Transcripts For CSPAN3 Sexual Assault In The Military Forum Panel 3 20240714

Next, look into the military justice process when it comes to Sexual Assault trial. During a Defense Department Advisory Committee meeting, several Trial Defense Service organization chiefs from different branches, talk about conviction and acquittal rates and the adjudication process. We are continuing with panel three. Regarding conviction acquittal rates, case adjudication process and victim declination. I suspect we might hear Something Different than we heard this morning. We just pull together questions. I will read the first one. It concerns the referral process. The responses indicate victim preference may play an outsized role into whether or not a Sexual Assault case is referred to trial. What consideration should the authority get to victims wishes, regarding the disposition of a Sexual Assault case. Colonel bennett, could you start us off . Would you be sure to hit the button please . The voice of the victim is something that should be considered. When we give too much weight to it, the wishes or desires of the victim are going to overwhelm what the evidence should support. But they the victim wants to go and the sja is looking at what the victim wants. That is problematic. If you have pc but looking at evincing the chances of a conviction are either slim or the evidence doesnt really fit the conviction. Still, the shot that we should go forward, absolutely raises the rights of the victim above and beyond that of the rights of the accused. That is the accused in the case. At the end of the day, the evidence and analysis by, this morning he said yesterdays right person. The evidence in and of itself should carry today, the request for the wishes of the victim. I believe the standard we should use, can we obtain and sustain the conviction . If we cannot based on the evidence, nothing else should make us go forward. Really i believe, i should be a consideration. Maybe the commander needs to take that into mind. If the victim doesnt want to participate, im not going to force them to testify go through that process. The best interest of the file and judgment of the faux, and of everybody else. Says we should go for it anyways the wrong decision. It has some weight but it shouldnt overcome the sustained standard we should be using. What matters is whether or not the victim is willing to participate. The evidence and rest of the military justice process should lead on the charging decision and whether we go forward. We really have to Pay Attention to whether or not the victim is willing to participate. It is hard to get a conviction without lots of independent evidence. After that question is answered, we need to rely on the rest of the process. Back that afternoon, again i agree with my colleagues. I agree that the desires of the victim should be fully and fairly consider but not necessarily override legal standards. The determination of operable cause, the article 33 guidance as to the likelihood of a conviction. Military member undergoes facing Sexual Assault. Is the stress associated with a fairly lengthy process. The number i have for the average General Courtmartial was Something Like 508 days. I believe from the beginning of the investigation. Until a final decision at the courtmartial. During the time period, the member is removed from their normal duties. Often times has security clearance pulled. The ready access to certain areas restricted. A protective or restraining order limiting access. There placed on the control roster. Sometimes they are actually transferred to another installation during the pending trial. Even if they are acquitted, they are eager to administratively separate which parallels oftentimes what we see with the conviction with respect to the and. If i understand your question about the victims desires, whether or not the military to be involved at all. Then as it is, i agree with my colleagues, about whether or not they will be a willing participant. Having a willing victim that wants to participate that makes their job easier. We havent always expected the right or the voice of the and. We dont do that anymore. Im happy to say. I am aware of how important it is that people feel heard in the process. Having a voice in the process and having desires made known to the authority, whether or not at the end of the day, they follow that choice that is being advocated for. I have a question that may have eight or 10 parts by the time i get through. I hope you can keep track. I am just winding up. We heard testimony about how if there is a recommendation of probable cause, it is essentially never overturned or extremely rare. How often. Is a finding of no probable cause and how often that is overturned. If the statistics are anecdotal about that. Been the second part of that question, if it is overturned, we have heard about a process where additional evidence can be submitted. We also heard i think, the defense counsel can do that also. I am curious again, how often did the sja recommend overturning it. Just on the basis of the disagreement. Based on just disagreement or new evidence. And then they disagree with the finding of no possible cause. How often, is the defense counsel participate in this procedure. To funnel information to the sja after the article 32. Is a little different. Is saying for the responses and that we see a higher degree of cases that dont go to court because of the memo recommending to the sja that they nalco forward on the case, that it is recommended that they nalco forward. Weather not defined, they said there is no probable cause or they say there is probable cause but there is zero chance of success on the merits that a courtmartial. Some cases for successfully then dismissed. That is reflected, probably by the conviction rate. Based on conversations with my colleague or higher in the marine corps. The sja is providing to the authority, all the information that is not presented at the 32. It is perplexing to me. We would like the recommendation if there is no probable cause if that to be binding. We feel like the government should present their evidence. We dont understand why we should be hiding that from every anybody. Or they should funnel to the sja then overturn the recommendation that there is no probable cause. I dont think any of us suppose the ability of the government to go back for another hearing. We all agree it should be binding. I dont think we have statistics. I dont remember what those were. By analogy, we do have some cases where there is no probable cause. Those cases are not continued. There killed at that stage. We also have cases where we know and they have found no probable cause. Those cases have gone forward. We challenge that finding. Judges have based upon the recommendation, not allowing the motion to succeed. The concept and the sja has now weighed in on. I cant think of a case where the defense would ever want to play that game, unless they were such overwhelming evidence that was clearly prohibited. There are rules that prohibit what we can do. There are things the authorities should know and the witness should know that the defense knows about. We put that forward. Usually, that is not a good strategic decision to play all your cards and say, we know you have this. We know the sja is disagreeing. What about all of this . We will hold that back and go to trial. That may contribute to the acquittal rate we are looking at a different standard. The nature of this, i agree. I am trying to think of a military reason why the 32 is not binding. I cannot come up with one. To the question earlier on, i dont think so. I cant think of the military reason. That should be the standard we are looking at. Is there a military reason and members conviction, two thirds or three quarters versus a unanimous verdict. That may be a military thing. There are arguments for those. That do not have this at this stage. Some of them are not well trained. The government gets to pick the so. That is not a great argument. We pick someone that doesnt like the standard. If this is the floor, the government should be required to reach the floor or they should be able to go back down and start again. Maybe explained to the bosses how you did not reach it. They have to go and explain how it happened. Theres a difference between military due process and constitutional due process. There is that. How much due process do we want to get people. The standard we said is probable cause. Lets at least hold them to that. Do you think you can go forward to trial . It is in a game. That answer parts three, seven, nine. So i can jump in, i will take a step back and explain why they decided to move themselves from the panel. For defense counsel, we have a with the navy. The navy handles most of the defense matters. For a lot of these questions we will echo. To have a better firsthand knowledge. In this situation, there are couple of pieces, especially when it comes to whether or not it should be binding. We agree with that. I also understand from the government perspective, why there are times they may go against the probable cause ruling. The military justice bench is not drastic. Doesnt have the experience necessary to give a thorough determination. With further information or discussion, they may decide that even though they found it, it wasnt probable cause, maybe there wasnt enough to go forward. Are there statistics . As far as how may times the coast guard is a different finding and what the foe found met it happens. There are times we say there is no probable cause. The sja will recommend they go forward. That has something a little bit to do with the stick when it comes to military justice. Thank you. No stats or numbers. There are times when a foe said no pc and the sj has changed it. I said pcn Going Forward to the courtmartial. Overwhelmingly the end up in the. 18 months later in many cases does the defense counsel have an opportunity, there is that right. Im going to go with commander kirby. Why would we . Right now we have a capital case. And the council has afforded themselves that opportunity to present directly to the authority not just the sj. Is a unique case. In most cases, the thought that the defense would get a full hearing, they would take it into consideration. And having the ability to sway. I dont think we have a lot of confidence. We will hold it. We will wait until trial, rather than that information being given to the government and the government finding a way to counter that. Is why we dont avail ourselves to article 32. Theres no reason defense would ever put a case on. The defensive pick of cases and tied at 32. There is not vested at least in the army that we can win a case that is a 32. It is a paper case without that finding recommendation. Whether it should be binding or not, the arguments of the government this morning, it is disingenuous. They picked the time to defer the charges. They do from an investigation starts to and made two charges in the military it is a substantial time. Other than the confinement will also do. I understand that piece. They control everything about that. They control it is preferred and control the investigators. They control the amount of resources provided to the case. Had more support in order to be ready and prepared. It doesnt have to be perfected, i get it. They should be ready to go to court in a quick time. What if someone comes in and demand speedy trial. The government and barely says, not ready. Why did you trigger court martial. All that entails for a soldier or airman or sailor or whatever it is. Why are you triggering something that is not ready. Were talking about life altering events. Look at the fact pattern and that will be in acquittal. Instead we had to go through an 1824 month process to get that result. The accused family and victims and everyone else is going on in the process simply to go to the process on what we know the end result will be. That is problematic. To my knowledge we do not retain these statistics. It would be by the military Justice Policy division if so. Anecdotally, we do see cases more frequently than not where the foe recommends or determines there is no probable cause. Would you concur with my colleagues. I add that the process whereby an sja can present all of this unexamined evidence to the convening authority, does seem somewhat peculiar and it doesnt require that it be memorialized. At least the air force, pursuant to instruction, simply has a template that answers in a conclusory fashion the question, there is probable cause. The charges in the appropriate. These are highly complex and difficult decisions. Authorities are intelligent individuals. Why this wouldnt be captured somewhere, for the purposes of transparency and to make a better informed decision. It is unusual. With respect to whether determination should be finding, i concur with my colleagues about, it would be finding without prejudice. There would be a mechanism, in fact there is no evidence or if the foe committed a legal error and apply the wrong standard, perhaps there could be an appeal or take it to the next higher Level Authority which would leave it in command channel. A foes determination of probable cause should be a Condition Precedent for referral of charges. Several of you said, although you have the option, at least on paper to bring evidence to the sja before the commanders decision, i call that the perry mason option. I regularly encourage Defense Attorneys both preand post arrest two, if you think we have it wrong, you cant wait and do an aha. If we have it wrong, we have it wrong. We can deal with it up front. You dont believe, youll get a fair, if you bring in the evidence that you believe shows had it wrong, it is not going to get a fair hearing. It may be a difference of what type of evidence. Heres a text message that says, it was all consensual. You would then bring it over to the council to be a day. Having been taken in and be the plastic of the case. There is other evidence that maybe will hold inconsistent statements. You will withhold that a bit. It depends on the weight of the evidence and you think will be given. I would encourage my counsel, give it over so we can end this. The ones where it doesnt quite get us completely on the side of it didnt happen to it makes it more questionable. I dont know. Is this vested. This is the text message that clears my client or is it something that the government will be some price by at trial. If they got it beforehand, they can come up with Something Different. The evidence, if our investigators, we have the oss. If they come up with information, we put that forward, at any stage. We dont care if it is 32 compos 32, the day before trial. We will get that in. The best outcome for the clients is dont go to trial. Acquittal is not as good as dont go to trial. It is not worth the risk. Most cases, we would absolutely go forward. A lot of times, it is evidence that goes to question the accused, the witnesses behavior. There may be messages that the government is not aware of that questioned the entire story. If we dont think it will be positive, we will not turn it over. We will wait and do it in cross examination. I would agree with my colleague said. I have anything additional to add other than trial strategy. If we cant lock in knowing itll make the case go away, we have to decide what is the best time to bring that forward and having the best results. I agree with the question. The premise of the question in theory, if we were in the position to present evidence which would paint the case in a different light and perhaps cost the government to rethink its prosecution. Our general default position would be to do so. You heard from the air force that the likelihood of conviction does not factor into analysis. At least for our service, there is very little point in presenting the evidence if the government is Going Forward regardless. It gives the government the opportunity to perfect the case. I think the marines handled it differently. New post 32 document submission. We realize some degree of success. We determined that winning the case had a dismissal we all said, better than winning at a courtmartial process. We have faith that that system is working with some degree of success. Speaking of the 32, i would like to understand better what it looks like. We are hearing it is just a bunch of paper. 15 minutes. Now there may be a different experience across the different services. What occurs at 832 now. Finding decisions would make it better. To make sure that that or in addition to that, what else would make it better and what is happening in the marine corps that might be different. If you could hear the experiences of what is going on , what would you like to see that is different that we havent discussed p what we are seeing is especially in Sexual Assault cases, they are unique. We recently had a case where it was 2. 5 days. It is usually a paper case. If we wanted to make a change, we say that cant happen. We cant come in and put some papers and say here is your 15 minute. Takes eight minutes to read the script. The government presented exhibits 127 thank you for your consideration. It is useless. There are problems with that. But the and cis agents on. And other people on to say this is really what happened. And is an important investigation, to put the agent on the stand. The government should have to produce a living person to allow crossexamination to have involvement by the defense. We give you anybody to put on. You can put the accused on if you want to. No defense counsel in their right mind will do that. The other thing, as we go through the process, you should consider whether the witness, not testifying is a good idea. In many cases, have the witness come in. That was terrible, we need a deal. We need to never make that happen again. Gets up there and testifies. You are going down. That can make a deal. That demonstration to the defense. Is how strong the case is just to interrupt, and the private sector, they can come in and through testimony of investigate im not bring in the victims. There are still hearings. That is also what youre talking about . There are lots of things we can take from state and federal proceedings that we can box into article 32. Without going through additional steps. There is a reason not to do these other steps. We can have the same issue, that is beneficial for everybody. Looking at the black and white, we dont want this to happen. Everybody does an investigation. Every state and entity. We have obliterated that. I agree with everything that the lady said. One of the things i think would help specifically is to work on a system to get out vested qualified. Whether that is some type of training before they are allowed to be a or you have to have a certain amount of experience. They will ask informed questions or drop information. They dont have the background knowledge then it is worse than a paper case. We are seeing the same in the air force. There offered, with perhaps video recordings. No life witnesses are called. The calling of life witnesses would be beneficial to the truth finding process. Expanded powers of the preliminary hearing officer to direct that the government produce evidence and empower the fellow to issue sanctions, if the government fails to comply. The binding determination of course. With comment with respect to robust and certification process for hearing officers. Im not sure that the process is in a different. It is mostly paper. They dont call life witnesses. It sounds like the outcomes are sometimes different in the marine corps pierced he would like to have life witnesses as well but that is what is holding the sja back. Maybe they should be better trained have different qualifications. With the should be magistrates are judges. And that i dont think the actual execution is any different. I had to take off to make a binding, a lot of the changes we would advocate or what happened because the government would have to document preparation into the 32 is the victim statement and here is the accused, compassion. Everything we are talking about , if i was trial counsel, it would make her bring the case. I will put the life witnesses on. I would assess my case. Providing that but with all the information. Is the post that i have this question i need this and this, the government will get it to them. It will must be taken care of by making it binding and forcing the government to resource the article 32. We give you the individuals to be your foes. It is the first year of law school. You get what probable cause is. To say, for Sexual Assault for the army, i were closer majors bit made to the kid in the army cannot match the probable cause determination that will be binding, that is questionable. If you make it binding there all the reasons to do to make it more of a true preliminary hearing and put in the protection for the accused. If it were to stay at the current posture of lack of pc, not being binding and no life witnesses, it seems like the marine corps thinks there is still utility to it. I would still say there is utility to it. We like to see what the government will sense. Gives us another opportunity to file a motion with the court and hopefully one day the court listens and says we agree. This was misleading. They didnt put in the entire roi even though it was a 200 page. They did not put in. I think it is the exception rather than the rule. There should be a hearing that has benefit across the board. I think we need to change it. You how much we need to change it. We have a lot of changes. I would be reticent to suggest we need wholesale change. There are certain modifications that would benefit the system in victims and accused. Am curious about the emotions we talked about. In the case where there was no probable cause determination made by the preliminary hearing officer yet the applicant recommends to refer. Now youre sitting at the defense counsel table, representing a servicemember. You filed a motion to dismiss with the military judge. Is the motion based on the threshold constitutional issue that is that probable cause has been determined . And the sja and are ignoring the constitutional issue . Might that be one of the differences that was eluded to between due process and constitutional process . I hate to agree, there is a difference, due process is the process. Because of the language used is a statute for the article 32. It is a recommendation. We lose the motion almost every time. We are going on the fringes of other misconduct or other happenings by the government. Generally speaking, we lose the motion based on the argument that the neutral and impartial person hearing this, determined there was no probable cause. The judges say that is great, you are right. Move on. It is just not binding. Elected to make it were binding, maybe military judges would be the issue differently in ruling emotions differently. Also yesterday and authorities would understand. If you make this, everybodys game is up. Everybody steps up. We need to do this and this. They have to follow suit to meet the threshold. To meet the threshold of were going to do this again. If you think you have more evidence. If you think making that binding would have an impact on what i think judge grimm might have characterized as the abysmal conviction rate that the military has currently. Fewer cases will go forward. Its a good case is 1, the conviction rate goes up. The acquittal rate goes down. Simply not being prosecuted. Their dying and appropriate death after 32. We are not Going Forward. To hear from the other services please . I would agree, it would have an impact, one of them sja, if i had that no pc, i would not go forward. If it is a binding decision, it takes pressure from the victim, we cannot go forward. He refused to testify. The ability to dispose of cases. It would be crucial in order to get rid of the bad cases. Yvonne warren city happy see but recommendation not Going Forward. That wouldnt be binding. When she the 32 with the authority, saying this is a binding recommendation, this is someone that we trust to make this basic. This is where it is going to end up. Providing more information to the sja and the convening authority. To help them make proper disposition of the really hard cases, rather than saying, were going to take these cases to trial regardless and we will let the court figure it out. They will also do that, if it is binding, we offer more information . We go to more of a trust. Pooping out the statements of the victim and they look at what the case is about versus victim statement. We can now get rid of this case i look at using our resources. We have had defense counsel motion the court to distance the charges. The history between 32 and 34. Article 32 was designed to function as a protection against baseless charges. Article 34 is an additional protection. Is designed to screen out cases despite a probable cause determination. The other pieces based on the statutory construction. Uses the term determination. The phone makes a probable cause determination. And other places, it uses the term recommendation. That utilization of the determination is a legal term of art. That requires that it be honored giving finality to the action. I would add, if you are not to get there, why the sja is finding there is probable cause if theyve artie determined there is not probable cause. It should be part of the , the mayor finding probable cause and when there has been a determination. Your colleagues of the military Justice Division panel referenced that one of the factors might be, the additional evidence. It sound like theyre talking about, even additional evidence. That is the impression i was left with. The ex parte visitation of evidence to the authority, without defense counsel. There there to overwhelm the prior no pc determination. Made by the fellow. Do you have any comments and would you recommend a rule for courtmartial between the preliminary hearing rule in 45 and 46 pretrial advice that talks about the mysterious additional evidence procedure that we have heard about today. Colonel king the finding of new evidence. In the interim, you asked about instead, the sja was providing not new information but information presented at the 32. I dont really know exactly what it is. We dont get a copy of it. System or Something Like that. Is not provided. I have a question. Several reports from the officer that probable cause but there is serious credibility issue. On the other hand, that is not for me to determine, it is for the courtmartial. It is hard to make determination credibility based on papers. Sometimes it is not. You think that to the limited extent they are able to you think credibility should be a consideration. It should be part of the 32 determination. Especially when you look at Sexual Assault in the classic cases he said which assembly cases, it comes down to the credibility. To have an officer be able to look to make the determination, we do it for 156 investigating officers. We want them to do the credibility of witnesses they interviewed. That is our administrative investigation. We require, if theres a difference between two witnesses, the i o take a look at the statements. And come up with a determination , it is true. What is the credibility of witnesses. The probable cause determination, not deferring credibility down to the court martial. You are missing an opportunity to foreclose proceedings, the time between a 32 and the trial, i dont know the average time. It can go up to 32 getting into courtmartial and not being able to having the truly neutral detached party. When theres inconsistent statements within the victims primary. Not even statements outside of the primary statement but within the statement self. We are not having determinations by all the photos. We dont know how you can get to the probable cause without thinking of the credibility of those witnesses and statements. It is an interesting question. If needed binding, as we said you have to make a determination and we didnt change anything else, that was the only in a vacuum, we changed. My fear would be the government would be able to and statements that were from an cis or. The Investigative Service that had none of that in there. The onus would fall to the defense to say there are other inconsistent things. We would be forced to show our hand. I dont know the consequence of that is what we would want to see. That is an interesting question. Went to think how we would do it and what is the fourth order of effect of what the change would do without any other changes . The credibility issue is not all created equal. If it is a clear situation where we have a piece of evidence that says one thing and another that says the opposite, and they can make a determination. And present that to the authority so they can make a final determination. Some of the other credibility issues, it is not as easy to say , absolutely this person doesnt have credibility or they do. I would probably resist the urge to give a blanket roll. But working guidance so that the foe is thinking about it. Also evidence that would help the authorities see what happened. They are the eyes and ears. Help make sure that you are detailing it in such a way that when the authority is making a decision, they have all of the evidence and information. In the end it is the best decision. Sometimes we lose sight of the process. We are really trying to figure out how to serve justice. Sometimes justice is not a basket. We do the best we can. Me the information so they can do the best they can. Credibility is often times the central issue. Where alcohol is involved, there is an absence of physical evidence or is this a prior relationship between the accused and victim. Collateral misconduct often times comes into play which may provide motive. These things are often critical. I would certainly empower the phone to consider the factors. To the point, the in our investigations and well, oftentimes perform a credibility determination when there is conflicting testimony. We have guidance. We have panel instruction for determining credibility. Perhaps this be formalized and be included as factors to consider. It should be a factor that the foe can consider. Im not sure that it should be mandated. As he mentioned, maybe it is impossible to determine. My only concern is that might be an unintended consequence, now they are often times putting the video interviews, the alleged victims and it could be they stopped putting the videos in. Than the authority has less information than now. Is making a determination based on the tape. I dont know if this is a question as much is an observation. Obviously it is an adversarial process. We see and hear from the prosecutors that if they write down the advice to the authority and have to give that over, it is like a roadmap of possible weaknesses to the case. My experience, Defense Attorneys know very well the weaknesses of my case. You on the other hand are saying , if we show our cards that the roadmap is the case, i dont need Defense Attorneys that need to tell me about something , unless there is something outlying. Despite it being a adversarial process, it would be nice if people came to it more in an atmosphere of trust. You dont think the prosecution is hiding the information or the parts of the interviews that make the witnesses subject to raised eyebrows. More of an observation got that was the goal, that is where i would like to see a movie get to. I dont actually have a question. Maybe this is also an observation. I have heard over and over again , as a prosecutor doing these cases, it is something ive heard for more than 20 years, inability. It is about victim credibility. Alcohol matters prior relationship, collateral misconduct inconsistent statements. You have all been counsel, you know. If you are to make credibility, i understand youre not going to acquiesce to these things. Theres a difference. To have a credibility assessment made based on those things, we know this is what offenders can explain, i seems early in the system, with total and complete information. It makes me wonder. I think it is too early to draw conclusions about rate, besides the fact that it is somewhat misleading when you say there is a 20 rate. Not understanding what is happening. I also wonder if this is why the military judges are giving a better conviction rate, depending on where we look converses the panel. There is more of an understanding. I guess, what i would caution against is knowing how complex the cases are and how for decades these cases are and we never want to see an innocent person be dragged through. There are guilty people. They will not progress because of all of the barriers, finding an area where we are protecting defendant rights but remembering fairness is to the accuser also. Really trying to keep the balance. We are trying to figure out a system. Not having the light derailed. Not trying to make pretend. Is a representation of innocent people, there is so much misunderstanding. I was more of an observation. Ivan observation into question. I share the wish that they would be more trust in the system. Pointedness trust as well. It would be nice for all systems. Jennifer talked about it. Solid, striking difference in conviction and acquittal to the judge telling the members trial. I dont think we have the stats to show whether wyatt went to the judge trial. Fact that they didnt want the members to know, was there a racial component . The question, why would defense counsel agree to a judge trial. Is it similar to the civilian world where a judge can kick the case before it ever gets to the members . In the civilian world, is there a procedure for that in the military . If so, or even if not, why would given the numbers we saw, why would a defendant or the accused agree to a trial. And addressed the question. Of been waiting all day. Im here is defense counsel. I have been a judge. All the cases are. When you see a higher conviction rate, especially the middle cases, word is not the contact, and assault type of allegation that is a conviction. I suspect if they broke the statistics down is because it is a guilty plea. They had to. We do have the equivalent of a motion in the military. You can kick the case. We do have the equivalent. Quite honestly, whether counsel is recommending to a client to or to the panel is tourist district specific. With the composition of panel would have the panels done in the past. Will be interesting to take out the guilty plea. And a number of acquittals from military judges. Pretty much we dont do panel case is. Successful at getting the acquittal or the sense that we think is appropriate from the military judge. Very specific to the facts and jurisdiction and to who the military judge is. Is generally a requirement, at least in the air force that determined the plea agreement. I would echo the comments, litigators are expected to know installations and know the local conditions. And to know the military judges. Additionally, there may be an instance or defense may turn on a particular point of law that may be better received by a military judge. There is an issue of trust for us as well. We have had cases recently where the advice that one out to the authority and probably less than legal. Then there is the trust factor. Are we getting a fair panel if we select panel or should we go with the judge that we already know . It has been suggested that an acquittal is a demonstration of a process that is fair and just. And the aide in the maintenance of good order and discipline. At the levels we are seeing, do you agree with the statements will disagree. Unfair burden on an accused person to prove that the system works just by going to the process but if we all know, we feel like we need to send it to the members just to show the system works. A certain level. If you had 100 conviction rate, we would question the fairness. A certain level does. The panel of judges and file are looking at the evidence. Weve really been have to say, what is the process. I dont really care about or the process. Had 10 cases and nine acquittals, how are we not evaluating the cases. We are missing steps to look and analyze. Speculation is taking overanalysis. We have the government saying were not really up to 32. We shouldnt be bound by the evidence were able to present. You having your commanders, signing charges saying the evidence supports the charges. It is problematic. If we are accepting an over 50 acquittal rate thing that is just the system and it shows it works. We are missing an opportunity to go back and look at the process. Where did we miss. How can we keep the 1824 month process not to happen. We have always had them. The level we are having, the other thing, would have an opposite effect on good order and discipline. It shouldnt. If you have a rate of 59. 4 , how do they take a look at the cases that the government is presenting for we are not taking the right cases. Why should we trust the system . Is actually support order and discipline. The numbers that we have, you need to be doing a hard look at what were doing. Why we are where we are at. Beginning with instigations that are often times incomplete. Hoping at some point, the evidence will materialize and often times it doesnt. It is oftentimes a perfunctory article 32. It is a foreseeable acquittal. Have the hardening of some of the members to the process. The victims looking at process. Moving forward through the steps. It really happened to me. Why would i go through the process. It if is a good case, why would i go through this. A number of different issues. I dont think this is. It is difficult to convince somebody, youre facing 20 years in jail. It is good order and discipline. The future that comes in, the government lost 5080 of the cases, but yours is a strong case. Where it i dont see how that is beneficial to the victim. There is an effect of the acquittal rate. I hope i dont sound cynical, courtmartials are usually not happening where the offenses are. You will hear something happened to a member and then that member disappeared. If you follow back, but have no idea what happened. If the crew arent following the results, i can imagine any impact. Is there a sense in the high acquittal rate, because of the times or whatever, the publicity going on that there is pressure, not improper pressure but pressure to proceed with cases that maybe 10 years ago would not have proceeded . Does it seem like more you know what i am trying to say. I think that now maybe because of the proceeding that may not have in the past. Someone said earlier in a sidebar, no authority has ever been removed for referring a case to courtmartial. Is there a pressure . Is there an improper influence . That is not what we are talking about. The existence of this panel is a pressure. Anyone that knows about the reviews by all the changes, is the process. There is a pressure. It is naove to think it is not. To what extent does that go for . I dont know. There are some out there that will tell us what the answer is. There is that pressure. It exists. Going back to the comment about the years that we havent given the victims of voice. Now we are more of a voice for the victims. The real concerns of the military system. Generally considering the s c program and where we put victims in the process, to be head of both civilian counterparts. All the other movements, we have to provide the due process and writes to the victim, we have to make up for past. We are doing it at the expense of a soldier or servicemember. Making sure that victim has all the right and is fully heard. This morning they talked about, the day in court. A couple panel member said, even if they dont think it is coal fork, the victim wants to be will go forward. It is not undue command influence but it is societal pressure. Someone that is driving some of the decisions. Knew the trust or lack of. Will be overcome some of the societal pressures. Versus systematic within the military justice system. Victims are priority. Victims have to be heard. The comment earlier, we havent given that voice. We havent listened for 20 years. You are right. I cannot deny, not just military, across jurisdictions. Sexual assault and Domestic Violence has gotten short in the justice system. We always have to be careful. Raising rights of alleged victims. Is an absolute guarantee they were all victims. Not every acquittal is the acquittal of an innocent man. I can look at it and say he did not do it. That wasnt a crime. Yes there is absolute pressure. It is driving the system. We can try to continue to balance what is right for the victim. So they can take care of the Sexual Assault and Domestic Violence. It does not go back 20 years. We need to take the hard cases. We are not just taking the hard cases we are taking the unwinnable cases. We are doing it at the cost and expense of the accused. Were taking good soldiers out of our formation. There are a lot of different issues that play. There is pressure. It is driving the system. Did we hear from everybody . You may recall years ago we had an issue with Sexual Assault. There were commanders that years after they left their squadron position were subjected to adverse action and letters of reprimand and promotion, withheld for the manner in which they dealt with the Sexual Assault atmosphere within squadrons. Perhaps collateral relief was granted. This is not unknown within the air force. It definitely has an impact on the way commanders will be whether they should take the case forward. It is much easier to whether an acquittal is a commander in the scrutiny of not referring a case. The experiences spoken all day is different. I dont want to speak for the prosecutors. We seem to be trying to provide, a Detailed Analysis giving a convening authority the support that they might feel they need, if they decide to not refer a case. We still take cases to court and get lots of acquittals. We are just a little bit more successful. Finding the authority to go to the prosecution. The full report invested. To follow up, and on article 120 cases, the frontline trumpet antlers you have been chiefs of justice. You have been asked to eighth go through article 32 process. There is a nonprobable cause determination or recommendation depending on point of view. Dc the same response and pressures to taking on probable cause cases like in the 120 area . I dont. And that on 120 arena, the pressure isnt there. If the authority doesnt have to rip it up to his boss, or his bosses boss or secretary of the navy, there is less pressure. It isnt worth the squeeze. At the end of the day, in this case, it is not worth it to go forward. We have other remedies. Is lots of binding effects, once we get to a General Court martial. It is difficult to back out. There reticent to do that. I dont think in a 120 case there is the same desire to find another resolution. From both sides, there is a different aspect that comes in. In a fraud case, it depends on the money amount. Youre taking money from the government, we could find a way to end someones career that the thousand dollars back. It is difficult with the victim centric concept like 120. There is a difference. The ability to negotiate in a resolution. My question, one way to get a handle on whether there is pressure but political pressure, as to making decisions, what is the behavior like in other areas. One in the nonprobable cause area dc, if there is no probable cause in the robbery do they refer them and overrule the nonprobable cause determination . To his that sounds good and will go on . The pressure comes in at a much greater. That would suggest it is only an article 32. Getting to that there is pressure. In an assault case, you may not get to a 32. You dont even need to make that. We have other avenues that we are happy to take. If there is a finding of probable cause, i cant think of cases where there is no probable cause in and on Sexual Assault case. It is unique to the 120 charge. It is so subjective. It sounds like the lack of creative resolution. At the lowest level of misconduct. They do not apply in article 120. They will find their way, regardless of the recommendation, will likely end up i have no statistics. My experiences that is exactly what happens. People are to take an alleged case to a nonjudicial punishment. One other area is. That would be a caveat. Otherwise, if you have a case Going Forward, if you dont think you will make pc, youre not taking it to 32. Then you can dispose of the case. You and is not a go forward. Caveat, we are seeing more in the Domestic Violence arena and a bit more pressure there, Going Forward without the victim cooperation and things like that. It would be the only other area that i the. Same level of dresher. I did see a hand. I know about the air force and marine corps mentioned the issue of Sexual Assault training as being one aspect of concern related to the conviction rate. And not the other Services Share that concern. For all of the members of this panel, you feel like drastic is the best place to address that issue. Is there another way that you all would prefer to deal with it. What would that be . As a final resort, it is the appropriate place to take care of it. The Training Needs to be correct. Does a good job of dispelling the concept. Logically, its irrational. We did a good job of getting away from that. Training as a whole, it is going to want offense, everybody on the defense side. There to saturated. Another issue. The training has to be correct. If we need to get there, like to fix it. You have a look at the training are getting the opportunity of looking at training . Capital monahans team looks at the timing. And is good or bad. I just got in on monday. I havent had a look at training recently. You are leaving today . Maybe yes. Really quick, we dont get a look at the overall training. Im not really concerned about the training from headquarters. Is the translation of the local level that is problematic. Many of the council that make sure they attend the training. Even if it is sending a paralegal so we know what is being said in the jurisdiction in training. That have been times, they stated this. Is not correct. It has also been absolute. There is proactive nature. There is training at the local level. They are the ones that will drill down and make sure they are deciding which to take forward. They understand the questions to ask, in the end product work. So theyre not young folks feels like i had a drinks i cant, hopefully that makes them safer. How does it translate. B i agree, it has some utility perhaps. Does not. Electrical down, even when the accused is interviewed, because of the training he received, he would be confessing to a allegation because of the understanding of training was that we should have something to drink, i shouldnt have touched her. It is somewhat problematic. I have seen records of trial where the council is saying, she was too drunk to sign a recruiting contract. So too drunk to consent. Making those analogies which the judge then have to undo. Thank you. Thank you all very much for appearing. Watch our interview with House Speaker nancy pelosi, now online at www. Cspan. Org. She discusses her relationships with president tom and mitch mcconnell. 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