As Congress continues its legislative assault against Servicemembers, it is crucial to be aware of the policy that it believes it is setting forth. Congressional dialogue revolves around the purported wish to make the military justice process more in line with “the civilian” system. I could devote an entire blog to why Congress’ stated intent is not its actual goal, but that is for another day. Looking to “the civilian” system, Congress is not proposing amendments that in reality will bring the military justice system more in line with the civilian process.
For instance, Congress has amended the preliminary hearing process to bring it more in line with the secretive grand jury process without, but Congress is not requiring the military prosecutor to obtain an indictment before going to trial. In the civilian system, if the prosecutor takes a proposed charge to a grand jury (a group of citizens charged with weighing and evaluating the evidence), that prosecutor cannot go forward to prosecute the case unless and until the grand jury returns a vote to do so; their vote is called an indictment. Even under the new Article 32(b) hearing, if the investigating officer (still only one-person, not a group as in the civilian system) states in his report that he does not find probable cause to believe the crime was committed, the convening authority (the senior officer for the base) can still send the case forward to prosecution.
Additionally, Congress is in the process of amending the preliminary hearing process to permit the prosecutor to submit any kind of evidence he wants, including statements that are not sworn and police reports that summarize evidence, instead of submitting the actual evidence. Such amendment permits the government to get past the preliminary hearing without ever calling any witnesses. This amendment is consistent with how most civilian jurisdictions operate at the preliminary hearing level.
Congress already passed an amendment that expressly eliminated “discovery” from the purpose of the Article 32(b). “Discovery” is a broad term that means that the defense would have an opportunity to sift through the government’s evidence to learn more about how the evidence was obtained (to test if it was obtained lawfully), the strength of the government’s witness testimony (to learn if witnesses have potential biases), and if the government’s charging theory is strong (because no matter how strong evidence may seem, if the prosecutor made a poor charging decision, it is possible that the client may be acquitted: the most infamous failure of charging in recent history is the Zimmerman acquittal in Florida where the prosecutor charged murder when he should have charged manslaughter).
Significantly, Congress has amended the definition of what it means for a witness to be reasonably available. In the context of a sexual assault allegation, current legislation makes the complainant witness (that the bill calls “victim” before any finding of guilt ever has been reached) able to decide that she does not want to testify at the preliminary hearing. But Congress does not stop at merely permitting her to avoid testimony; Congress permits her to listen in on the testimony of every other witness if she chooses to do so.
Despite Congressional amendments that state its desire is to make the military’s system more in line with the civilian system, Congress has not provided the military defense counsel with a commensurate mechanism to obtain discovery. In fact, a committee that was charged with providing Congress with recommendations concluded that given the recent amendments if Congress wants to ensure the due process rights of the military accused, it must provide an independent investigatory system that enables the defense to obtain discovery outside the historical means: the Article 32(b) process. Has Congress followed the committee’s recommendation? Absolutely not. And there is no indication that Congress intends to do so in any future amendments.
The other most glaring difference between the military’s current scheme and the civilian system is that in the military, in a non-capital offense trial, a military prosecutor only needs to obtain a vote of guilty by two-thirds (2/3) of its jury, not a unanimous verdict as in the civilian sector. To underscore the significance of a two-thirds (2/3) only vote of guilt cannot be highlighted enough. Congress has annihilated the military accused’s rights meaningfully to investigate his own case, while resources abound for law enforcement and prosecutor’s office, and the burden to prove his guilt remains the relaxed 2 /3 vote.
Congressional action over the past two years makes the military accused’s odds at acquittal less and less favorable. Despite a long line of military case law that protects the military accused’s rights to a fair trial and recognizes him to be indigent, military judges historically have denied defense efforts to obtain government-funded defense investigators, a fact also noted by the Response Systems Panel in its report to Congress. Securing representation by an experienced and zealous civilian court-martial lawyer, especially one that is an expert in military sexual assault cases, may be a crucial factor to help a military accused to try to tip the scales of justice to a level of fairness or even in his favor.