing called an “Article 32.” This article of the Uniform Code of Military Justice (UCMJ) requires that before charges can go to a general court-martial (the rough equivalent of a felony-level court), an officer must investigate the truth of those charges (reasonable grounds that the accused committee the offense, or roughly the same thing as probable cause) and make a recommendation to the convening authority (usually a two-star general) on how she should act on the charges.

Your first reaction to that might be, “That hearing sounds like a grand jury proceeding.”  My answer would be, “Yes, but mostly no.” 

An accused at an Article 32 has rights that a defendant at a grand jury doesn’t.  The accused can be present; has a right to a military defense counsel; can cross-examine witnesses; and has full opportunity to present evidence to rebut the charges or to seek a lower disposition. 

There is no jury – just an investigating officer, and that officer usually has no legal training (she gets her legal advice from a neutral judge advocate).  In the most serious or high-profile cases, like capital cases, judge advocates and sometimes military judges serve as the investigating officer.  In the Naval Academy case, the media reports that a military judge served as the investigating officer.

Unlike a grand jury’s finding, the investigating officer’s conclusions and recommendations are not binding: the convening authority can still make her own decision about the case. 

Evidentiary rules apply.  Not the full-blown Military Rules of Evidence (which are very similar to the federal rules), but rules nonetheless.  Generally, if a military witness is within 100 miles, she needs to show up, and even if the witness cannot show up in person, she usually testifies over the phone.  You can’t simply turn in the victim’s sworn statement.  In the Naval Academy case, that is why the victim had to testify.

Contrary to what some of the news reports imply, the rape shield rule applies.  The military’s rape shield rule is essentially the same as the federal rule, and the President made this rule apply to these hearings with Rule for Court-Martial 405(i).  In the Naval Academy case, I would assume that the parties argued about what the defense was allowed to ask in cross examination, and I assume the investigating officer (in this case, a lawyer) found an exception—but that may be a faulty assumption.

If the investigating officer decided that this evidence fit one of the written exceptions to the rape shield rule, that conclusion may be suspect.  Generally, evidence of past sexual behavior or sexual disposition is inadmissible in inadmissible except to show that someone other than the accused was the source of physical evidence; to prove current consent with the accused if the past sexual behavior was with that accused; or the exclusion would violate the accused’s constitutional rights. The attorney for one of the accused asked her the questions about oral sex because “This is an act that cannot be performed while someone is passed out.”  According to reports, the lawyer further argued that “her client could not have had oral sex performed without the woman’s consent.”  Most people would disagree with that. The victim had a prior sexual relationship with one accused, but his attorney asked her about what she was or was not wearing and whether she felt like a ho on this occasion.  The rule is limited to evidence of past experiences between the two. The defense counsel could have argued that this evidence was constitutionally required because the accused were mistaken as to whether she consented.  But from the news reports, it appears that their defense is that was capable of and did in fact consent, not that she didn’t consent and they misread the situation.

Again, I was not at the hearing and don’t know how the investigating officer analyzed the facts.  If he was right, the cross examination she faced at this hearing may have been allowed at trial.  A very real issue is that he may have been wrong, and if he was wrong, there is no remedy for his mistake.  With few exceptions, none of the testimony at an Article 32 is admissible at the later trial, and even if the government closed down all of the exceptions, the victim has already gone through the experience.

So it appears that Article 32 is ripe for criticism.  To understand why Article 32 is the way it is and to properly frame criticism of it, we need to understand its history and original function. 

As Oliver Wendell Holmes said, “The customs, beliefs, or needs of a primitive time establish a rule or a formula.  In the course of centuries the custom, belief, or necessity disappears, but the rule remains.”  That is what happened here. 

Service members don’t have a constitutional right to a grand jury, and what has developed was not because the military was trying to replicate one.  Rather, the original purpose of the Article 32 was to conduct an investigation when it was very likely the only investigation that happened prior to trial.  That function has now been subsumed by other features of the modern court-martial system but the investigative features of Article 32 still remain. 

Prior to 1917, most charges were not investigated prior to going to trial.  A commander would send charges to a court-martial, which would very often be held within a day.  The accused had very few rights.  There were no defense lawyers or judges or professional law enforcement investigators or appellate courts.  This was quick trial before a board of officers.  If you have seen the movies Breaker Morant or Paths of Glory, you will have a sense of how courts-martial worked back then.

The few cases that were investigated (because an officer demanded it) were sent to Courts of Inquiry.  These courts were used to investigate a wide range of issues (the conduct of generals in combat, or to resolve allegations against character).  These boards were used to resolve disputes and the procedures that developed for them reflected that purpose: the service member was present, the Court could compel witnesses, and the service member could cross-examine them. 

Starting in 1917, in response to criticism that commanders had too much power and could push meritless cases through the system, commanders were required to conduct an investigation prior to sending the case to court-martial.  The investigation would ensure that probable cause existed and would recommend an appropriate level of discipline.  With this new requirement, commanders looked around for something familiar to model for this task and found the Courts of Inquiry. 

Additional rights followed. In 1949, the accused gained the right to counsel. In 1951, Congress passed Article 32 as part of the new UCMJ, adding the right for the accused to make a statement and present evidence. In 1968, Congress required that the accused’s counsel be a real lawyer. 

At the time, the rules were necessary because they provided a measure of due process that a service member did not find in the rest of the court-martial process.  Since 1951, however, the court-martial process has steadily “civilianized,” with statutory requirements for independent military judges and legally qualified counsel who operate under the nation’s most liberal discovery laws (and so can marshal evidence for trial).  The military’s law enforcement also became a professional, fully-functioning investigative community, complete with independent forensic laboratories.

The reasons to have an Article 32 investigation no longer exist, but the rule remains.  That, I think, means it is time for change.  Otherwise, we risk what we just saw. 

Returning to the Naval Academy case, probably nothing new was learned at this Article 32 that could not have been learned by otherwise investigating the case, interviewing the witnesses, and conducting discovery under the military’s liberal rules.  But while pursuing this now obsolete investigative function, we managed to take a service member through 20 hours of invasive testimony – which she may have to do again at trial.  Twenty hours is more than enough.  Forty hours is senseless. 

We could have come to a probable cause determination without having this type of hearing.  In a recent Op-Ed, Gene Fidell argued that it is time to get rid of this “trial before a trial” and instead have “a bare bones preliminary hearing” to determine probable cause. 

A more measured response would be to modify the Article 32 so that it serves the functions that we want it to serve.  We no longer need a formal investigation.  Get rid of the investigative features – no more calling live witnesses, no more presentation of a defense case.  This also takes care of the rape shield issue, because the defense is the party that presents that evidence.

We do need a probable cause hearing, and we can use the hearing as a discovery tool at no additional cost by allowing the accused and counsel to be present and to examine all materials presented.  Make the probable cause determination binding on the convening authority (to protect the accused), but to do that, we need to make the Article 32 look more like a grand jury.  Have a panel rather than one officer; have a judge advocate serve as a presiding officer.  This won’t be a bare-bones hearing – knowing that the panel might kill the case should provide incentive enough to the government to produce a significant amount of information.

So what is next?   Most of the current debate between Senators Gillibrand and Levin turns on who should make the disposition decision in a court-martial – the commander or the staff judge advocate.  The Article 32 problem is on the radar, though.  The 2013 National Defense Authorization Act mandated that the Secretary of Defense establish a panel (called the Response System Panel) to work on many of the difficult issues related to the military’s sexual assault problem.  One of the mandates is to “[r]eview and assess those instances in which prior sexual conduct of the alleged victim was considered in a proceeding under [Article 32] and any instances in which prior sexual conduct was determined to be inadmissible.” 

This is a good opportunity to decide what the modern functions of Article 32 should be and to revise it to promote those functions and only those functions.  And I expect the Naval Academy case will be front in center in that debate.

(With thanks to Major Mike Kenna for shaping my perspective).

Posted by Howard Wasserman on September 30, 2013 at 09:31 AM in Current Affairs, Howard Wasserman, Law and Politics | Permalink

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Comments

The more relevant comparison to Article 32 hearings seems to be preliminary examinations in states that require that procedure rather than a grand jury. Do you think that preliminary exams are also unwarranted, or that the defense should not be able to present evidence at them?

Posted by: Andrew MacKie-Mason | Oct 11, 2013 12:27:45 PM

Defense counsel has no incentive to present evidence at preliminary hearings because it gains no benefit. The only focus is whether there is probable cause, which should look only at the prosecution's evidence and not at the evidence the defense will offer to rebut.

Posted by: Howard Wasserman | Oct 11, 2013 12:58:39 PM

Is there authority for the idea that probable cause determinations should only be based on prosecution evidence? That seems to be at odds with the fact that the rules of procedure usually (in my understanding, at least. see here for Ohio, in particular: http://www.supremecourt.ohio.gov/LegalResources/Rules/criminal/CriminalProcedure.pdf) allow the defense to present evidence at preliminary hearings.

It's true that defense counsel usually choose not to present evidence at preliminary hearings, for strategic reasons. But that doesn't imply that any such evidence would be irrelevant.

Preliminary hearings are also usually subject to the standard rules of evidence and cross-examination, and you seem to be suggesting much laxer rules of hearsay and confrontation for military cases. "The witness might have to testify twice" doesn't seem like a convincing reason.

Posted by: Andrew MacKie-Mason | Oct 17, 2013 11:14:07 AM

I have taken part in Article 32 investigations both as trial counsel and defense counsel. As defense, I normally tried not to tip my hand too much and limited what we presented to the investigating officer. But there were sometimes valid reasons to litigate the 32 from the defense.

1. Beat the 32. Yes, the Article 32 investigating officer's recommendations are not binding, but the convening authority may concur. I had one case in which rape was charged, along with a few other, lesser charges. The evidence didn't support the rape, and in fact government attorneys had opined that the rape charge was not supported by probable cause. But I still didn't want the court-martial panel to even see the rape charge; regardless of a judge's spillover instruction, it would make things an uphill battle in court. I fought the rape charge hardest, the investigating officer recommended it be dismissed, and the convening authority agreed and dismissed the charge.

2. Develop the record for potential impeachment evidence later. Some trials do not start until well after an Article 32 hearing. Memories fade, stories change. Locking a witness into statements at the 32 makes it easier to impeach the witness if their story changes between the 32 and trial.

3. Give my client a preview of the case. On one or two occasions, my clients had made partial or full confessions to the charges, then changed their minds and decided they couldn't be guilty of a crime for what they had done. Often after talking to their parents, who were getting one side of the story and could never beleive that their son or daughter could do these things -- clearly my client left out the part where they had admitted their actions in exacting detail. I used the 32 as a sneak preview for the trial, putting on the theory of the case from my client's perspective and laying out many of the defenses my client wanted to present. When the investigating officer didn't buy it, I was able to bring that to my client as a reality check and get them the protection of a plea agreement and limited sentence.

Posted by: Christian Deichert | Oct 17, 2013 12:04:55 PM

(All that said, I never cross-examined a victim for 20 hours.)

Posted by: Christian Deichert | Oct 17, 2013 1:14:38 PM

I agree with what Christian says. While Article 32 is often analyzed from the persepective of the government, there are some solid benefits for the defense counsel in the Article 32, especially allowing your client to have a come to Jesus moment about the strength of the case against him.

Posted by: Scott Wilson | Nov 6, 2013 9:44:56 PM

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