Transcripts For CSPAN2 Former Military Judges Discuss Sexual Assault Cases 20240713

Ms. Bashford, you have the con. Before we get started, apparently, in order to speak, you need to hit request, and when youre done, hit the part that says speak. In any event, mr. Sullivan, thank you and good morning. I want to welcome the members and everybody in attendance today on valentines day to the 16th Public Meeting of Defense Advisory Committee on the investigation, prosecution and defense of sexes yule assault Sexual Assault in the armed forces. Were going to given by taking attendance. General anderson. [roll call] judge bris boy and judge walton could not be in attendance today, but with 11 members present, we have a quorum. Created by the secretary of defense in 2016 in accordance with the ndaa for fiscal year 2016. Our mandate is to advise the secretary of defense on the investigation, prosecution and defense of allegations of Sexual Assault and other Sexual Misconduct involving members of the armed forces. em if. We will hear from two retired army judges, a retired navy judge, and retired air force judge. The committee looks for different from each of you. Following the military judges panel the committee will discuss the judges testimony and then take a break for lunch. In the afternoon the committee will deliberate and vote on whether to improve the draft Fourth Annual report. The committee will then receive an update from the staff of its 2020 military installation business and members observations of courtsmartial. Next the army chief of criminal law, will provide the committee with the presentation on fiscal year 2020, ndaa provisions that affect the dacipad and military justice. The dacipad staff director has informed and individuals made a request to provide a Public Comment at todays meeting. Will hear the comment after the kernels presentation. If a by the audience would like to make a Public Comment please direct your request to the dacipad staff director. The comment may be heard at the discretion of the chair and written public, to mason may be submitted at any time. Finally the dacipad staff director will wrap up the meeting and answer any questions the committee may have. Thank you all for being here today. Judges, we are ready to begin. We have your bios but if you would provide us with a Short Description of your military career, your military judicial experience and any training to received as a military judge. Thank you so much. Good morning. Thank you for this opportunity. My name is stephanie paytonobrien. Im a retired navy judge advocate and military judge. I spent approximately nine years on the bench between the Trial Judiciary and the Appellate Court. Prior to becoming a military judge i attended the judges course in charlottesville was on the bench i attended various training come some focus on Sexual Assault, other training such as scientific evidence, courtroom security and drug cases. Im sorry . Thank you. During the corps of my career i spent five years prosecuting Sexual Assault cases. Thank you. Hello. Im retired from the Army Air Force [inaudible] i also served at the staff adjective [inaudible] im colonel nance, retired after 30 years in the army. 25 of those years i was involved with military justice in some form or fashion, and more than 13 as military judge. The training we received included whats already been talked about, the military judges basic of course and then at least twice annually Refresher Training on various issues of the criminal law and military judge business, including training at the National Judicial college in reno, nevada. Hi. Im andrew glass, 26 years in the army, was a prosecutor, defense counsel, supervisor, a trial judge on three different occasions, three different locations culminating being a chief circuit judge. Went to the military judges course in charlottesville which is a threeweek course, twice, and between the first time as a judge and come back to the Trial Judiciary i was a staff judge advocate. And so they made you go back again. Enter the Sexual Assault training within the context of being a judge, i try to remember when we started doing specialized Sexual Assault training, typically in august of the year. Its a weeklong course. I think it is for five times. Jeff may have better memory. When we would go and have intensive courses discussing Sexual Assault cases, discussing evidentiary issues, for example, and kind of procedural issues that were germane to that issue. I also went to several National Judicial college courses. The ones i recall our a Death Penalty case. Actually i was there with the jeff, advanced and then some judicial art course. I think the Sexual Assault training started in either 2011 or 2124 judges. Right. And i should say for jeff we both attended and presented, moderated panels, et cetera. Thank you very much for being here. This committee has in the past heard from, weve heard from victims. Weve heard from accused. We have heard from Victims Counsel. We further from Defense Attorneys and weve heard from prosecutors and investigators but this is our first chance to really have russian for people who have kind of seen the whole thing being put together. I open it up to questions from the committee. Then im going to start. What has been your experience with the deal sees and the splc is, has it changed have courtsmartial proceed in your opinion in terms of what this preparedness or surprises seeming to come out for which the complainants have not been prepped . If each of you could just take a moment. [inaudible] you to always have to start with me, but thank you. Feel free to jump in, gents. The vlc program really changed Sexual Assault cases, in my view. Prior to vlcs being involved, and i look back at even my time in prosecuting these cases, it was a freeforall against the victim, where oftentimes the male or female seem to be dragged through the mud. Now they are protecting them. To i think an extreme now because when a prosecuted cases, the victims would come in general and testify in article 32. 32. That was a Good Opportunity as a prosecutor to see how that individual would fare under crossexamination. They dont have that opportunity anymore. Most victims will assert their rights to not come to an article 32. 32. Thus, they come to court it seems sometimes unprepared for what is going to happen and how the questions will come at them. As a judge, crossexamination often was the opportunity for defense counsel to really point out how to prepared with the prosecution and completely refused to talk with the defense. I think thats a disadvantage to the carpet to the case that the victim has never had that opportunity and refuses to, as is their right, understandably so, there have been some bad scenarios with article 32 as we know for the victims being crossexamined. But, and of using the phrase victim, alleged victim, but i think in terms of preparation for trial all they are getting is the ability to prepare with the government and in some ways that is not doing them a service because of not having the opportunity for cross examination at any point or even interviews with the defense. Ill mention that i now have my own practice. I do criminal defense attorney, Sexual Assault cases or something i defend and it can be difficult on both sides if that opportunity is not therefore victim interviews. Understanding that it is their right but i think it would help if, for the process, would have interviews with counsel on both sides. Because then it looks as if, and i saw this as a judge, it looks as if they have something to hide. We know they dont in most cases, but perhaps they do. I dont know, but it just seems that theres something missing from the process. All you get as defense counsel that is the cd from an interview and i dont think theyre asking the tough questions either during investigation. Thank you. I think the vlcs had served a great purpose in empowering victims and in preparing them for what they are about to face. The process is a difficult and ardent process to go through, and one of the best things the deal sees do vlcs do is to very realistically describe what the process is going to be like. And i think thats empowering for victims i think for the vlcs, it was kind of up to the very building, the personality the individual prosecutor in the case who was pretty much charge with taking care of the victim. But the victim was not the prosecutors primary concern. And so having somebody whose primary concern is taking care of the victims has had a positive effect. As a judge i did not find that it was skewing results when one or the other. I do believe as captain obrien says, did you have less opportunities to evaluate that testimony and thats a doubleedge sword, as she said. It does have an impact on credibility. It certainly can be woven by the defense counsel into a narrative that is not supported of the victim here but by the same token the vlcs can advise and the victim can decide to testify. Ive seen that happen, to come and to engage in interviews. And so i have seen both. But by and large i think it has been a positive development. I know as a staff judge advocate in the early days when youre coming directly out of my manning, it was a difficult transition but but i think the transition proved to be worth it. Colonel nance. Yes, maam. I agree with whats been said so far. My experience was the early on in the implementation of the program, the vlcs almost always uniform in the army had no criminal law experience. And so they were coming in advising alleged victims about things that they really had only a very narrow understanding of. And sometimes, as was said, that advice which was designed to protect the alleged victim from abuse, would run counter to the overall object of that victim of having the perpetrator convicted. And so not understanding the criminal court process, they would sometimes give advice that didnt necessarily advance the ultimate goal of that victim. That said, as time went on, i believe that the training got better, that the Lessons Learned were implemented in the training and the advice got better and things sort of evened out. That was my experience. So without all just underline a couple that privacy have been a couple different points. Access when youre a judge matters because your job is to make sure theres a fair trial. And if theres something come for example, the defense years for the first time in an open courtroom, you have to do something to accommodate that issue, whether that is giving a delay, whether the come sometimes they can be a substantial delay because theres some new nugget that has come out. And so i think having somebody who understands process matters. Having said that, thats a doubleedge sword. Heres what its a doubleedged sword in the army. The army does not have enough experienced trial litigators. It is near priceless. The problem is that as kind of the Victim Advocate program has waxed and waned, its become politically more necessary to the people with a lot of trial experience in the victims of realm. That has a positive benefit as discussed by jeff and the other Panel Members. They can have a negative in a fit because bob or mary who tried a bunch of cases are no longer trying cases, and we dont have that many bobs and marys. The reality is and the current era, theres a lot of people who are trying cases, and its the first two or three or five cases. Prosecutors and defense counsel trying these cases, which are always narrow, complicated cases, often involving complicated discovery issues, complicated expert issues, you cant be doing this for a first time. You just cant, do it well. And when the evidence is close, ultimately what that can result in is an acquittal. Sometimes when it wouldnt otherwise be an acquittal. The other thing that ive seen as a judge that again derails and slows down the process is in the context of interviews and ongoing conversations with the alleged victim, sometimes material will come out thats whats called brady material. Those of you who are lawyers understand what that means. It just means exculpatory material. Its required to be disclosed. My experience again is often that material is disclosed either during trial or on the eve of trial. So the reason the trunk gets pushed back is, if it exculpatory material that involves the possibility of expert analysis and testimony, which happens with some frequency, youre talking about a lengthy delay because you have to go through contracting process that does not work. The contracting process to get expert witnesses does not work in the army. It just doesnt. They can take forever. It can result in circumstances where you have much more delay than you would otherwise have to do because of trial docket. So the problem is when this process is kind of lurching to trial and this new material is coming at the changes the context and the setting of the trial, when youre a judge you are just trying to do the fair thing and the fair thing is to throw time at it. Sometimes money. So you have the opportunity to address those issues. So those are the things that off the top of my head seemed to be and i would tell you victims practice has gotten better. I used to speak at the victims course and kind of site hey, this is kind of the code, this is what i need from you as a judge. This is how you help your client. Its got better, but in the context of the entire system it has created challenges that are kind of unforeseen challenges. I believe judge grimm on the phone has a question. Thank you. Thank you very much, and i appreciate your comments and to think that you spoken can you speak a little more loudly please . Yes. Is that better next. Not really. Is that louder . No, judge. Can you hear me . You are really going to have to shout. All right. Can you hear me now . Why dont we pass on my question a go on to the other Panel Members. For some reason im not im talking put about and i know this phone will work this way. I think its on the receiving end maybe theres something going on. I apologize. Why dont you go on to the next person . I think we catch a little bit louder. Can you repeat the question . Can you hear me now . Is a better now . Yes. Okay. So my question is of this. We have noticed that in the statistics that show the number, the outcome of trial, that the condition rate on the offenses, the most serious ones, the Sexual Assault offenses, that the overall conviction rate across the services at particularly in the army, is shockingly low when compared to conviction rates certainly in the federal system where we dont have Sexual Assault that often, but in the state system as well. And one of the things that we as a group of been trying to do is to try to come up with an explanation for why that may be. There are many factors, no doubt, but part of it suggests that maybe it has something to do with the experience of prosecution and the frequency with which the military [inaudible] in the system two years, maybe three years and drop something out and career progression, your movie out of it and you may come back so you dont get the situation like we have on our committee a career prosecutor who has an unbelievable careers worth of being in Court Dealing with cases. And i wonder whether or not there is some correlation between the lack of experience prosecution and people who develop expertise over a length of time that it allows them to teach others and carry that forward, whether theres a correlation between that and what might be the low conviction rate. So first of all, it to me is interesting that you referenced mistletoe cash. I was her her first supervisor in the army. You did a good job. I dont think i could take credit for that. Shes like been very talented. So the target what you always get about this is that the army tries cases that the civilians dont and that is a truth. They as a staff judge advocate or former staff judge advocate i would try cases on some occasion i wouldnt say the civilians wouldnt take and sometimes they would be try to acquittal and sometimes may be tried to conviction. We can talk about that ross s and how you approach the process but to me this at the overriding factor overriding factor is ms. Tokash used to be an sep in the army. People who like to try cases, like to try cases. When you tell them they have to go to the chief after the graduate course or they have to go do whatever else, its like telling a cook that he has to e an auto mechanic. The reason the judge the judgee General Court tells people have to do that is twofold. It a personnel list approach to managing people. Ive got x number of slots. I need staff judge advocates. The pinnacle job is not to be a judge, not to be an svp. Its to be staff judge advocate. It just is. The way you become general officer of the jag corps, its by what you do operationally and what to do as a staff judge advocate. Its the truth. So when you look at why is this, i think to fix this you have to break some china. You have to recognize that most of the trout advocates i know, and you can informally talk to people, some of whom are on your panel would have said if you just tell me im going to be a major my whole life, but i get to try cases, thats what i wt to do. Or look at. I was told i had to leave being a trial judge to copious staff judge advocate or a, quote, you probably wont get promoted. Now, theres a lot of fixes to that. There are people sit in your who have you can give instruction supports about the relative importance of jobs. You can your assignment site specialization in the jackal is perceived as bad or unnecessary. Its ironic to me with contract specialist who spend most of the time in contracts. Theres an incrementalism. In 2000 and dont know if jeff is on saint thou but i sat on a blue ribbon panel. I love blue ribbon panels. We had these conversations in 2000 and not much has changed. The svp program is a bandaid, this is what i mean. Theres a lot of really good talented svps. There are some who are not that good if the problem is theres no svp for life program or go be an svp and we will make you Senior Defense counsel. We will keep you in this realm where you want to be. We will recognize your particular specialty and build on that specialty. I honestly dont think that exist in the civilian world. Theres a lot of expedition for that that you will hear it went to be able to go down range and try cases. Sure we do. We need people with military justice experiences as sj. You dont need that much experience. Ive been an sj. I can tell it in what you need to know to be sj and to advise people. It helps. You can answer nuanced questions but guess what . You can call mr. Nance a a thes civilian work for you and say how does this work . That set this Society Works come right . We reach out to expertise. I cant tell you the number of times was told i needed to do a claims because it was good for my career. But theres an awful lot of really, really good prosecutors who dont stay. How do you fix that . Well, i dont know of a way society fixes that with specialization. When i walk into room i do what you that my surgeon just got off of the tour again as an auto mechanic. I want to know they know how to fix me up or try cases. And that just doesnt exist. I think it requires significant change. Another piece of china that you might consider is we believe that the province of military justice is only green suit or whatever the color of the suit is no. Im just happy i dont have to buy the uniform anymore. There are almost no civilians except at a very high level, highly qualified experts, that are informing the system on a daytoday basis that are saying, and then what you hear is we cant deploy that. Yeah, you can. You do it now. You take civilians down range method you use civilian defense counsel. Going deeper and try to use. Its a great question. Its fixable. I think it takes the will to fix it. I know the current army system and a know very little about it, has a pilot program. I understand thats how the army does things. The analogy is a navy analogy. Were trying to turn battleship going full speed. I think it requires more drastic change, a greater commitment to changing how we approach prosecution and defense work. And it requires money. It always requires money. Does anybody have anything to either add or contradict . I would say my experience in the air force has been markedly different than my army colleagues. I do not recall a case where the performance of the special victims prosecutor was the reason for an acquittal. My experience has been that the event highly professional, highly available doing tons of cases. I think the real challenge for the air force svp program and air force senior prosecutors in general is that is just such a grueling job. It involves tons of travel. The air force does cases more expeditionary at the various bases as opposed to centralized which some of the other services do which makes that assignment a particularly grueling one, as a circuit counsel. And i think we lose some really good litigators just for the fact that thats also happening at a point in their personal lives when they are trying to have families and so they have to make some choices there as to what they pursue. So anything we do in the paradigm to make that jump less grueling and more attractive i think we could attract a better litigator there. But i think currently at least in the air force we are attracting some of the best and brightest litigators to the special victims prosecutor. And ive seen them be very effective. Do you want to comment on the question about [inaudible] there are any number of factors that go into the increased acquittal rate. I will say the chief factor that ive seen, increase in acquittal rate is beyond reasonable doubt is a very high standard. Court members do a very meticulous job of applying that standard, and these are very tough cases. And as colonel glass said, were taking cases that perhaps we can be taken in the civilian sector. Whether that is good or bad we could talk about some more. But thats an indication were taking tough cases, that there is risk involved in that. And the ability to take on that risk sometimes results in acquittal, and they are not necessarily a reflection that anything is wrong with the system. I think the pendulum has swung it is in the process probably of recentering on the prosecutorial judgment on whether cases should go to trial. I i think for a long time it was swinging to almost everything needs to go to trial, and if it receptors a little, and i think that could happen in conjunction with the special Victims Counsel, giving realistic advice to victims about what the process is going to put them through and what the likelihood of ultimate success would be, i think that pendulum should resent it. It should probably recenter somewhere with a greater number of prosecutions than before started to swing but somewhere less than what it is now. Im curious, two two of youe said the military takes cases that civilians wouldnt take and why that is, was there some especially given the effects on both victims and the accused, such cases, white is that the services take cases that the civilians wouldnt. Was it pressure or emphasis that these cases should be tried, or why that is . I think commanders, first of all, we trust these two, three, 4star generals to protect our country and to keep our soldiers safe. A think we can trust them to make decisions on referral. I think the commanders, this ts a commanders system it should be a commanders system. But i do believe theres an incredible amount of pressure on commanders with respect to Sexual Assault cases, and as human beings, their inclination is to say, lets send it to trial and let the judge and or Panel Members decide. The people that decide those things at big levels, whether that should be the process that would follow or not, you know, im perfectly happy to make them, live with the decisions they make a whether that should be the process. But, and i think it should be a commanders system and that it have any problems with the process. If the commanders say, look, i dont know what happened here. Nobody knows what happened here. So lets send it to try out and let an impartial judges and or Panel Members make the decision. But if thats the dynamically follow, then we have to be willing to live with the results. And the results are going to be very have bad facts, its a bad case, and youre going to get an acquittal. Well, just to dovetail on that. I agree with all of it. It should be commander based system. If it comes out of the commanders and i dont think the military Justice System is what it is, which is an effective tool for not just justice but also for good order and discipline. The point i would make is this. There have been myriad highprofile instances where somebody has made a tough call and a tough call has come up publicly and has impacted promotion. For the less morally courageous commanders, and amassing thats not necessary the world that jeff is talking about, sometimes when you walk into the office and you brief and say, ive been in debris for the general officer, two star general were i said sir, with that these preferred charges. I dont think we should take into trial. She is not credible. My trial counsel does not believe her. I dont know ethically that thats an appropriate case to take to tell. Just under the rules of ethics and thats will be into. Thats why the cases that get referred because we are moving in that conversation which many of you have had with staff judge advocate, moving the conversation to referral decision were i finally just say sir, if you refer this case, you need to get a different sja, a different set prosecutors because it is not ethical to try. That commander then says god it. I did know you felt so strongly, and we move out. I will tell you another seat where im the judge and that just hasnt happened. Where theres just no way that government had a good faith basis to bring that case to trial. And the problem is, front of the mind, back of the mind, with all due respect to the general officers here, little generals who want to be bigger generals, generally, they want to get promoted, its a promotion based system. Its how we gauge success. Its hard when they are, whether its proceed sometimes unfair shots against their friends to sit there and say, im not going to push this to trial, recognizing that five, six years later, sometimes less, there would be an application that will change your career. We will talk later about the dojs dad and i think one of the things you can do is give insulation to those commanders by instituting a standard that is at least, not taking away their discussion but is at least presumptive that if you dont meet a certain standard, there is a standard, right . Are existing standards but theyre not the standards that we are talking about. And so i think it takes an awful lot of courage for staff judge advocate and the commander. We asked them to do all the time, and more important not more important but equally important decisions, and but thats why we i took a cases. I can think of three 04 off the top of my head that the prosecutor literally would say im not touching that. They know they would lose and they know their conviction rates come upon reelection. If i may give a perspective of the navy. I echo what i heard up here. The navy, i see it from both angles, both experienced litigators and not experienced litigators. Why is that . We can do. We cant keep good people in that want to try cases. Even where the military justice track. I spent about 16 or 17 years of by 23 years in the navy involved the military justice. And back in 1994 when i started in the navy, i was told dont be a litigator. You wont get promoted. I do want to try cases. I joined the navy to try cases. Thats what i wanted to do. And so i spent my first two tours trying cases, despite the urgings of my seniors, detailers to get out of litigation. You wont get anywhere. Do not come to thanks to know to justice track in my view but i really try cases like did 16 of 22 years. And saw a lot of cases that we stab of saying when i was a prosecutor, we try everything. And if we dont, we put in writing why you dont go forward. We would tell commanders this is why you dont go forward and let me tell you my come after interviewing witnesses and the credibility and evaluating credibility, i made a recommendation. Back then it was, may not have been followed in every case but at least the commander had a letter to rely on that was a prosecutorial merit, not with the call. But we would tell them dont go forward and heres why. They offer which is a go forward anyway, okay. I will tell you i had a losing record as a prosecutor because back to i said earlier we tried everything. So now what i would say when i think echoing what heard here, some of the commanders dont have the ability to make that tough call, should he go forward, should it not. Because of some of the potential ramifications to them. Yes, little generals want to make big generals but commanders want to make captain come to pick so if they are seen as not being tough on order and discipline at ignoring the desires of the victim, that has ramifications for the period when it comes to senior prosecutors, we used to try not more cases than we do today. We would cut our teeth as baby prosecutors on the unauthorized absence, awol cases, drug cases. We would cut our teeth on the small little specials. We dont have many of those anymore. A lot of those goes the administrative route so youre not having the opportunity for litigators to really try cases. And then in certain areas right now even in the navy there are not enough prosecutors. Theres not even enough support staff. Prosecutors are making copies and they kept deep up with discovery obligations, thus we end up as judges now having to take a discovery issues right before trial because the prosecution cant get the work out to the defense. That impacts military justice and how cases languish in the system. I mention im a defense attorney. I have a case i am defending where its been around for a year, and its still not moving anywhere. A year seems like a like a reag time for a case to be in investigation and then under consideration by either the prosecutor or the command. I year is a long time both to an alleged victim and to the sailor who is facing potential action in the future. Its a grueling job to be a prosecutor, or can be. They can also be very professionally rewarding. But we have prosecutors as lieutenant commanders who are saying ive had enough, im leaving. Because they cant be prosecutors. They cant get support for either the staff are other prosecutors, and they leave. They punch. I mention i spent nine years on the bench, so my process was two years trial bench, three years of development, four years appellate bench. I was told i could no longer be a judge. I had to go back and be a staff judge advocate. After 16 years of doing millage just as i was told you need to be go staff judge advocate. We have no more military justice job for you. So i retired in 2017 because i was told there was nothing more for me in military justice. So if were telling the judges after so much time that have to leave, and which owned the prosecutors they cant try cases or even the defense counsel they cant dedicate, we lose good people. But the commanders, going back, they need to make the tough call and often dont. And i understand they seem cases to tough it would not otherwise go to trial. I was one of those prosecutors that took those cases to trial. We need to put people in command that can make those tough calls. Even as the prosecution of our defense counsel level if were putting nonlitigators as command officers of litigation jobs, then thats a problem because youre having Commanding Officers were operators supervising the prosecutors. And the operators havent in the courtroom in a very long time. And they dont know prosecution. They might neither be a Commanding Officer but they dont know prosecution at they dont know defense. We may have to look at how do we select who is in charge of those various offices. Thank you. There were cases of a decline in the silly insistence that we went forward with. Generally those were local, state love the prosecutors that were declining those prosecutions. Theres just a different set dynamics that goes into the prosecutorial decision. A staff judge advocate and the commander doesnt have to run for reelection, for instance. Doesnt have a conviction rate to protect, and its a generally your conviction rate isnt something thats going to to determine whether your successful as a staff judge advocate or not. And so in that regard, in having the greater latitude to take some of the tougher cases to trial is not a bad thing. I think its a good thing were taking some of those cases. She would be taking everything we were taking to trial now . I dont think so, but the fact were taking some of the harder cases i dont think is a knock on us. The cost to that is the acquittal rate is going to be higher, but i think we can manage that cost. I want to take a contract position to my colleagues or at the very least to state a contrary position on the specialization. I was a specialist for a while and i went to specialist on the elves and then i and did staff judge advocate thing on a couple of occasions and found that actually was helpful. I believe being staff judge advocate made me a better military judge because as a staff judge advocate youre working with commanders, working in the trenches, you get a better feel for whats actually other going on in the air force. I also believe that the best way to train the next generation of new prosecutors is in that staff judge advocate office picked because as Lieutenant Colonel staff judge advocate i was getting in the new lieutenants fresh out of law school who were raring to try cases, and the best way to develop them into litigators is a formal litigators in that staff judge advocate office to train them up and to show them how its done. So there is a case to be made for specialization but generalization also has its benefits which cant be overlooked. Ms. Cannon and then ms. Tokash. Thank you for your comments. Regarding the question of commanders making the ultimate decision and some of the competing interests that they might be troubled by, including ethical issues, we discussed ourselves among here on the ipad the issue of the preliminary hearing and how that is or has been at times a vetting process for cases where there is actual evidence introduced and where you can see what a case looks like. Id like your thoughts on preliminary hearing officers having binding decisionmaking capability when they come to the issue of probable cause. And if that would have an effect on insulating commanders with regard to those decisions. Ill speak to this first, i guess. You know, i thought about this and i think theres pluses and minuses to both sides of that question. And what i came down to was what i thought as kind of a hybrid process. Here are the five elements of it that i came up with. First, the General Courtmartial convening authority and sent the case to binding 32 for any offense, not limiting it to Sexual Assault offenses. Otherwise the default is to the Current Article 32 standard. Second element. At that binding 32 the investigate officer would need to be an active duty or reserve component military judge, or a fulltime magistrate judge. More on that in a minute. Third album, probable cause is still the standard autosensing wrong with the standard as it now i dont see anything wrong with the stan as it applies and thats the same standard that is applied to the criminal Justice System. Fourth element, the government can come back with new evidence if no probable cause is found. And reenergize the hearing. The fifth element, and i dont know if this will be controversial or not, but only a no probable cause finding is binding. This preserves the General Courtmartial convening authorities, authority, and it does not erode the current important protections for an accused. I think that these, this concept of a fulltime magistrate judge would be a senior 04. They would be, as opposed to our current parttime military magistrates have do nothing but magistrate duties and do 30 twos, supervise the parttime military magistrates and help the actual military judges with Court Rulings on controversial motions or whatever. But i think, as i think about it and have thought about it, i think Something Like that might work and i might provide a sort of an escape valve for the commander who was under a tremendous amount of pressure on some of these Sexual Assault and high profile cases. And you know, its tough at the top. And like i said before, i think sometimes the decision is just to say, on a close case we will just let the panel decide whether the judge decide. So for a number of years jeff and i worked together on the military judges bench committee. He was my boss. You know why now. I endorsed finance proposal. I would note a couple of issues youre going to hear nance proposal. I was in the army a post camp or station theres often only one judge. Most places that are not multiple judges. And so are you really going to come at fort riley, at fort drum, at an zero for billet that works, thats one of the logistical, when the pushback to from, i would guess, i dont presume to know what pushed back to get from the services as we dont have the bodies. The thing i like about his proposal beyond just the fact it puts it a little Different Box is that, and if they can more favorable box for the system for the commanders and more favorable box for the service member, but it also allows you to start to develop judges. Your 04 magistrate in the system be able to get some reps. When you think youre going over and over again, to use sports analogy is my son is swimming in regionals today. Hopefully doing great. Doesnt get to be good unless he gets reps but we expect trial advocates and militant judges to get good without getting repetitions. That 04 whatever were calling them, chief magistrate, it some time in the saddle with the gut to make decisions. One of my best jobs was as a parttime military magistrate as a captain at fort bragg. I did know at the time it was a stepping stone job that helped me to be a judge. And so i think it does provide a benefit, but only concern goes back to the normal arm issues, staffing, et cetera. I think one of the questions we were told might be asked of us was how about judges doing preliminary hearings . The problem is when i was at fort drum i dont have the time and theres one of me. If youre going to save bring a reservist, reservists have life issues, too. They will not always be available in some of issues youre concerned about, timing, how things things move through the system. Again, experience it does become you are not trying the case. Also in the air force, judges do almost all of the article 32 hearings for Sexual Assault cases. I i did several when i was a judge. We really handled the logistics issue by doing most of them by video teleconference. We could do one in a morning many times, and spend the afternoon writing it up and still have it done. At least in air force the experience with the manning and the ability to do that. I think it did add value and i think if a military judge is make a no probable cause call, then theres no reason that should not be binding. At least subject to the opportunity to come back and present additional evidence. I agree with the proposition that an article 32 no probable cause determination should be binding. If the government has an opportunity later on if new evidence is found, then they can come back and revisit it. What i see that as a problem with the preliminary hearing currently, is its almost a foregone conclusion because the governments obligation is to walk in, and while i with the probable cause standard, how their meaning it generally in the navy is to walk in with an investigation and give it to the preliminary hearing officer and say here you go. No crossexamination of witnesses, no testimony. They just drop a paper case on the preliminary hearing officer. So back to someone earlier statements about alleged victims not testifying, well, many witnesses are not testifying. Most witnesses are not testifying because the governments position has been in most cases is we dont have to bring in testimony because its cumulative with that report. Despite defense counsel asking for witnesses to come in many cases the wages are not because either they are civilians and the decline, or the governments position is about her testimony is cumulative with the paper. So are you really that in a case out based on paper . I would submit maybe not. You and i getting into the issues of the case. And in the case of the navy, i dont know if the army and air force is doing it differently, i have to assume because their investigators are uniformed. We have ncis declined to appear clinic they are civilians, thy dont have to. So thats causing a lot of discussion amongst preliminary hearing officer. Our preliminary office while we do sometimes use the judiciary for the more serious cases its usually a staff judge advocate from another command that hears the case, hearing the evidence. I was a staff judge advocate as well. I didnt special interest military justice. I was staff judge advocate. Some of our junior staff judge advocate dont have a lot of military justice expense either and they are making recommendations. Maybe their second tour, lets assume its a second to lieutenant. They didnt try many cases in the first two are and now they are staff judge advocate weighing evidence. The evidence consists of report and no testimony. Not even by the agent who investigated. I think that is a hollow process. Youre not getting to the evidence and what exists other than what is in an investigation which may not be thorough. It seems the agents have a checklist that they use for investing sexual thought cases and so theyre not really delving deep into some issues that might exist that are credibility issues that would be important to know at the preliminary hearing phase. Colonel moore made a comment about come in the morning he might hear a 32 and an afternoon write it up. That tells me that sounds like a paper case. We got a report on. All he has to do is review it and write it up. I would think that that might not have been a thorough 32, all all due respect to colonel moore, did the government really present the evidence other than what was written on the paper . While i understand the rules allow for that, the rules also allow for the defense to have the opportunity to present witness testimony. It seems youre not getting that opportunity. Thank you. Ms. Tokash and then ms. Long. Thank you. I hope you can hear me okay. You will have to speak louder. Okay. Can you hear me okay . Thats better. Okay. From where you sat as judges and where you sit today, what impact, if any, does the lack of a standard i can diffuse justice manual have on acquittal rates next with a standard that you must have admissible evidence sufficient to obtain and sustain a conviction be helpful . So in other words, on the military services really taking harder cases because of the facts . Or is the military labeling as hard because the military doesnt have a prosecution standard akin to federal civilian prosecutors . Ill take the first shot at that one. I think that higher standard would actually remedy the observations that colonel paytonobrien has about the pro forma nature of the article 32 investigation. The reason that theres not a lot being presented at the article 32 investigation or is that theres not a lot that is needed to meet the probable cause standard. So to me if we are saying if we need to bring more information out of these investigations, what we are is we need a higher standard. And so i think thats the question is, do you want someone to look at the case is based on what is there, what is minimally necessary to establish probable cause . If so, status quo, continue as we are. If you think you need more information, if you think you need to evaluate with his credibility, that doesnt go into probable cause really. In that case you would need to have a higher standard and maybe the department of justice standard does make sense. So when we talk about discretion, again, i hate to beat this drum but its irrelevant. Whos making that discretionary call . You cant impose a higher standard that that discretionary call is an experienced prosecutor making a recommendation to somebody who has experience in the process, thats a different discretionary call and somebody who has two or three cases making a recommendation. It does matter if prosecution standards are different. They are dramatically different. I would tell you ive sat in cases and i believe this to be true, where i would look and i would think, how are we hearing a motion to dismiss, a Sexual Assault case, whats called a 17 motion, how are we even hearing this . Why are we here . Because thats not a credibility determination. Thats just the base level facts, having met his burden. The government, have been met his burden . If you are there that tells me something either really wrong with your case, which happens. Sometimes witnesses dont show up or change their testimony. Or you didnt fully consider whether this case should see the inside of the courtroom. Does that happen a lot . No, it actually does not. I dont want to overstate that but to have it happen to once to me is problematic in that system because thats an ethical call lawyer ought to be making. Ill tell you, i set as a judge and number of times rolling on motions where i would have both sides present evidence, facts, whatever. For example, one time adding motion for the relevant issue was when did the article 32 change . Thats a fact. Thats a fact. Experienced defense counsel, experienced prosecutors did not give me that fact. If done intention that is an ethical violation. I dont think it was done intentionally so theres no followup. Do not buy no . I googled i googled it. It fixes. I took judicial notice of it but the reality is that at the end of the day, yes, i think would make a difference, megan. I think a big huge difference in having a stamp that would insulate people in the system but at some point in time it doesnt fix all the issues that are out there. I want to make sure theres one clarifying i think as the peace in the arm are amazing talent. Im not besmirching a programmer i just think its not enough. Ultimately, svps. All to if they go on to be older svps, they are bitter going to be able to inform the system and a former commanders that make that system work. I would just sort of agree with whats been said so far about the standard, and just sort of refer back to what i said earlier about what is our purpose. Uncertainty that the public may have about the military Justice System by having all cases go to trial and live with the results then i am not sure standard, higher standard will achieve that goal. Thank you for being here. I guess before i ask my question , i dont think that we can actually say that your acquittal rate is any better or worse than the civilian world. We dont have that comprehensive data. You have certainly set someplace where you know your civilian something that you have. That is definitely helpful. For me, i just wanted to put that out there. There is some comfort different than any other standard right now. My question is on article 32. In a lot of also have civilian experience. Definitely more than what you have described Current Article 32 by not necessarily a full and open discovery piece although they can be. Can you envision a system, a process in article 32 where it is different than it is now. It is not a paper, but it also is not a full hearing where you are determining issues that are not necessarily relevant at the probable cause standard. Determined by the f jj if there was admissible evidence or other things going forward. Can you envision a hearing that would be protective of victims but also fair to the process than exists now. From what im hearing, what you are saying now, it does not seem to be satisfactory based upon your experience. I will start because you seem to be looking at me. [laughter] certainly as a defense counsel, it would be great to have opportunity. I am not necessarily talking about that for a fair hearing or a thorough hearing. Because of victims decline, their right to be present at the 32 and ive seen some that deal come in. They are willing to do it. When you have a paper case, the agents interpretation of what was said, which may or may not have this sort of, change in the volume, i lost my train of thought there for just a moment, when the agent puts on, when the prosecutor puts on just the report which may or may not have the testimony or statement, an audio or a video, then we just get a summary which is not helpful in the process. When you have an agent that declines to come in because they view themselves as being protective as a civilian, and i would disagree, if that had come to me as a judge, that i heard a motion for, because the agent did not come in claiming they were civilian, i believe that would have been something i sent back for a new 32. I dont believe our civilian Law Enforcement who work for the department of the navy can claim they are civilian and they dont have to testify. If that is the only person that comes in, and i been part where i had a preliminary hearing, at least there was some testimony, i understand it was not a full discovery avenue, also an opportunity to see what is there and present evidence that might go to that determination of probable cause. As a defense attorney, you do not have that ability. All that needs to be presented is that little bit of evidence to get over probable cause. Do i think it needs to be back the old days when it was all day 32 and we paraded all these witnesses then . No. To claim that any witness who testifies, and this seems to be at least firm my perspective now what is happening is the government claims anybody that testifies if their name is in the report and theyve given a statement then their testimony would be cumulative. I would disagree that is always the case. There is probably something that i find that i would like to present. I cannot do that if they are not there. Cumulative and often times they will agree, i have a report. I think something in between. You need to explore some of the issues. It is not a full discovery tool like it used to be. The defense still has an opportunity to put on witnesses. It is in the rule. If they had that opportunity, it would be a more thorough investigation at least for that credibility or that determination by the commander who has to make that call when they received the report if the probable cause standard was met. But. We see those recommendations. No you are going to lose. Dont get me wrong. I do not believe the objective should be, lets just get more convictions. The objection should be, present the case, if it is going to trial, let the process take place. The objective of the 32 should not be to protect the government case or poke enough hole so that it does not get probable cause, but at least so there is an evaluation of the evidence. Thank you. I think again, the standard will drive behavior. The standard is probable cause. I dont think any prosecutor will show any more of his cards and he has to make that standard. If you think more needs to be done, more needs to come out, then the answer is to raise standard. Or to change the rules of admissibility. I think any chance of the rules, prosecutors will adapt and overcome. Certainly, any modification is easily enough implemented. I think we have seen adaptations to changes over the last five years that everybody is handled. I think that it is certainly doable. Just a followup. Civilian standard is probable cause. There are not these issues. What it have to be a change in standard for there to be a change in behavior . Do you think who you had seen in the courtroom could change a behavior . Probably change the underlying rules as well. Captain obrien mentioned that cumulative nist standard. Maybe you tighten that up. You have a broader definition or a tighter definition on what is a cumulative. You have military judges who feel a little bit more comfortable standing up to the prosecutor and saying i want to hear from this witness. I think a more robust article 32 hearing would be useful in providing information so that a person who makes a decision about referral has the most Information Available to make an informed decision. I dont know. I am a simple i do not see how that is a negative thing. I think we think there is a Public Benefit. I understand these hearings would be closed. A Public Benefit to this being on tv today. One of the good reasons that we dont have tvs in the military courtroom, what that gentleman did before, i would have found him in contempt. My point is we believe this has a Public Benefit of being out there. What Public Benefit is there to case and what does it do to the presumption that this really isnt a Justice System. Maybe you already have this statistic. If you dont, and i know all the various departments will love me, i would look into how often in Sexual Assault cases the 32 is waived by the defense. Because they do not think it is fair. They do not think there is any benefit. They dont think anything good can come of it. The other piece. If a judge does not have confidence standing up to a prosecutor, whatever the rules, and making sure something is fair, let me say that a little bit more positively. The judges here would have no problem saying no, we will hear this case or, no, i will allow some latitude. I dont know the specifics of some very public misuses of the article 52 system in the past, but there is no doubt there been some misuses and abuses that resulted in this change. I think that there is a middle ground. To the degree you can get somebody who knows what they are doing. Whether they are major or Lieutenant Colonels or colonel sitting there saying, nope, i will allow this or nope, you need a little more. It makes a difference. It does matter. Mr. Kramer. I am sorry to topics. I am wondering what you think of the ability of defense counsel to obtain experts in the procedure they have to go through to do that and whether that should be changed. Sir, i have preached on this for my entire time in the military. I think it should be changed. I think it is difficult to impossible for the defense counsel to get experts. I think having this approved by the prosecutor is the wrong answer. I think the defense are, tds in the army parliament should be funded and they should have at the Headquarters Level a officer who is in charge of dispensing money for expert witnesses in the chief of tds is the adult in the room that make sure they are no abuses for frivolous, and, of course, the judge will do that, too. Whether an expert gets to testify or not. I think that that is a better dynamic. A better system for experts. I agree with all of that. I am not conversing with what is going on. Sometimes you need an expert to establish you need an expert. Somebody has to come in and testify and say this is what i will provide to the court to persuade that judge that this person should be allowed to testify. Years back and Trial Defense Service, that was a big conversation. How do we do this. We cannot get there. That is the rare expert at the very dedicated expert to establish that they are needed. For free. If they dont get retained, they are not getting that back. There needs to be a pot of money that the defense can go to. I think now with investigators also. So we can establish that kind of baseline case for that additional assistance. I think the Current System has worked fairly well in the air force. I generally, more often than not, would see experts i did not have to compel with the military judge. That is not to say that the colonels proposal not superior. I think the fact that im saying it works in the air force and it doesnt work in another service indicates that the process is not as good as it should be. It should not depend on one Services Implementation of it. To that extent, having Trial Defense Service is in charge of it does make sense. You will still have those circumstances as a judge. The council does not agree with the bosses decisions, but i think you will see a lot fewer of those then you do disagreeing with the prosecutor at the advice of the authority and granting that expert. I have actually tried a chase with colonel moore at the defense counsel. I was surprised because we came from the navy. The air force did it in my view so well. Multiple experts granted by the convening authority. The other services, we struggle to get experts. Just for purposes of consultation. Do we need an expert. Authorities more often then not deny that. I think that for defense counsel , that is a difficult road for them. Trying to find some authorities that we may talk to you for free free. Talking to that group of experts we can reach out to just to have that five minute conversation. Do you think there is something there. They need to be appointed. Convening authoritys residence. I do a lot of appellate work now now. I read records of trial. I am often shocked. I guess i should not be. I know this is happening. Shocked at how many pages of transcripts i am reading with the government fighting over experts. Hundreds and hundreds of pages. The court not granting experts or ultimately granting the expert after a day of testimony and fighting back and forth. I think this needs to be changed to allow the defense to have that opportunity to seek consultation. We know that the government has it. They have the tools at the governments disposal. Maybe even the navy the medical system, many experts do not want to be involved. I think the Current System does need to be improved upon. Why is that they dont want to be involved . I dont think anybody relishes the idea of testifying in court. No matter what side you are on. [inaudible] you know our military medical system is overstressed just with patient care. See what is happening with retirees. They are not seeking treatment at the medical facilities anymore because there are not enough doctors. Not enough time. You have a doctor that sees patients and has to be an expert and they dont want to get involved. There are some who love it and want to, but i would say, often times you will find the medical because they are stress on just doing patient care, they dont want to be involved. We then look at the civilian population. Plenty that do this for a living living. The navy has a pretty good pool of who they utilize. It is difficult to find active duty to be involved. Great segue for doctor markowitz. This is an issue near and dear to my heart. I am interested in hearing from all of you. The services do use experts differently. Whether or not you believe experts are being used effectively at trial. So, in the navy, i would say that in the Sexual Assault cases cases, there would be experts involved. In every case i have ever tried. Whether i was a judge, trial counsel, defense counsel. There was some sort of expert involved. Do i believe they were effective . Well, that is sometimes expert specific. Were talking dna, commuter forensics. This phrase about cases are so much more complicated today. I would tend to disagree that the cases are more complicated than they were 20 years ago. Perhaps except with computer, cell phones, you know, snap chat where things disappear, maybe that site is a little bit more complicated because of the forensic that goes into that. If you have travel counter that are young that dont understand that Computer Forensics and the phone, that can be problematic. I see that in transcripts that i read. I saw when i was a judge. I wont tell you my age, but my 16 an 18yearold kids are way more proficient on the iphone than i am. I handed it to them. Im not sure what to do. If i am a judge and i have a difficulty, maybe some of the council do as well. Do i think they are being used effectively, i think for the most part, yes. Is it a fair Playing Field . I would say, no. I think that with the defense, we go back to your question of having to ask for the experts, begging, please give us an expert, we need it for this, in often times, the court might say, well, you should be experienced in this you have done enough of these cases. I know as a defense counsel when i seek experts, i often do get the response back from the government that says, you were this for 23 years, you are a judge for nine, you do not need an expert. You are fully versed in this. But i cannot testify. They tend to miss that part. I need a consultant to help me that may turn into an expert. They are denying because of the experience level of just the council. Admittedly, you know, the case law indicates i should educate myself. That far. Sometimes, often times, we need an expert. I would say most of what ive seen from experts as they have been very helpful and very well employed. What i saw in the air force practice was the same handful of experts over and over again, working equal number of cases on the prosecution and on the defense side which gave them great credibility. I can recall a few cases where the experts were advocates in disguise and that was very easily revealed throughout the course of the courtmartial. They were not effectively employed. They were not persuasive. They had a really negative impact on the overall outcome of that case. By and large, many of the issues that we are dealing with, and particularly in Sexual Assault cases, i have been much more enlightened by hearing from experts. Alcohol is almost always involved and so the education ive gotten on issues like blackout and the effects of alcohol on memory, those are invaluable to these Court Members and to a judge sitting as a Court Martial in evaluating all of this evidence that you have before you. My experience is it has been very effective, very helpful. And the experts at i see on a a regular basis have been very professional, tell it as it is and have been very helpful. I agree with what wes said. When an expert gets a trial, my experience has been that, most of the time, a vast majority of the time, both the fenced counsel and trial counsel do a good job of getting the pertinent information out of that expert in a good way. In a good presentation. I think they struggle and i think that is because the expert helps them, you know, design their director crossexamination crossexamination. Where they struggle is in the decision and then figuring out whether or not and how to get the expert. That is a product of lack of experience, but i want to just add to that that i think the hq e program, at least i dont know if the air force another service said it, but the hq e program particularly in the army, they do a great job of helping young counsel understand expert process and help them make the decision on whether an expert would help their case or not. I think that is a question that young counsel struggle with the most. Do i really need an expert or am i just hypersensitive about this and asking for an expert when i really dont need one. I just want to echo what other Panel Members have said. I think discernment matters. Discernment of not just do i need an expert, but what are the consequences to the timeline of my case if i call an expert. Often times you will get a defense request for an opposite expert and also what are the consequences in terms of evidence that is now admissible or approaches that are now admissible. You do not always see that. I would just say, echo again, the testimony effort in my court rooms from experts as almost uniformly been when given professionally done, usually professionally crossexamined, sometimes i wondered, why did he or she testify especially when i am the factfinder. Why did i have to hear this . What did this add to the development of the case. I have had instances in Sexual Assault cases where experts have been almost dispositive because, you know, it just strikes me always with young counsel, judges like to learn. Those of you that have been judges, sitting on the bench every day can get kind of drive. Learning and developing an understanding of how this works, a good expert is a good educator. That certainly has been interesting. I want to give you a contrast. I am not sure exactly what it means. Obviously we cannot find all cases like this. I the honor to sit as a defense counsel in a capital murder case. When you talk about experts, because death is different, it is pretty much like a candy store of experts, you get all you want. It is sadly striking to me to see the contrast of all you want versus we cant figure out getting this expert to trial to give both sides an adequate opportunity. It rarely, in my experience, and the others can certainly correct me, rarely in my experience looks fair for doctor jones to come testify for the government, and if any of your doctor jones, i apologize, doctor jones testify for the government and there be nothing on the other side. I am not saying it cannot happen, obviously, the standard allows that sometimes, but in a capital world, for good reason, there are millions of dollars spent on expert witnesses. It seems to me there could be a greater balance of how we approach app. Miss garvin and then miss law. Thank you. Thank you all for being here. I have an intentionally broad question so you can take it as far as you want. It is a compound question. I just want you to share your experiences with 412 and 513. Particularly as they have been involved in those, what have you seen, hopefully post 2015 when they were amended . If not, that is okay, too. Constitutionally required exception, which i find odd and explicitly drafted question what are your experiences . How are you seeing that impact trial . Are you seeing it impact trial . What are you seeing with the role . Wherever you want to go with 412 and 513. Something that has been talked about quite a bit with this committee and other committees. We would love to hear the judicial perspective. Sure. I will take the tough legal question first. So, my experience kind of runs the gamut from the old ford 12 to the newer 412 to the newer 412 and 513 doesnt exist, simple privacy issues and litigating and expanding how we look at 513. I would say, generally, Victims Counsel, in the army, and my experience, are really good on 412 and i dont know if its because they been collaborative with the government or really good at saying me too. I dont get a lot of nuanced arguments, or did not get a lot of 412 r 513 Victims Counsel where said that changes the landscape. In that context, one of my concerns as a judge, as the 513 system evolved, i had a couple of cases under the old 513 or maybe under a misunderstanding of 513 where medical records came in. Disclosed under a protective order and were huge in the determination of judicial guilt that may have also been huge in the determination as to whether this thing never happens. I have had instances, not recently, obviously, but i have had instances where there are personality disorders disclosed in the release of medical records that went directly to the claim. Frankly, one of the medical record said, well, i will give the specifics, but gave facts that undermined the original claim of Sexual Assault and had a diagnosis of a personality disorder that was among the criteria having difficulty telling the truth. That is huge. Having litigated under a different paradigm and released it, sure, the defense had a heyday with it. My concern, i guess as a human a judge was, what dont i know. What is out there i have not seen that may a year or two years, maybe never, implicate whether or not this was a just trial, whether this was a just process, whether this was a just verdict. That is kind of my observation. Just to sort of duck tail on that. I think my experiences were similar because our time in the judiciary sort of spanned the same timeframe. I lived with and experience myself and struggled with the implementation of the rules andg to an was required and how logistically to go about it. Unlike my current job as a military judge, i did not law it was me and me alone. I wouldf medical records this high to go through and try and see if somet needed to released, man, i did not have to do it. I do it, and i was always afraid, im going to miss something that should be released and not release it because i just dont know what im looking for or because i dont understand what i am seeing. That was always my fear. Maybe that was a good thing because it made me more vigilant in reviewing those things, but it really was a burden as a military judge to try to have to go through that in the midst of a hotly contested trial when i had a lot of other things to do. Yeah, i mean, i think that as counsel became more experienced with it, i saw the request in those areas sort of shrink, not just in terms of numbers, but in terms of the scope. They have learned to narrow their scope and figure out what they were looking for, which made life a little bit easier. I think maybe the chance of making mistake reduced, from my perspective, reducing the chance of me making a mistake on that. The colonel, 513 made the job of reviewing psychotherapist patient records immensely more difficult. Sometimes you have to do the difficult. The other side of that is, i think we do a much better job of protecting those confidential records and we did before. The default position before 513 would release everything subject to a protective order and they we will just find weather comes out during trial or not. Without much consideration to the fact that is a victimization and of itself. Summary of those records are not to be irrelevant. That is one area where i think they have been of value. Having somebody who is on that victim side who can talk through that issue with them and very often come back and wave privilege as to huge amounts of the records, it turns out, in many cases, there was only this one little part of the records that she really had any issue with anybody seeing. If they can help you narrow that issue, they can help you to get to a better quality decision. I echoed many times colonel nances feeling of inadequacy to be doing this just by terms of knowing what you are looking at and making the right call so you have to have your own dsm out and youre looking at things like that. [inaudible] probably so. We talked about experts before. Having an expert available to the court maybe to talk on a confidential basis on Something Like that would have been helpful. Exactly. Thats a good thought. I think thats a good thought. I had tried cases of the prosecutor under old 412. Tried cases of a judge under old 412 a newer 412 and of course even newer 513. We talked early on about the training we had as judges. The annual Sexual Assault focus training for judges was invaluable to sort of navigate what are we doing now and how are we doing it and to have suggestions on what you do . Perhaps i got it wrong on more than one occasion. I can think one case where the court said i did it wrong under constitutionally required, but it could be a struggle. Right. I had used a expert in one case because it was a Mental Health issue. It was not even Sexual Assault. It was a Mental Health issue for an offender. I think using a court expert would be a valuable when you are going to be evaluating Mental Health records to determine if anything needs to be released. The comment about the request are shrinking, i would agree that it seems that the number of requests and motions receiving towards the end of my time on the bench seemed to drop or at least, to be frank, some of the motions were the same every case. Mental Health Records because she saw a therapist. That is not helpful. Seeing a therapist was not necessarily what you needed. You needed to know she had a Mental Health disorder. The problem for the court and for counsel is, yes, they might know that someone saw Mental Health treatment, but they dont know why. What are we missing . What dont we know . Sometimes counsel struggles with that because doing a great job protecting their client, but the prosecution may not know what is out there. The defense may not know. They just know theres something something. One particular case i can recall, not for me as a judge, the Mental Health issue came up in sentencing. And so then, now there is this case and looking to see what that is. That is too late in the game for that issue to now be vetted. It is very late in the game. It comes up in a victims statement during sentencing. In the old days, we would look at 513 records, and i think i did this, im certain others did as well, prior inconsistent statements. That is not what we do now. We look for the Mental Health disorders. I can think back when we were releasing records if there are prior statements in there. Now trying to find the Mental Health disorders that might be there and counsel for both sides are still unaware of what they are. Presenting a challenge for the court. We are being asked to rule on 513 motions without all of the information. Defense counsel motion as well. We think that theres something there. Do you have anything more than that . No. Okay. Our hands are tied by the law. I think then judge graham. Thank you again. Yeah. I want to go back to an issue that came up, i think, both kernels raised it about command decisions. Cases going forward. That may not set the command or someone may not actually believe there is a credible claim or that the person did it. Which, when you said it, concerning. I am curious, sort of like the article 32, if there is some solution you could think of where that command decision to go forward could be subject to attorneys, if there is an ethical issue. I understand that from the civilian perspective and from the military justice perspective sometimes we differ in terms of the ethical obligations of the prosecutors going forward. Sometimes weve had arguments about whether there roles are professional. In trainings whether the rules or professional responsibility apply. In the civilian world or any world where we have a criminal case, you dont ever want to just be throwing it up to someone if you dont believe a crime has happened. Is there a solution . That means that checks the decisionmaking to ensure that cases that ethnically should not be im not talking about difficult places that are complex or we dont know what a jury would do, im talking about cases that do not have admissible evidence or do not have credible testimony and credible meaning there is no testimony, we dont believe the complaint tends or if we do not have admissible evidence and someone is throwing that up because they are afraid of not getting promoted. Is there a check on that that you could recommend . Well, i have not thought of one. I really believe in our commanders system. I believe that we are different, military justice is different. I believe that it should be different. The commander being involved in the system is hugely important. Will there be times when commanders make an unethical decision, i suppose so. I think that happens in the civilian Justice System as well. I have never worked in it, but i have paid attention to it. I think it happens there as well. My experience has been, and, again, we are not talking about the close call flip a coin cases, we are talking about the unethical decision, i have not seen that. I have advised commanders about referral. I did not spend my entire time as a military judge, although i would have liked to. The commanders take the decisions seriously. My experience has been that they take their duty to the system seriously. Though they may feel pressure at times, and i hope i did not infer from my earlier comments, that commanders were sending cases that ethically they should not have, but do they feel pressure from the civilians that oversee our military Justice System sometimes, do they feel pressure to syndicate that maybe they are not, you know, sure about, i think they do, but i have not had the experience where they know a case is not a true case, not a case that has a chance at success at trial and they prefer that case to trial knowing that. I have not experienced that. I think any honest response to this question involves this disclaimer. When you are a judge, more than any other time in this process, you dont know what you dont know. You dont know whats going on behindthescenes. You should know if a witness does not show, but you dont know what a witness was supposed to say. Without caveat, i think there are what i would call bulwarks against that in the system. The question is whether they work and whether those bulwarks are supported sufficiently. I certainly have sat in the courtroom as a judge thinking how did this get here. I dont even see why we are here here. Not he said she said that ability call. I would tell you extremely infrequently. I do know that when i have said in classes, so there is a process or at least it used to be a process in the army way of things called bridge the gap after trial, its mostly technically what they did right or wrong that waxes and wanes in the services, but youre also supposed to do something called gateway sessions where you train prosecutors and Defense Attorneys and talk about legal stuff. I have sat in those systems, excuse me, in those classes, and said why are you applying a different standard, if you are, why are you applying a different ethical standard to Sexual Assault cases they knew what just a general crimes case . More emotional complicated case, ive got all that, but its the same ethical standard. Ive also sat in a room where i thought we were narrowly close to referring justice to see what happens, that expression in the system is problematic. We do not just throw things up against the wall because there is a life on the line, and alleged victim that has to come in and pay this price. Always a significant difficult price for that person. I think you can do a couple things to try and make it better. You can vest people with experience or when they stand up and say, hey, this doesnt work. I fully agree it is the commander based system and ought to be a commander based system. You can train. The army is good at training and good at standards. We need to not lose what that standard is. If that is the standard we need to train to that standard and we need to tell people it is okay to walk away when you dont meet that standard. Whoever is advising that commander, whether it is sj, them having the moral authority to say, in writing, i never had a problem with saying in writing, just my lack of intellect, i dont know, i was always going to say, sir, you should not do this and here is why. With all due respect, some of this falls to the politicians. Every time a decision does not go the way we wanted to go, if there is a lynching or cross burning or whatever your chosen metaphor is because the commander made a tough call, we have to take a step back and realize that is what we pay commanders to do. We vest them without authority. I think there are ethical protections involved. I think we need to train them more. It shocks me, well, not anymore, it used to shock me when i sat with young captives and say what is your ethical standards. Real quick war story. We dont believe her. In a he shed she said. She has affirmatively lied to us in the past. How do we meet the ethical standard . How can we take that to the courtroom if that is all there is. No forensics. Nothing else. It is never easy, but it is straightforward. Not a case that goes to trial. I would say, first of all, i have this honor of working with commanders who by and large, actually, universally where some of the most impressive, morally courageous people i have known. To me, the implication that they would fail to make a tough decision because of career implications, i have not seen any evidence to support that. With that being said, i believe, at least when i was accepted as advocate, and his advice no probable cause to go forward, that took it out. Did not have the authority to refer her over that recommendation. There was at least that check in the system before going in. Another thing that ive always experienced, i advise commanders not to go forward on charges and we have decided not to go forward on charges. One of the things we always did was coordinate that decision with the Victims Counsel and with the victim. Much like you do not see people suing their dr. For malpractice if the doctor has good bedside manner. Theres a lot to be said of having that relationship with the victim. Even if its going to be a negative decision, you thoroughly explain why you are doing that and what the thought process was. I have never had that come back on a commander for doing that. That is the only comment i have feared thank you. Well, as a prosecutor, i can recall on occasion doing those memos saying i dont believe this occurred. That is my personal belief. I cannot think to that. I can just say what the evidences telling me. I also, though, believe that in the Current System, that because we do have some inexperienced or not overly experienced prosecutors handling Sexual Assault cases, their personal belief that there is nothing here or the personal belief that i dont find the victim credible causes concern for whether or not they can really evaluate a case. Does that make him then if they make that expression i dont believe her dont go forward and then the government chooses to go forward, does that put that Government Counsel in an ethical quandary . I would suggest no. There are certain cases, there are certain cases that came across a bench when i was on the bench that youd have to think how did this get through 32. Did anybody ever talk to this victim . Did they know what he or she would say when they got in here. How did i get here . I was a factfinder on a case that ended up at trial where i convicted and then it came out in the press later that the convening authority had concerns about the case from the get go. The convening authority, if you are concerned, why was it courtmartialed . Why did you feel it necessary to throw it up at the wall. If you believe it should not have been there, why did you send it . From my perspective as a court, there was sufficient as evidence evidence. What was it that had you concerned . Sometimes it is evident that does not come into court that we dont see. Convening authorities need to have that ability. Dont just throw it out there and let us try to figure it out or let members try to figure it out. I am not sure. I just know that commanders need to make the calls. That is why we pay them the big bucks to do so. Sometimes they have a prosecutor that may not be giving them the correct advice or good advice. Because of a lack of experience. Judge grimm. Thank you very much. I wonder if we could a little bit louder, please. Can you hear me now . Hopefully you can hear me now. I would like to take advantage of your experience to shift to another part of the process, namely sentencing. We heard information not from judges. Active duty military judges were reluctant to speak to our committee because they felt that they should not be, because of the appellate decisions explaining a reasoning for a sentence that they impose at a courtmartial that they should just simply announced the sentence and not explain the reason. When we looked at the actual sentencing, they were trying to see if it was confined or some other sentence that was imposed when the military judge was imposing a sentence. The announcement of sentence and the reason for it is an enormous portion of the sentencing process in the federal system and because we have sentencing guidelines this likely would not be transferable to the military that our very complicated and enormous portion of the sentencing process in federal court, but one thing that they do is they require an explanation by the court as to how the court evaluated a number of factors to include the seriousness of the offense and the prior history and characteristics of the defendant in a sentence which is necessary to serve the purpose of sentencing and there are a lot of other factors that go into that as well. I have met with active duty military judges and was requested to talk about how sentencing occurs in federal court and there is much of what happens in federal Court Sentencing that would not be, in my judgment, good to be adopted by the military. One thing that does strike me as being important in the sentencing process is that, if you experience a concern or a reluctance to comment on why it was that you were imposing a sentence, just because you are afraid that the Appellate Court, not afraid, but you had gotten guidance from the appellate decision that you are doing something wrong. Secondly, do you have any thoughts now that you are retired about whether or not the convening authority should have the ability to change a sentence, when that sentence has been found by a courtmartial and imposed by military judge or by members. Judge, this is andrew glass. So, first of all, with regard to the process, i think, and im sure you appreciate a little bit of it, in terms of active duty judges seeking to sentencing, or speaking in this form, is a concern that something you say or may not they can be misconstrued as taking a position that is adversity of the prosecution or defense. With regard to the appellate issue, i can tell you back as a baby judge, there were so many times, and this is not directly responsive to your question, but so many times that i felt, and nonsex cases, the accused just really needed a good butt chewing and needed to have someone in the judicial room telling them they are on the road to provision and that that would have as much impact, may be that plus jail, and i will tell you in all candor i have done it before in cases where i did not give jail time or sentence that would qualify for an appellate review, automatic pellet review. I do not see, frankly, any real issue, well, i dont see many issues with allowing judges are requiring judges to give some reason for their sentence, but, again, some of this goes back to how long have you been a judge in knowing what not to say in that context. Not stepping in it when you say something. Not being contrary to what, we only have certain things we can do in sentencing. Not being contrary to those things you are allowed to do. And, so, think about this, your junior Lieutenant Colonel just promoted walked into the job and you have not done justice in five years and you have been trained, you have been at the judges course, youve been through all of these things and you have a pellet system, mandatory appeal, nokias has to pay for a transcript to be prepared, no accused at least on the first level of appeal has to pay for their attorney, awesome protections for Service Members. Everything i do goes up. What are the chances in that system you want that junior Lieutenant Colonel to get up and say explicitly what happens. That is one piece. With regard to the convening authority changing the sentence, i believe they ought to have the ability to change a sentence. Simply put, as a defense counsel when i was young, i was able to mitigate sentences for the individuals entail, for example, nonfelonys two felonies where they got a low sentence because it was a relatively mitigated case and made a huge difference in the Service Members lives. Sometimes, particularly, the war fighting divisions, you will get outlier sentences that are too harsh and that need to be mitigated. I think the failure to have that ability to do that would be concerning. I think that if you want a fair system, it does not look good if at fort lee bob gets two years and at Fort Campbell he gets 50. I think that has always been a check on the system. I want to echo what i said before an one other Panel Members have said, we trust these folks with a heck of a lot of responsibility and sometimes they get it wrong by public per inspection, but most of the time we trust him to get it right and they do get it right. That is my per inspection on how that system should operate. Judge grimm, i would be really afraid of a system that would have judges explaining the reasons for their sentence. Our current judging system where we dont have sentencing reports reports, we dont have sentencing guidelines and that sort of thing, my fear would be, as andy mentioned, well, lets put it this way, we would certainly increase the work of the appellate bar. I think whether or not a judge said something he or she should have said during the explanation of their sentencing, we will have more appeals if we do Something Like that. Is it a reason not to do it, i dont know. I think that thought tells me that the chances of a judge saying something that is either wrong or could be construed as wrong and that process would increase did Something Like would need to be very narrowly. Right now bond hearings in the courts that i practice in now. When i deny a bond or grant saye respondent would be a danger to the community because of this conviction and this arrest for this offense or i find the respondent would be a flight risk because, and i leave it at that. It at that. So something along those lines would have to be implemented to prevent judges from saying things that they perhaps shouldnt say in explaining their sentence. You know, i guess everybody probably knows how i i believe in the commanders system and trust our commanders. And i think that they need to have that option, that escape valve option, to correct what i will call the very rare mistakes that occur in cases before they get to them but the rarity of them doesnt diminish the significance of those mistakes and having the convening authority you have the ability to say hey, this was wrong, i am reducing the sentence as indispensable. To articulate the basis for a sentence there has to be some standards against which that articulation would take place. If the standard is you are giving a senate somewhere between no punishment and 30 years of dishonorable discharge there are some really not any reviewable way that you will be able to articulate how you arrived at that in the absence of substandard that is already pre promulgated and that is out there. As judges give us a standard we will be able to articulate while we are complying with that standard. We do that when we are dealing mpwith challenges for cause and know what the standard is for granting that challenge and we can articulate that standard and say whye it is within that standard but if the standard is just from no punishment to dishonorable discharge in 30 years then there is i really noa framework for us to make those comments. I will say as much space as i had in military juries to arrive at a finding of guilt or not guilty and talking with military juries after trial they felt completely at sink when it came to the issue of sentencing almost uniformly just because of the lack of any real standard between that minimum and the maximum and so as i judge at least i will have the experience of having seen enough cases to have an internal barometer but nothing more than that and so in the absence of standards i dont know we will be able to articulate the basis for the senates in any meaningful way. As far as the convening authoritys ability to review and to modified the sentence any system has or have someone with clemency power to take care of unforeseeable resolve and many times what you get coming out of the back end of a courtmartial has an overzealous to anything that anybody foresaw going in and sometimes that is an unjust result and someone has to have the power to correct that. I will start backwards. Well start with clemency. When i sat on the court of appeals we use to receive sentence disparity, assignments of error, regularly. I know we occasionally would grant the assignment of error and some relief in sentencing but that was rare and some of the link which we would use is that that is clemency and we are not in theci position to do clemency and thatge is not our b and that is the convening authoritys job. I dont think the convening authoritys should be limited to perhaps correcting errors but to grant a true clemency. They dont have that ability in most cases now to grant clemency so the defense counsel, where traditionally they could go to the convening authority and ask for clemency posttrial, there is that limited power now and not much of the convening authority can give them an clemency. And i would add that the clemency posttrial matters are submitted very quickly after trial. If your argument is to the convening authority at the defense counsel is, i want clemency, if you only have ten, 20, 30 days maybe you could argue clemency should be granted as a matter of the type of case it was but if you are looking for some sort of posttrial conduct that wasnt good on the part of the offender there isnt any within the first month of trial. If they went to the brig they dont have good conduct in the brig get to rely on good today do some good for the government ifposttrial . At ten, 30 days did not give a good measure of what assistance might have been. I do believe the convening authorities should have that power to not only correct any mistakes butut also to grant pue clumsy because that traditionally was their role and that is where the comments he came from, not from the Appellate Courts. Cen i was to use colonel glasses analogy or statements a baby judge, i would very rarely comment on what i gave as a sentence and when i became a little more seasoned after seven, eight years i perhaps on more than one occasion would give those comments but they were very limited because perhaps i was concerned and i sat on the Appellate Court and i can recall receiving records of trial going why did the judge say that and it was a bit concerning to be worried about what might be evaluated and what i said and if i said something was i going to be challenged in the next case because i made a comment about why i judge a certain sentence. Hi maybe i should have been more deterred of some of the things i did say but i did make comments about sentences onse occasion ad some of those might have been in the cases that did not reach appellate review because there was no record. The members have no sentencing guidelines. We have no sentencing erguidelines. I think we should have sentencing guidelines. I think saying to members you can sentence up to 30 years should or 50 years or even to a judge from zero to 50 where do you come down . I know is a judge i kept a binder of every case i did in every sentence i awarded and what the charges were so that i could look back and see what have i done in prior cases in every case is treated individually but i had a record of how i treated other cases too. If there were unusual sentencing matters, extenuating mitigation i would make a note of that. But members dont have that. That the prosecutor asking for 20 and the defense counsel asking for six months and they come down wherever they come down. Andng now, even in the appellate world you see individuals convicted of Sexual Assault, some have very great sentences and some have very little sentence. Rew is that a fair system and how can an offender who may be pleaded guilty or maybe he didnt but how can he why is a system set up so that he is serving seven years of the guy in the cell next to him is serving to, for almost the same exact defense. I think sentencing guidelines are appropriate. I will ask the panel, if you would indulge us and stay with us for a few more minutes. We are a little past 11 but i think there are some questions. I have always been talking about some of the upstream of the process and the cases that are getting referred to courtmartial and id like to shift a little bitom to the downstream one presiding as a judge with the member panel have you been surprised at a verdict that the members are acquitting when you would have found somebody guilty particularly when there are issues of incapacitation by alcohol . I would say not very often because when you try a judge or when you try a case to a panel as a judge you get approach it from an entirely different mindset. I very rarely engaged in the idea of what my results would have been because i have so many other things to deal with in instructing the panel and and rolling on the evidentiary objections and im not sure it was particularly helpful and wanted to keep my mind open so that nothing that went into my instructions came across as slanted in one way or the other. When you are trying a case before a jury your mindset is so different that its very rare that you would even make that calculation [inaudible] many times whencu i go talk to membes after words they would asked me o if they got it wrong or rit and i would say if you want through the process and you believe [inaudible] you were right. The other thing is that again i think number panels do us an extraordinary job of listening to evidence and applying the instructions and getting to the right result. It was very rare and there were cases and perhaps its the [inaudible] is the better barometer where and sometimes that would be within a 10 one way or the other. They might be the better barometer but i was very rarely surprised by the client and i was freely surprised by the sentencing because the sentence is very marrying so greatly and because members have so little guidance on how to come down within that spectrum. I will be quick. I can improve on anything wes said there. Thats my experience exactly. So, i agree with what wes said about how you listen to a case and remember we have no j nov of authority. If it meets the basic threshold of rcm 917 which is what im listening for there have been times with that caveat where i thought wow, how did they get there. I remember, i dont know how many but youre talking very few and what seems like, at least, just because im aging but hundreds of cases and i would also mirror what wes and jeff said visavis where there is a point where you are like really . Is the sense and i would tell you frequently that is to the harshness of a sentence and i was known by the defense bar as a very harsh sentence her and there were times where i would hear a sentence and think wow and so on a very few occasions actually i wrote a memo to the convening authority when they have that to change the sentencing that i was a i think it was twice. I wouldve sentence differently but thats my observation. I would agree with colonel glass on the sentence but might while was more on the leniency and Sexual Assault cases of sentences. Members dont have any parameters other than whats being asked for by either side and they come back completely away from anything that any side asked for. And less. Ndmetimes that was a surprise but then again they dont know what cases are in our view or the prosecutors or defense counsel were so they just sentence and i know they take their jobs fiercely because ive interviewed or discussed with members after words just their jobs and what they do. They take their oath very seriously. But ive had members also expressed concern about that was a really tough case. Yes, it was from all sides. But im sorry go ahead but did i ever think they got it wrong on a verdict . No because i dont go into it from that perspective of what would i have done and ive had counsel come to me after words so, what would you have done, judge and its irrelevant what i would have done and i didnt think of it from that perspective. I just had an alibi i think one of the greatest strengths of the military Justice System is our professional juries, essentially panels. I think they are smart and thiny seriously and have tremendous experience in my experience has been that the vast majority of the time into the 90 percentile they are getting it right. That brings us right back to the acquittal rate because if the members are getting it right and the i do disagree with ms. Long. I think these rates are pretty much unheard of in the civilian system and i certainly know we brought really difficult cases and had much, much higher conviction rates. If the members are getting it correct, 90 of the time, the problem seems to be back upstream. If you agree there is a problem. If the question i would ask back and at least the rhetorical question is how long have your prosecutors been doing that job . The reason i go back to that is because it matters. When you look at the most experienced prosecutor in the army and i dont know what that number is but its five, seven years prosecuting cases thats not the way in District Attorney soffices and that makes a difference. Especiallytt with these cases tt are almost always thats an ererstatement but very frequently almost like dormitory room and their analogy is a dormitory room, saturday night, a lot of alcohol, little supervisiondo, if any and if thy he said, she said and she may not or he or whoever the victim is may not remember and so i think what we are saying is based on what we see, into the courtroom and based on evidence that has developed and presented generally we think they do a very good jobn of reconciling very difficult issues and take it very seriously, almost always if notci the entirety of your panel, collegeeducated, vast majority is collegeeducated experienced people but the reason i keep banging this drum is because ultimately to me this part is not Rocket Science but this part really comes down to when you are asking someone to try someone with the very hardest cases often without quote unquote, objective evidence, that is forensics, sometimes with your asking andft thats a tough carry for majo major who is the experienced prosecutor, even if they have only qualified experts to talk to some of that is and you all know this if you have tried cases. What ive heard and part of my horrible german referred to as. [speaking in native tongue] which is the field of knowledge ive been on my feet so many times arguing this issue where i felt this is what is going on and i need to change and some of it is the developed people skills to be able to pull that most difficult of facts out of the victims and so i dont think they are on reconcilable but i think some of it is i would eell you go back to the question you asked, maam, as an sta i know they turn down the cases because they said no, we dont want anyone to do with this case on some of that is a fact and i think thats the doevailing factor and i think the prevailing fact is as good as these young men and women are that we dont keep them in these positions in the army we cant speak to anything else where they develop that field and develop the ability to know this is an good case and this is how you present thisre evidence. Well give you a real quick anecdote because i think it matters, i had a case where special victims prosecutor came in and tried to introduce what were essentially outcry evidence arguably from a victim when we dont an outright exception to hearsay rule the outcry evidence was known wad and puts on the alleged victim she testifies and says i called my best friend and i was upset and cried and told her the whole story. When did you call . Things were so crazy i dont remember. Okay, so we all know that there is some exceptions for the couldve been a day, month, week when i i dont remember after a good crossexamination. We know theres next i have no timeframe so how is it admissible . Different so i dont and minutes. Different witness testifies at trial and shes the best friend and she says i talked to her the next day. Okay. Probably because she met the other piece and it was a latenight kind of assault. The experience a special victim prosecutor does not attempt to reintroduce that evidence. When told about it in and bridge the gap says i did not know i could [inaudible] it seems to imply that i shouldve known wad which seems finger on the scales. That is the difference. I think that some of it is more difficult cases than offline and wee can talk about some of those cases but i think some of it is just that it matters what he spent time and reps matter. I think perhaps the difficult decision is what is a healthy acquittal rate. I would submit zero is unhealthy because it means we are not taking difficult cases and 80 is probably unhealthy as well. What is the middle ground in there that is an indication that we are still taking tough cases but we are not unnecessarily incurring all these costs . There are costs for everybody involved in prosecuting a courtmartial and costs to the victim and going through the whole process and been interviewed and being crossexamined at trial and theres costs to the accused and the airmen facing courtmartial are among our highest suicide risks and if we really care about that then we have to be thinking about incurring that cost as well. So if we are going to incur all these costs what will be enough to say it is worth those costs. I think we have to start with investigations and investigations have to beth more thorough investigators have to feel at ease and ask the tough questions of alleged victims and i dont think they always do. I think especially in the last ten years or so there have been a real tendency for investigators to take statements at face value and to not ask the probing questions that are only going to get harder to explain as the time of trial approaches. Better investigations, i think, is one thing. In addition to the trial counselor investigations, ability to read my own handwriting would be helpful. [laughter] but the other would be trust and the people who have the discretion and the prosecutorial discretion to go forward. I think thats been seen that is permeated everybodys testimony here today. It is that whether it is the staff judge advocate or or conveninghe authority we have to trust them and we have to accept that they are, on occasion, going to make bad decisions and those decisions sometimes are going to get public scrutiny but that is the cost of any system. Atere will be bad decisions in any system and over correcting for every bad decision on an anecdotal basis. I dont think its a way to go forward so he talked about not having evidence developing the evidence in everything we are telling you is anecdotal of course. And so, going back and looking atth the evidence and the data o determine what the next steps are is the best approach. When you talk about going upstream i think that upstream is even further upstream. As we know a lot of the cases we see, as judges, whether we are prosecuting them before, defending them now involves the component of alcohol. As i read investigations and read records of trial and see how much alcohol is involved in these cases ended up in some sort of Sexual Assault situation i also wonder how is this servicemember getting to this point when we are supposed to be training them about the effects of alcohol and training themth d i know that with the Sexual Assault training we give to military members and sometimes they come in and we hear, i know i heard fromhe, some of the staffers about they would trade one drink is enough. You cant consent with one drink. We spend a lot of time educating nembers that that is not the law. The law is not if you have one drink you cant consent. If that was the law both of the offender and the victims should be in courtmartial because they both were drinking. We have to do betterth at that stage, whether the training of the military members, intervention, when i see some of these records and see the cases i wonder how did we get here and nobody intervened to . Why did no one intervene with this girl who was sloppy drunk . And two males are taking her up to the room. Where were the supervisors and where was m the barracks petty officer who saw that . Why did no one intervene . Is intervention working . I would like to say it might not be at this training but we get back in the training that we then not only we talk about bystanders but when we tell them you cannot have one drink and consentt i have now in my practice male offenders say to me alleged offenders, how come im the one facing trial . I drink but so did she so why am i called the perpetrator when i would view her as being the aggressor, clients words. She is the aggressor so why am i called the offender . I cant answer that sometimes for him. It seems to we are the way our process is set up. Most of our offenders that are charged are male. I think that we need to educate better. We will take one last question from the general and then i will ask us to take just a ten minute break and start our lunch at 12 155. For myrt question will turn into two questions and with all the authority that i dont have im going to make you whatever assistant members because in the 2020 National Defense authorization act Congress Asked for reports on a couple of different issues and two of the issues i would like to ask your thoughts on. Any thoughts at all are helpful. First one has to do with victim impact statements. I will read from the joint Explanatory Statement from conference. These recognize the importance of providing survivors of Sexual Assault and opportunity to provide a full and complete description of the impact of the assault on the survivor during courtmartial said as he reads the offense. Are concerned by the reports that some military judges, obviously not retired judges, some military judges have interpreted rcm, 1001c too narrowly, limiting what survivors are permitted to say during sentencing hearings in ways that do not only inform the court of the impact on the impact of the survivor. Te therefore they asked us to do an assessment, initial reporto whether the military judges are according appropriate deference, their word, to victims of crimes who exercise their right to be heard under 1001 at sentencing hearings. Victim impact comments. Please, thank you. Sir, was that both questions . Okay, okay. So, from my perspective i have limited victim impact statements in the past and according to what m the rule requires. Ive just read the rule and applied the rule and i dont know that i canan in all honest. I know ive done it and i also know ive seen victim impact statements that were very effective and persuasivel and i seen victim impact statements that were rambling and not very effective. Maybe all because of victimization and were not trying to be insensitive but talk about is an advocate for the courtroom i seen them work well and ive seen them work not very well. Ive seen them be entirely in writing and ive seen them be, you know,v for me thats okay but that writing doesnt usually [inaudible] very much and theres not much emotion to it. I guess, ultimately the question whether i appropriately limit or what the judges appropriately limit victim impact statementsoi mean that is an unanswerable question, to me, because i dont know what they are talking about. If when they are saying the rule means thisu and judges and are interpreting this incorrectly am just not sure what the reaches of that is. I would say that in observing practice with victim impact statements as opposed to im not sure what congress envisioned in terms of the breath of which they can give a statement and what its purpose is other than allowing them to tell their story, which i understand that purpose and that may or may not be as helpful for achieving a sentence as they may envision it. I would say in terms of the effectiveness of them my experience goes back a little bit to where before we had that rule victims would come in and talk about that impact and i think t the effective victim impact statements before me have been very similar to the victim impact i heard before sometimes crushing impacts on their lives and their ability to trust et cetera and all of that is relevant and admissible under approval but it was relevant so im not sure that answers and i apologize just because im t struggling to try to figure out what exactly [inaudible] i have limited victim impact statements before and the occasions that jump to mind are situations where the victim impact statement, excuse me, included comments or references to things i previously excluded but for being fairly prejudicial or for some other reason and so i have limited that before but i have do not think thats inappropriate. Otherwise, there is an instruction that would give and im not sure [inaudible] but there is instruction we give to the Panel Members about how and they should consider this victim impact statement and i think it was good instruction and a product of a lot of thoughtful reflection by judges and i trust Everything Else that i havent ruled on previously as being admissible for appropriately covered by that instruction so members consider that as they should. So you are vouching for colonel glass that he only did it for evidence i dont know. Must have been his reasoning. Okay. Just has not been my experience but i cant recall having limited to any victim impact statements. I found the victims Legal Counsel has done a very good job generally of preparing those and of modifying their rulings throughout the course of the proceedings so i cant recall a time when ive been in a situation where there was even an objection to a victim impact statement. I recall making a ruling limiting in some capacity but i dont recall what it was and i believe if memory serves me right it had to do with a recommendation for particular sentence and i limited it to that and they took that out but i agree with colonel moore that they are doing a pretty good job helping them preparere and i thk the only concern towards the end of my time on the bench before i retired was the timing of it and when it was provided to the government to have an opportunity to review and some of that cause delay because the government was not privy to it until the moment the person was coming in and wants an opportunity to have a chance to object but i dont recall any significant items that i had te victim extract out or would not consider. It seems they have a pretty full range of options to give their statement. Sir, i do have one and i know we are all trying to get done but we are trying to take an appropriate rate. My wife told me i should lose weight so i do want to know to the issues as i reflect on it they require notice as acquired by rule and i was cured if it needed a cure with some form of recess and in some instance i recall an overnight recess but the second involves specific sentences which are very clear on the victim recommending the specific sentence and the third was it is involved the members in a matter that had been previously excluded that to reopen would constitute a mini trial. Thank you very much. The other one as advertised, appointment of guardian ad litem for minor victims. This is from the house side. The committee is concerned for the welfare of minor military defendants who are victims of an alleged sex related offense and the committee acknowledges that apartment of defenses continued efforts to implement services and support of Service Members who are victims and further to expand some ofs the services to dependents who are victims. However, thes committee remains concerned that there is not an adequate mechanism within the militaryic courtmartial process to represent the best interests of minor victims following an alleged ex mac related offense. They asked us for a report that evaluates the need for and the feasibility of establishing a process under which a guardian ad litem may be appointed to represent the interests of the victim of an alleged sex related offense for people under 18. Need for and i guess the feasibility of practicality of doing so. Thank you, any thoughts . I realize that a guardian ad litem has a different role then a special victims council. In in the cases where i had child victims the special would undertake to assist the custodial parent to assist the child and ive seen that happen before and i think the need is it is a reasonable need and i think that certainly there are times when the custodial parents interest might not dovetail with the child victims interest and i have seen that happen before and had to, in my own mind, kind of worry about was the childs real interest both personal and legal interest being taking care of and i dont know how we would do that and have not had a lot of time to think about how we would do that in the military Justice System. Let me just say in regards to both issues our door is always open in our mailbox is always open anto email work so if you have thoughts later on about this i feel free to let us know and we will included in our records. Eskimos are. I would go back to what jeff said and go further that who does this and will you retain a civilian lawyer or will you do the jagged court Legal Assistance and teach them to be or to do all the other things beyond being a Victims Counsel to be a guardian ad litem and if it is not them are we then going to take the prosecutor who has got four years of experience and tell them their next career position is to be a guardian ad litem or the defense attorney who ought to be defending the next big case and the problem really is in the details and you absolutely could augment your system by having civilian attorney common and do this work and i dont know that that most cams and stations that, i dont know, i will stop because what i started to say ish [inaudible] t a small post camp station, another big one like a board to brag but but they certainly could do some things that the junior Legal Assistance special Victims Counsel may not have the training to do. But ive also observed in the courtroom is that they are the Victims Counsel are doing their level best and that there doing the things you want them to do in terms of getting to know the child to the degree those interests compete though, again, you dont know what happened behind the scenes. A lot of places there are private, nonprofit organizations that provide Guardian Ad Litem Services for children. I wonder if thereen would be a y that the military couldnt sort of come up with a cooperative agreement for some of those organizations in order to work handinhand and maybe even provide funding to be able to help them and help us provide that and i know thats just a thought. As you continue to think about this, please let the colonel know if you have further thoughts. I will give us a ten minute break and then we will work through discussing your testimony which i truly appreciate and we will adjourn ssfor lunch at 12 1510 minutes back in seats, please. [inaudible conversations] th y