Skip to main content

tv   Sexual Assault in the Armed Forces - Victims Legal Counsel  CSPAN  October 30, 2017 10:40am-12:09pm EDT

10:40 am
specific. i do not have the details on all the different types of programs they use for commanders that they have been designing commander specific curriculums to help them with how they handle this. i also want to echo that the 30 day meeting that the commander has with the sarc is different and in the army to build that rapport, as well. >> i want to thank everyone for coming. thank you so much for your time, your expertise and in answering youour questions. we have a ten minute recess. [background noises]
10:41 am
>> more from the defense advisory committee on sexual assault in the armed forces. with remarks by military attorneys on their experiences representing clients of sexual assault and what can be done to improve victim counseling programs. this is one hour and a half. [background noises] >> we are starting our special victims counsel, victims legal counsel for perspectives on expedited transfer policy and the program itself. i want to welcome everyone. as he did in the last panel, i'd like to hear what you all have to say and then we will open it
10:42 am
up to questions from the committee members and you are in control of your destiny and this is how you choose in what order to proceed. good afternoon. >> i have served as an active duty judge advocate for the army for over eight years. thank you for the opportunity to speak today. the things i expressed today are my own based on my experience and are not those of the army. as a judge advocate i've been a legal assistant attorney a ministry of law attorney, trial counsel, and most recently a special victims counsel. at the trial counsel from june 2012-2014 i prosecuted sexual assault cases. i'm currently in the process of earning my lm of the army's judge advocate learning center in virginia. as well as the cc will president
10:43 am
sexual assault victims as attorney for sexual assault victims, special victims counsel and so the clients are educated but the rights and services available to them and the justice process to be in the civilian or army rum. [inaudible] victims are entitled to representation whether the client has chosen to make a restricted or unrestricted report. both reporting while receiving necessary services to the assault. unrestricted options require an investigation. victims are entitled to counsel representation at any point in the process and [inaudible] because special victims counsel does advocate for the interests of the client special victims counsel's are independent of the investigative prosecution and
10:44 am
defense. special victims counsel advocate for the best interest of their clients therefore there are times for those interests will not align with those of the prosecution and defense attorney and client may agree on an issue or the victim may decline to participate. during my time as the sec i served as a special victims counsel which meant that in addition to my own caseload i supervised other [inaudible]. i presented 77 clients. i currently have six clients cases are now posttrial. at any one time on average i had 30 clients in these cases for different stages in the investigative and disposition process.
10:45 am
the cases iran the gamut from abusive sexual contact to sexual assault. i have adult crimes as well as minor crimes and majority of my clients were current or former it hundred former servicemembers. the majority of my clients were also female. i had a client requested expedited transfers. those that hadn't received the transfer prior to becoming my client continue to seek information and advice on the process. they discussed the process of the client is the process, pros and cons of a transport and the roles of the parties involved. in the expedited transfer process are mostly advised my client and talk to commanders and victim advocates if necessary. in my experience all of my clients class a transfer received it for seven out of the eight clients the expedited transfer process went smoothly and occurred in a timely fashion. one client had an issue that was
10:46 am
resolved after speaking with the company commander. once my clients made their move i didn't have any clients report that they experience any issues and their career and i transfer all of my clients i cooperated with investigated prosecution and i do believe a special victims counsel programs is beneficial to victims of sexual assault. clients only the appreciated having someone who could explain things to them without the limitations that our prosecutors have. someone was available to them more often than not. dependent on the particular case having the prosecution and defense as well as the filter for information and request as well as astounding victims stress and confusion. during my time with the special [inaudible] i welcome your questions. thank you. >> good afternoon, ladies and gentlemen. i am currently the victims legal counsel for naval district of washington. i have been serving as the naval
10:47 am
washington since july 2016 so proximally 15 months. prior to this i served as the command advocate on three separate aircraft carriers and also the command judge advocate for naval station in guantánamo bay, cuba. prior to those duties i served as a defense counsel for from 2010-2013 and concurrently served as the pd department head and responded counsel and formal ped proceedings in front of the core. i have served over the course of my 15 months 49 clients. my average caseload is approximately 34 clients, between 30 and 40 client, i would say. i currently have 34 clients.
10:48 am
there is no typical case. that is something i want ford to understand. every single case that we see is different and the facts are different in the commands are different in the needs of the individual are different and as such, there is no typical point that i return and it could be for even the case has been reported to law enforcement and it could be at the point where the client has already made a statement and i have even had a case where the client was getting ready to go on the sand and decided they needed legal representation. i absolutely think the program has been beneficial to programs of special assault. i received positive feedback from my clients. they tell me that they understand the process and that they have someone to call when they are overwhelmed and anxious about this legal process and about their personal legal liability. the cornerstone of my relationship with my clients involves expectation management.
10:49 am
i attempted to alleviate their anxiety revolving around the legal process. they have extreme anxiety about the future, about their participation in the legal process and about their legal liability if they choose to go forward. the clients are worried about the universe of unknowns and i can give my card at and client a target issue to worry about and this and this but not that. the unknown factor. it actually does help them and i received positive feedback from my clients. the feedback i received is that the client could not have gone forward through the criminal justice process and in some cases they would not have executed the report to an cis and they would not have been toward the legal process in their local commands but for having their own legal advocate separate from the prosecution
10:50 am
staff. in many ways the program is not a benefit to retention into readiness within the command. on one hand by focusing my clients attention on their jobs and away from the anxiety of the process i keep them ready. i can empower my clients to do their job even in times when they are going through legal proceedings because i am there to explain the process to them and i'm there to interface with all the other agencies trying to take away from their time at their job. on the other hand, when it's clear that the client is not in fact suitable for continued service or they are struggling significantly in their jobs due to medical conditions or psychological conditions i can also advise my client about the best resources available. i am not a doctor so i tell my clients very often please go see
10:51 am
counseling services, go see the chaplain and i can give them advice on the implications of that medical treatment and care and how it will relate to the case going forward and how it will affect them if they end up on the stand. taking away that anxiety about that aspect of the case allows them to get past the barriers of treatment. i can also shepherd them to the right process for medical boards and administering of separation of boards in ways that will be beneficial to that client. when the client gets to the right process of the resources early in a timely fashion that is for them and that is best for their command and best for the navy overall and i get to assist the client in that. what is most beneficial to the client about having a victims legal counsel is that they get unbiased legal advice. they get to evaluate and understand and make a voluntary and knowledgeable decision about how they want to handle their
10:52 am
case and that is how we can control in the back in the hands of the client. that's the most supportive thing about my practice in the program. if my client wants to after knowing what is in store for them in wants to go forward i will charge ahead and advocate for their rights in the process. if they decide, however, after hearing what is in store for them in the legal process that they do not want to go to an cis and they do not want to go to the law-enforcement process i will advocate for their rights to not be approached by any of the other stakeholders in the process and in the criminal justice process. i can prevent them from being unduly influenced by either the prosecutor or the defense or for being shamed for making a decision about not going forward. as you can imagine, it's a stressful decision for a victim of sexual assault to make. it is a valid decision and their
10:53 am
rights need to be protected. in the expedited transfer process my role is to advise my clients about the process to give them the pros and cons about an expedited transfer that is tailored to the backs of their case and to the rights and the needs of that sailor or officer. i can also evaluate the personalities of the commanders involved in making a decision and i can also advise my clients on how to make the request in a way that will more likely be accepted and in their geographic location that they are requesting the maid received a request. i am a helper and to help them communicate to the leadership of making their decisions. i also provide training to victim advocates to train eight and to the pco's and px owes as they go through their schooling before they take command on how the stepper process and expedited transfer process works and what other criteria. attend to prove work tonight
10:54 am
those requests. approximately one third of my clients have requested expedited transfers under my term and most of those requests were approved. i do believe that the expedited transfer process is a vital process of the military justice process and it is absolutely vital and beneficial for the victims to have the ability to exit the stand when there is a stigma and when there is a perceived stigma because the perception of the victim is one of the most important things that will determine whether that person goes forward in the process. their perception of whether they are supported and this gives him a chance to be alive in the perceived they are supported. the process in place in the navy and one aspect i would recommend a change is that the expedited
10:55 am
transfer orders that come from the bureau of personnel once the client has submitted the request and been approved and at the bureau personnel and detailed orders and they are obviously several criteria that the navy has to look at to determine what orders they get. i would recommend that the process for expedited transfer orders be as transparent as we have ventured to make our regular detailing process. although there are some limitations for our bureau of personnel due to the short timeframe of these expedited transfers. however, in the future we could probably move to a system where the victim knows what is available in which geographic locations and again that would provide some benefit to their expectation management in this process. thank you. >> i have a powerpoint
10:56 am
presentation. if you could give me a moment. i'll introduce myself. my name is jessica marx. on the deputy officer in charge for the victims legal counsel program within the marine corps. i thank you so much for this opportunity. now that my slides are loaded i will move on. next slide, please. first of all, i'd like to talk about our mission. just like my colleagues in the army and navy have highlighted the mission of the victims legal counsel program is in the marine corps the same. our goal is to educate and advocate for victims of sexual assault. the thing that makes us different and it's the purview of this panel is we represent the victim of domestic violence
10:57 am
as well. occasionally we will take on the exception cases of other violent crimes. we do that to hold everyone accountable. the defense counsel, military judges, commanders, we do that and and cios brought the best get a process and throughout the military justice process. i have highlighted some of the references that our mission statement is made up of were made up from and they are at the bottom of the site. next like, please ma'am. first of all i'd like to say i love my experience as a judge advocate but i particularly love this job. i have served four years in military justice prior to becoming a [inaudible] and i just left the [inaudible] in quantico which is similar to the ill it that commander hostetler served the national district of washington. during that time i assisted bo over 70 victims. i had 47 detailed client meeting i was there attorney, attorney-client privilege was established. those other cases i had
10:58 am
confidentiality with those victims. my average caseload was about 25 cases, give or take a few more. i supervised other victims of legal counsel in that capacity and in august, i moved up to henderson hall here in arlington, virginia to serve as a deputy officer in charge. in that capacity i sister my boss, lieutenant colonel program manager and supervision of all the victims legal counsel. i also still hold clients for my tire for an entire billet. next slide. for small, like everyone said before when we take a case it depends on when the victim comes to us. i like to jokingly say we do not ambulance chase. we do not go after victims. they have already been traumatized and we don't want to go after them. we count on the dod mandates and the cios and staffers and commanders notified the victims of our services and we usually
10:59 am
are provided a referral to the process. just like my colleagues have said before, i have had victims, way before they were reported and immediately after the salt all the way until they were testified at trial. the goal of our organization and goals with respect to expedited transfers is to educate the victims on this topic. they will hear about it usually before they get to us because of the training program will talk about it and that uba might tell them about it but our goal is to make sure they truly understand it, not just the policies, the process and other options available. safety transfers are an option, going on temporary orders away from that location or waste the offender, we discussed. we also discuss the impact of their career. i've heard that discussed here. we advise him on that. we look at their [inaudible] would you like to change if you
11:00 am
can't get to the location you like and in some cases we been able to get transfers for victims. it is not a common thing but if they're willing to do that and if they want to go to a particular location that is something we've been able to work out through the staffer program. we advise him on the impact they can have on their case. if the victim moved away from where the case will be tried we talked about the pros and cons of that. maybe it is better for them and they're more likely to participate if they go away from where that is and we talked about the transfers and when were advising our clients. if you transfer and i'm in quantico and you transfer to pendleton, will you want someone right there that you can walk into and talk or do you want someone located where the case is going to be tried at someone who knows the players and trial counsel.
11:01 am
... legal counsel. i have also a assisted with requests. five were approved. i will caveat that in one of those approvals, it did take a discussion between the commander and myself because there was a perception that
11:02 am
there was a potential for misuse of that process, but with my client's permission, i was able to explain that she wanted to be's closer to a support person, where she was requesting to go, and it was granted once that was explained. i did have one denied based on the credible claim standard. i would rather not get into the details of that out of respect for my client but ultimately she was sent on temporary orders to the location she requested. we were able to accomplish her goal outside the transfer process. she was offered the ability to appeal it but because she was sent where she wanted we did not end up doing that. next slide please. for my personal perception of my clients experience at the expedited transfers, it has been a very positive thing. i will admit, prying to becoming a plc i wasn't
11:03 am
totally sure about the program but now that i've worked with victims, i definitely see how beneficial it is to them. he removes them from where this has all happened, potentially. if the assault happened in that location. it also gets them away from the rumor mill. it is not to be used for safety reasons as i think has already been stated, that is a safety transfer. expedite transfers, unfortunately are still sometimes used to move the victim away where it's unsafe, that is amiss conception and a misuse of the expedite transfer. it's to get the victim away from the experience. the other thing that benefits victims, they may retaliat experience retaliation, that's usually peer-to-peer, one level up. they don't want to report that and you can probably imagine
11:04 am
why. when you've reported a crime come you don't want to report another crime. one way they are able to get away from that retaliation is to ask for an expedited transfer. then they don't have to report it, they can just get away. it gives victims a sense of empowerment. that may seem kind of cliché but it really does. when someone has taken away the control from you in assaulting you, gives you a chance to take control of your life and get away from that situation. finally, like i've discussed before with an example i gave previously, sometimes they want to move closer to support persons and that transfer allows them to do that. >> some areas for improvement, the policy can be viewed as contradictory. i will give an example. the policy in the marine corps , i think it's consistent with the dod policy is that the victim should provide nonconfidential information in the request. however, the commander is required to consider ten
11:05 am
factors. one of those goes back to your question where you asked about the nature and circumstances of the charges. the commanders are required to consider that, at least in the marine corps. when the victim is only providing nonconfidential information, that can be kind of hard to tell. yes the required to tel pull if there's an unrestricted case, they had to pull those files and they can gain details from that, but if the burden is on the victim, i think that can be contradictory. not just for the victory but for for the commander as well. i think that's a difficult position to put them in to analyze all these factors when they can only tell you so much. that's for that one case that i described, the caveat case out of the five approvals, the one commander just needed more information and we were able to discuss that in the commander was able to reach a decision in her favor. there is also still an issue
11:06 am
of perception. i'm sure that's probably why we are all still here. there's a perception still out there, i don't think it's the majority of marines but i think there's still perceptions that transfers are used outside their intended purpose. one example is that the victim just wants to get out of our duty station. maybe they want to go to the sunny beaches of miramar or camp pendleton california. the other thing that was highlighted by you, i think the defense might want to use it as a motive to fabricate. the victim will come forward and say they're sexually assaulted so they can get to a better duty station. i think that perception is still out there. anyone who works at the victim probably knows how untrue that would be if someone would put themselves through telling their story so many times just to get transferred to a
11:07 am
different duty station instead of just waiting out where they are at. i've been to camp lejeune for five years, it's not that bad if you go to the outer banks. you can find your way to make it all work. i really do think, overall, the program is extremely beneficial. i just want to close with one quick story. i was just telling somebody who taught me this but i think this is a very illustrated story. the first time i went to a trial with the client, we went to rehearse for her testimony in front of the court and she didn't like the idea of getting on that stand. we were able to come up with a way where we could get a deal from the defense. the trial counsel presented it and said he go and i thought
11:08 am
to myself, in that moment, that victim was going to have to figure out what was in that document by themselves or the council would hopefully explain it to them, but that's our job. what i did is i took that document, we excused ourselves and we explained exactly what that document meant. i hope there's never any doubt that victim's legal counsel to provide a very valuable service to these victims were very young and who don't know the legal process and might not have ever heard any of these terms. i really think you for your time. i think it's a program that should never go away and i look forward to your question. thank you. >> good afternoon. my name is brittany. i'm the special victims counsel in south carolina and i have been in that position since july 2016.
11:09 am
overall in the air force program we have found expedited transfers to be a life-saving, positive benefit for our clients. my goal today is to share my perspective on the program, how might clients have benefited, the impact it has had. using the benefit of my own experience as well as the impact i've received. i would first like to talk about the role in the process. the commanders on the process but the sec play vital role. we will help explain to commuters why our client wants and et in the first place, what the et will be expected to do for the client, and how they will benefit the unit and the air force as a whole.
11:10 am
victims ask for transfers for a variety of reasons, including to get physically closer to their families or other support syste system, to get away from the subject, especially in cases where the subject may be a supervisor or in the chain of command, to separate themselves from other airmen who may gossip or discuss the case, especially in cases where many members of the same unit are involved, and to have the opportunity for a fresh start away from the physical location where the assault occurred. i would like to give an overview of what i consider the typical case where an active duty airmen request a transfer. normally they make the unrestricted report in the office where they learn about the option to request an net as well as other services. after i get detailed and establish an attorney-client relationship with the client, i schedule the initial victim interview and attend the interview with the client. following the interview, they
11:11 am
consider the pro and con of requesting the et both for their life in the case. these may include starting over in a new location but having to leave a base they like, possible cross examination questions at trial by defense counsel and potential career implications of that decision. if the client decides to request it, they put in the official request in our online personnel system where they list up to three bases and provide jus justification as to why they want to go to those location. all my clients requested bases closer to their family or support system. the justification focus on their well-being and starting over away from the subject and other airmen who know about the sexual assault. i'm not found my clients are trying to get to highly desirable locations such as hawaii or italy. for example, i have had clients transfer to abilene texas, the air force base in
11:12 am
kansas and moody air force base in georgia. not that those are great locations. once it is officially requested, they get involved by having meetings and telephone calls to advocate for approval by the et. my discussion with commanders, they want to know that the client has fully thought through the implications of their decision and they rely on the sec to educate them about the et process and the military justice process from the victim's perspective specifically. this indicates to me that the commanders are trying to balance my clients well-being and caree career, trying to understand the process and trying to do what they believe is the right thing for the client and for the air force. we acknowledge that commanders have a difficult task in balancing the mission and the victim's needs and that they emphasize victims recovery and retention in the air force.
11:13 am
commanders are often. [inaudible] if it is approved goes to the air force personnel center and usually takes one month to two months for them to leave the base and leave their new duty station. for unusual or unique cases, they take the lead role in coordinating and crafting solutions. it runs concurrently. the local detachment, there are follow-up counter offers needed and we set that up with the investigators. i have not seen a negative impact through the military justice system caused by it
11:14 am
being out of base. all of my clients have traveled back to shaw for the article 32 hearings and for trial. although they have many benefits to the victims who request them, i want you to know they are rarely a complete picture for all the challenges facing sexual assault. in some cases they can introduce new problems for the victim and they carefully consider where the benefits are outweighed by the cost. additionally, the client must weigh the potential career implications as we've discussed today. many airmen have been trained on a specific job that is available at a number of bases. this creates a challenge. in smaller career fields. many of the people there could also be involved in the case or the client may fear if they stay within that career field they may later be reassigned back with the subject. because of these concerns, the client can request to cros
11:15 am
cross train. this may be a difficult decision for them to leave a career path they've spent years in and feel a connection too. in my view and experience, abuse of the et program is not prevalent. i have not had the experience where i have felt like a client is gaming the system to obtain and et. in fact, the majority of my clients did not know that the expedited transfer system exists until the start brief fell on them when they were making the unrestricted donald my perception is that my clients have requested the transfer have done so to be close to their family or other support systems, and i believe these motivations are genuine. before they put the request in, we discussed the pros and cons, the career impact, and how the transition may be more difficult than they think. a great deal of thought and discussion goes into the client's decision to put in the request.
11:16 am
finally, as attorneys, we are ethically bound to act in good faith and we cannot facilitate a request if we know it is being made fraudulently. they have been integral in navigating to and working with commanders, our legal offices in the air force personnel center to best serve our client in order to support and assist with their healing, recovery and rehabilitation. we have found expedited transfers program to be a positive valuable program for our clients. thank you. >> good afternoon. i am a coast guard special victims counsel stationed in cleveland ohio. i was commissioned over 21 years ago and i've also served as trial counsel, defense counsel. [inaudible] i received my initial training
11:17 am
answer vocation in 2014 and i have represented 33 victim clients, 13 of whom have ongoing cases. regarding my perspective on the victims counsel program generally, i can tell you it's the most personally satisfying work i've done as a judge advocate. when i was litigating regularly, i remember watching sexual assault victims on the stand and thinking that the government has its lawyers, the accused have lawyers and if anyone needs one now it's the victim. the most beneficial aspect has been that it curbs that unintentional and intentional bullying that had bank customary in a military justice proceeding. the most problematic aspect of the program i see is the need to fill new judge advocates because they're expected to be the expert on the system before they've experienced any of the computing interest. in concept, as the program evolves, we will be able to improve it with those who know what it's like to prosecute and defend in courts-martial. >> i always mention the expedited program but usually they've heard about it when they first make their report. so five had five clients who wanted expedited transfers.
11:18 am
i put in request for all five. they recommended approval for all of them. they were all granted satisfaction within policy guidelines. from my perspective it simple. your clients are interested, i talked to them about whether the reason for requesting the transfer fits the policy. if they express fear of retaliation or desire to be closer to family support or some other distant support network or any other pertinent reason that we collaborate on request. after confirming the reason for transferring, i asked clients to say in their own words why they want the expedited transfer and where they prefer to go. i have them send it to me first so i can apply the legal justification. then attach a copy of the policy and send it to the command and i copied the command legal office. >> after that the command runs with it. they have to produce a formal recommendation memo that is more comprehensive than the memo i sent them.
11:19 am
while preparing that over the next few days, they call me with questions and specific transfer proposals, wondering if the client would be okay with a certain job at a certain unit. those calls indicate to me that the client is already talking with the officer at our personal service center in washington d.c. that's where all of our transfer orders come from and it's where the commands recommendation memo is headed. a couple of times, at that stage, i've called assignment officers to advocate for my clients interest and they been open to that discussion. within a few weeks of requesting an expedited transfer, my clients have gone their new orders. the first time i had a worn new clients it could happen that fast and they've all remarked that two weeks is not a lot of time to prepare for permanent changes. the orders always give them at least another 30 days to execute. i'm confident we can get even more time if needed. we have frequent transfers. i've had cases in which clients were assigned when
11:20 am
they made their sexual assault report and potentially could have just transferred to the base for the ship ties up. i don't think that was never seriously considered. i suspect that's probably because our bases are small compared to the other services. the odds are high that the victim and the accused would encounter each other at the gym, at the exchange, at the health clinic, in the galley, in the parking lot, et cetera. the most populated coast guard is alameda california. i have been there several times and i don't like my chances of successfully avoiding anyone either station there. [inaudible] any two people working there are likely to discover they have overlapping functions. there's only one other base that comes close to that size and the rest of the populations are much smaller. the military protective order might prevent interaction, but it doesn't stop and accidental encounter from happening in the first place. that can be very dramatic and just imagining the likelihood could cause of the them to become hypervigilant instead of focused on duties.
11:21 am
in the coast guard, victims of any crime are not usually co- located with the victim. none of my expedited transfer clients have resisted cooperation with the prosecution. i haven't had an increase in these requests in the past year. i helped with to request in the past 12 months and two in the 12 month period before that. after their transfer, one of my clients request expired and the rest are still serving the coast guard. i see the fact that they want to conside continue serving as one of the benefits of expedited transfers. but all these clients were feeling tormented where they were. i feel see the ability to rescue them from that as the biggest benefit of the program and i wholeheartedly recommend its continuation. everything i just described is my own expense, but i also have some common observations from the other coast guard. most clients decide not to seek an expedited transfer and
11:22 am
they tend to want to bring out some little attention as possible to the situation. the ones who do transfer ten to express sadness about leaving their units, shipmates and their home. the most common reason for requesting the transfer is relief from the distracting and relentless rumor mill. clients who don't want to cooperate with the prosecution tend to make that aversion clear regardless of whether they are interested in an expedited transfer. the most common reason for becoming an interested in the prosecution is because it takes too long. the combined investigation and legal analysis take about six months and that's just getting to a charge sheet. clients who are already participating in the prosecution tend to continue participating after their expedited transfer. there are a couple cases in which clients initially declined but reengage after their expedited transfer because it feels safer without the accuser around and they saw the move as an opportunity to get their careers back on track. lastly, all of the coast guard that i've heard from. [inaudible]
11:23 am
>> thank you. >> can we take a minute or two. [inaudible] do you believe. [inaudible] [inaudible] >> it depends on the complexity of the case and at what point do i get involved in a case if i've been involved since the beginning, i am there for every interview the tween the investigators, investigation or cid with the prosecutors themselves, and
11:24 am
missed my client had agreed to meet with defense counsel i'm also there. and there for any pretrial hearing so any motions, request for continuance, whatever, i am therefore. as far as the actual trial, i am there in the courtroom the entire time and i go out and explain to my client what is going on. i'm there if there's any meetings between the prosecution and the client in preparation for their testimony, if there's any issues that come up during trial. if there's any issue during trial, and my particular jurisdiction at fort hood, we had to object through the prosecutors so we can let them know, i maybe had to do that one time because judges and prosecutors were pretty good at making sure that the defense counsel were following
11:25 am
through on whatever issues happen inside a pretrial in terms of records, laws and anything else pertaining to our client that we had to decide ahead of time and also, prosecution judge was very good at making sure the defense counsel were not badgering or harassing the witness, and i will say that happened very rarely with defense counsel. if it did, it was mostly with civilian counsel. >> so in that process, would that be the most typical time for the special victims counsel and raise issues that would be covered. >> yes or. >> that is the intent, however obviously sometimes new issues, but trial. in the navy court system, we
11:26 am
will stand, they will sit behind the bar and if we have a objection that applies, we will stand quietly and wait to be acknowledged by the judge. in the army courtroom you have to make your objection through the prosecutor which, at some point is problematic because the interest of the prosecutor and victim may be divergent. as far as the navy is concerned, we do answer all the motions prior to trial separately although i have joined with the government in my answers. >> when they are argued, pretrial, before the military judge, will the military judge direct questions or give an opportunity to hear from special victims counsel
11:27 am
separately? >> yes or. >> we file our emotions through oral argument. >> thank you. >> our system nears that. we would stand quietly if there was an objection amid trial or asking mike client and in proper question i would stand and wait for the judge to acknowledge me and then i would object on the basis of article 16. our clients have a right to be treated with fairness and dignity and i would say that rule. it stronger than the case law because typically the case law says we can only object in 412 so we would object but i would agree with everything they've said about our interactions before trial with respect to motions. we would argue separately from the government typically and during trial. >> thank you. >> yes your honor. same in the air force. the majority of our issues are handled in pretrial motions
11:28 am
and we are given a separate opportunity to argue those roo written responses as well. our rules are actually in our uniforms of practice but they mere the navy in the marines that if while our client, if we need to object we are in the gallery and stand to wait to be acknowledged by the military judge and we usually ask for an article session outside the hearing with the members. >> thank you. >> i haven't had trouble being recognized during pretrial or trial. during trial, actually in the courtroom the last couple cases there, they had set up a third table. is another courtroom where i've had a lot of cases in alameda and were still in the gallery.
11:29 am
the gallery is such a small courtroom but i've never had trouble standing up there and everything stops and they ask what you want. >> i think collectively, we are focusing on who we should be hearing from on this committee, and obviously commanders and investigators and special counsel, it is a pleasure to hear such articulate lawyers who can attest to how meaningfully this role is. military judges are independent. they are not trained in the same chain of command as convenient authority, that has been established from when i was in the military as a jag and that was before any of you were born. that independence hav has been around for a long time. should we be hearing from military judges? do you believe the military judges take seriously, because
11:30 am
you have a relatively new role, do they take seriously the ability to allow you meaningful involvement? or is this not a problem so we can spend our time looking elsewhere. >> i think it depends on the judge. we've had some judges who are supportive of the program and some who don't know how they feel about it and some have told us they don't like us. i think it would be beneficial to get those different perspectives and see which way we can get those judges that may not like us to have a little more respect for the program. >> thank you. >> madam chair. >> i've got a question that dovetails on this. >> i'm the discovery judge and something you said, during the discovery phase is in several
11:31 am
cases i preside over, the discoverability of something doesn't necessarily translate to the admissibility of something. when you fill out, on behalf of your clients, your request for expedited transfer and you have to describe the event, that is potentially impeaching type materials. are you getting request for those types of materials? >> so the policy is that there not to provide confidential information. >> the description of the event, if it differs from the report to cid or ntis, that discrepancy and description of events can lead to potential impeachment lines of questioning. are you getting request for those materials? >> i have not seen that request. >> sir, i have, but they are not justifying, they're justifying why they want to go to these particular locations, i have never seen a client where they have described all
11:32 am
of the facts of the sexual assaults in those and i usually help them write the justifications because i know they are probably going to be admissible. >> the navy requests, most time spent on the actual allegation are my name is so-and-so, i made an unrestricted assault on sexual assault on this date and that they could pertain to the report to law-enforcement, and that's pretty much the last time we talk about the case. the rest of the letter is spent talking about the personal needs of the sailor or the officer, and yes, those issues in that letter have come up and have been the source of cross-examination and credibility questions later. that is one reason we scrutinize those letters so closely before we submit them to command.
11:33 am
>> my position on discovery is that of my client or i have any discovery obligations within the system, anything is negotiable. it's a what's in it for us kind of thing. typically i.back to the trial counsel and say to talk to him because we don't have any discovery applications in the system. >> thank you very much for your testimony. this day has been very instructive. this question is a little bit outside the scope of what you talk about because i'm not sure when we're going to get to hear from you all again, but based on your representation of victims, could you each, knowing that every case is different, could you each tell us what may be your number one thing your clients have said they would want out of an investigation or prosecution of the case that would make them feel like
11:34 am
they received justice. i know you see a lot of things , but if you could give us that top thing. >> i would say in presentencing, in the case where we get a convection or where the offender is pleading guilty, the thing that i've heard more than once, so at least two or three times is something to the effect of that really felt sanitized and i think the rules right now do tend to tighten what the victim can say about their impact and there's also the concern that we are advising them that they don't want to open a door that's never been opened, that isn't relevant to consent or not. for example, mental health. that might not have been anything that's ever, but we don't run the case, we want the case to withstand appellate scrutiny so the victim doesn't have to do this again so there's lots of
11:35 am
considerations that go into that and that might be why the victim feels sanitized but there's also caselaw that also restricts what the victim can say in presentencing. that's the thing i felt the worst about in representing victims is that a few of them have said that the in the case. >> as far as justice and what my clients communicate, i preface this by saying i spent a great deal of time discussing with my client how the outcome of the case should not determine their sense of justice and that a victory or a loss does not translate their life. i spent a lot of time on that, but, what my clients are generally seeking is they want to know when is the accused going to give his side of the story so i handle that early on when he or she is probably not going to give his or her
11:36 am
side of the story so they want to know their side of the story. second, i think they want an apology, and third, i hear from my clients that they want the offender to no longer be wearing a uniform regardless of what happens in the case. i can't give all those things to my client but that's what they ask for. >> speaking back on what they said as far as justice, i always tell them that every step in the process is a victory, the fact that you reported and that you got them charged, and factors 32 and so on and so on so that the actual guilty verdict, if there is one is like the cherry on the top. getting wound up in so focused on the outcome, you are going to be disappointed, even if there is a guilty verdict, most the time, sometimes it's disappointing because the accused did not get on the
11:37 am
stand because they just piggyback on what they hear, they want to hear that apology and if there's an apology during sentencing, it's never good enough so act expectation management from the beginning, focus on day by day, take these little victories as they come, and the other thing i would say is things are not necessarily getting is consideration of their time and the fact that this takes so much time they've moved on whether they're still in the service are not, they've moved on maybe personally, i've had clients get married and have babies, and it takes so long and every time make that phone call from me, asking for this or that, it's a disruption in their life.
11:38 am
it's either you need to come in and spend these hours on the phone and come in for this trial and then a trial gets postponed when they very made all the arrangements for this particular time and now we have to push it off another month to six months. i would say those are the big things that are issues for my clients. >> i would echo the frustration with the amount of time it takes. i hear that a lot from my client, as far as what do they want in addition to justice, i feel like a lot of my clients, they just want to be heard. they want the opportunity to be heard and even in cases that don't have the outcome they wan want, that is certainly frustrating. i found they are happy they went through the process and had an opportunity to be heard. >> i was asked my question that in the beginning and the most common responses i want him out. they want that accuser to be out of the coast guard. typically, it's a male who is accused and they don't wanna run into him again. that i want him to be in any other service or anything like that in any other
11:39 am
circumstance. it's funny, the last three written victims views that i submitted, i specifically asked for what's called a code which is a reenlistment code that you give someone on the discharge papers that says they cannot reenlist in any service again and what i tell my clients, they tend to jump on that. >> thank you. >> thank you all. it's been very informative. we have something in california that passed a few years back called marcy's law which provides for something similar, but not appointed, and you are provided attorney for the complaining witness and the sexual assault cases. i think that is somewhat leveling of the playing field. now, captain, you indicated that abuse is not prevalent
11:40 am
and that attorneys like yourselves acting good faith so i'm going to ask you hypothetical and assume that in most cases this does not happen. if the complaining witness or victim tells you that it was a fabrication after she has made it report, assuming it's a woma woman, and she still wants the transfer and she wants to get out because now she's kind of created a bubble of problems, or, it's not about the transfer, it's just about the case, under those circumstances, what do you do, what is your role as victims counsel and your role with the court? if i could hear from whoever. >> yes, ma'am. i will go first. i think first it's important to note that i haven't had this experience in preparing for today, i talked with all of the other air force and i
11:41 am
have not heard of anyone having this experience. i think that's very important to note up front. and, secondarily, we are all bound by our state bar rules as well as in the air force rules of professional conduct and so, if we know under your help with tha hypothetical, we absolutely no because the client has told us that this was a fabrication, we cannot help the victim facilitate a fraud. i don't believe we have a duty to report to anyone because we are within the bounds of attorney-client privilege, but i would have to tell the client that i could not continue to help them facilitate that fraud. >> i would echo that. depending on the facts that you described, i would first look to my jack instruction which is our rule of professional responsibility as well as our state rules, and those rules would point me to not being able to sponsor that
11:42 am
lie. if that's a lie. if that victim were going to take the stand and continue to lie, i would seek my supervisors permission to withdraw from the case and that would be it. >> in my experience, ma'am, i have never had a client outright say this was a fabrication. what i have seen is areas of gray and a lot of different perceptions about what the truth is. when it doesn't have those rules from an officer standpoint and a jag standpoint, my duty to uphold our regulations, i advise the client on ways to limit their liability, which usually includes no longer participating in the process. i do offer that advice to my clients, if i believe that they are exposing themselves to further legal liability, either through fraud or through some other misconduct that's out there, or some
11:43 am
omission to law-enforcement, i will provide advice either we need to take this to law-enforcement and the client makes the decision, but my goal is to limit their legal liability, whether they decide to continue to participate or not and it gets to this is another matter. >> i will piggyback on what my colleague said as far as what they would do. i would say, i have had three clients that it turned out the reports were false, but we never even got to the point where the accused was charged because it became very clear during an investigation that they had made a false report. in these cases, they were all civilians so there was nothing the military could do to them. my firm belief is i if someone is making a false report, it will be clear that it's a false report and
11:44 am
therefore this particular individual is not going to be making a fraud upon the court. in the case of if they had been military and they had requested expedited transfer, that's kind of the risk you take with this program, but again i don't think it would've gotten past the investigative stage. i don't think any of my clients ever requested an expedited transfer, i don't think those reports were false but i don't think the program is being abused in that way. >> i guess a little bit of a different reform, you say that sometimes you are present during the interviews that the prosecutor has with the alleged victims. if the alleged victim says something during that discussion that you perceive
11:45 am
to be exculpatory, the prosecutor does not answer the prosecutor feels original obligation to disclose that, but you think it is. do you have an obligation under those circumstances to disclose it? >> no, sir. >> it seems to me, one of the problems you have is that if your role as a counselor, why do you need the prosecutor present? the prosecutor is present when that statement is made, does that you alleviate the confidentiality of the statement? >> yes sir. so as far as confidentiality, there is none, however i don't have a duty to turn over that. now what i will tell you in that situation is i would have two conversations but i would have one conversation with the prosecutor about why they need to turn this over and we would have a stern heart-to-heart about following the rules, and then i would have a second conversation about my client about why it's in the benefit of her participation in going forward in this case to have that piece of information turned over to the defense. in the absence of good faith on the part of the prosecutor,
11:46 am
i would probably urge my client to give me permission to turn that information over to the defense myself. >> one other question. if there is a determination on the request for an expedited transfer denied and it's denied on the basis of not being credible evidence in the allegation, is that determination admissible at a subsequent trial? >> i don't know if it would be admissible, but i treat that kind of thing like i would to turn it into something that is not in order to make my client , i think it would depend on exactly when that request is made and at what point in the investigation because if the report was literally made two days ago, there's going to be
11:47 am
credible information but it may be more credible once there's been more of an investigation so i think it really depends on the circumstances, by don't think the fact that a transfer was denied would have any bearing on the case because again, it takes a lot of things that are innocuous and tries to make them seem worse than they are, in my experience. >> your honor, i think the case law on this particular subject is evidence of prior sexual assaults is not admissible, but evidence of prior assault report is going to be coming up on cross examination under other credibility purposes. however, this will get needed out and the judge will make a determination beforehand during pretrial whether or not the specific instance of that prior report. [inaudible] , and some cases, the victim will be cross-examined on the stand about the prior
11:48 am
knowledge of the expedited transfer process, why they requested it, and if they've had an expedited transfer before this case, those things can come up in cross examinations. there are limitations that talk specifically about that. >> thank you very much for the presentation. it was very interesting. i have a two-part question. i completely understand the commanders problem with running into the personal time, which mutts be terrible so, one thing i wonder is, since it's only for unrestricted reports, have you seen people change a restricted report to an unrestricted report just to take advantage of the expedited transfer process? i guess you probably don't
11:49 am
have statistics but anecdotally, how often does that happen. the second question is bigger in this sense, we were given statistics, and as i said, and understand commander margolin, the numbers are actually pretty low of the percentage, i view it as well, maybe you view it as high because it obviously causes a huge disruption, but it varies from 10% in the air force, 13 in the army and marine corps and 29% for the navy. it's much higher. to me it seems very low given the problems as described, having to run into the personal time. i just wonder why, am i miss reading it or does it seem high to you. >> can i just ask for clarification, that number, is that the number of expedited transfer requests. >> unrestricted reports requesting transfer in the air force was the lowest of all, 10%. >> it's the percentage of
11:50 am
reports of people who have been asked for an expedited transfer. >> yes or. >> i think there's so many factors that go into the victim's choice to submit an expedited transfer that is too hard to capture why one service is higher than another because they could be so much going on in each victim's life that it might just be the way it is, but i think those numbers are actually low out of our clients, at least for me, about 25 or 30% of my clients ask for an expedited transfer. it's pretty close to what you said about the marine corps number. that is pretty accurate but going back to your first question, restricted and unrestricted, i have not seen a victim, at least in adobe that went respec restricted to unrestricted just to get an expedited transfer. i've actually seen the restricted case that got an
11:51 am
unwritten expedited transfer so there are creative ways if the victim does not want to report, but i have not seen that yet. i think it goes back to there's probably a perception out there that is frankly unwonted because the exceptional case tends to make people feel that they are unrestricted and so they can go somewhere better. i hope that answers your question. >> do confer that you have not seen that move. >> i have not. >> i haven't and i've advised check clients to make that choice. they can unrestricted case, submit their expedited transfer request and simultaneously sign a document , it's for a whole number of reason, for their privacy, and
11:52 am
i've seen it in our regular active-duty services and also in our academy. >> you have a feel for why the navy's percentages so much higher. >> sir, i would be speculating. >> i would say, in my experience there on restricting their report not for transfer, but for some other reason, and i would say why their percentage is low, as far as people asking for expedited transfer is because some clients are married to other service members or to others who have jobs in the area or maybe they just don't want another major event in their life so they are choosing to stay. it could be that they do have a supportive unit, it could be that their unit is not experiencing retaliation or
11:53 am
rumors or the good with the unit outweighs the bad. i would think those could be some reasons why the numbers are so low. >> i have seen where case is restricted and then goes unrestricted and asks for the expedited transfer program but then also does not participate in a military justice process and, that frankly was the case that that was the right decision that that client made for herself. the 10% number, my numbers are a little bit higher, i've had 37 clients and nine have taken advantage of the expedited transfer which is about 24.3%, and i would echo my colleagues that there are, these are complex decisions that complex humans are making in every case. >> obviously, for my client, i
11:54 am
haven't had any who went unrestricted to take advantage of expedited transfers, but what happens is what they want is justice so they take advantage of going unrestricted for that purpose, and then when when they start investigating, then they want the expedited transfer because there's too much going on at the command and everybody knows up that point. i think a lot of the reasons, like you said in the coast guard, you run into them all the time, but i think the commands are moving the accused, a lot of times they very moved the accused before i got involved. that's why those folks aren't asking. >> first would like to thank all of you for what you are doing. i think it's really a tremendous step forward for all of the services. i've got two questions. as i read the dod, it sounds like there is a presumption
11:55 am
for granting a request for expedited transfer, but as i listened each of you, and this might just be because you are really good players, you you approach these cases as if you have to prove that your client's case should be granted. should i assume that the commands do not always approach this as something where the victim should be presumed to be given an expedited transfer? >> i know you're just basing this on your own experience. >> this is my opinion, not the opinion of the navy, but yes, my perception and my experience is that commanders, there is a higher bar, and we do have to provide a certain amount of information for that commander to believe that they are making a decision that meets the regulations.
11:56 am
>> i think it depends on the commander and on the victims. the case that i've run into a couple roadblocks with, there were some other things going on in the victim's life and the commander was not co- located with that victim because the victim, the oh six level commander is located far away in a reserve unit so it's far away and they don't personally know the victim. it depends on the commander and the victim, if it's on us or the staffer program to advocate on behalf of that for the commander who doesn't know the victims very well knows that story. i've had very good luck for the most part. commanders are very receptive, at least the commanders i've been around. >> commander i think you've mentioned, i've seen a victim submit a request in the same day get orders and she's got be gone within the week. she was very excited though, so it worked out. i found commanders to be very receptive.
11:57 am
i found that they are concerned about our clients and want to make sure they have fully thought through the decision and there is a handoff to the next commander, but i found generally they have followed their presumption, i just think the they have to walk them through, especially if they haven't done an expedited transfer before, it's sometimes a foreign concept and so we have to walk them through. >> my perspective has been that they don't have a presumption one way or another pair they just want to do the right thing, whatever that is spread when i send my request, i do two things. i sent a copy of the policy which is short and easy to understand and i call your servicing legal office because i know they will forget to do that sometimes. then the legal office will guide them to the process. otherwise i'm not sure they have a bias one way or another.
11:58 am
>> i would agree that most commanders want to do the right thing. most of the time, i'm not getting the calls, they are calling their counsel and asking those questions and i may hear about it through them but i think it will really depend on the commander how much effort you're putting in on the front-end because if you have a new commander you may have to put in more effort on the front-end and if you have a commander who is in the second year, then you already know what you had to do for that particular commander. i think most commanders want to do the right thing and take care the soldier and make sure they are following the rules. >> my last question, it sounds like for some of you this is a major part of your assignment. for some of you, is an assignment like this looked upon beneficially for your
11:59 am
career advancement or neutrally? >> i would say in the army, it depends on installation whether it will be up full-time or part-time duty. i personally think it should be full-time the matter where you are, and i personally think, just like a lot of things in the army you may not have enough bodies for the new mission they have to do so i think some installations don't have enough so these installations end up taking a lot more time. at fort hood, we get a lot of client request for transfers and some of them wanted on the ground so we end up taking a lot more cases than another installation because we just have full-time. [inaudible] i think with any new job in any of the services, people are going have question whether or not this will be good for your career. i never had any of those
12:00 pm
questions. my philosophy is the army tells me i have to do this, i'm in a do it. so i don't worry about whether that will have a bad impact on my career, and in my experience, without even having asked someone about that, i've been told don't worry about it even though i never had those worries. : >> because we are also personally screened by our judge advocate before we're placed in a position. i have a direct reach back to my deputy chief of staff and my chief of staff of the program, and they check on me pretty often on my personal well-being as well because this job has some stresses that are unusual.
12:01 pm
so i do think that the program and the position is looked on highly by my service. and while it's a newer job in the jaguar, -- jack jag corps. there are metrics and also reach back in place to make sure that we are all doing well here. >> i just want to start by saying it is, where screen like the navy not only by the oic of the victims' legal counsel, the individual identified a nominee to the the person within screened by the person to an interview process and then their certified. so there is a screening process even to be, of vlc. i would say it is still a mixed bag in the marine corps. i think there's probably a good number of people especially amongst the younger judge advocate simply want to do it but i think there are still folks who think this 300 beast
12:02 pm
that is entered the courtroom but i think we're getting past that and doing well anecdotally on emotion boards and tool boards. i think more and more of the younger folks see that the old geezers like me are moving up and we are hanging in there. [laughing] [inaudible] >> i think as they see that, then i think it will continue to produce. we are very lucky. we are very good people across the board and i think as the practice is going over the last four years we continue to get better and better counsel coming in, and people are volunteering more on moore. but we're not quite the total stigma vlc could be damaging to career is going yet. >> i found in the air force, first let me say it is a full-time position. these are my soul duties and i found it is looked at as beneficial.
12:03 pm
you have to be nominated pics of me i was in the legal office at my base before. i was nominated for this job and then there is a vetting process as well. i think it's looked at beneficially for a couple of reasons, but for junior jags like myself i was in the legal office for two years before i moved over to this job. in this job i have been given the opportunity to run my own office. i have my own hair legal and you have a certain degree of your given a certain degree of leadership and autonomy that captains don't normally get. >> all i have for you as my personal observation isn't that the folks that are doing this work are getting promoted. >> thank you. >> ms. garvin and it i think we're pretty much out of time. >> so jumping off of what jennifer long asked, a broader question sense on not sure when we'll have you back, major martz, you brought up article 6b is broader than 412 and by 13
12:04 pm
but so so much of your practice has been similarly constrained. i'm just curious how much you guys are arguing general 60 practice, and then what you feel about your capacity to challenge losses. >> so actually with help of probably you, ms. garvin, and all of us get together and we talked out these issues, i think the next charge for us, and a feeling the air force thunder, i am totally stealing this from then, the next charges article 60, going back to the complaint and investment highlighted about the victims, it drives us crazy that it takes so long. so anytime and defense counsel files a continuance motion, then there's a good chance we might be fighting it because they don't want to have that phone
12:05 pm
call where we're sick all right, this was supposed to happen in january, now it's happening in april. they want to get this over with. that's one area we are seeing more. the other asus seeking those protective orders of certain types of evidence, going back to the what is discoverable versus what is produced and we talk about discovery and admissibility. discovery versus production, a fancy can't and mental health records and medical records and cell phone data, that all could be an area that we are seeking protective orders over from either the convenience of authority if it's real or the military judge under article 60 out of our clients begin going back to fairness and dignity, respect other privacy. >> we are arguing article 6b. i will echo everything major martz said. to include the issues, or the motions that are not for 12 or
12:06 pm
513. the judges waters watchers make a statement argument first. we are having to fight to get a foot in the door but were making those motions. >> i am so ready to stand up and make an article 60 argument. that was the one thing when article six he came up i said this is what has been concerned me because even i have that opportunity to disrespect sexual assault victims unzipping things like that. what i'm learning now which i didn't expect was defense counsel are not figure out how to deconstruct complaining witnesses credibility without taking away their dignity. i have had to stand on that yet. >> okay. the majority of the motions you have what around 412 and 513. haven't. haven't had an opportunity to really argue 6b, but the program extension exception has been very supportive, as the sea
12:07 pm
pushing the limits of what they can do. so i'm sure others may have had to argue 6b and would've called their colleagues and other services for advice. because the air force would be the way. >> and i have nothing to add on that now. >> thank you very much, captain tedford, major martz, lieutenant commander hufstetler. we appreciate you coming. keep up the good work. >> thank you. >> thank you. >> captain tedford, in the last request? >> no. >> this meeting is officially closed. [inaudible conversations]
12:08 pm
[inaudible conversations] talk about the charges had been laid and the prospect of what happens next. jonathan turley, law professor at george washington university law law school joins us on the phone. good morning. thank you for joining us. >> good morning. >> could you give us an charges thatf the have been brought? >> there2 are 12 towns that a been brought against these two men, and they include many of the charges that wet anticipat. they include fair of violations which is foreign agents registration act violations, but they also include things like conspiracy against the united states. most of the charges seem to be


info Stream Only

Uploaded by TV Archive on