Doing More at an Article 32(b) Preliminary Hearing – for Military Justice PART I
I know, here she comes again, right? Telling us all we need to be doing more? Yep. It’s me. And yes, my message has been consistent. But I am trying new strategies even though I am almost two decades into military justice practice.
I am not one to throw up my hands and give up. The fact that there is a statutory protection for alleged victims of ANY crime to not participate in the preliminary hearing is beyond unsettling. But the collective response for the last several years from the uniformed and civilian defense bar seems to have been, “well that sucks, but there’s nothing we can do about it.” And to waive them. Wrong.
I got inspired at my most recent preliminary hearing on a sexual assault allegation to try something new. Note: every case is unique, and there will be strategic reasons for a particular counsel on a particular case NOT to try this method. As with all decisions in litigation, be intentional and decide what is best for your client and your case.
First, long before we had a case file and during the defense’s independent investigation, we had our defense investigator reach out to the two witnesses with whom the alleged victim had interacted right after she claims she was assaulted. Their stories of what she was told each of them could not have been more different. After those interviews, we had the investigator document in the form of two separate affidavits the details of her interviews – what she asked and how they responded.
Once the case was charged, we received the two recorded statements she gave to law enforcement more than a year apart from each other. Our second effort was that we had both transcribed. *** If you’re going into battle without transcribed statements, you are committing malpractice. *** I said what I said, and I have been saying this for a while. I even blogged about it. Even if your client does not hire private counsel at this or any stage, your client can pay for a court reporter to transcribe and authenticate statements.
Third, we dissected those statements like we were getting ready for trial cross-examination. I had a table of the dichotomies between the two statements, and I had page, line number, and quote references for each. Impeachment ready.
Fourth, we had asked for some materials to be produced for the purposes of the hearing for the hearing officer’s consideration including documentation about why there had been two separate statements. The investigation had been closed and much later reopened. The alleged victim had filed a FOIA / Privacy Act request to get at the first report. She also filed a congressional. Nowhere was any documentation of the request, the response, the congressional, or the answer in the case file. Shocker. But we got them.
We also requested the digital record of every action item on the case file from the military law enforcement side. We needed to understand the timeline of how her actions had influenced the investigation and had whisperings that she had friends looking into the case for her. From working on prior cases, we know the strict requirements for only persons with need to know to view the files, etc.
None of these are moves that should be new to counsel, but in most jurisdictions, I am aware that uniformed and civilian counsel are continuing to waive Article 32(b) preliminary hearings. I cannot emphasize enough my feelings that this is wrong on so many levels.
In Part II, I’ll discuss use of interrogatories for an Article 32.
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