Good morning, general. This afternoon with the panels so we will get the perspective of the Service Organization chiefs regarding conviction acquittal rates, case adjudication process and victim declination. I suspect we might hear something slightly different that we heard this morning but staff, could you keep this up, please. Based on the responses we put together questions and i will read the first one. This is the referral process. The defense rfi responses indicate the victim preference may play an outsized role in whether or not a Sexual Assault case goes to trial. What consideration or weight should the convening Authority Given to victims wishes regarding the disposition of a Sexual Assault case . Colonel bennetts, could you start us off . [laughter] obviously, the voice of the victim is something that should be considered but when we get too much weight to it and when the wishes and desires of the victim are going to overwhelm what the evidence should support if you have no key seat but the victim wants an estimate looks at what the victim wants and there is pc thats problematic. If you have pc but youre looking at it and say the chances of a conviction are either slim or the evidence does not support a conviction but still thought we should go forward because the victim wants their day in court absolutely raises the rights of the victim above and beyond that of the rights of the accused and at the end of the day theres one person who could paint confinement, loss of liberty and that has been the case. While there is a place to understand what the victim wants there should be some consideration because at the end of the day the evidence and analysis by whether its the flow or the sj is the right person or the analysis of the evidence in and of itself should carry the day not the request or wishes of the victim. Thank you. I would agree. I believe the standard we should use is can we obtain the conviction that courtmartial and if we cannot based upon the evidence then there should be nothing else should make us go forward. The desire of the victim to have their quote, day in court, should be a consideration but i believe it should be a consideration if they dont want to participate in a matter what the other evidence the commander needs to take that into mind and say without the participation of the victim and the policy we dont go forward because the victim does not want to participate that we will not force them to come and testify and go through that process. But to say they want their day in court therefore regardless of the evidence the state of the evidence, best interest of the flow or best judgment of the foe and best judgment of everybody else in the Legal Process to say we should go forward anyway is the wrong decision. I think it has some weight but it should not overcome the obtained sustained standard we should be using. I agree with my colleagues. What really matters is whether or not the victim is willing to participate. At that point the evidence and the rest of the military process should lead on the charging decision whether we go forward after a 32. We really have to Pay Attention to whether or not the victim is willing to participate because without the victim it can be hard to get a conviction without lots of independent evidence. After that question is answered i think we need to rely on the rest of the process. Good afternoon. Again i agree with my colleagues that the desires of the victims should be considered but should not necessarily override legal standards. The foes determination of probable cause in the article 33 guidance as to the likelihood of the conviction and i would also like to take a moment to discuss the fairly profound impact that a military member undergoes facing a typical Sexual Assault allegation. Theres the stress associated with a fairly lengthy process. I believe the last number i had was the average general courtmartial for 120 offense with Something Like 508 days. During this timeframe i believe from the beginning of the investigation until [inaudible] a final decision on courtmartial. Yes, sir. During this time. Frequently not always but typically the member is removed from their normal duties and often time has a security clearance pulled and have access to certain areas restricted and be subject to a protective or restraining order further limiting their access. Place on a control roster and cant pcs and sometimes there transferred to another insulation for the pending trial. Even if acquitted at that point there eager to separate which parallels often will be seat with a conviction with respect to the victim they are both eager and frustrated with the process to separate. I understand your subquestion about the victims desires to go to the convening authority about whether or not whether they desire the military to be involved at all or if possible they take hit if theres a civilian jurisdiction. As to the weight, i agree with my colleagues about whether or not they will be a willing participant in the process. Im sure the prosecutors would all agree that having a willing victim wants to make their job easier if it goes through the process and we have not always respected the rights or voice of the victim in that decisionmaking. In my marine corporate lawyer [inaudible] we dont do that anymore. I am aware of how important it is that people feel heard in the process. Having the voice of the process and having their desires made known to the convening authority whether or not the end of the day they follow that choice being advocated for is the decision. Thank you. I have a question that by the time i get through may have eight or ten parts to it but i hope you can keep track. [laughter] im just winding up. Weve heard testimony about how if theres a recordation of probable cause essentially that is never overturned or extremely rare but what i dont know is if there is statistics of anecdotal of how often does the defining of no probable cause of the article 32 and then the second step is how often that is overturned if there is statistics about that or anecdotal about that. The second part of that question is if its overturned is it done and weve heard about the process where additional evidence can be submitted and we also heard, i think that defense counsel can do that also so im curious again how often that the sj recommends overturning it just on the basis of the disagreement with the article 32 and the pho based on just disagreement or based on new or how often it occurs that new evidence and the discrete with the finding of no probable cause and how often in the bigger question how often as defense counsel do you participate in this procedure to funnel information to the sj a after the article 32 receding . [inaudible] based on the responses provided from the services in that we see a higher degree of cases that do not go to court because of the prosecutorial memo recommended to the sja that they not go forward on the case or if the article 32 recommends and not go forward whether or not they find the or say theres no probable cause or say there is probable cause that there is zero chance of success on the merits at a courtmartial. Some cases are successfully then dismissed and i think that is what is reflected by the conviction rates based on my conversations with my colleagues are higher in the marine corps so i think they are taking the last of the weakest cases to trial. The idea that the sja is providing to the convening authority all this Additional Information is not presented at the 32 is perplexing to me and we would like the recommendation if theres no probable cause for that to be binding and the government should present their evidence and i dont understand why they would be hiding out from anybody and dont know why they would be bundling it to the sja to overturn the recommendation that there is no probable cause. I dont think any of us oppose the ability for the government to go back for another hearing subsequent there was no probable cause but i think we all agree it should be binding. I dont think we have statistics [inaudible] [laughter] but i think by my analogy we do have some cases where they find no probable cause and there are cases not continued and those are killed at that stage but we also have cases where we know the foe has recommended and found no probable cause in those cases have gone forward but we challenge that finding through emotions and how to be even get to the court . Judges based upon the recommendation nature of the 32 simply not allowed this motion to succeed. How many have been overturned . I dont know. The concept of the defense putting in evidence to try to convince the convening authority of a position in the sja is not within i cant think of a case when the fence would ever want to play that game unless theres such an overwhelming evidence that was clearly prohibited and there are rules that prohibit what we can do in certain things that the convening authority should know and that the complaining witness to note the defense knows about me put that stuff forward but usually thats not a good strategic decision to go play all your cards and say look, we know you got this and we know youre sja is disagreeing with us but what about all this and lets hold that back and go to trial and that may contribute to the acquittal rates and we need to look at a different standard. The binding nature of this, i agree. Im trying to think of a military reason why the 32 is not binding and i simply cannot come up with one as i thought about the process in last two years but to your question earlier is there should there be a difference in our systems between the federal system analysis and i cant think of a military reason that should be the standard they are looking at and is there a military reason with difference of members and convictions and two thirds or three quarters versus a unanimous verdict and that may be a military thing. Twelve versus eight and that may be a military thing and there are arguments for those but not have this binding at the stage where we have one person and i heard arguments during the other panel saying some of the foes are not welltrained but the government gets to pick the foe. Thats not a great argument that we picked someone who does not like the standard. If this is the floor, government should be required to reach the floor or should go back down, start again and maybe explain to their bosses how you did not reach it. I know in the u. S. Attorneys office if they dont find get a no true bell they have to go and explain how this happened. We did here this morning that there may be a difference between military due process and constitutional due process. So, there is that. That was a fairly scary answer but i think due process of course, to process is how much to process do you want to give people. Maybe just a little bit in the military but the standard we set probable cause and lets hold them to that and say if you thank you can go forward to trial this is not a game. Its not game and ship there. That should answer part 379. [laughter] so i can jump in and take a step back and explain why they decided to move themselves for this panel. For defense counsel we have an agreement with the navy and the navy handles most defense matters. A lot of the questions we will be echoing with it may be said because they have better firsthand knowledge but in this situation theres a couple of pieces i think are slightly different from the coast guard. Especially when it comes to whether or not it should be binding and i think we agree with that but i can also understand from the governments background why there are times that they may go against probable cause ruling because the coast guard military justice bench is not as deep. We may have to assign a foe who does not have the experience necessary to actually give a thorough determination and so with further information for further discussion they may decide even they found that is not probable cause to be there was enough to go forward. As far as our statistics out there and as far as how many times the coast guard does a different finding than what the solo found but i dont have statistics but there are times where there is no probable cause but the sja will recommend that they go forward and again, think that something to do with just how we are still growing when it comes to military justice. Thank you. Again, no stats or numbers but there are absolutely times where otc and the sj has changed it and gone forward with the courtmartial and overwhelmingly the end up in acquittal, 18 plus months later. Does the defense counsel have an opportunity and there is that right that i will go and why would be . Very unique specific cases to be afforded right now we have a capital case i know my Legal Counsel has afforded themselves the opportunity to present directly to the convening authority not just the sj but its a very unique case in a different case. In most cases the thought when you get a full hearing that you have that mutual detachment that will look at the defense evidence and take it into consideration and make a different determination or have the ability and i dont think we have a lot of confidence in that. We will hold it and wait until trial rather than that information being in government and the government to find a way to hold our cards. It gsthe binding recommendation of a foe there is little or no reason defense would ever put a caisson. In the past it has not been binding in defense would take those cases we would try it at 32 but had a little bit more faith that all the evidence would be taken into consideration and make it when the case of the 32. Theres not in the defense bar, at least in the army, we can win the case after 32. Its a paper case without that binding recommendation and its just not worth it. Going to whether it should be binding or not the arguments of the government from this morning is disingenuous. They pick the time to refer the charges. If you look at from the time an investigation starts to when preferred charges in the military it is the potential length of time. Yes, the referral of charges triggers 120 day and other than the pretrial compartment and i understand the peace but they control everything about that 32. They control when its preferred and controlled the investigators and control the amount of resources provided to the peace and have more paralegal support in order to be ready and prepared. At the referral of charges does not have to be perfected, i get that. Ive been in sja but they should be ready to go to court in a very quick time. What if they come in and demand the trial when you have those cases the government invariably says oh, no, not quite ready. Then why did you trickle a courtmartial. And all of that that entails for a soldier or airman or sailor or whatever. [laughter] so why are you as a government that incredible prosecutorial power triggering something when you are not ready to back we keep forgetting the accused and keep forgetting what that our length of time is sometimes longer and we are talking about life altering events for what when you can look at it the experience counsel and the ones who havent will get the fact pattern in state that will be in acquittal. We have to go through an 1820 month process to get that resu result. Meanwhile, the accused in the family and the victims and everyone else is going along in this process for what we know the end result will be. I think thats problematic. Thank you, maam. To my knowledge we do not retain the statistics as well. Trial defense does not detain those statistics. If it were maintained in be by military Justice Policy division and anecdotally we do see cases more frequently than not where the folk recommends or determines whether that there is no probable cause and yet the government proceeds despite that recommendation. I do concur with everything my colleagues have said i would add that the process whereby sja can present all of this unexamined evidence ex parte to the convening authority does seem somewhat peculiar and does not require that this be memorialized anywhere. At least the air force pursuant to its administrative military justice instruction simply has a template that answers in a conclusory fashion the four questions with probable cause and there is jurisdiction and a basis to go forward. Charges are in the appropriate yes, thank you. Again, these are highly complex and difficult decisions and it seems a little strange that none of this is memorialized anywhere and theyre highly intelligent and the visuals and Read Everything and why this would not be captured somewhere for the purposes of transparency to make a better informed decision its a little unusual. With respect to whether the foes determination should be finding again, i concur with my colleagues that what i would add is that it would be binding but without prejudice. There would be a mechanism whereby the government of the could reopen or refer charges if in fact there is new evidence or arguably even if the flow committed some legal error and applied the wrong standard and perhaps there could be with a military judge or take it to the next higher level convening authority which would leave it in command channels and whether charges should be referred but a foes determination of probable cause should be a Condition Precedent for referral charges. I have a question for you. Several of you have said although you have the option for at least on paper to bring evidence to the sja before the commanders decision you would rather hold in my practice i call that the pair emission option. I regularly encourage Defense Attorneys, both pre and post arrest to if you think we have it wrong come in and tell us and dont wait 18 months out to the road and do and you got it wrong but if we have it wrong we have it wrong and we can deal with this upfront so is it that you dont believe you will get s evidence that you believe shows i have it wrong to think its not going to get a fair hearing . I think it may be a difference of what evidence. Is it truly exculpatory . No, heres a text message that says that it was consensual. Thats a difference that you would then bring it over to the trial counsel to the sj and have that taken in and hopefully be dispositive of the case. There are inconsistent statements and character evidence that you will withhold that a little bit not again, it depends on the weight of the evidence and what will be given so the truly exculpatory i would encourage my counsel give it over so we can end this system but the one where it does not quite get us completely on the side of it happened to it makes more [inaudible] then i dont know that theres value of getting it over to the government earlier in the process versus waiting. I would agree. In every case the council has to decide is this the text message that clears my college or is it something that the government will be surprised by a trial and if they do it before and could remedy it and come up with some