Ms. Bashford, you have the con. Before we get started, apparently, in order to speak, you need to hit request, and when youre done, hit the part that says speak. In any event, mr. Sullivan, thank you and good morning. I want to welcome the members and everybody in attendance today on valentines day to the 16th Public Meeting of Defense Advisory Committee on the investigation, prosecution and defense of sexes yule assault Sexual Assault in the armed forces. Were going to given by taking attendance. General anderson. [roll call] judge bris boy and judge walton could not be in attendance today, but with 11 members present, we have a quorum. Created by the secretary of defense in 2016 in accordance with the ndaa for fiscal year 2016. Our mandate is to advise the secretary of defense on the investigation, prosecution and defense of allegations of Sexual Assault and other Sexual Misconduct involving members of the armed forces. em if. We will hear from two retired army judges, a retired navy judge, and retired air force judge. The committee looks for different from each of you. Following the military judges panel the committee will discuss the judges testimony and then take a break for lunch. In the afternoon the committee will deliberate and vote on whether to improve the draft Fourth Annual report. The committee will then receive an update from the staff of its 2020 military installation business and members observations of courtsmartial. Next the army chief of criminal law, will provide the committee with the presentation on fiscal year 2020, ndaa provisions that affect the dacipad and military justice. The dacipad staff director has informed and individuals made a request to provide a Public Comment at todays meeting. Will hear the comment after the kernels presentation. If a by the audience would like to make a Public Comment please direct your request to the dacipad staff director. The comment may be heard at the discretion of the chair and written public, to mason may be submitted at any time. Finally the dacipad staff director will wrap up the meeting and answer any questions the committee may have. Thank you all for being here today. Judges, we are ready to begin. We have your bios but if you would provide us with a Short Description of your military career, your military judicial experience and any training to received as a military judge. Thank you so much. Good morning. Thank you for this opportunity. My name is stephanie paytonobrien. Im a retired navy judge advocate and military judge. I spent approximately nine years on the bench between the Trial Judiciary and the Appellate Court. Prior to becoming a military judge i attended the judges course in charlottesville was on the bench i attended various training come some focus on Sexual Assault, other training such as scientific evidence, courtroom security and drug cases. Im sorry . Thank you. During the corps of my career i spent five years prosecuting Sexual Assault cases. Thank you. Hello. Im retired from the Army Air Force [inaudible] i also served at the staff adjective [inaudible] im colonel nance, retired after 30 years in the army. 25 of those years i was involved with military justice in some form or fashion, and more than 13 as military judge. The training we received included whats already been talked about, the military judges basic of course and then at least twice annually Refresher Training on various issues of the criminal law and military judge business, including training at the National Judicial college in reno, nevada. Hi. Im andrew glass, 26 years in the army, was a prosecutor, defense counsel, supervisor, a trial judge on three different occasions, three different locations culminating being a chief circuit judge. Went to the military judges course in charlottesville which is a threeweek course, twice, and between the first time as a judge and come back to the Trial Judiciary i was a staff judge advocate. And so they made you go back again. Enter the Sexual Assault training within the context of being a judge, i try to remember when we started doing specialized Sexual Assault training, typically in august of the year. Its a weeklong course. I think it is for five times. Jeff may have better memory. When we would go and have intensive courses discussing Sexual Assault cases, discussing evidentiary issues, for example, and kind of procedural issues that were germane to that issue. I also went to several National Judicial college courses. The ones i recall our a Death Penalty case. Actually i was there with the jeff, advanced and then some judicial art course. I think the Sexual Assault training started in either 2011 or 2124 judges. Right. And i should say for jeff we both attended and presented, moderated panels, et cetera. Thank you very much for being here. This committee has in the past heard from, weve heard from victims. Weve heard from accused. We have heard from Victims Counsel. We further from Defense Attorneys and weve heard from prosecutors and investigators but this is our first chance to really have russian for people who have kind of seen the whole thing being put together. I open it up to questions from the committee. Then im going to start. What has been your experience with the deal sees and the splc is, has it changed have courtsmartial proceed in your opinion in terms of what this preparedness or surprises seeming to come out for which the complainants have not been prepped . If each of you could just take a moment. [inaudible] you to always have to start with me, but thank you. Feel free to jump in, gents. The vlc program really changed Sexual Assault cases, in my view. Prior to vlcs being involved, and i look back at even my time in prosecuting these cases, it was a freeforall against the victim, where oftentimes the male or female seem to be dragged through the mud. Now they are protecting them. To i think an extreme now because when a prosecuted cases, the victims would come in general and testify in article 32. 32. That was a Good Opportunity as a prosecutor to see how that individual would fare under crossexamination. They dont have that opportunity anymore. Most victims will assert their rights to not come to an article 32. 32. Thus, they come to court it seems sometimes unprepared for what is going to happen and how the questions will come at them. As a judge, crossexamination often was the opportunity for defense counsel to really point out how to prepared with the prosecution and completely refused to talk with the defense. I think thats a disadvantage to the carpet to the case that the victim has never had that opportunity and refuses to, as is their right, understandably so, there have been some bad scenarios with article 32 as we know for the victims being crossexamined. But, and of using the phrase victim, alleged victim, but i think in terms of preparation for trial all they are getting is the ability to prepare with the government and in some ways that is not doing them a service because of not having the opportunity for cross examination at any point or even interviews with the defense. Ill mention that i now have my own practice. I do criminal defense attorney, Sexual Assault cases or something i defend and it can be difficult on both sides if that opportunity is not therefore victim interviews. Understanding that it is their right but i think it would help if, for the process, would have interviews with counsel on both sides. Because then it looks as if, and i saw this as a judge, it looks as if they have something to hide. We know they dont in most cases, but perhaps they do. I dont know, but it just seems that theres something missing from the process. All you get as defense counsel that is the cd from an interview and i dont think theyre asking the tough questions either during investigation. Thank you. I think the vlcs had served a great purpose in empowering victims and in preparing them for what they are about to face. The process is a difficult and ardent process to go through, and one of the best things the deal sees do vlcs do is to very realistically describe what the process is going to be like. And i think thats empowering for victims i think for the vlcs, it was kind of up to the very building, the personality the individual prosecutor in the case who was pretty much charge with taking care of the victim. But the victim was not the prosecutors primary concern. And so having somebody whose primary concern is taking care of the victims has had a positive effect. As a judge i did not find that it was skewing results when one or the other. I do believe as captain obrien says, did you have less opportunities to evaluate that testimony and thats a doubleedge sword, as she said. It does have an impact on credibility. It certainly can be woven by the defense counsel into a narrative that is not supported of the victim here but by the same token the vlcs can advise and the victim can decide to testify. Ive seen that happen, to come and to engage in interviews. And so i have seen both. But by and large i think it has been a positive development. I know as a staff judge advocate in the early days when youre coming directly out of my manning, it was a difficult transition but but i think the transition proved to be worth it. Colonel nance. Yes, maam. I agree with whats been said so far. My experience was the early on in the implementation of the program, the vlcs almost always uniform in the army had no criminal law experience. And so they were coming in advising alleged victims about things that they really had only a very narrow understanding of. And sometimes, as was said, that advice which was designed to protect the alleged victim from abuse, would run counter to the overall object of that victim of having the perpetrator convicted. And so not understanding the criminal court process, they would sometimes give advice that didnt necessarily advance the ultimate goal of that victim. That said, as time went on, i believe that the training got better, that the Lessons Learned were implemented in the training and the advice got better and things sort of evened out. That was my experience. So without all just underline a couple that privacy have been a couple different points. Access when youre a judge matters because your job is to make sure theres a fair trial. And if theres something come for example, the defense years for the first time in an open courtroom, you have to do something to accommodate that issue, whether that is giving a delay, whether the come sometimes they can be a substantial delay because theres some new nugget that has come out. And so i think having somebody who understands process matters. Having said that, thats a doubleedge sword. Heres what its a doubleedged sword in the army. The army does not have enough experienced trial litigators. It is near priceless. The problem is that as kind of the Victim Advocate program has waxed and waned, its become politically more necessary to the people with a lot of trial experience in the victims of realm. That has a positive benefit as discussed by jeff and the other Panel Members. They can have a negative in a fit because bob or mary who tried a bunch of cases are no longer trying cases, and we dont have that many bobs and marys. The reality is and the current era, theres a lot of people who are trying cases, and its the first two or three or five cases. Prosecutors and defense counsel trying these cases, which are always narrow, complicated cases, often involving complicated discovery issues, complicated expert issues, you cant be doing this for a first time. You just cant, do it well. And when the evidence is close, ultimately what that can result in is an acquittal. Sometimes when it wouldnt otherwise be an acquittal. The other thing that ive seen as a judge that again derails and slows down the process is in the context of interviews and ongoing conversations with the alleged victim, sometimes material will come out thats whats called brady material. Those of you who are lawyers understand what that means. It just means exculpatory material. Its required to be disclosed. My experience again is often that material is disclosed either during trial or on the eve of trial. So the reason the trunk gets pushed back is, if it exculpatory material that involves the possibility of expert analysis and testimony, which happens with some frequency, youre talking about a lengthy delay because you have to go through contracting process that does not work. The contracting process to get expert witnesses does not work in the army. It just doesnt. They can take forever. It can result in circumstances where you have much more delay than you would otherwise have to do because of trial docket. So the problem is when this process is kind of lurching to trial and this new material is coming at the changes the context and the setting of the trial, when youre a judge you are just trying to do the fair thing and the fair thing is to throw time at it. Sometimes money. So you have the opportunity to address those issues. So those are the things that off the top of my head seemed to be and i would tell you victims practice has gotten better. I used to speak at the victims course and kind of site hey, this is kind of the code, this is what i need from you as a judge. This is how you help your client. Its got better, but in the context of the entire system it has created challenges that are kind of unforeseen challenges. I believe judge grimm on the phone has a question. Thank you. Thank you very much, and i appreciate your comments and to think that you spoken can you speak a little more loudly please . Yes. Is that better next. Not really. Is that louder . No, judge. Can you hear me . You are really going to have to shout. All right. Can you hear me now . Why dont we pass on my question a go on to the other Panel Members. For some reason im not im talking put about and i know this phone will work this way. I think its on the receiving end maybe theres something going on. I apologize. Why dont you go on to the next person . I think we catch a little bit louder. Can you repeat the question . Can you hear me now . Is a better now . Yes. Okay. So my question is of this. We have noticed that in the statistics that show the number, the outcome of trial, that the condition rate on the offenses, the most serious ones, the Sexual Assault offenses, that the overall conviction rate across the services at particularly in the army, is shockingly low when compared to conviction rates certainly in the federal system where we dont have Sexual Assault that often, but in the state system as well. And one of the things that we as a group of been trying to do is to try to come up with an explanation for why that may be. There are many factors, no doubt, but part of it suggests that maybe it has something to do with the experience of prosecution and the frequency with which the military [inaudible] in the system two years, maybe three years and drop something out and career progression, your movie out of it and you may come back so you dont get the situation like we have on our committee a career prosecutor who has an unbelievable careers worth of being in Court Dealing with cases. And i wonder whether or not there is some correlation between the lack of experience prosecution and people who develop expertise over a length of time that it allows them to teach others and carry that forward, whether theres a correlation between that and what might be the low conviction rate. So first of all, it to me is interesting that you referenced mistletoe cash. I was her her first supervisor in the army. You did a good job. I dont think i could take credit for that. Shes like been very talented. So the target what you always get about this is that the army tries cases that the civilians dont and that is a truth. They as a staff judge advocate or former staff judge advocate i would try cases on some occasion i wouldnt say the civilians wouldnt take and sometimes they would be try to acquittal and sometimes may be tried to conviction. We can talk about that ross s and how you approach the process but to me this at the overriding factor overriding factor is ms. Tokash used to be an sep in the army. People who like to try cases, like to try cases. When you tell them they have to go to the chief after the graduate course or they have to go do whatever else, its like telling a cook that he has to e an auto mechanic. The reason the judge the judgee General Court tells people have to do that is twofold. It a personnel list approach to managing people. Ive got x number of slots. I need staff judge advocates. The pinnacle job is not to be a judge, not to be an svp. Its to be staff judge advocate. It just is. The way you become general officer of the jag corps, its by what you do operationally and what to do as a staff judge advocate. Its the truth. So when you look at why is this, i think to fix this you have to break some china. You have to recognize that most of the trout advocates i know, and you can informally talk to people, some of whom are on your panel would have said if you just tell me im going to be a major my whole life, but i get to try cases, thats what i wt to do. Or look at. I was told i had to leave being a trial judge to copious staff judge advocate or a, quote, you probably wont get promoted. Now, theres a lot of fixes to that. There are people sit in your who have you can give instruction supports about the relative importance of jobs. You can your assignment site specialization in the jackal is perceived as bad or unnecessary. Its ironic to me with contract specialist who spend most of the time in contracts. Theres an incrementalism. In 2000 and dont know if jeff is on saint thou but i sat on a blue ribbon panel. I love blue ribbon panels. We had these conversations in 200