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Tim Bilecki

Report Finds Changes to Article 32 Hearing During Obama Years Worse Than Realized

The Article 32 preliminary hearing once served as a protection against frivolous court-martial cases and a discovery tool for service members accused of a crime.

Today, those protections have all but disappeared under the National Defense Authorization Act of 2014 (FY14 NDAA), a set of changes which have twisted the time-honored Article 32 into a shadow of its former self.

Recently, a JPP Subcommittee report has shined a light on the changes made by the FY14 NDAA as they relate to Article 32. Their findings are proof of how good intentions rarely make good laws. Today’s Article 32 has gone from a powerful pre-trial discovery and investigative tool to a “paper drill” or “rubber stamp” with no purpose or meaning for either defense or prosecution.

This blog investigates how those changes have demoralized many in the military’s justice system and left defendants and victims both at greater risk of negative trial outcomes.

The Article 32 Hearing Served Important Legal Functions Prior to 2014

The pre-2014 Article 32 offered invaluable insights and benefits to both the defense and the prosecution.

A Discovery Tool for Defendants and Their Attorneys

“It should be noted that the pretrial investigation to which these charges have been preferred is the accused’s only practicable means of discovering the case against him.” – U.S. Court of Appeals for the Armed Forces (CAAF)

Prior to 2014, the Article 32 Hearing helped defendants understand what they were being charged with, and why. The defense could investigate the charges and assess the strength of the prosecutor’s case by calling the alleged victim or other witnesses to the stand and performing a limited review of the evidence against them.

This version of the Article 32 was incredibly valuable to the defendant, and it was unheard of for a defense team to waive their right to Article 32.

A “Litmus Test” for Determining a Case’s Chances of Success in Court

Article 32 was not, as many believe, beneficial to the defense alone. Prior to 2014, it allowed senior counsel to assess a case and learn its weak spots. That, in turn, could help military prosecutors recalibrate their strategy for the final trial.

It served another important function for the military’s justice system as well: culling weak cases.

Part of the job of a senior counsel is to advise the preliminary hearing officer (PHO) on whether a case merits a full-blown court-martial. By allowing witnesses and evidence to make their way into the Article 32 hearing, the counsel could perform that task in a meaningful fashion, ensuring that weak cases didn’t impact the morale of trial attorneys (who aren’t particularly excited about fighting for hopeless court cases).

The New Article 32 Hearing Is a Shadow of Its Former Self

One of the objectives of the 113th Congress, when they passed FY14 NDAA, was to rein in the perception that the U.S. Military regularly covered up crimes related to sexual assault and rape. The Article 32 Hearing—with its “harmful” rules for compelling victims to testify and its power over whether victims have their story told to a jury—was an easy target.

The changes made to the Article 32 Hearing were immense. But these are the significant takeaways:

Victims—Along with all Other Witnesses—May No Longer Be Compelled to Testify

No longer may a victim or any witness be compelled by the PHO to take the stand during an Article 32 Preliminary Hearing. This has impacted every aspect of Article 32 and is one of the most harmful changes.

  • The job of the PHO is to recommend to the convening authority a disposition for the case at hand. With these changes, the PHOs ability to properly judge the case has been severely limited.

  • The ability of the defense to assess the case and plan for a trial has also been diminished. With no ability to cross-examine witnesses, a proper investigation cannot be conducted.

  • The victim may feel he or she is being protected by these changes. But by avoiding the Article 32, he or she is limiting the ability of his or her own prosecutor to prepare a court strategy.

With this change alone, the Article 32 has been critically wounded. Oftentimes the only item of review is general documentary evidence.

Determining Probable Cause Is Now the Sole Function of Article 32

Before the changes, the Article 32 hearing was intended to function as a “thorough and impartial investigation” into the truth and form of the charges. This is no longer its function. In fact, it has nothing to do with investigating the truth of the charges. And it can’t even be considered an investigation at all.

Rather, the modern-day Article 32 is a preliminary hearing, and little else. Its objective—like all civilian preliminary hearings—is to determine whether probable cause exists, whereby the case moves forward to a court-martial. It has absolutely nothing to do with discovery or with determining the merits of a case based on evidence and testimony.

Eliminated from the original Article 32 was the provision that allowed the accused to present additional evidence “in defense and mitigation, relevant to the limited purposes of the hearing.” That provision now only pertains to evidence which is relevant “to the issues of whether there is probable cause to believe the accused committed the offense.”

According to one senior trial counsel who was interviewed by the JPP, these changes have allowed “a lot more control over the presentation of evidence” and counsel can often “establish probable cause with only a copy of the victim’s statement and portions of the investigation report.”

The Consequences of the New Article 32

By bowing to public pressure over a speculative lack of respect for sexual assault victims in the military, Congress has forced politically-motivated changes into the military’s justice system, thereby undermining the rule of law and creating rampant mistrust within the military’s ranks.

The New Article 32 Has Undermined the Rule of Law and Demoralized Our Troops

The changes to Article 32 have raised questions “about the fundamental fairness of the military justice process when it comes to the treatment of the accused.” And those concerns have been echoed by many of the military’s leading legal experts. As the JPP reports:

“In the view of trial counsel, defense counsel, investigators, and other military personnel involved in the military criminal justice system who were interviewed by the Subcommittee members during installation site visits, the military justice system is placing the rights and preferences of sexual assault victims over the due process rights of those accused of these offenses.”

By placing the rights of the victim over the accused, Congress has done a great disservice to the rule of law—a foundational aspect of America’s way of life. The situation is so dire that one senior defense counsel told the JPP that as a prosecutor, he has watched cases with “no probability of winning at trial” move forward to court-martial, where trial counsel become demoralized at the prospect of having to defend flawed and impossible-to-win cases.

The Changes Have Harmed the Prospects of Legitimate Victims in Court

The changes to Article 32 were celebrated by victims of sexual assault. But they may end up doing more harm than good to real sexual assault victims in the future.

First, by not testifying at the Article 32, a victim makes it much more difficult for his or her counsel to fully assess their case and prepare for their court-martial. A preliminary hearing once functioned as a proving ground where the victim’s counsel could review how the victim performed on the stand and make strategic decisions based on the outcome. That is no longer the case with the new Article 32.

Moreover, Special Victim’s Counsels—another addition made in recent years to protect sexual assault victims—often limit the number of time prosecutors can spend with the victim. Those limitations make it incredibly difficult for prosecutors to understand the case—and thus win in court.

Weak Cases Are No Longer Stopped at Article 32 Hearings

According to the JPP:

“Counsel universally observed that pre-December 2014 Article 32 investigations were used to identify weak cases and prevent them from going to court-martial, but the new Article 32 hearing no longer serves this function.”

When probable cause became the sole function of Article 32, it eliminated the hearing’s ability to weed out cases which never should’ve gone to court in the first place.

That was a critical function of Article 32, and here’s why: a convening authority with no legal background and limited evidence and resources cannot be expected to assess a case’s merits alone. A second method (such as the Article 32 Hearing) provided a setting where individuals with a legal background could assess a case and determine whether enough evidence existed for an actual trial.

Of course, this fact doesn’t seem to have crossed Congress’ collective mind, because we now have a severely limited Article 32 that allows fatally weak cases to clog up the docket and siphon resources from cases with a fighting chance of winning in court.

The JPP noted that out of 416 sexual assault cases that went to a general court-martial in 2015, 54 had been assessed by preliminary hearing officers who had advised the convening authority NOT to proceed with the trial. Of those 54 cases, 45 saw acquittals related to their sexual assault charges.

Suggestions by the Panel Could Right the Scales of Justice—If They’re Implemented

The JPP Subcommittee made several suggestions related to the new Article 32 hearing. If implemented, they may create a more level playing field and eliminate some of the most egregious issues which the new Article 32 has wrought.

Mandatory Private Investigators for the Defense: The Article 32 preliminary hearing was the only means prior to trial whereby an accused service member could discover the breadth and scope of the charges leveled against him or her. The JPP subcommittee strongly recommended that if the Article 32 no longer serves as a means of discovery, it’s only fair that the defense receives independent investigators to assess the truth and the basis for the charges.

Allow Counsel to Make Suggestions to the Convening Authority in Private: The law requires staff judge advocates to advise the PHO on whether a case should proceed to a court-martial. But this information is also available to the defense. The JPP subcommittee recommends removing the requirement that a staff judge advocate’s pretrial advice to the convening authority be released to the defense, allowing him or her to provide “more fully developed and candid written advice to the convening authority on the strengths and weaknesses of the charges.”

Remove the Power of the Convening Authority to Ignore PHO Recommendations: The current Article 32 allows a convening authority to ignore the suggestions of the PHO entirely. The subcommittee suggests making the PHOs recommendation binding on the convening authority, thus reducing the number of weak sexual assault cases in military court dockets.

Final Thoughts on the New Article 32 Hearing and the Rule of Law

The path to hell is paved in good intentions. While Congress’s actions may have had the intention of protecting sexual assault victims, they’ve also had unintended consequences which have harmed the very victims they were designed to protect. They’ve debased the rule of law, destroyed the lives of innocent and falsely accused service members, and created a perception in the military justice system where the victim is given the benefit of the doubt at the expense of the accused.

The law does not distinguish between social justice or justice for sexual assault victims. Its objective is justice for all, regardless of public opinion or political maneuverings of bureaucrats in Washington.

Therefore, we strongly urge Congress and the Department of Justice to review the subcommittee’s recommendations and implement their suggestions regarding the Article 32 preliminary hearing in haste, before more damage is done to the military’s honored legal system.

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