U. Where the i would look and i would think how are we hearing e a motion to dismiss a Sexual Assault case how are we even hearing this. Why are we hear . That is not a credibility determination nap is just a base level facts, have they met this burden, if youre there that tells me that something went really wrong with your case or that you didnt fully consider if this case should see the inside of a courtroom. To have it happen once, to me, is problem matic. That is an ethical call that the lawyer ought to be making. I sat as a judge a number of times ruling on motions where both sides would present evidence and facts, the motion was when did article 32 change . That is a fact. That is a fact. Experienced defense prosecutors did not give anyway fact. If done intentionally, thats an ethical violation. I dont think it was done intentionally so there is no ethical follow up, but it is an ascertainable fact. How i know, i googled, it exists. But the reality is that at the end of the day yes, i think it would make a huge difference in having a standard. At some point in time it doesnt fix all of the issues that are out there. I want to make sure there is a clarifying point. I think theyre amazing talented people. Im not be smerching that program. Ultimately if they go on to be older svps, they will go on to make that some work. I would just sort of agree with what has been said so far about the standard and just refer back to our purpose. If it is to get more convictions on Sexual Assault cases than having a higher standard and reducing the number of bad cases that judges hear and panels h r hear. If the object is to give a bull back the myths of uncertainty that the public might have about the military Justice System by having all cases go to trial and live with the results then im not sure a higher standard will achieve that goal. Okay, thank you for being here. I just, before i ask my question i want to be the dissenting voice that i dont think that we can say that your acquittal rate is any better or worse than the civil world because we dont have in a comprehensive data and everyone always thinks theyre taking cases that the other doesnt take and i think that is true a lot and you have certainly sat in places where you know your civilian jurisdiction hasnt taken something that you have. But for me i want to put it out there that i dont think youre different than any other standard right now. My question is on the article 32 and since a lot of you also have civilian experience you know that preliminary hearings in the civilian world are more than what you scribed the Current Article as not necessarily a full and open discovery piece. Witnesses are called, but they can be. Can you envision a system, a process in the article 32 where it is different than it is now . It is not a paper . But it is also a full hearing where youre determining issues that are not necessarily relevant at the probable cause standard. And if there was admissible evidence and other things to go forward, can you envision a hearing that would be protective of victims and would be fairer to the process now . What im hearing now about the paper, that doesnt seem to be satisfactory based on your experience. I will start, you seem to be looking at me. So it would be a great opportunity to cross examine a victim. Im not talking about that necessarily because victims decline, it is their right to be present at 32 and i have seen some that are willing to come in, but when you use a paper case, when the is the agents spre sp interpretation of what was said i think there was just a change in the volume but theyre i lost my train of thought there for a moment. When the agent puts on just the report, which may or may not have the testimony or the statement or the verbal or the audio or a video, then we just get a summary. Which is not helpful in the process. And when you have an agent that declined to come in because they view themselves as being protected under the rule as a civilian and i disagree. I believe if that came to me as a judge, that i heard a motion for a new 32 because the agent didnt come in claiming they were a civilian, i believe that would have been something i sent back for a new 32. I think the civilian Law Enforcement who work for the department of the navy cannot claim theyre a viflicivilian a they dont have to testify. I have been part of processes where the only person that came in was the police officer. At least there was testimony that while it is not a full discovery avenue they presented some perhaps defense evidence that might go to that determination of probable cause. If you are if as a defense attorney you dont have that ability, then all that needs to be presented is that little bit of evidence, and we know that is a fairly low standard. Do i think it needs to be back to the old days when it was an allday 32 and we paraded the witnesses in, noo, but to claim that any witness that claims and this seems to be from my perspective now what is happening, the government claims anyone that testifies, if their name is in the report and they have given a statement, their testimony is cumulative. I disagree that is always the case. I think as a defense attorney when i talk to witnesses and interview people, there are things that i find. The government has said their cumulative and many times the officer will agree, i have a report i dont need the person. I think something in between. You need to explore some of the issues. Its not a full discovery tool like it used to be, but the defense does still have an opportunity to put on witnesses. Its in the rule. And its not happening, and i think if they had that opportunity it would be a more thorough determine for that commander that has to make that call when they receive a report if that probably cause was met. Met but dont go forward and here is why. Or met but dont go forward youll lose. The objective should be present the case if its going to trial, let the process take place. And the objective of a 32 should not be to perfect the government case or poke enough holes so it wont get probably cause, but at least so there is an evaluation of the evidence. The Standard Drive behavior, i dont think any prosecutor will show any more cards than he has to to meet that standard. If you think that more needs to be done or come out, then we need to change the standard. I think any change to the rules prosecutors will adapt and overcome. I think any modification is easily enough implemented. I think we have seen changes in the last five years that everyone has handled with a plum. I think it is certainly doable. Just to follow up, the civilian standard at a hearing is probable cause. Would it have to be a change in the standard or do you think that the air force or the people that youre saying you have seen in the courtroom could change the behavior. Probably change the underlying rules as well. They mentioned the cumulativeness standard. Maybe you tighten that up, and you have a tighter definition of what is cumulative, or you eliminate it all together. Or you have military judges that feel more comfortable standing up to the prosecutor and saying i want to hear from this witness. I think a more robust 32 hearing would be more helpful for the decision who makes a decision about referral has the most information to make an informed decision. And i dont know, im a simple guy, i dont see how that is a negative thing. I think we think is a Public Benefit. But i think we think there is a Public Benefit to this being able to be on tv today. I joked with jeff that if one of the good reasons that we dont have tvs in the courtroom, if that gentleman did what he did i would have found him in content. This has a Public Benefit to being out there, what Public Benefit is there to a paper case and what does it do to the presumption in society that this is really not a Justice System. This is the first point. The sect point, and i know they are as numeric as can be. This table will love me and that table will hate me. I would look into how often in Sexual Assault cases the 32 is waived by the defense because they dont think it is fair. They dont think there is any benefit and they dont think good can come of it. I would check that. If i judge doesnt have let me say that more positively, the judges here at this table would have no problem saying no, ware going to hear this case. There is no doubt and i dont know the specifics of very, very public miskrususes. There has been misuses and abuses. I think there is a middle ground, and i think to the degree you can get somebody that knows what theyre doing. Trained for what theyre doing. A major or a Lieutenant Colonel or a colonel and youre going to say im going to allow this or no you need more, i think it makes a difference. It does matter. Im sorry to switch topics for a second. What do you think of the ability of Defense Council to get experts and if that should change. I have preached on this for my entire time in the military. I think it should be changed. I think it is difficult, impossible, for the Defense Council to get experts. I think having it approved by the prosecutor is the wrong answer. I think the defense bar, tds should be funded and they should have at the Headquarters Level a officer in charge of dispensing money for expert witnesses and the chief of tbs is the adult in the room to make sure there are no abuses. And of course the judge will do that, too. He ultimately gets to say whether or not an expert gets to testify or not. But i think that is a better dynamic. A better system for experts. So i agree with all of that. I would just say this. I think this has changed, im not sure what is going on in the army with the trial Defense Services, but sometimes you need an expert to come in and say this is whatly provi i will pro. I know back in the day that was a big conversation. We cant get there without and it is the rare dedicated expert that is willing to come in and testify that they need to testify, and for free. There needs to be a pot of money that the defense can go to, and i think now with investigators also. So that you can establish that kind of baseline case for that a additional assistance. I think the Current System has worked well in the air force. I think more often than not, the experts were willing. I think im saying that it works in the air force and not in another service indicates that the process is not as good as it should be. It should not defend on one Services Implementation of it. And to that extent, haviining tl Defense Services in it. He doesnt agree with his bosses decision, but i think you will see fewer of those than you do disagreeing with the prosecutor as he advised the convening authority on granting that expert. I have tried a case. And i will say that i was surprised because it came from the navy that the air force did it in my view so well. Tr there was multiple experts granted but in the other services we struggle as Defense Council to get experts just forpurposes of consultation. Do we need an expert, and more often than not they deny that. So i think for Defense Council, that is a difficult road for them when they are trying to evaluate their case, they think there is something there, theyre trying to find somebody that might talk to them for free, and we all have sort of that group of experts we can caulk out to for a five minute conversation, they wont charge us, but to do the evaluation they need to be appointed and authorities resit. I do a lot of appellant work now and i read records of trial. Im often shocked at how many pages of transcript im reading with the government fighting over experts. Hundreds and hundreds of pages on motions. And the court not granting the experts or granting the expert after a day of testimony and fighting back and forth, and i think the system needs to be changed to allow the defense to have that opportunity to seek consultation. We know that the government has it, right . I would say maybe even in the navy medical system, many of the experts dont want to be involved and that presents trouble for the government as well. I think the Current System does need to be improved upon. Why dont they want to be involved . I dont think anybody relishes the idea of having to testify in court no matter what side youre on. It takes away from what theyre doing on their day today. Our military medical system is over stressed just with patient care. You see what is happening with dependents and retirees, their not necessarily seeking treatment any more because they cant. There are not enough doctors. Not enough time, so now you have a doctor who sees patients and has to be an expert and they just dont want to get involved. There are some that love it and they want to, but i would say that often times you will find the medical because theyre stressed on just doing patient care and they dont want to be involved. We look to the civilian population and there are plenty out there that do this for a living. And they have a pool of who they are sharing with the other services as well if is hard to find active duty to be involved. That is a great segues. So i am interested in hearing from all of you, whether or not you belief that experts are being uses effectively at trial. So in the navy, i would say that in the Sexual Assault indications there would be experts involved in every case they have ever tried whether or not i was a judge, Trial Council, Defense Council, there was some sort of expert involved. There is a phrase that is often batted about, cases are often so much more complicated today. I tend to disagree that the cases are more complicated than they were 20 years ago. With computer, cell phones, the snap chat where things disappear. Maybe that side is a little more complicated. And if you have council that dont understand, that could be problematic, and i see it in transcripts that i read. I wont tell you my age, by my 16 and 18yearold kids are way more proficient on the iphone than i am. If im a judge and i have that difficulty, we can imagine that maybe some of the council do as well. I think for the most part okay. Sbu it a fair Playing Field . I would say no. The expert would often times, the court might say well, youre you should be experiencing these cases. I know when i seem seek experts, they say you were a judge for nine, youre fully versed in this but i cant testify, so they miss that part that i need a consultant to help me that may turn into an expert, but theyre denying because of the experience level of the council. Admittedly it shows i should educate myself, but that only goes so far and often times we need an expert. Most of what i see from experts is that theyre helpful. Theyre working an equal number of cases on the prosecution and 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 Court Marshal and they were not effectively employed and they had a really negative impact on the overall outcome of that case. By and large many of the issues that were dealing with particularly in Sexual Assault cases, im more enlightened by hearing from experts. Alcohol is almost always involved. The education that i have gotten on issues like blackout, the effects of alcohol on memory, those are invaluable to a judge sitting in a Court Marshall. So my experience has been that it has been very effective and very helpful, and in the experts that i see on a regular basis, they have been very professional and neutral, tell it as it is, and very helpful. I agree with what wes said. When an expert gets to trial, my experience has been that most of the time, a vast majority of the time, defense and Trial Council 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 design their direct or crossexamination. But i think they struggle in figuring out in how they need an expert in how to get the expert. And that is a product of lack of experience. I think the hqe program, i dont no if the air force or the other but i think particularly in the army they do a great job helping Young Council understand the expert process and helping them to make the decision about whether or not a expert would make their case or not. I they is the problem they struggle with the most. Do i really need an expert or am i hyper sensitive about ini ineffective council. I think discernment matters, right . Not just do i need an expert, but what are the consequences to the timeline of my case if i call an expert, because you will get a question defense for an opposite expert, and what are the consequences in terms of evidence that is now admissible or approaching that are now admissible that you dont always see that. I would say just to echo again, the testimony that i have heard in my courtrooms from local experts has almost uniformly been when given and professionally done. Usually professionally cross examined. Sometimes i wondered huh, why did he or she testify . Especially when im the fact finder, what did this add to in terms of the development of the case. I had instances where experts have been dispositive. It just strikes me always with Young Council, judges like to learn. Sitting on the bench every day can get kind of dry, learning and developing an understanding of how this works, a good expert is a good educator. So that has certainly been interesting. I want to give you some information. I had the honor to sit as a Defense Council in a capital murder case. And it is different, and they get pretty much like a candy store of experts. You get all you want. It is striking to me to see the all you want versus we cant get this expert to trial to give both sides an opportunity. Rarely in my experience and the others can certainly correct me. Rarely in my experience because it look fair for dr. Jones to come testify for the government and there be nothing on the other side. So im not saying that cant happen, but in a Capital World for good reason, there are millions of dollars spent on expe expert e witnesses. Thank you. Thank you all for being here. I have an intentionally broad question so you can take it where you want, it is a compound question but you can all object to it. I want you to share your experiences with 412 and 513. What have you seen and with the constitutionally required exception which i find od as an explicitly drafted exception, because it would be there even if it wasnt explicitly in the election, but the impact trial, are you seeing an impact trial, and what are you seeing and truly where you want to go with 412 and 513. It has been talked about quite a bit by this committee and other committees and i would love to hear the judicial perspective. Yeah were sure, my experience runs the gamet to the older 412 to the newer and how we look at 513. I would say generally Victims Council in the army and my experience are really good on 412 and i dont know if it is because they have been collaborative with the government, but theyre good at saying me too. 412 or 513 for Victims Council where i said huh, that changing the landscape. In that context, one of my concerns as a judge, was i had a couple cases under a misunderstanding of 513 where medical records came in and they were disclosed under a protective order and they were huge in the determination of guilt and also in a determination as to whether or not this thing happened. I had instances, not recently, they were disclosed in the release of medical records in a went directly to the claim. And one of the medical records said gave facts that the original claim of Sexual Assault and had a diagnosis of a personality disorder that was among the dsm criteria, has difficulty telling the truth. That is huge. So having litigated it, sure the defense had a hay day with it. So my concern as a human and a judge was what dont i know, right . What is out there that i have not seen that may a year or two years, or maybe never implicate if this was a just trial, process, or verdict. So that is my observation of the system. Just to dove tail on that, i think my experiences were similar because of our time in the judiciary, the span, the same time frame. So i lived with, experienced, and struggled with the implementation of the rules as they changed. And coming to an understanding of what was required and how to go about it. I will say that unlike my current job as a military judge, i didnt have a law clerk. It was me and me alone. So when i would get a stack of medical records this high to go through and try to see if there was something in there, i didnt have the time to do it. I really didnt have the medical expertise to be able to do it, and i was always afraid that im going to miss something because i dont know what im looking for or i dont understand what im seeing. That was always my fear. Maybe that was a good thing because it made me more vigilant, but it was really 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 other things to do do. I think that as council became more experienced with it, i saw them shrink. They learned to narrow their path and figure out what theyre looking for which made life a little easier and i think made the chance of making a mistake reduced. It reduced the chances of me makes a mistake on a military front. The job of reviewing the patient records was more difficult. Sometimes you have to do the difficult. I think duo a better job protecting those recording than we did before. I think that it was release everything tugt to a protective order and then well just fight whether or not it comes out in trial or not. And that is a victimization itself. So many of those areas turn out to be relevant. I think that is where the elcs have had value. Having someone on that side who can talk through that issue with them and come back and waive privilege as to huge amounts of the records. It turns out in many cases there was only one little part of the records that they really had any issue with anyone seaing and if they could help you to narrow that issue, they could help you get to a better quality decision, but i echoed the inadequacy of doing this. But making the right call, you have to have your own dsm out its malpractice. Probably so. So when he talked about experts before, having an expert available to the court to talk to on a confidential basis would have been helpful. That s a good thought, exactly. Yeah. So i tried cases as a prosecutor, tried cases as a judge under newer 412, and even newer 513. We talked early on about the training we had as judges. And the annual Sexual Assault focused training for judges was invaluable to navigate okay what are we doing now and how are we doing it and who has suggestions on what to do. Perhaps i did it wrong, i can think of one particular case, but it could be a struggle. I would use the court expert in one case because it was a Mental Health issue, it was not even a Sexual Assault issue. It was offender. So when you are evaluating Mental Health records to determine if anything needs to be released. The comment about the requests are shrinking, i would agree that the number of requests and motions that i was receiving seem to drol, or drop or some o them would be the same. Its not helpful. Seeing a therapist is not necessarily what you needed. The problem for the court and for council is that yes, they might know that somebody soughtal health treatment, butty. And sometimes they struggle with that because the vlc doing a great job protecting their client, but the prosecution may not know what is out there. They may not know, they just know there is something. In one particular case i can recall. The Mental Health issue came up in sentencing. And so then there is now a stop for the case where we can look and see where that is. That is too late in the game for that issue to be vetted. It is very late in the game because it comes up in a victims statement during sentencing. And while we would look at 513 records for im sure i did this, you would look for prior inconsistent statements. That is not what duo now. Now we look for the Mental Health disorders. I can think back to when we were releasing statements if there were pryors in there. Now trying to find the disorders that might be there and the council for both sides unaware of what they are presents a challenge for the court. Were being asked to rule on the motions without all of the information. We think is something there. Do you have anything more than that . No, okay then our hands are tied by the law. Thank you, again, i want to go back to an issue that came up for colonel glass and colonel nance talking about cases Going Forward that may not that the command or someone may not actually believe there is a credible claim. When you said it it was concerning. Im curious, like article 32, if there is some solution you can think of where that command decision to go forward could be subject to attorneys if there is an ethical issue, and i understand that from the civilian perspective and the military justice perspective, sometimes we have had arguments about whether or not the rules of professional responsibility applied, but obviously we, in the civilian world and i would say in any world where we have a criminal case, you dont ever want to be just throwing it up but im not talking difficult case thats are complexion that we dont know what a jury would do, im talking about cases that dont have credible testimony, and that means we dont believe the co the complatant. Is there a check on that that you could recommend . Well, i have not thought of one, but i really believe in our commanders system, and i believe were Different Military justice is different, and i believe it should be different, i think the commander being involved in the system is hugely important. Will there be times when commanders make an unethical decision . I suppose so, but i think that happens in the civilian Justice System as well. I have never worked in it, but i have paid attention to it. My experience has been, and were not talking about close call flip a count cases. Were talking about the ethical decision. I have not seen that and i think and i have advised kma commanders about referral, i didnt spend my entire time as a military judge though i would have liked to, the commanders take the decision seriously and they take their responsibility to the system seriously. If they do they feel pressure from the civilians that oversee our military Justice System sometimes, do they feel pressure to send a case that maybe theyre not sure about, you know, i think they do. But i have not had the experience where they know a case where it is not a true case. Not a case with a chance in the world to have success at trial and they do that having had the experience. I think this has a disclaimer. When youre a judge, you dont know what you dont know. You dont know what is going on behind the scenes, you dont know what a witness is supposed to say, so with that caveat, i think there are works against that in the system. The question is whether or not they work and whether or not they are supported sufficiently. So i certainly have sat in a courtroom as a judge and said why are we here . Not he said she said, im just telling you, extremely infrequently, and i dont know what happened in the meeting with the commander, but i do know in a when i said in classes, there was a process in the army where there are things called bridge the gap, telling people what they did right or wrong, that waxes and wanes in the service, but youre also supposed to do something called gateway sessions where you train prosecutors and Defense Attorneys and talk about legal stuff. I sat 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 than you from a general crimes case. I got all of that, it is the same ethical standard. I also sat in a room where i thought we were narrowly close to referring just to see what happens. And im not used to that expressi expression, but it is problematic. There is of a Service Members life, and im going to pay this price and there is always a significant price. So i think you can do a few more things to get better. When they stand up and say hey, this doesnt work, and i fully agree that it is a commander based system, we did not close what that standard is. Im fine with the doj standard. But it 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. And whoever is advising that commander, them having the moral authority to say, in writing, i never had a problem with saying in writing, maybe it is my lack of intellect, but i was always willing to say shirir, you shou not do this and here is why. And some of this falls to the politicians. Every time a decision doesnt go the way we want it to go, if there is a lynching or a cross burning or whatever your chosen met f metaphor is, that is when we have to step back and realize there is what we pay commanders to do. That is what we vest in that authority. I think we need to train them more, it shocks me sometimes, it used to shock me when i would sit with young captains and say what is your ethical standard, real quick war story. We dont believe her in a he said she said. She has lied in the past, how do we meet the ethical standard. How can we take that to a courtroom. To me that is i dont know if it easy, but it is straightforward, than is not a case that goes to trial. I would say first of all, i have the honor of working with commanders who by and large, actually universally were some of the most impressive horriblely courageous people that i know. And so to me the implication that they would fail to make the tough decision because of career implications, i have not seen any evidence to support that. That being said, i believe at least when i was an advocate, the staff judge advocate saying there is no probable cause to go forward, that took it out of his hands, he did not have the authority to refer over that recommendation. There was that fact check in the system going on. Another thing that i can experience is they are urged go forward on charges, and one of the things that we always did was coordinate that decision with the Victims Counsel and with the victim, much like you dont see people suing their doctor for malpractice if the doctor has a good bedside manner. Theres a lot to be said to having that relationship with the victim. And even if its going to be a negative decision that you thoroughly explain why youre doing that and what all the thought process was, and ive never had that come back on a commander for doing that. Thats the only comment i have. Thank you. As a prosecutor, i can recall on occasion doing those memos, saying, i dont believe this occurred. Thats my personal belief. Does that mean it didnt happen . I cant speak to that. I can just say what the evidence is 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 theres nothing here or their personal belief that i dont find the victim credible causes concern for whether or not they really can evaluate a case, and does that make them 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. Right. There are certain cases, i concur, there were certain cases that you think how did this get through 32 . Did anybody ever talk to this person, this victim . Did they know what he or she was going to say when they came in here . How did it get here . I was a fact finder on a case that ended up at trial where i convi convicted. And it came out later that the convening authority had concerns about the case from the getgo. And the question is, convening authority, if you had concerns, why was it at courtmartial . Why did you feel it necessary to throw it at the wall if you believed, convening authority, that it shouldnt have been there, why did you send it . Because from my perspective as a court, there was sufficient evidence. What was it that caused you concern . And sometimes its that evidence that doesnt come into court that we dont see. We dont know everything thats going on behind the screen, but convening authorities need to have that ability to say im not going to take it. Dont just throw it up there and let us try to figure it out or let members try to figure it out. Whats the solution to that . Im not sure. I just know that commanders need to be able to make the hard calls. Thats why we pay them the big bucks to do so. They are to make the tough calls. And sometimes they have a prosecutor that may not be giving them the correct advice or good advice, and the staff judge advocate, the same thing, because of a lack of experience. Judge . Thank you very much. I wonder if we could a little bit louder, please. Can you hear me now . I hope you can hear me now. I would like to take advantage of your experience to shift to another part of the process, mainly sentencing. We heard information not from judges. We heard active military duty judges were reluctant to speak to our committee because they felt that they should not be, because of appellate decisions, explaining a reasoning for a sentence if they impose at a courtmartial, that they should simply announce the sentence and not explain the reason. When we looked at the actual sentencing, and were trying to see whether it was confinement or some other sentence that was imposed when the military judge was imposing a sentence, the announcement of a sentence and the reason for it is an enormous portion of the sentencing process in the system. And because we have sentencing guidelines and likely would not smartly be transferrable to the military that are very complicated and are an enormous portion of the sentencing process in federal court, the 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 characteristic 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 theres much of what happens in federal Court Sentencing that would not be, in my judgment, good to be adopted by the military. But one thing that does strike me as being important is the sentencing process where i live, is that if you experience a concern or reluctance to comment on why it was that you were imposing a sentence. Just because you were afraid that the Appellate Court was not afraid but you were given guidance. 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 a military judge or by members . Judge, this is andrew glass. So, first of all, with regard to the going through the process, i think and im sure you appreciate a little bit of it is in terms of active duty judges speaking to sentencing or speaking in this form is a concern that something you say may or may not be misconstrued as taking a position thats adversely the prosecution or the defense. With regard to the appellate issue, i can tell you back as a baby judge, there were so many times this isnt directly responsive to your question but there were so many times where i felt like nin nonsex cases, o have the defendant needed abut chewing, that plus jail. In all candor i have done it where i didnt give jail time or a sentence that necessarily would qualify for an automatic appellate review. I dont see, frankly, any issue with i dont see many issues with allowing judges or requiring judges to give some reason for their sentence, but again some of this goes back to how long have you been a judge, what not to say in that context, not stepping in it when you say something. And not being contrary to what your we only have certain things we can do in sentencing, not being contrary to those things that youre allowed to do. And so think about this. Youre a junior Lieutenant Colonel, maybe just promoted, walked into the job and havent done justice in five years. And youve been trained. Youve been through all these things, and you have a different appellate system. It bears mentioning theres mandatory appeal. No accused has to pay for a transcript to be prepared, no accused, at least on first level of appeal, has to pay for their attorney. Awesome protections for Service Members, but everything i do goes up. And so what are the chances that in that system you want that junior Lieutenant Colonel to get up and say explicitly what happened. So thats one piece. With regard to the convening authority changing the sentence, i believe convening authorities ought to have the ability to change a sentence. Simply put, as a defense counsel when i was young, was able to mitigate sentences for individuals into, for example, nonfelonies from felonies where they got a low sentence because it was a relatively mitigated case and made a huge difference in those Service Members lives. Particularly at some of the warfighting divisions and co s corps, youll get outliers that need to be mitigated. The failure of the ability to do that would be concerning. If you want a fair system, it doesnt look good if at ft. Lee bob gets two years and at ft. Campbell, same set of facts, he gets 50. And so i think thats always been a check on the system. And, again, i want to echo what ive said before and what other Panel Members have said. We trust these folks with a heck of a lot of responsibility. And, yes, sometimes they, quote, unquote, get it wrong by public perception, but most of the time we trust them to get it right and we do get it right. Thats my perception of how that system should operate. Judge grimm, this is jeff nance. I would be really afraid of a system that would have judges explaining the reasons for their sentence in our current military Justice System where we dont have sentencing 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 log. I think whether or not a judge said something that he or she shouldnt have said during explanation about their sentencing, were going to have more appeals if we do Something Like that. Is that 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 in that process would increase. And so if we did Something Like that, i think it would need to be very, very narrowly focused. Right now i do bond hearings in the courts that i practice in now. And when i deny a bond or grant a bond, i say i find that the respondent would be a danger to the community because of this conviction and this arrest for this offense, or i find that the respondent would be a flight risk because, and i leave 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 will come down on the ability for the convening authority to change the sentence. I believe in the commander system. I trust our commanders. And i think that they need to have that option, that escape valve option to correct the 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, who has the ability to say hey, this was wrong. Im reducing the sentence, is indispensable. Art particuliculating a sent there would have to be a standard in place. If the standard is youre giving a sentence somewhere between no punishment and 30 years confinement and a dishonorable discharge, theres really not any reviewable way that youre going to be able to articulate how you arrived at that in the absence of some standard that is already prepromulgated and is out there. As judges, if you give us a standard, we will be able to articulate why were complying with that standard. We do that when were dealing with challenges for cause. We know what the standard is for granting that challenge. We can articulate that standard and say why this fits within that standard. If that standard is just from no punishment to dishonorable discharge in 30 years, theres really not a framework for us to make those comments. I will say as much faith as i had in military juries to arrive at a finding of guilt or not guilty, in talking with military juries after trial, they felt completely at sea 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 a judge, at least i had the experience of having seen enough cases to have kind of an internal barometer, but really nothing more than that. And so in the absence of standards, i dont know that we would be able to articulate the basis for the sentence in any meaningful way. As far as the ability to review or modify the sentence, i think any system has to have somebody with the clemency power to take care of unforeseeable results. Many times what you get coming out of the back end of a courtmartial has no resemblance to anything that anybody foresaw going in and sometimes thats an unjust result, that somebody has to have the power to correct that. Ill start backwards and start with clemency. When i sat on the court of appeals, we used to receive assignments of error regularly. Occasionally, we would grant the assignment of error and grant some sort of relief in sentencing, but that was rare. Some of the language we would use is that thats clemency. Were not in the position to do clemency. Thats not our job. Thats the convening authoritys job. I dont think the convening authorities should just be limited to perhaps correcting errors but to grant true clemency, and 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, theres really that limited power now. Theres not much that the convening authority can give them in clemency. And i would add that the clemency posttrial matters are submitted very quickly after trial. If your argument to the convening authority as a defense counsel is i want clemency, if you only have 10, 20, 30 days, maybe you can argue that clemency should be granted just as a matter of the type of case it was, but if youre looking for some sort of posttrial conduct that was 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 at the brig yet to rely on. Did they do something good for the government posttrial . 10 to 30 days doesnt give a good measure as to what their assistance would have been. I do believe the convening authority should have that power to not only correct any mistakes but to grant pure clemency. Traditionally, that was their role. Thats where the clemency came fr from, not from the Appellate Courts. When i was a, to use colonel glass analogy or statement, a baby judge, i would very rarely comment on what i gave as a sentence. 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. I sat on the Appellate Court. I can recall receiving records of trial going, ooh, why did the judge say that . And so 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 ajudged a certain sentence . Maybe i should have been more deterred about some of the things i did say. I did make comments about sentence in some occasions and maybe those didnt reach appellate review because there was no record. The members have no sentencing guidelines. We have no sentencing guidelines. I think we should have sentencing guidelines. I think saying to members, you can sentence up to 30 years, 50 years, whatever it is, or even to a judge, from 0 to 50. Where do you come down . I know as a judge, i kept a binder of every case i did and every sentence i awarded and what the charges were, so that i could look back and see, what have i done in prior cases. Every case was treated individually, but i had a record of how i treated other cases, too. And if there were unusual sentencing matters, extenuating mitigation, i would make a note of that. But members dont have that. They have the prosecutor asking for 20. They have the defense asking for six months and they come down wherever they come down. So now even in the apepellate world you see individuals convicted of Sexual Assault. Some have very great sentences, some have very little sentence. How is that a fair system . How can an offender who maybe pleaded guilty, or maybe he didnt, but how can he why is the system set up so that hes serving seven years and the guy in the cell next to him is serving two for almost the same exact offense . I think sentencing guidelines are appropriate. Im going to ask the panel if you would indulge us and stay with us for a few more minutes. Were past 11 00, but there are some more questions. Ive been talking about the upstream of the process, cases that are getting referred to courtmartial. I would like to shift downstream. When presiding as a judge with a member panel, have you been surprised at a verdict that the members are acquitting when you would have found somebody guilty, particularly where theres 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 approach it from an entirely different mindset. I very rarely engaged in the idea of what my result would have been because i have so many other things to deal with, ininstructing the panel and in ruling on all the evidentiary objections. I didnt think it was particularly helpful. I wanted to keep my mind open so that nothing that went into my instructions would come across as slanted one way or another. When youre trying a case before a jury, your mindset is so different its difficult to make that calculation of right or wrong. I have many times when i talk to members afterwards, they would ask me if they got it wrong or got it right. And i would say if you went through the process and you believe in your verdict, then you got it right. I would say the other thing is that again, i think member panels do an extraordinary job of listening to evidence and applying instructions and getting to the right result. So, it was very rare. There were cases perhaps the Court Reporter is the better barometer. I would ask the Court Reporter what he thought the result was going to be or she, and sometimes they would be within like 10 one way or the other. So they might be the better b barometer. I was very rarely surprised by the findings. I was frequently surprised by the sentence, just because the sentences varied so greatly and because members had so little guidance on how to come down within that spectrum. Ill be quick. I cant improve on anything wes said there. Thats my experience exactly. I agree with what wes said about how you listen to a case. Remember, we have no jovn authority. If it meets the basic threshold, really, which is what im listening for, there have been times with that caveat that i thought, wow, how did they get there . So remember, youre talking i dont know how many, but youre talking about very few in what seems like, at least, maybe just because im aging, hundreds of cases. And i would also mirror what wes and jeff said, a time when youre usually like really is the sentence. I would tell you, frequently thats to the harshness of the sentence. I was known by the defense bar as a very harsh sentencer. And there were times where i would hear a sentence and think, wow and so and on a very, very few occasions actually wrote a memo to the convening authority when they had that authority to change the sentence, saying that i think its twice where i would have sentenced much differently. Thats my observation. I would agree with colonel glass on the sentence, but my wow was more on the lien yeenie. 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. And that sometimes was a surprise. But then again, they dont know what cases are in our view or the prosecutors or defense counsel, worth. They just sentence. They take their job seriously because ive interviewed or discussed with members afterwards just their job and what they do. And they take their oath very seriously. Ive had members express concern about that was a really tough case. Yes, it was, from all sides. But to im sorry. Go ahead. 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 . Ive had counsel come to me afterwards, so what would you have done, judge . Its irrelevant what i would have done and i didnt think of it from that perspective. And 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 they take their duties seriously. They have tremendous experience and my experience has been that the vast majority of the time into the 90 percentiles, theyre getting it right. That, i think, though, brings us right back to the acquittal rate. If the members are getting it right and the i disagree with miss 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. So if the members are getting it correct 90 of the time, then the problem seems to be back upstream, if you agree there is a problem. So the question i would ask back, at least the rhetorical question is, how long have your prosecutors been doing that job . The reason i go back to that, i think it just matters. You look at the most experienced prosecutor in the army i dont know what that number is. But its five, seven years prosecuting cases. Thats just not the way it is in district of attorneys offices and that makes a difference, especially with these cases that are almost always thats an overstatement. Very frequently almost like dormitory room. The analogy is dormitory room, saturday night, lot of alcohol, little supervision if any, and its a he said she said, and she may not or he, whoever the victim is, may not remember. And so i think what were saying is based on what we see come into the courtroom, based on the evidence thats developed and presented, generally we think they do a very good job of reconciling different issues and take it very seriously. Almost always, if not the entirety of your panel, college educated, vast majority is college educated, experienced people. But the reason i keep banging this drum is ultimately to me this part is not rocket science. When youre asking somebody to try some of the very, very hardest cases often without, quote, unquote, objective evidence, forensic evidence, sometimes with, youre asking thats a tough carry for major jones, who is the experienced prosecutor. Even if they have highly qualified experts to talk to. Some of that is and yall know this if youve tried cases. Some of that is just the feel. Pardon my horrible german. Just the feel, the knowledge ive been on my feet so many times arguing this issue, where i felt this is whats going on. I need to change. And some of it is the developed people skills to be able to pull the difficult facts out of the victims. So, i dont think theyre unreconcilable. I think theyre very reconcilable. Some of it is going back to the question you asked, maam, as an sja, i know they turned down the case because they said no, we dont want anything to do with this case. Some of that is just a fact. I dont think thats the prevailing fact. As good as these young men and women are, that we dont keep them in these positions in the army. I cant speak to anything else. Where they develop that feel, where they develop the ability to know, this is a good case. This is how you present this evidence. Ill give you a real quick anecdote because i think it matters. A special victims prosecutor tried to come in and introduce what essentially were outcry evidence arguably from a victim. We dont have an outcry exception to the hearsay rule. The outcry evidence was an excited evidence. Puts on the alleged victim. She testifies and says i call my best friend and i was upset and i cried and told them the whole story. When did you call . Things were so crazy, i dont remember. Okay. We all know that theres some exceptions. Could have been a day, month, week. Really good cross examination. I dont remember. We know theres exceptions for child victims extending out that time. How is it excited evidence . How is it admissible . So i dont admit it. Different witness testifies at trial. Shes the best friend. She says, i talked to her the next day. Okay . Probably an excited utterance. She meets the next piece. Latenight assault. Experienced special victims prosecutor does not attempt to reintroduce that evidence. And when told about it in bridge the gap says i didnt know i could use more than one witness. And kind of seems to imply that i should have introduced the evidence which kind of seems finger on the scales. Thats why i keep hitting that. I think thats the difference. I think some of it is more difficult cases and offline we can talk about some of those cases, but i think some of it is it matters when youve spent time. Reps matter. I think perhaps what is a healthy acquittal rate . Zero is unhealthy because it means were not taking the difficult cases. 80 is probably unhealthy as well. What is the middle ground in there that is an indication were still taking the tough cases but were not unnecessa unnecessarily incurring all of these costs because there are costs for everybody involved in prosecuting a courtmartial. Theres costs to the victim in going through the whole process, of being interviewed, being cross examined at trial. Theres cost to the accused, airmen facing courtmartial are among our highest suicide risks and if we think about that, we have to be thinking about incurring that cost as well when we go into the prosecution decision. If we incur all those costs, what is enough to say its worth those costs . I think we have to start with investigations. I think the investigations have to be more thorough. Investigators have to feel at ease to ask the tough questions of alleged victims. I dont think that they always do. I think especially in the last ten years or so, theres 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. So, better investigations, i think, is one thing. In addition to investigations, ability to read my own handwriting would be helpful. But the other would be the trust of the prosecution to go forward. Everybodys testimony here today is that whether its the staff judge advocate or whether its the convening authority, we have to trust them. 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 thats the cost of any system. There are going to be bad decisions in any system. And overcorrecting for every bad decision on an anecdotal basis, i dont think, is a good way to go forward. When you talk about not having the evidence, i think developing the evidence, everything were telling you is anecdote al, of course. So i think going back and looking at the evidence and the data to determine really what the next steps are is the best approac approach. When uhuh talk about going upstream, i think upstream is even further upstream. As we know, a lot of the cases we see as judges, whether we were prosecuting them before, defending them now, involve the component of alcohol. And as i read investigations and i read records of trial and see how much alcohol is involved in these cases that ended up in some sort of Sexual Assault situation, i often wonder, how is this Service Member getting to this point when we are were supposed to be training them about the effects of alcohol and training them. I know with the Sexual Assault training we give to military members, and sometimes they come in and we hear i know i heard that they would train one drink is enough. You cant consent with one drink. And we spend, i think, a lot of time educating members that that is not the law. The law is not if you have one drink, you cant consent. Because if that was the law, both of the offender and the victim should be in courtmartial, because they both were drinking, but we have to do better at that stage, whether its the training of the military members, intervention. When i see some of these records and some of these cases, i wonder, how did we get here and nobody intervened . Why did nobody intervene with this girl who was sloppy drunk and two males are taking her up to her room . Where were the supervisors . Where was the barracks petty officer who saw that . We talk about Bystander Intervention, but is it really working . I would beg to say it might not be, this training that were giving them. And certainly then the training that we not only talk about Bystander Intervention but when we tell them you cant have one drink and consent. I have now in my practice, male offenders say to me, alleged offenders, how come im the one facing trial . I drank, but so did she. So why am i called the perpetrator when i would view her as being the aggressor . Clients words. Shes the fwreser. Why am i called the offender . I cant answer that sometimes for him. That just seems to be the way our process is set up. Most of our offenders that are charged are male. And i think that we need to educate better, way further upstream. One further question from general shwenk and then a tenminute break and maybe start our lunch at 12 15 so well have more time. Okay. But my question is going to 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 authorization act, they asked for reports on a couple of issues and two of the issues i would like to ask your thoughts on. So any thoughts at all are helpful. The first one has to do with victim impact statements. And i will read from the joint Explanatory Statement of the conferees from conference. The conferees recognize the importance of providing survivors of Sexual Assault an opportunity to provide a full and complete description of the impact of the assault on the survivor during courtmartial sentencing hearings related to the offense. The conferees are concerned by reports that some military judges, obviously not retired judges. Must be somebody else. Some military judges have interpreted rcm 1001c too narrowly, limiting what survivors are pearled to say in sentencing hearings in ways that do not fully inform the court of the impact of the crime on the survivor. Therefore, they ask us to do an assessment and issue a report whether the military judges are recording appropriate deference, their word, to victims of crimes who exercise their right to be heard under 1001 and appropriately permitting other witnesses to testify about the impact of the crime. So, victim impact comments, please. Thank you. Sir, was that both questions or was that one . Okay. Okay. So from my perspective, i have limited victim impact statements in the past, according to what the rule requires. Ive just read the rule and applied the rule. [ inaudible question ] i dont know that i can, in all honesty. I know that ive done t ive seen victim impact statements that were very, very effective and persuasive and ive seen victim impact statements that were rambling and not very effective. Maybe all because of victimization. Im not try iing to be insensite to that. Im talking about as a former advocate in the courtroom, ive seen them work very well and ive seen them not work very well. Ive seen them be entirely in writing. Ive seen them be for me, thats okay, but that writing doesnt usually emote very much. Theres not much emotion to it. But i guess ultimately the question whether i appropriately limit or whether judges appropriately limit victim impact statements, i mean, to me thats an unanswerable question because i dont know what theyre talking about. When theyre saying the rule means this and judges are interpreting this incorrectly, im just not sure what that is. I would say that in observing practice with victim impact statements as opposed to so im not sure, i guess, what congress envisions in terms of the breadth at which they can give a statement and what its purpose is, other than allowing them to tell their story, which i understand that purpose. 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 where victims would come in and talk about impact. And i think that its the effect of victim impact statements before me have been very, very similar to the victim impact i heard before. Sometimes crushing impacts on their lives and their ability to trust, et cetera. All of that is relevant and admissible under the current rule. But it was relevant and admissible under the former rule. Im not sure that answers, and i apologize, just because im struggling to figure out exactly what the question is. I know its not your question. Yes, sir. I have limited victim impact statements before. The occasions that jump to mind are situations where the victim impact statement, excuse me, included comments or references to evidence that i had previously excluded for it being unfairly prejudicial or for some other reason. And so, yeah, i have limited that before. And i dont think thats inappropriate. Otherwise, theres an instruction that we would give. I dont know if its still in the bench book because i havent looked at it for a long time, thank goodness. Theres an instruction we give to the panel about how they should consider this victim impact statement and i think thats a good instruction. It was a product of a lot of thoughtful reflection by a lot of judges, and so i thust Everything Else that i havent ruled on previously as being inadmissible to be appropriately covered by that instruction so that members consider that, as they should. So youre vouching for colonel glass that he only did it for evidence that he excluded also . I dont know. Must have been his reason. Had to be the reason. Okay. Just has not been my experience. I cant recall having limited a victim impact statement. I found the victims Legal Counsel has done a very good job generally of preparing those and of modifying them if there are 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. I believe, if memory serves me right, it had to do with a recommendation for a particular sentence, and i limited it to that. And they took that out. But i agree with colonel moore. I think the Victims Counsel are doing a good job at helping them prepare. I think 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 sometimes that caused delay because the government was not privy to it until the moment the person was coming in and wanted opportunity to have a chance to object, but i dont recall any significant items that i had the victim extract out or would not consider. It seemed they had pretty full range of options to give their statement. I do have one alibi. I know youre trying to get done so we can take an appropriate break. My wife told me i should lose weight so im not in any hurry. I do want to note that the issues, as i reflect on it, involve notice as required by the rule. Usually, that was cured if needed to cure with some form of recess. In one instance i can recall an overnight recess. It was near the end of the day anyway. The second did involve specific sentences, which our case laws are very clear on a victim recommending a specific sentence. And then the third was it involved the members in a matter that had been exclusive that to reopen would constitute a mini trial. Thank you very much. Okay. 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 dependents who are victims of an alleged sexrelated offense. The committee acknowledges the department of defenses continued efforts to offer support of Service Members who are victims and further expand these services to dependents who are victims. However the committee remains concerned there is not an adequate mechanism within the military courtmartial process to represent the best interest of minor victims following a related sex offense. They ask for a report that evaluates the need for and feasibility of establishing a process under which a guardian ad litem may be appointed to represent the victim of an alleged sex offense for people under 18. So need for and, i guess, ability of, practicality of doing so. Thank you. Any thoughts . Well, i realize that a guardian ad litem has a different role than a special Victims Counsel. But in the cases where i had child victims, the special Victims Counsel would undertake to assist the family, the custodial parent to assist the child. Ive seen that happen before. I think the need is probably a reasonable need. I think that certainly there are times when the custodial parents interest might not dovetail with the child victims interest. And ive seen that happen before and had to, you know, in my own mind sort of worry about was the childs real interest both personal interest and legal interest being taken care of. I dont know how we would do that. Havent had a lot of time to think about how we would do that in a military Justice System. In regards to both issues, our door is always open, mailbox is always open. Our email works so if you have thoughts about any of this later on, feel free to let us know and well include it in our record. Yes, sir. I would echo what jeff said and go a little further, i guess, with who does t are you going to retain a civilian lawyer or take that new to the jag core Legal Assistance attorney and teach them to be to do all the other things beyond being a Victims Counsel, to being a guardian ad litem. If its not them, are we then going to take the prosecutor with four Years Experience and say their next position is to be a guardian ad litem or the defense attorney who ought to be defending that next big case . The problem is in the details. You absolutely could augment your system by having a civilian attorney come in and do this work. I dont know that at most post camps in station there is i dont know. Im going to stop at i dont know. I was going to say im not sure theres enough work to support one fulltime guardian ad litem. At a bigger one like ft. Bragg, there probably is. But they certainly could do some things that that junior Legal Assistance attorney or special Victims Counsel may not have the training to do. What ive also observed in the courtroom is that they are the Victims Counsel are doing their level best and that they are doing the things that you want them to do in terms of getting to know the child. To the degree those interests compete, though, again, you dont know whats happening behind the scenes. There are private, nonprofit organizations that provide Guardian Ad Litem Services for children i wonder if there would be a way that the military could sort of come up with a cooperative agreement with some of those organizations in order to work hand in hand and maybe even provide them some funding in order to help them help us provide that. Thats a thought that just occurred. As you continue to think about this, please let colonel ware know if you have further thoughts. Im going to give us a tenminute break and then we will work through discussing your testimony, which i truly appreciate and well adjourn for lunch then at 12 15. So ten minutes, back in seat, please. Join us for the annual Abraham Lincoln symposium, live from fords theater in washington, d. C. Where lincoln scholars highlight the legacy of our 16th president. 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Ever since then weve mostly had the revolutions that have played out in the ballot box. I think thats what were in the middle of now. Watch k. T. Macfarland on her book revolution trump, washington and we the people. The chief Technology Officer spoke about Artificial Intelligence and competition by china. Hosted by t