Consequence of Change: An Argument to Increase Litigation Experience to Fill the Void Left by the Changes to the Preliminary Hearing in the Military Justice System

By:
Elizabeth L. Lippy
Frank E. Kostik Jr.

The full article will be available to read soon in the forthcoming 43:1 issue of the American Journal of Trial Advocacy.

Excerpt:

            It is Friday afternoon at 1700 at Fort Leonard Wood, Missouri.  Sergeant (SGT) Longweek and his friends plan to go to a local bar to have a few drinks to celebrate the completion of their pre-deployment training.  Next week, the unit will pack its equipment into shipping containers before taking some much-deserved leave prior to another year-long deployment.  Across post, SGT X, whose husband deployed a few months ago, feeling isolated on the remote Army post, decides to meet some friends at the same local bar as SGT Longweek.  At the bar, SGT Longweek noticed SGT X and bought her several drinks.  They immediately hit it off and went back to SGT Longweek’s on-post residence where they engaged in sexual intercourse. 

            SGT X left early the next morning, telling SGT Longweek that she had to be at work.  When she got in her car, she realized her husband called her cell phone several times and left numerous text messages.  Her husband was worried that something happened to her, and he ultimately sent a unit representative to her home to ensure she was safe.  As SGT X pulled up to her house, the unit representative approached her and asked if she was okay.  She was not thinking clearly, she remembered going to SGT Longweek’s home and waking up in his bed, but the details in between are foggy.  In a slight panic, she said, “I’m not sure what happened, but I think I might have been raped.” 

            In the military, SGT X’s accusation, when stated to the unit representative, amount to an unrestricted report of sexual assault.  The Soldier immediately contacted the Army’s Criminal Investigation Division (CID).  Per standard operating procedures, the Soldier transported SGT X to a local hospital for an exam, conducted by a sexual assault nurse examiner (SANE), then was questioned by a member of the CID, and given a Special Victim’s Counsel (SVC), who will assist in coordinating other resources for SGT X.  Her statement tracked the facts above except that she did not mention her husband called several times and sent multiple text messages.  Based on the advice of her SVC, SGT X gave no further statements or interviews.

            SGT Longweek waived his Article 31 rights and provided a sworn statement admitting to consensual sex while denying he knew that SGT X was married.  The forensic evidence collected during the SANE examination confirmed that SGT Longweek had sexual intercourse with SGT X, indicated that SGT X’s blood alcohol level was .02 at the time of testing (10 hours after the incident), and that she had no other drugs in her system.  After reviewing the evidence, the prosecutor recommended to the brigade commander to prefer charges for rape by force and alternatively, rape through a theory of substantial incapacitation, in addition to one charge of Extramarital Sexual Conduct. 

            The brigade commander agreed with the prosecutor’s assessment, reviewed the collected evidence and charges, and read the charges to SGT Longweek.  As required for a general court-martial, the brigade commander then appointed an impartial judge advocate to conduct a preliminary hearing pursuant to Article 32 in order to determine probable cause for the offenses and make a recommendation to the convening authority concerning ultimate disposition.  The commander was involved in a similar scenario a few years earlier (2013) and knew that the prosecutor and the accused’s defense attorney would present evidence and cross-examine witnesses at the Article 32 investigation, which would give her more facts before forwarding the case to the convening authority with her recommendation. 

            Unlike the case the commander handled in 2013, at the Article 32 hearing for the charges against SGT Longweek, which occurred in June of 2019, the prosecutor did not present any live witness testimony and there was no cross-examination.  Instead, the prosecutor presented the sworn written statement of SGT X, who refused to testify but watched the proceeding.  The prosecutor also provided the written forensic report, the written statement of the accused, and the written statement of the command representative to whom SGT X initially reported the assault.  SGT X’s husband, still deployed, did not testify.  The accused also did not testify because his statement already denied the rape and adultery.  As such, neither trial counsel nor defense counsel had the opportunity to ask any questions of the witnesses and choose not to challenge the evidence via live testimony.  Rather, the Preliminary Hearing Officer had a pile of documentary evidence upon which to rely.  Twenty-four hours later, the pile of written documents increased when both the prosecutor and the victim provided more documentary evidence about the alleged crime.  A week later, in a bare-bones report, the hearing officer recommended to the convening authority that the case proceed to a general court-martial. 

            The brigade commander, although disappointed there was no additional information in the report and that no witnesses testified or were subject to cross-examination, felt compelled with the prosecutor’s reluctant advice to recommend a trial by court-martial because the offenses appeared to meet the minimal requirements of Article 32.  The commanding general, worried about the perception associated with not prosecuting a sexual assault case, and based on the staff judge advocate’s (SJA) advice that, based on the evidence, probable cause existed, convened a general court-martial to hear the case, even though he would have liked to see more information in the report from the Article 32 proceeding.

            In 2014, Congress amended the preliminary investigation proceedings in the National Defense Authorization Act (NDAA), these amendments tightened the preliminary hearing rules, limited the scope of the hearing, and increased victim rights during the hearing.  Later, in the Military Justice Act of 2016, which went into effect on January 1, 2019, Congress made additional amendments to Article 32 in order to provide additional information to the convening authority and to amend other procedural rules.  It is virtually without question that the 2014 changes fundamentally shifted the very broad and often sweeping inquiry into the facts and circumstances surrounding an alleged offense during an Article 32 hearing.  Congress did not dial back this shift in the changes made in the Military Justice Act of 2016.  While the changes impact all crimes tried at a general court-martial, this paper analyzes the changes through the lens of sexual assault.  Sexual assault crimes spurred the change in the first place, they are notoriously hard to litigate, and other changes to military law and policy regarding sexual assault interact with preliminary hearings more significantly than other crimes.

            The amendments to Article 32, in combination with other recent changes to military law, such as the addition of the Special Victims’ Counsel program, requires a corresponding change to the way the United States Army processes cases, assigns counsel to military justice roles, and cultivates litigators to ensure the balance between prosecution and defense is not upset by a justice system that is evolving to meet emerging trends like the sexual assault crisis.  In the absence of the recommend changes, Congress should consider amending Article 32.  The change is required because the amendments alter the manner in which case information is received and invariably reduces the amount of evidence that hearing officers, prosecutors, defense counsel, and convening authorities have available to review in determining whether a case goes to trial or not.  This places a greater burden on military prosecutors, who lack the experience of their civilian counterparts to properly assess cases, provide appropriate and timely discovery to the defense, and independently advise the convening authority concerning the merits of prosecution without a substantial or robust proceeding to perfect their case and temper the evidence. The changes further limit defense opportunities to test evidence in the crucible of cross-examination at the preliminary hearing and develop trial strategy against the backdrop of that experience.  This Articles outlines the history of the pretrial investigation, now preliminary hearing, in the military in order to establish the original purpose behind the proceeding; discusses why Congress amended the procedure and the creation of Special Victim’s Counsel; examines the amendments to the Article 32; discusses how those amendments create a litigation void which impacts key players in the military justice system; provides recommendations that the Army Judge Advocate General’s Corps should implement; and argues that Congress should amend Article 32 by requiring military magistrates preside over Article 32 hearings and issue binding reports.