Doing More at an Article 32(b) Preliminary Hearing – for Military Justice PART II

Doing More at an Article 32(b) Preliminary Hearing – for Military Justice PART II

After conducting independent investigation and after getting the statements transcribed and dissected, we did more. I encourage you to do the same after careful consideration and deliberation about whether it is the right move in your case(s).

In this case, in keeping with the internal deadlines put out by our hearing officer (a military judge), I sent in my request for witnesses: a request for the complaining witness to testify at the Article 32(b), noting my awareness of her statutory right not to participate. But I did more. I requested that if she was unwilling to testify under oath, that she answers the attached interrogatories. Cue the “mind blown” explosions! No?

I drafted over 14 pages of questions. I didn’t pad them. I didn’t warm her up like you might in a civil suit deposition / set of interrogatories.

First, I asked a chapter of questions about what she had access to at the time she provided each of her statements to law enforcement. Second, I asked her about her knowledge of people accessing the case file and why. Third, I went after her on the differences in her statement to law enforcement, and fourth, I probed the differences in what she told the two people we had interviewed.

Some nay-sayers might internally be responding that doing all of this “gives away” strategy for trial or tells the alleged victim the vulnerabilities in the case and maybe this encourages her to change her story. To which I respond, who cares!? I will give away the details of where the case sucks early and often because I want the government to not want to go forward. I don’t need some kind of ego rush of winning at a trial – there’s a human being who is emotionally rung out by this process, and he deserves every opportunity I can create to make it all stop. I also don’t care if the alleged victim changes her story AGAIN. That could only help me. Plus, if someone finally highlights for her how substantial her story changed, maybe she will reconsider whether she wants to pursue this claim. Yep, that’s right.

Part of a valid and perfectly ethical strategy at an Article 32(b) preliminary hearing can be to create awareness for the complaining witness about the substantial hurdles that exist to a conviction. Prosecutors and victim counsel aren’t having those conversations, so through my closing (when the AV is present) I can and will send those messages. More about that in a bit.

When, as in this case, the AV refuses to answer the interrogatories, do not throw your hands in the air and say, “oh well, it was a nice try.” Comment on her silence. Yes. Comment on her silence. You see, her right to “silence” is not a right to silence at all. It is not founded in the constitution like a military accused’s is. Her right is one to not participate, but it is statutory. So, commenting about all these tough questions that she reviewed and failed to answer are fair game in assessing her credibility.

The government and the victim counsel attempted to argue against it, but they lost. The hearing officer, a military judge in the Air Force, ruled that it was fair game for us to comment about the complaining witness’ refusal to answer the interrogatories. And frankly, even if the MJ was not inclined to allow us to, each question that was unanswered was a dichotomy in her statement and clear red flags about how her story changed and evolved based on information she received at different stages. Those interrogatories essentially outlined my closing argument for me.

But he ruled in our favor, and here’s why: neither the government nor the victim counsel provided any case law that she had a constitutionally based protection, and because he analogized the matter to being more akin to a civil suit where failure of the CEO / representative of a corporation to take the stand could be commented on by the plaintiff’s counsel. I like it. There’s a body of caselaw that helps us in this analogy. Look it up.

When the complainant found out the ruling, her counsel asked if she could take some time to consider the interrogatories. She did, and she came back with answers. Those “answers” were often responded to with “I need more information to answer this.” Her “answers” were helpful and provided more fodder for why her credibility has significant issues.

The military judge’s report is back, and it is as favorable as we could have hoped for. Probable cause is a low threshold, but the language in the report said what we needed it to  – that the mistake of fact defense will defeat 90% of the charges, and that her significant changes in her story makes for a challenge at trial.

So, now we will wait to see what the complainant decides, what the government wants to do. All for military justice.

One final note *** What I want to impress on anyone reading these posts is that even if it goes forward, we are nearly trial ready. From the closing argument to the areas to talk about in voir dire. We are ready. And you cannot un-ring the bells. Now we have “answers” to interrogatories and more fodder for cross. *** All for military justice

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