Through the years of my practice in military justice, I have seen the phrase to “seek the truth” thrown around in a variety of contexts. I remember my chief of military justice as a trial counsel in 2006 telling me that as a prosecutor, first and foremost my duty was to “seek the truth” so that I could do justice; it was not my job merely to win, it was to ensure that the cases I took forward were ones that should be won. As a safeguard of justice, I heeded that advice and took seriously my attendant role. I remember him also telling me that it was not the defense’s job necessarily to seek the truth; their job was to create doubt.
Members of military law enforcement purport that their job is to “seek the truth” and to follow investigative leads wherever that may take them, whether it is to found or to unfound an allegation. In the past month, I have undertaken a representation that has highlighted to me what I already knew to be true: military law enforcement does not care about the truth if it means that their cases are kept open longer than headquarters would like. It is all about the numbers; they do not care about “seeking the truth.” The duration a case is held open before being “founded” is the metric by which a Special Agent in Charge is measured, not the thoroughness of his investigation or whether or not the truth is learned.
In the realm of sexual assault allegations where the government cannot possibly make a case and / or the complainant states she does not wish to participate in a trial, command is turning to administrative measures to kill careers. The general officer or flag officer reprimands the member administratively for the underlying alleged misconduct and effectively end the career for the member who is situated to bear the burden of proving his innocence in a system that cares little about enabling him to do just that.
ACCESS TO INVESTIGATION FILES
When a member of the armed forces is administratively reprimanded, without tenacity and circumnavigating the burdensome barricades set before him, he is unable to obtain the entirety of the law enforcement investigation. Many of his normal rights of discovery are not triggered by reprimand’s process. Most discovery rights are only granted if court-martial charges are preferred and then referred. His ability to obtain the entirety of the investigative plan, the day-to-day itemized list of all actions taken on his investigation, the agent notes, and email correspondence are only obtained through Freedom of Information Act (FOIA) requests and internal law enforcement requests. These “left side” materials are often where hidden gems exist; when an agent conducts even a verbal interview, one finds record of its existence often only in these materials because unless the agent deems the person to have helpful information, that witness will not provide a sworn statement.
Even more astounding to this process is that the member cannot himself obtain evidence that would tend to exonerate him. Subpoena power is not conferred upon even the government counsel responsible for advising the investigation. The respondent’s counsel (or his defense counsel) never has subpoena power to obtain documents on his behalf. Only a Department of Defense Inspector General subpoena can obtain necessary documents and the only persons authorized to apply for a DoD IG subpoena are military law enforcement, who have unfettered discretion to grant or deny requests for such subpoenas.
In my current case, I have provided military law enforcement with the necessary information for them to subpoena records to obtain the identity of a bystander eyewitness to the alleged sexual touching. I requested that the investigation be reopened to identify and interview this eyewitness. They REFUSED. Does that sound like the system is “seeking the truth?” No way. Their justification? The military command is not pursuing court-martial so it is not a “necessary” investigative step to INTERVIEW THE BYSTANDER EYEWITNESS. Are you kidding me?! Investigators realize that eyewitnesses to sexual assault cases are incredibly rare and virtually non-existent, but in a case where the allegation avers that this bystander would have seen the assault, law enforcement refuses to take any steps past asking the complainant to help them and then stop when she refuses to give them any identifying information.
The member who faces the false allegation so tenuous as to belie court-martial charges in the current climate is the member who is seemingly powerless to obtain the resources to defend himself, prove his innocence, and save his career. It is a disgrace to the uniform he wears and it brings shame upon those of us who once took up the call to do justice and above all else, to “seek the truth.”
The next step for this member is not to roll over and quit, but instead to persevere. He will file a complaint with the Department of Defense Inspector General that military law enforcement is arbitrarily denying him a meaningful investigation. From there if need be, he can enlist the assistance of his Congressman.
It may not have been typical in 2006 that the defense’s role would be to “seek the truth,” but in this new age where sexual assault allegation equals accepted on its face, that is becoming our job more and more. Because the government isn’t seeking it, and someone has to.