And once again, we are live here on cspan2 for the 16th Public Meeting of the defense Advisors Committee on prosecution and defense of Sexual Assault in the armed forces. This meeting is open. Before we get started, apparently in order to speak, you need to hit request. The green, and when youre done that seems odd, in any event, mr. Sullivan, thank you, and good morning. I want to welcome the members and everybody in attendance today on valentines day to the 16th Public Meeting of the Defense Advisory Committee on the investigation, prosecution and defense of Sexual Assault in the armed forces. Or da krchc. Miss cannon. Here. Miss garvin. Here. Mr. Cramer. Here. Ms. Long. Here. Mr. Markey. Here. Dr. Markowicz. Here. General swank. Present. Doctor spahn. Here. Judge grimm by telephone . Telephonically here. Miss tocash by telephone . Im here. Great. Judge, chief and mckinley and judge walton couldnt be in attendance, but with 11 in presence we have a quorum. It was for fiscal year 2015 as amended our mandate was to advise the secretary of defense on the investigation, prosecution and defense of allegations of Sexual Assault and other Sexual Misconduct involving members of the armed forces. Todays meeting is being transcribed and a complete written transcript will be posted on the dacipd website. And theyve not had the opportunity to hearing from presiding judges. Well hear from two army judges, retired navy judge and retired air force judge and the committee looks forward to hearing from each of you. And following, they will discuss the committees testimony and take a break for lunch. In the afternoon, the committee will deliberate and vote on whether to approve the dac ipi ipad. And next, theyll provide the committee with a presentation on the fiscal year 2020nd a. A provisions that affect the dacipad. Theres a request to provide Public Comment at todays meeting and well hear that after the colonels presentation. If a member of the audience would like to make a Public Comment, please direct your request to the dacipad, steven ware, written comments could be received for consideration. And director will wrap up the meeting. Judges, we are ready to begin. We have your bios, but if you could please provide a Short Description of your military career, military judicial experience and any training you received as a military im a military judge and spent approximately nine years on the bench between the judiciary and the Appellate Court. Prior to becoming a military judge, i attended the judges course in charlottesville. While on the bench attended various training and some focused on Sexual Assault and other training such as evidence, scientific evidence, courtroom curt and drug cases, but other im sorry. Thank you. During the course of my career i spent five years prosecuting Sexual Assault cases. Thank you. Hello, im air force retired. I retired from the United States air force after on the trial bench and served as advocate twice and served as prosecutor and defense counsel and now work for [inaudible] hi, im jeff nantz. I retired after 30 years in the army. 25 of those years was, i was involved with military justice in some form or fashion and more than 13 as a military judge. The training we received included whats already been talked about, the military judges basic course and then at least twice annually Refresher Training on various issues of criminal law and military judge business including training at the National Judicial college in reno, nevada. Hi, im andrew glass, 26 years in the army. Supervised prosecutors and defense counsel, was a trial judge on three different occasions, at three different locations, culminating in being a chief judge with jeff. Went to the military judges course in charlottesville which is is threeweek course. Twice in between my first time as a judge and coming back to the Trial Judiciary, i was a staff judge advocate. And so, they made you go back again. In terms of Sexual Assault training within the context of being a judge, i tried to remember when we started doing specialized Sexual Assault training, typically in august of the year. Its a week long course. I think its four or five times, jeff may have a better memory, when we would go and have intensive courses discussing the Sexual Assault cases, discussing evidentiary issues, for example, and kind of procedural issues that were germane to that issue. I also went to several National Judicial college courses, the ones i recall are a Death Penalty case, i was actually there with jeff and advanced evidence and then some judicial art course. I think the Sexual Assault training started in either 2011 or 2012 for judges. And i say for jeff. We both attended and presented and moderated panels, et cetera. Thank you very much for being here. This committee has in the past heard from, weve heard from victims, weve heard from accused, from Victims Counsel and heard from Defense Attorneys and prosecutors and investigators. This is our first chance to really have questions for people who kind of have seen the whole thing being put together. So i open it up to questions from the committee. Then im going to start. What has been your experience with the vlcs and the svlcs . Has it changed how the courts marshal procedure in your opinion with witness preparedness or surprising seeming to come out for which the complaints have not been prepped . And if each of you could take a moment . Feel free to jump in, gents. The vlc program really changed Sexual Assault cases in my view. And prior to vlcs being involved and i look back at even my time in prosecuting these cases, it was a freeforall against the victim where often times the victim, male or female, seemed to be sort of dragged through the mud. The vlcs really have stepped up and are protecting them. And to i think an extreme now because when i prosecuted cases, the victims would come in generally and testify in articles 32. That was a Good Opportunity as a prosecutor to see how that individual would fare under cross examination. They dont have that opportunity any more, most victims will assert their rights to not come to an article 32. That they come into court, it seems sometimes unprepared for what is going to happen and how the questions will come at them. As a judge, cross examination often was the opportunity for defense counsel to really point out how they prepared with the prosecution and completely refused to talk with the defense. I think thats a disadvantage to the government, to their case, if the victim has never had that opportunity and refuses to, as is their right, understandably so, there have been some bad scenarios with article 32s, as we know, for the victims being cross examined. But and im using the phrase victim, alleged victim, but t the i think in terms of preparation for trial, all theyre getting is the ability to prepare with the government and in some ways, that is not doing them a service, because they are not having that opportunity for cross examination at any point, or even interviews with the defense. Ill mention that i am i now have my own practice. Im a criminal defense attorney, Sexual Assault cases are something i defend. And it can be difficult on both sides if that opportunity is not there for victim intervie interviews, understanding that its their right, but i think that it would help if they for the process, would have interviews with counsel on both sides. Because then it looks as if, and i saw this as a judge, it looks as if they have something to hide. And we know they dont in most cases, but perhaps they do. I dont know, but it just seems that theres something missing from the process. All you get as a defense counsel now is the cd from an interview with ncis, osi, and i dont think theyre asking the tough questions either during the investigation. Thank you. Since i asked question i think the vlcs have served a great purpose in empowering victims and in preparing them for what theyre about to face. The process is a difficult a process to go through and one of the best i think so this that the vlcs do is to is to very realistically describe what that process is going to be like and i think thats empowering for victims. I think before the vlcs it was kind of up to the variability, the personality of the individual prosecutor in the case, who was pretty much charged with taking care of the victim, but the victim was not the prosecutors primary concern and so, having somebody whose primary concern is taking care of the victims has had a positive effect. As a judge, i did not find that it was skewing the results one way or the other. I do believe, as captain obrien says, you do have less opportunities to evaluate that testimony and thats a double edged sword. As she said, it does have an impact on credibility, it certainly can be woven by a good defense counsel into a narrative that is not supportive of the victim, but by the same token, the vlcs can advise and the victim can decide to testify. Ive seen that happen to great effect as well and to engage in interviews and so, i ive seen both. By and large, i think it has been a positive development. I know as in the earlier days of the program when they were coming directly out of my manning, it was a difficult transition, but i think the transition proved to be worth it. Colonel nantz. Yes, maam, i agree with whats been said so far. You know, my experience was that early on in the implementation of the program, the vlcs almost uniformly in the army had no criminal law experience so they were coming in advising alleged victims about things that they really had only a very narrow understanding of. And sometimes, as best said, that advice would which was designed to protect that alleged victim from abuse, would run counter to the overall object of that victim of having the perpetrator convicted. And so, not understanding the criminal court process, they would sometimes give advice that didnt necessarily advance the ultimate goal of that victim. That said, as time went on, i believe that the training got better, the Lessons Learned from implemented in the training, and the advice got better and things sort of evened out. That was my experience. So, without ill just underline a couple of things said previously and then hit a couple different points. I think access when youre a judge matters because your job is to make sure theres a fair trial and if theres something, for example, the defense hears for the first time in an open courtroom, you have to do something to accommodate that issue, whether that is giving a delay, whether that and sometimes it can be a sub ngs sta substantial delay because theres some new nugget that comes out. I think somebody who is understanding process matters. Having said that, thats a doubleedged sword. Here is why its a doubleedged sword in the army. The army does not have enough experienced trial litigators. It is near crisis. The problem is that as kind of the Victim Advocate program has waxed and waned, its become politically more necessary to put people with a lot of trial experience in the victims realm. That has a positive benefit as discussed by jeff and the other Panel Members. It can have a negative benefit because bob or mary, who have tried a bunch of cases are no longer trying cases and we dont have that many bobs and mary . If its the first two or three or five cases. Defense counsel which are narrow and complicated cases often involving complicated discovery issues, complicated expert issues, you cant be doing this for a first time. You just cant. And do it well. And when the evidence is close ultimately what that can result in is acquittal. Sometimes when it otherwise wouldnt be an acquittal. The other thing ive soon as a judge that again derails and slows down the process is, in the context of interviews and ongoing conversations with the alleged victim, sometimes material will come out thats, whats called brady material, those of you who are lawyers understand what that means. It just means exculpatory material, its required to be disclosed. My experience again is often that material is disclosed either during trial or on the eve of trial. And so the reason that the trial gets pushed back is if its exculpatory material that involves the witness testimony, youre talking about a lengthy delay because you have to go through a lengthy process that does not work. And the contracting process, to get expert witnesses does not work in the army. It just doesnt. It can take forever. It can result in circumstances where you have much more delay than youd otherwise have to do because of trial dockets. And so the problem is, when this process is kind of lurching to trial and this knew material is many kohling coming out and changes the context of the trial. Youre trying to do with this and sometimes money and so you have the opportunity to address those issues. So those are the things that off the top of my head seem to me and i would tell you that the victims practices have gotten better. This is what i need for you when you help your client and its gotten better, but in the context of the entire system, it has created challenges that are kind of unforeseen challenges. Judge grimm on the phone has a question. Thank you. Thank you very much. I appreciate your comments and i think that you have spoken to judge grimm, can you speak a little more loudly, please . Yes, yes, is that better . Not really. Is that louder . No, judge. Yes, can you hear me . Youre really going to have to shout. All right. Can you hear me now . Why dont you pass on my question and go on to the other Panel Members, for some reason im not im talking pretty loud and i know that this phone will work this way, but i think its on the receiving end maybe something going on, i apologize, why dont you go onto the next person. Maybe he could send in the question . I think weve got you a little louder, can you repeat the question . Can you hear me now, is it better now . Yes. Okay. So my question is this, we have noticed that in the statistics that show the number, the outcomes of trials, when they go to trial, that the conviction rate on the offenses, the most serious ones, the Sexual Assault soe offenses, the overall rates, particularly in the army, is shockingly low when compared to conviction rates certainly in the federal system, where we dont have Sexual Assaults that often, but in the state system as well. And one of the things that we as a group have been trying to do is to try to come up with an explanation for whatever that may be and there are many factors, no doubt, but part of it suggests that maybe it has something to do with the experience of the prosecution and frequency with which the military assignment system, you get a job, youre in two years, maybe three, boom, youre off to Something Else and career progression, youre moving out of it and you may come back to it. So you dont get the situation like we have on our committee and a career prosecutor who has an unbelievable careers worth of being in Court Dealing with cases. And i wonder whether or not theres some correlation between the lack of experienced prosecution and people who develop expertise over a length of time that then an n i allows them to teach others and whether theres a correlation between that and what might be the low conviction rate. So first of all, to me is interesting that you reference miss tocash and i was her first supervisor in the army. You did a good job. Well, i can take credit for that, but that doesnt seem honest. Shes always been very talented. So the talking point youll always get about this is that the army tries cases that the civilians dont. And that is a truth. I will tell you as a staff judge advocate, a former staff judge advocate, i would try cases on some occasion, i wouldnt say habitually, that the civilians wouldnt take and sometimes theyd be tried to acquittal and sometimes tried to conviction and we can talk about that process and how you approach that process, but to me, thats not the overriding factor. The overriding factor is ms. Tocash used to be an f bps and used to be ton, there are not that many in the army, but people who like to try cases like to try cases and when you tell them that they have to be the chief of ad law after the graduate course, its like telling a cook he has to be an auto mechanic. And the reason that the judge advocate generals court tells people they have to do that its a personnelist approach to people. Ive got x number of slots. The pinnacle job in the jag corps is not to be a judge, an fvp its to be a judge advocate. And in the jag corps theres five and what you do operationally and a judge advocate. Its a truth. You look at why is this . I think to fix this, you have to break some china. You have to recognize that most of the trial advocates find now, and you could certainlily formally talk to people, some of whom are on your panel would have said if you just tell me im going to be an inge major my whole life and i get to try cases, thats what i want to do, a lt. Colonel. I was told i had to leave being a trial judge to be a staff advocate or quote, you probably wont get promoted. Now, theres a lot of fixes to that. There are people sitting in, who sat promotion boards, you can give instructions to boards about relative importance of jobs, you can change your assignment cycle. Speciallization in the jag corps is perceived as bad or unnecessary. Ironic to me that we have contract specialists who spend most of their time in contracts. Theres a incremen incrementali there just is. If 2000, i dont know if jeff was on the panel, but on blue ribbon panel. I love blue ribbon panels. But we had this conversation in 2000 and not much