Abdication in the Air Force

    Justice has nothing to do with what goes on in a courtroom;

                 Justice is what comes out of a courtroom
                                  ~~ Clarence Darrow

Those of use who began practicing military law last century, have seen many changes–some for the better, many for the worse. For example, most good criminal litigators treated complainants politely in order to avoid alienating the fact-finder. There were of course, the stupid ones who, for whatever reasons, bullied witnesses, embarrassed complainants, etc., which in turn stimulated the "victims’ rights" movement. That was not a bad thing in most litigators’ minds, because very little changed. But . . . .

That movement got out-of-hand in the military when some–no doubt well-meaning–overzealous advocates decided to convince Congress to amend the Uniform Code of Military Justice [UCMJ], by eliminating the two-sided adversarial system in use by the common law countries for centuries. By adding another set of lawyers, the Special Victims Counsel [SVC], the process literally turned into the proverbial 3-ring circus. Morphing from simply advising alleged victims of their legal rights and remedies, the SVC’s began objecting–on the record–in open court; filing motions in limine or to quash supoenas; or to interrupt a court-martial by "seeking a writ" when they disagreed with a Military Judge’s ruling. Sometimes, the SVC’s would team up with trial counsel and literally "double-team" the defense; other times, the government may take no position on, e.g., a defense discovery request, only to find the SVC strenuously objecting to protect "their client’s" privacy rights. It was only a matter of time before these three worlds–prosecution, defense, and SVC’s–would collide.

And collide they did in a colossal blast last week at Patrick Air Force Base [AFB], Florida, in yet another strange case involving allegations of sexual assault. It was not, to put it mildly, a good day for the Air Force JAG Corps. The Military Judge began his written opinion as follows:


The Defense filed a motion to dismiss the charges against the accused based on the government’s failure to provide timely and adequate discovery. The Government and Special Victims’ Counsel (SVC) filed a response in opposition.
It went downhill from there.


The government is aware that there has been evidence or messages that have been deleted or missing that relate to matters relevant to this case, and the government has chosen to not pursue the missing information against the will of the alleged victims.

The government is aware that relevant and necessary information that would be material to the preparation of the defense in this case is likely within the possession of the alleged victims in this case, and that the government has the means of compelling such evidence, but has been directed by the General Court-martial Convening Authority (GCMCA) to not do so. [Emphasis added].
Without expressly saying so, the Military Judge is accusing the Commander of 14^th Air Force, a Major General, of obstructing justice. Think about that for a second. It was just a few years ago that 2 and 3 star Air Force generals were getting relieved of commands, put out to pasture, or forced to retire because they–as a GCMCA–had the audacity to exercise their considered judgment in sexual assault cases and disapproved guilty findings or refused to refer a case to trial. Their then subordinates noticed.

The Judge is not done with his "Findings of Fact:"


By leaving significant parts of discovery up to the discretion and determination of the interested witnesses in this case, the government is not exercising due diligence to verify it has all of the relevant and necessary information. [Emphasis added]. 

* * * * *

  The government, and in particular, the GCMCA in this case, has ordered the trial counsel not to use all legal means available to them to meet their discovery obligations.

This now raises more questions that it answers, i.e., is the "order" from the 14^th AF Commander a "legal order?" Can a superior officer order subordinates to violate the law or to be derelict in their legal duties? Article 131b, UCMJ, Obstructing Justice, states in relevant part: "Any person subject to this chapter who . . . with intent to . . . impede . . . the due administration of justice shall be punished as a court-martial may direct." Or, what about Article 131f, UCMJ, Noncompliance with procedural rules, which states in relevant part: "Any person subject to this chapter who . . . knowingly and intentionally fails to enforce or comply with any provision of this chapter regulating the proceedings before . . . trial of an accused, shall be punished as a court-martial may direct."

One of the complainants was someone referred to as "CP." As the Military Judge further found:

CP was given a request from trial counsel to preserve evidence related to this case in May 2018. . . . Notwithstanding being provided these requests, she knowingly deleted applications on her phone that were relevant to this case prior to testifying in December 2018.

Title 18, U.S. Code § 1519 provides that:

Whoever knowingly . . . destroys . . . conceals . . . any record, document, or tangible object with the intent to impede . . . the investigation or proper administration of any matter within the jurisdiction of any department . . . of the United States . . . shall be fined under this title, imprisoned not more than 20 years, or both.

The Military Judge then dropped the proverbial hammer:

By refusing to enforce its subpoenas and compel relevant and necessary information, the United States has abdicated its responsibility, in part, to exercise its rights under the law and produce relevant and necessary evidence.

* * * * *

The convening authority, when comparing competing options and electing to continue with the trial, weighed the potential concerns of the victims over the constitutional rights of the accused.

Ouch. But the judge is not finished: "The government, to include the GCMCA and the NAF/SJA, is aware of the significant discovery failings in this case, but took no remedial action." And then the coup de grâce in his Findings:

The government’s unwillingness to use its full authority to obtain relevant and necessary information in this case has prejudiced the accused and will continue to prejudice the accused. Evidence is missing, incomplete, and actions have even been taken to delete relevant information notwithstanding preservation orders being sent to witnesses.

In his Conclusions [of] Law, the Military Judge did not become any more charitable to the government, noting that, inter alia:

Meanwhile, a military member with a presumption of innocence is forced to sit idly by while senior officers determined that the best course of action is to forego lawful legal options to obtain this evidence because the GCMCA does not want to force an alleged victim to do something involuntarily. [Emphasis added].

The next salvo is equally as deadly, "this court is left with few conclusions other than the United States of America is not serious about meeting its legal obligations even when the law demands it."

In dismissing the charges with prejudice, the Military Judge–in an act of professional courage–concluded: "Unlike the government, the court, in this case, will not shrink from its obligations to enforce the law and protect the rights of all persons who come before it." For the Air Force lawyers and commanders involved, it was not "their finest hour." But, the judge stopped short of what needed to be said as well, there are professional responsibility or ethical issues that clearly need to be addressed.

Rule 3.8(d) of the ABA’s Model Rules of Professional Responsibility states rather clearly, that a prosecutor shall "make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense . . . ." That did not happen in this case as outlined by the Military Judge and the question becomes, will there be any type of "ethics" investigation?

Some justice came out of the Patrick AFB courtroom–just not enough!