OSTC Leader Cancelled

Gene Fidell at Global Military Justice Reform has a post about the Wells situation and LTG Pede's comments.

​First, this firing does indeed raise a question about the independence of the STCs. This was totally unnecessary. With a stroke, Secretary Christine E. Wormuth struck a blow that seems most unfair, and, worse yet, casts a cloud over the new and better prosecutorial system that many people labored long, hard and wisely to achieve in order to foster improved public confidence in the administration of justice. Her action is far more destructive of that confidence than BG Well's decade-old email ever was.
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That said, I have to disagree with LTG Pede's reference to "the 'pre-baked' design of the new military justice system forced on the Services two years ago." To say something was "forced" on the services is to reject the very notion of civilian control of the military. LTG Pede was one of those who thought the change was a bad idea, and I am concerned that he and others who shared his view will now seize on ​Ms. Wormuth's ill-advised action as a reason to roll back what Congress did. Watch for further signs of irredentism. For her part, ​​Ms. Wormuth may have grasped defeat from the jaws of victory.

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Another update that mirrors some off-line discussion:

When the OSTC becomes fully operational, it will face many challenges.  As a former military judge, I’m convinced that the greatest challenge to this new system—a system that ostensibly promotes the appearance of independence by placing prosecutors under civilian control—will be its failure to comply with the Due Process Clause’s demand that the entire system appear independent and void of command influence.  Specifically, I foresee defense counsel filing well-crafted motions that challenge a lopsided system that demands civilian control of prosecutors but leaves the entire judicial branch under the control of a TJAG who controls the assignments and futures of our military judges. 

While it is true that Fifth Amendment Due Process concerns have been addressed in the past, the landscape has drastically changed since those rulings.  In Weiss v. US (1994), the Supreme Court rejected a due process challenge based on the fact that trial and appellate military judges had no fixed terms of office. In US v. Mitchell (1994), the CMA denied a due process attack on the Naval officer fitness-report system for appellate judges. Due process challenges to the judiciary were also addressed in US v. Graf (CMA 1992) and US v. Paulk (AFCCA 2008).

However, all these cases note that under the Due Process Clause, there is a requirement that the judiciary be independent in appearance as well as in fact. The courts, especially in Mitchell, noted that Congress created or was at least aware of the structure of the judiciary and that great deference should be afforded congressional determinations related to the rights of servicemembers. On the appearance issue, the Mitchell court stated the test for whether a tribunal appears independent was whether the factors negatively impacting the appearance of judicial independence and fairness were so extraordinarily weighty to overcome the balance struck by Congress.

The creation and the congressionally mandated structuring of the OSTC raise serious questions about the independence of the judiciary. OSTC was created to provide “independent” prosecutors free from undue and unlawful influence. A separate reporting chain was specifically mandated to ensure this independence. Members of the OSTC do not report to the TJAG; they are not rated by TJAG. Rather, members of the OSTC report directly to the Service Secretary.  Military judges, on the other hand, are still supervised and rated by TJAG. Clearly, by removing the OSTC from TJAG’s supervision, Congress sent a message that they did not believe prosecutors could truly be independent if they reported to TJAG. 
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How can a system that was viewed as inadequate to protect the independence of prosecutors be sufficient to protect the independence of the judiciary? If Congress believed it was necessary to move prosecutors out of the JAG chain, does their act of leaving the judiciary unchanged still get “great deference”? What would an outside observer think about the fairness of the military justice system if they knew that the independence of prosecutors was given more protection than that of judges? It seems illogical that prosecutors cannot be independent if they report to TJAG but judges somehow can be.

​Ira Perkins.

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Another update:

Thomas H. French (a pseudonym) has a different perspective.
 
First, let’s start with the general that was relieved from command. Wells lamented that his counsel should “expect no commander to be able to make objective decisions” as a result of the firing. However, he wasn’t relieved because he didn’t make an objective prosecution decision. He was fired because he violated the law. The two-star sat on an allegation of sexual assault against a colonel he had known since the 80s. Contrary to the law that required the case to be investigated, he did nothing in order to protect his friend. He didn’t take any action until Stars and Stripes asked about the case, and he lost a star for his violation of the law. 
 
Second. I know people criticize me for relying on actual data, but the raw numbers are important. Wells’ email makes it clear he is telling his counsel that no one is on the side of the accused and the system is out to get them because of political pressure and misleading data. But this is the DoD’s data, not someone “dancing by the fire of misleading statistics.” It is inconceivable that at the same time the DoD was trying to convince Congress how serious commanders took sexual assault, it was also undercounting its own prosecution data, thereby giving Congress more fuel to criticize it. In other words, the DoD has every incentive to count every case it prosecutes. As a result, the statistics on prosecution rates and convictions are hardly misleading. Instead, they conclusively show it was and is still actually highly unlikely someone accused of sexual assault would ever face trial let alone be convicted.  The data shows the opposite. In FY13, the year he wrote the email, there were 4113 reports of sexual assault. Only 1187 of those reports were substantiated (27%). Of those, only 484 (40% of substantiated cases) went to court. Only 197 were convicted of a sex offense or 40% of the few cases that actually went to trial. 114 were found not guilty of all charges for a 24% acquittal rate. In total, only 4.8% of the 4113 reports resulted in a sex assault conviction during the time Wells wrote his email. As commanders controlled the process, the data shows they overwhelmingly sided with the alleged offender, thereby demonstrating the ability to ignore the pressure of Congress and “agenda-driven” groups.  
 
In other words, the facts simply do not support anything Wells said. I know many defense counsel make it sound like the deck is unfairly stacked against them, but I guarantee defense counsel in the civilian world would love to have their rate of success. And this was the high-water mark for success. Prosecutions have gone down dramatically since then as have conviction rates, while reports have doubled. In other words, the idea the system was overwhelmed by outside pressure resulting in “every allegation going to trial” is demonstrably false. In fact, as pressure intensified, commanders sent fewer and fewer cases to trial. The reality is the defense community enjoys unparalleled success in keeping cases from ever going to trial and winning the overwhelming majority of the few sex charges that do go to trial.  
 
As for Wells, he has admitted his words were wrong and distracted from the mission of the OSTC. Leaving in him that position would have made every decision not to prosecute fodder for outrage, whether warranted or not.  No one is entitled to be the OSTC, and the Army is better served by having an OSTC who did not write those words.
 
Gen Pede’s claim that Wells was proven right because the two star was allegedly cleared 10 years later doesn’t change the calculus.  At the time Wells wrote the email, the two-star had been removed for failing to follow the law to the benefit of his long-time friend and subordinate.  That a decade later the blame has shifted to his JAG doesn’t change what Wells knew in 2013.

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Update: 
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Firing the Army chief prosecutor- is this what independence looks like?

LTG(R) Pede weighs in. He reminds us of LTG Franklin and his really bad decision (that's our opinion based on the available information) in Wilkerson.

In Boyce, CAAF addressed the events surrounding LTG Franklin's decision to set aside the Wilkerson conviction and the subsequent attention to that decision and how it affected Boyce. One point of discussion was whether the military judge at trial correctly concluded that LTG Franklin was "bombproof."

LTG Franklin was not bombproof--that was subsequently proven--think the Wright case and LTG Franklin's professional and personal trajectory. In Boyce, CAAF said,

​We conclude that the military judge’s determination that Lt Gen Franklin was “bombproof” is not supported by the facts and circumstances surrounding this case.

That turned out to be correct as the later bombings proved.

A three-star Air Force general whose handling of sexual-assault cases drew withering criticism from advocacy groups and some lawmakers retired [as a major general] under pressure Wednesday.
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Lt. Gen. Craig Franklin, the commander of the Third Air Force in Europe, acknowledged that he had become a “distraction” for the Air Force because of controversial cases in which he overturned a sexual-assault conviction of a star fighter pilot and decided that there was not enough evidence to court-martial an accused rapist.

Craig Whitlock, Air Force general to retire after criticism for handling of sexual-assault case. Washington Post, 28 January 2014.

The "not enough evidence" case was Wright. The PHO and SJA non-rec'd a court-martial for Wright. LTG Franklin agreed and the charges were dismissed. In response, and (likely pressure), the AF reassigned the case to the Commander AFDW.

A U.S. Air Force general who provoked outrage early this year by overturning a fighter pilot's sexual assault conviction has been removed as the officer in a rape case after dismissing the charges, military officials said on Thursday.
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Lieutenant General Craig Franklin, commander of the Third Air Force, was removed in September as the officer responsible for the case against Airman First Class Brandon Wright, who was accused of raping a female sergeant at Aviano Air Base in Italy, an Air Force spokeswoman said.

David Alexander, Rape case removed from U.S. Air Force general who made controversial ruling. Reuters, 19 December 2013.

With the SJA's advice, the Commander AFDW referred the charges to court-martial.

In September 2013, Franklin also decided not to prosecute Wright on rape and related charges. Only three days later, acting Air Force Secretary Eric Fanning transferred the case to Washington, where Maj. Gen. Sharon Dunbar, then-commander of the Air Force District of Washington, ruled in March 2014 that the Wright would face a court-martial.

Jeff Schogol, Airman acquitted of sexual assault charge. Air Force Times, 29 September 2015.

A military panel of three lieutenant colonels and four master sergeants acquitted Senior Airman Brandon Wright on Wednesday evening[.]
. . . 
"It was apparent throughout the full eight days of trial that each and every panel member understood the importance of their role and gave their full attention to resolving the question before them[.]" (said defense counsel.)
. . . 
Retired Col. Don Christensen, the Air Force's former top prosecutor who joined the victims-advocacy group Protect Our Defenders, issued a statement on Wednesday critical of how the military justice system handled this case. . . Christensen wrote. "An empowered independent military prosecutor based justice system would have ensured the administration of swift and efficient justice, something all of our military service members deserve."

​Jeff Schogol, Airman acquitted of sexual assault charge. Air Force Times, 29 September 2015.

Weekend reading might include, Mark Visger, The Canary in the Military Justice Mineshaft: A Review of Recent Sexual Assault Courts-Martial Tainted by Unlawful Command Influence. 41 Mitchell Hamline L. J. Pub. Pol. & Practice 59 (2019). Among other comments:

a recent Department of Defense [JUDICIAL PROCEEDINGS PANEL SUBCOMM., REPORT ON THE BARRIERS TO THE FAIR ADMINISTRATION OF MILITARY JUSTICE IN SEXUAL ASSAULT CASES, (May 12, 2017),] on the prosecution of sexual assault cases raised concerns that the political fight over the military handling of sexual assault prosecutions is bleeding over and potentially affecting the fairness of the trial process itself.

The conflict between Congress and military leadership over commander jurisdiction has created a climate where these political considerations create the potential to substantively influence legal decisions in specific courts-martial. First, military members feel pressure to fall in line with their leadership’s “get tough” attitude and thereby preserve commander jurisdiction. In response to threats to remove jurisdiction, military leaders fight to retain jurisdiction by cracking down on sexual assault. This message is transmitted to military members who sit on the military panels (akin to civilian juries). This political fight then creates very real pressures on members of a court-martial (who are well-aware of the political stakes and of their commander’s position) to convict an accused defendant regardless of the strength of the evidence and sentence harshly.

​Second, military members may be concerned about ramifications to their personal careers from congressional action as a result of decisions they make in sexual assault cases. This concern arises because Congress has approval authority over military promotions and nominations to key leadership positions. While UCI is prohibited by the UCMJ, this prohibition by its terms only applies to military members and does not address potential interference by Congress.

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The BG heading Army's special trial counsel office has been fired for the contents of a 10 year old email. Story here.

The offending statements appear to be: 

“you and your teams are now the ONLY line of defense against false allegations and sobriety regret.... Congress and our political masters are dancing by the fire of misleading statistics and one-sided, repetitive misinformation by those with an agenda.”

​Comments are open.

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