Military Law News Network – Oct 31, 2013 – The War on Military Sexual Assault – Article 32 Investigation may tho away: In this episode, court-martial attorneys, Michael Waddington and Ernesto Gapasin, discuss the movement under way to drastically revise the UCMJ Article 32 Investigation and strip the accused of the right to confrontation at these hearings, particularly in sexual assault cases. The veteran military defense lawyers discuss the pros and cons of revising the Article 32 hearing.
War on Military Sexual Assult-Article 32 Investigations May Go A…
Military Law News Network
Mike: I am Michael Waddington with the Military Law News Network and today I am joined by attorney Ernesto Gapasin. How are you doing today Ernesto?
Ernesto: Hey. Things are great Mike. Everythings going well. Just ah handling a lot of trials right now and really taking it to the government.
Mike: Alright well, listen as we’ve been discussing on this network and also amongst attorneys no matter what the military does…no matter what the air force, the army, the navy, the Marine Corp does the leadership to show that they’re taking a tough stance on sexual assault, Congress is relentless ah with claiming they aren’t doing enough. They want more done. And that’s going to be the topic of today’s show. There have been some really drastic measures underway as a result of the Naval Academy Article Number 32 that just happened recently that involved sexual assault. Ernesto, do you want to fill our listeners in on on the back ground of that case and what’s happening?
Ernesto: Sure this is an extremely high profile case Mike and as you know and as I know we have been following this case. This involves those naval football players who have been accused of sexually assaulting a a female. And it is our understanding that based on some of the media reports, that the defense attorneys and these are the allegations made against the defense attorneys that they were they were attacking her too hard. They were attacking her credibility and this went on for hours and hours. And the media really went out on a on a limb to say that this particular alleged victim was not being well or treated fairly at this hearing. And what’s what’s happened is that it has kind of created this spark, ok? This spark within the ranks of politics to change how Article 32 hearings are conducted. And maybe not even changed them Mike, but to get rid of them entirely. And I got to tell you Mike, You know, I’m…I’m shocked by by these reports and I..I really shouldn’t be shocked. Right, Mike? I shouldn’t be I shouldn’t be shocked based on the constant trend doing everything possible for the government to prosecute and to win these cases. Even even with little evidence.
Mike: You know Ernesto, I’m…I’m shocked as well. What started out as a story of of the defense lawyers harassing an alleged victim has now into another attack on the military justice system. And I was recently at a court marshal at Altos Air Force base involved the sexual assault, just last week. And I met with…my opponent was a Special Victim prosecutor. A very seasoned, a very well-respected prosecutor in the US Air Force and when I was speaking to him during one of the recesses…he had told me that in Congress right now there’s a there’s a big movement under way and he thinks it’s going to pass where they are going to either to get rid of Article 32 hearings altogether particularly in sexual assault cases or at a minimum, limit the Article 32 and not allow the accused and and or his attorneys to even be present which that would deal a tremendous blow to the rights of service members accused of not only sexual assaults but any crimes .
Ernesto: Mike, let me, let me respond to that. Um because these Article 32 hearings…um they’re mandated under Rule of Court Marshal 405. These Article 32 hearings are so important to the defense and here’s, here’s why. The prosecution, they have the opportunity to investigate a case for months and months before they ever prefer charges. Sometimes even over a year. The prosecution has an opportunity to investigate, to interview witnesses, to look at the evidence, to review the crime scenes, but what, what opportunity does the defense have once the preferral of charges happens? Just think about it. These Article 32 hearings can take place right after preferral, right? So now Mike, here you have the government which have months and months to prepare. Well, guess what? These Article 32 hearings, this is the first crack at the case that that accused has. The evidence could be so terrible. There could be very little evidence against him but again, when you are dealing with sexual assault cases, there’s there’s so much that is political that these cases get prosecuted. So now we have the Article 32 hearings which gives the accused, Mike, the opportunity to examine witnesses, to examine all the evidence against him. It gives him the opportunity to to uh elicit testimony that can be used later for impeachment at a trial. It’s also the opportunity for defense councils to to elicit testimony for preparing motions closer to trial, if the case gets preferred. Now Mike, to do away with the Article 32 hearing would be such a such a blow to an accused full and fair hearing as mandated to him under the Constitution. And I’m not trying to get idealistic with you. Practically speaking, that Article 32 hearing that is the first crack at the case that an accused has.
Mike: Well, Tim think about from another perspective, the reason that the Article 32 is also important to the prosecution and to the government is because let’s say someone does make a false allegation. Let’s say a witness’s story doesn’t add up or the witness is a liar or they can’t remember anything. Well, the the government never really gets a chance to hear that witness testifying under cross examination until the Article 32. So sometimes, it still happens. Sometimes when you go to the Article 32, the investigating officer, the prosecutor and everybody in the room realizes this person is not a victim. This person is not truthful. This person is not even credible. We’re not going to spend several hundred thousands of dollars which is what it costs nowadays to try one of these big cases from the government’s standpoint because they have to pay for experts. They have to take the jury out of their day to day duties and put them in a put them in sit them in a jury box for a week. They have to go through the whole pellate process. You’re talking flying in witnesses from all over of the world and the case can take sometimes up to a week. So these cases are very expensive. I mean, just because someone is in the military doesn’t mean that the time your time is worth nothing. You have 7 or 8 cornels and a couple sergeant majors on a panel. Add up the amount of time and money that is costing the government for having them just sitting there. It can be sometimes not worth it to go forward. So the bottom line is, the Article 32 gives the government the opportunity to see what type of case they have and to do the right thing. If the charges are not warranted then sometimes that the Article 32 is the government sees that, then they say ok you know what we are going to give this person…let’s say they are accused of sexual assault and adultery. The adultery is proven; the sexual assault is not. And they can then turnaround and give that person an NGNP and an Article 15 and move on. But what’s going to happen now is everything is gonna go if there is no Article 32 everything is going to go forward, it’s going to go to a court-martial. I think it is also going to really hurt the government as well because they are going to get ambushed a lot of times and they are going to be crushed by by experienced defense attorneys when the first time their witness ever takes the stand is at the actual trial in front of the panel. So, it cuts both ways here. And either way it hurts the military justice system if they get rid of the Article 32s.
Ernesto: Mike that’s that’s those are great points. And that is something that we can easily forget. That prosecutors sometimes they have so many cases, they don’t have the chance to interview some of these witnesses. And then And then they get to the 32 and then they get to observe how their alleged victim deals with cross-examination. And when they see that you are absolutely right. Hey know what, we got a bad after a 32 a prosecutor may say we got a case with bad facts, bad evidence and a bad alleged victim. Why spend 50, 70 100 thousand dollars to prosecute this case when we’re going to lose? And that’s an absolutely great point. And what comes to mind when I think of Article 32 hearings, is that it’s not a waste at all. It’s not a waste of manpower or resources but in fact, an Article 32 can actually bring about greater judicial economy um and help the workflow or the flow of all these cases and court-martials going on throughout the military branches. But, that’s a great point, Mike.
Mike: Tim, I am sorry Ernesto.
Ernesto: It’s ok.
Mike: Ernesto, another another thing is the government at the Article 32 has the ability to even perfect their case. Let’s say the case is a is a ok case ok but maybe they got the charges a little bit wrong. Maybe they didn’t charge the the defendant with the right crime….now they’re not gonna have that ability after the Article 32 to say, you know what we actually charged this person with aggravated sexual assault in reality it should be wrongful sexual contact. Because you know if we go forward with this charge, we are probably not going to win so then they can amend the charge sheet. That’s a big thing that happens at the Article 32 is they amend the charge sheet. They perfect their case as as well. It’s just not really…all the benefits don’t really go to the defendant. I would say that the benefits of the Article 32…the benefits of it ahh..help the prosecution a lot more than it helps the defense. Here’s another problem. If a witness testifies as it is right now at an Article 32 and then something happens to that witness. If that witness was subject to cross-examination and under oath, and they recorded the testimony…guess what? Let’s say the witness refuses to cooperate or the witness God forbid hacks and the witness dies, the government can then they can use that Article 32 testimony if the defendant was there to cross examine them, the defendant’s attorney at the actual court martial. So what happens, whenever there is no Article 32, then they don’t have the ability to use that testimony. And I have had cases where we waived the Article 32, which I don’t advise; unless you have a really good reason…We did it so that we didn’t lock in witnesses in theatre. Ok? Over in in Iraq. So what would happen is, we went straight to a court martial. Some of those witnesses had problems showing up at the court marital and guess what? It was to our advantage. Where as if if we were to have done the Article 32 and they would have recorded all that, then the outcome might have been a little bit different.
Ernesto: Sure. Sure.
Mike: So, I think that ah that the the victim right’s advocates think that they are helping victims and helping the military justice system but you know frankly, in terms of justice, it’s the wrong wrong approach. And I think that it actually and and, depending on how we come at it, can actually help defense attorneys gain more acquittals in the long run.
Ernesto: And Mike let me just address something regarding victim advocates. You know this. You’re an experienced attorney. I’m an experienced attorney. We only do military cases. And we know that victim advocates don’t understand how the system works and how the system works better. Ok? So too many times victim advocates act and move forward based on emotion. So they hear about this naval academy case and what happened at the Article 32 hearing. They hear rumors or statements or comments that this alleged victim was just beat up, was just harassed. So what happens? It becomes something emotional to the victim advocates. So they contact the commanding generals at whatever base or post they’re at and say this is a problem that needs to be dealt with. And then the lobby groups come in. I mean Mike…thi…this is…the victim advocates… for them to hear what happened at the Article 32 hearing involving a naval academy case, they are moved by emotion. They don’t see it the way you and I see it when it comes to judicial economy and the rights of the accused.
But moving on from that issue, I want to address one other matter with regard to these Article 32 hearings and how a government can perfect its case. Because as we, just very recently…perhaps a month and a half ago, under 2 months ago we know that it’s mandated now for every Article 32 hearing involving a sexual assault for a JAG to be the sitting investigating officer. And you know when, when we did this a long time ago, we didn’t always have JAGs sitting as the investigating officers in the Article 32 hearing. It could be um, an infantrymen ah, someone with the engineering core um people who would be real panel members. Now we have JAGs um who sit on the panel….I’m sorry…who sit as the investigating officer. And we don’t always know what their level of experience is with regards to court martial but we do know that when you have a JAG sitting as the investigating officer, they are more a capable and able to aid the government in perfecting its case at the Article 32 hearing. To prevent a sloppy prosecution from becoming even more sloppy and to try and help those prosecutors fix the problems and iron out any issues or mistakes um that could later arise at trial. So again this goes back to the issues of…where victim advocates want to get rid of Article 32 hearings, where Congress is now demanding a big change to get rid of Article 32 hearings. Mike, they are only hurting themselves. Ok? They’re only hurting themselves because these JAGS who sit as investigating officers can really help the prosecutors perfect its case. They are only hurting things Mike.
Mike: Well, Ernesto a lot of times whenever you make you make um decisions based on emotion ah which is which is a lot of this war on sexual assault…when it’s motivated by a propaganda movie The Invisible War and a lot of decisions are based on that gut…
Ernesto: I’ve seen it, Mike.
Mike: It’s…it’s interesting…if you haven’t seen it, I encourage everyone to go out and watch it…ah…it’s really a, it’s really a…it was put together ah and and pushed forwarded by victim advocates that that are filing a lawsuit and I’ve said this all along…this is about money. It’s not really about ah victim’s rights. It’s about people wanting to win. Probabl…what they want it to be largest um lawsuit that the military has ever seen where they get you know 10 thousand 5 thousand alleged victims ah together and sue the government. They have already tried to do that once. Uh, they failed. And but they’re not, they’re not stopping because imagine if they got a class action settlement for every alleged victim ever that’s ever been in the military that’s still alive. I mean, you are talking billions and billions of dollars, whether or not the person was actually a victim or not.
Mike: So I want to point something out, an attorney, I think her first name was Susan Berg, she was at the naval academy case in which she was representing the alleged victim which is how it got so much publicity. She also was in the movie The Invisible War and she also a big advocate of of the military…the media’s attacks…and she is behind those attacks on the military saying that they aren’t handling sexual assaults right. What I think she is doing is trying to build up her case to get the public on her side to get Congress on her side. So that she could one day win a large class action lawsuit and win a lot of money. I mean, if she wins a lawsuit for 50 million dollars, she is going to be a very wealthy person and she has a history of being successful with these types of lawsuits. So, make no doubt about it…all these people running around ah that are being manipulated by by propaganda in the media and and stories about 30 to 40 hour cross examinations…I am talking about the naval academy cross-examination…I don’t even know if that’s true. Ok? But that’s what’s out there. That’s the perception and perception becomes reality. So when you are making decisions based on emotion and here’s the thing…if the military keeps switching and changing their military justice system, they’re basically admitting that it was not adequate which is setting her up for success in her future claims. Because if you go and make all these changes to a system to make it better and you keep doing it over and over again, admitting you’re wrong, admitting you weren’t doing your job, admitting you weren’t hard enough, admitting that the military didn’t investigate, you are basically conceding that the military was negligent in handling these cases which is in my mind, admitting liability. So, don’t forget what this really is all about. It’s about money. On the fringe, you have a few radicals and Ernesto, earlier today we talked about a tax payer funded symposium that’s going on right now. Um… it’s actually a news story that came out today. Ah, the US Institute of Peace, a taxpayer funded organization had a conference this week. And they’re complaining that the military… um…at this conference on of the speakers was criticizing the United States for spending more money on counter-terrorism than they do on sexual assault prevention. And I wanted to get your take on that Ernesto because we spent a lot of money on counter-terrorism. I don’t know if we are going to be spending a couple hundred-billion dollars on sexual assault prevention but I wanted to get your opinion on that new development.
Ernesto: That is one of the most ridiculous…one of the most ridiculous things ah, that I have heard Mike, it really is. And it kind of goes to show how the media itself is perpetuating the problem. We have a lot of and this is what I mean…I almost believe that we have a lot of sex assaults in the military because that’s what we’re told. We have problems in the military with sex assaults because that’s what we’re told. And what that does is, it’s very harmful to the system itself. It’s very harmful to investigations because regardless of the weight of the evidence. There could be no evidence, zero evidence nothing more than baseless allegations from a very uncredible source or an uncredible alleged victim and now you have an officer, enlisted member whose life is in jeopardy because of these false allegations that are perpetuated by members of the military who know who to work the system and who understands what they have to gain by claiming sex assault and claiming to be a victim, Mike. And I…And I think that’s the big problem that we have right now is this perpetuation of fantasy. Um.. I mean that is my initial take from that statement, Mike. It’s just ridiculous to spend that much money on sex assault.
Mike: Well, I agree. I mean it’s sort of, anytime you declare a war on something and you put hundreds of million dollars… hundreds of millions of dollars to try to stop the “problem”, sometimes the problem is not as exaggerated as you would think and especially when there’s money to be made. You know, the propaganda comes out you know and then all of a sudden you got these people that are hired. I am talking hundreds and hundreds of additional law enforcement, sexual assault prevention and in some cases it went, it went from being approximately a thousand world wide of people involved in the in the victim advocacy program, victim witness program. Now there are thousands and thousands of…I’ve heard upwards of 8000 people trained in sexual assault awareness…not just awareness but in prevention in…as victim um witness liaisons, as the VWAPs and all that. And so what you have is you have all these people that are told that there rapists hiding behind every corner. There are rapists everywhere you look. Men are rapists. Men in the military uh are rapists and when you look at the symposium that I was talking about, they are blaming the masculine culture of the military. That’s what’s causing all these rapes. And so when you’re told over and over again that there is a very good chance that you could be a victim. You are a female. You really can’t consent if you have anything to drink. All these rapists are going to take advantage of you. By the way, all your past sexual encounters, you were probably taken advantage of and you were probably raped. Have you ever been in situation where you felt guilty the next morning about the sexual activity that you had? You’re probably raped. If you weren’t raped then, you were taken advantage of. That’s another crime wrongful sexual contact. So, if you ever have had any sexual contact with someone and you wish you didn’t, then you’re a victim. Come to us. We will give you money. We’ll diagnose you with PTDS. That’s what’s going on and I am not exaggerating. I get asked this question all the time. Why would people why would someone put themselves through this process? Well, it’s…it’s in many of the cases; the person doesn’t even come forward. It is one of these “new trained” people that are looking for victims. Ah, and drumming…they’re drumming these people up. I’ll give you an example: A case I recently had. There was an airman that that didn’t do well on a test. She was in charge of loading ah gear on top of a … some air…a C130 or some aircraft but my point is, she was she was emotional because, she didn’t she didn’t do well on a test. She failed so she started crying. Well, anyway, her instructor immediately said. And now this is a seasoned enlisted member of the United States Air Force. Immediately thought, somethings wrong. This reminds me of the sexual assault training that I just had. Where someone isn’t on their gam 100%. Where’s someone’s emotional. The fact is she had cheated on her husband and her husband had found out about it and she was very emotional about that and she wasn’t a top performer anyway. So the idea that anytime you see someone not having a good day or pouting around, it must be because they were raped because there could be no other answer. Then, and then people were told that if you feel guilty the day after you have sex with someone, and you cheated on your husband, then you probably didn’t want to do it anyway and that person…that evil devil, probably just ah manipulated you or he used rank on you or maybe he quote plied you with alcohol…that’s another thing we hear…we’ve been hearing a lot. 2 to 3 drinks is not is not plying someone with alcohol but that’s what these people are being told. And then they’re being told, you not only…you are not a victim. Don’t say those words. You’re a survivor. And then and then they’re sucked into system that turns out court martials. And it’s really a, it’s an injustice for the people who really think that they were sexually assaulted. Because if you weren’t sexually assaulted, if you went out and had a couple of drinks, and you’re flirting with someone, cheated on your boyfriend and the next morning you wake up and think, you know, I should have done that. Well, you know what…that’s a lesson to not go out drinking with people you might hook up with. To not cheat on your boyfriend. Deal with it. It doesn’t not mean that you have been victimized by anyone. As a matter of fact, you’re the only that should probably be held responsible for your poor decision making.
And that brings up the final point Ernesto, and the Air Force once again…always trying to go the extra…I gotta give them credit because these guys are bending over backwards to try to stop sexual assault and to show that they are cracking down on sexual assault. No matter what they do um the politicians are coming after them. And here’s a short …a real short story. They posted…you probably have seen these…these are at every military installation that I have ever been at…signs about sexual assault prevention. And I’m going to ask for your comments in a second Ernesto. But one of these one of these signs that was in the bathroom gave some very simple steps on how to avoid being victimized. It was not just for women. It was also for me. Don’t go out drinking with people you don’t know. Don’t drink excessively. Don’t go home with a stranger. Don’t accept open bottles of alcohol or drink…alcoholic drinks from people you don’t know. Ah. Don’t walk down dark alleyways in the night without a friend. I mean, go out with a close buddy. Anyway, the media has twisted that and now they are saying that the Air Force is…is…it’s a perfect example of victim-blaming. What are your thoughts on those on those efforts and on that sign in particular that I was telling you about Ernesto?
Ernesto: Mike, here in lies the problem. And these signs and flack that has been generated because of these signs almost epitomizes what part of the problem is. And part of the problem is that the military does not believe that females can be responsible for their own conduct. Apparently the military does not believe that females or anyone can be responsible for their own conduct. They’re not smart enough. Ah knowing when to drink and when not to drink. That they don’t know who to hang out with and who not to hang out with. And there in lies the problem Mike. We are creating and the military is creating is this victim mentality. That basically says hey you…you 20-year-old or 19-year-old female, you’re not smart enough to make the decisions on your own and that’s completely false Mike. That’s completely false. And instead, these signs are are great. These signs are telling young airmen, male and female to be responsible. To be responsible for your conduct. Ah, who you hang out with. Ah how much you’ve had to drink. What is wrong with that? What is wrong with our military leaders telling young men and women in our military to be responsible? There is nothing wrong with that. But the media wants to portray the military as these barbaric rapists. And that’s not true. And in order to portray the military as these barbaric rapists, the media and some of these victim advocates have to create an atmosphere where young men and women simply cannot make decisions on their own and are therefore victimized by everyone around them. That’s…that’s my take on that Mike.
Mike: Well, well Ernesto that brings us to a close on this episode. I was glad…it was great to have you on here for the first time. We…we…in the next couple episodes, we wanta start…you’re going to see Ernesto on more frequently. Tim Bolecki will be back shortly. You’re going to see Tim and myself and Ernesto doing 3-way interviews and we are also going to be bringing on guests in the coming months so stay tuned. And for the Military Law News Network, I’m Michael Waddington with Ernesto Gapasin. Until next time.