It is clear that the 2022 and 2023 NDAAs will effect major changes to the military justice system. The real question is whether the changes will result in the outcomes that Congress intended.
For example, reserving charging decisions for special trial counsel will certainly provide what some reformers have been arguing for—more control by uniformed judge advocates. But, will that shift result in more sexual assault prosecutions and convictions, the perceived goals of the legislation? Perhaps not. If lawyers alone are examining the evidence and measuring the credibility of witnesses, they may be even more hesitant to bring a close case to trial. Under the current system, both the commander and a uniformed lawyer are involved in the decision as to whether and what charges should be preferred. As such, there may be cases where the two parties do not agree on those questions; in a command-centric system, the commander’s view can prevail. It is important to recall that uniformed lawyers, unlike commanders, are bound by rules of professional responsibility, such that a decision by a uniformed lawyer must be informed by those rules. If the new system results in fewer prosecutions, then what is Congress to do next—remove uniformed judge advocates from the equation?
But what if the goal is broader than simply driving up the number of sexual assault cases but to foster increased confidence in the administration of military justice by having lawyers do the lawyer's job of deciding whom to prosecute for serious offenses?
I am bemused by one of the final comments about efficiency and speed. Any practitioner over the last five or more years will be able to say that speed has not been a hallmark of courts-martial, especially GCMs. Any suspect who retains counsel during the MCIO investigation will be told that it could take up to six months for a decision to be made on how the allegations will be disposed of. Why? Most sex offenses involve DNA and digital evidence. The processing times for DNA results and the complete DFE can take months. After that, it takes time for decisions to be made and actions taken. Even when charges are referred to trial, it can take months to get to trial. Why? Dockets, caseloads, and the addition of experts and SVCs into the scheduling mix. In the standard sex offense case it is likely there will be a forensic psychologist, toxicologist, DNA expert, and a computer forensics expert involved.
ReplyDeleteHow can SVCs impact scheduling? The parties and the MJ negotiate a trial date when they and witnesses and experts are available. But then along comes an SVC who is not available for those dates. At this point, there is deference to the SVC, so the parties have to renegotiate a new schedule which can add weeks or months until the case goes to trial.