The Real Cost Of Having Commanders In Charge Of Military Justice

news

Last week, the Senate failed to pass the Military Justice Improvement Act by a vote of 50-94. For the second year in a row, the act fell short of the 60 votes needed to overcome a filibuster in the Senate.


MJIA, which has been championed by Sen. Kirsten Gillibrand of New York, would remove military commanders from the act would move the decision “to prosecute any crime punishable by one year or more in confinement to independent, trained, professional military prosecutors,” including sexual assault.

There has been much discussion about the number of military sexual-assaults cases going to trial and if that number would would be higher or lower under MJIA, which overly simplifies its intent. Its purpose — to professionalize the handling of sexual assaults by the military — can’t always be measured by simple numbers. As Don Christensen, a retired Air Force judge, accurately summarized recently, “It is time to ensure all military members, whether victim or accused, have access to a fair and impartial justice system equal to that of the American citizens they protect.”

There is a cost for having commanders, who have no expertise in military justice, make important decisions about sexual-assault cases. This past week, that cost was realized when the U.S. Court of Appeals for the Armed Forces, or CAAF, overturned an aggravated sexual assault conviction.

The United States v. Woods case involved a Navy lieutenant convicted of aggravated sexual assault, after he sexual assaulted a heavily intoxicated female service member in 2011.

The CAAF reviewed the conviction to determine “[w]hether the military judge erred by denying a challenge for cause against the court-martial president, who said the ‘guilty until proven innocent’ standard is ‘essential’ to the military’s mission.”

Ultimately, CAAF ruled that the assignment  of panel member Navy Capt. Martha Villalobos to the trial by the commander resulted in “bias, and that error prejudiced Appellant’s substantial rights.”

Under Article 25(b)(2) of the Uniform Code of Military Justice, a commander is required to select members who are, in the opinion of the commander, “best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” In the military, a member is the equivalent of a juror in civilian practice. Thus, the commander is required to select the best-qualified jurors for the trial.

Before the trial, Villalobos completed a questionnaire about her background and experience in the military. This is a common practice, and the questionnaires are provided to the commander to aid him or her in selecting the best-qualified jurors.

One of the questions on the questionnaire was, “What is your opinion of the military justice system?” Villalobos responded,

There is not perfect system, and I understand why the enforcement of ‘you are guilty until proven innocent’ (just the opposite as in the civilian sector) is essential because the military needs to be held to a higher standard just for reasons of our mission.  It is a voluntary force and you come into the service knowing that you will be held to this higher standard and give up your civil rights.

Despite these clearly objectionable answers, the commander, Adm. Fernandez L. Ponds, selected Villalobos as a juror. Ponds, after reviewing the questionnaire of Villalobos, believed she was best qualified because of her education and judicial temperament. As the CAAF explained, “In the military justice system, panel members [jurors] are chosen by the same individual -- the convening authority [commander] -- who decides whether to bring criminal charges forward to trial.”

During the trial, the defense objected to Villalobos sitting as a juror. The trial judge questioned Villalobos and stated, “I am going to focus here for a minute on her answers to the member’s questionnaire . . . It’s absolutely the case that she did arrive at this court-martial under a misapprehension of what the burden of proof is at a court-martial.” But after considering her answers at trial, the judge ruled that Villalobos “is capable of sitting fairly as a member in this case.”

The CAAF, however, characterized the answers by Villalobos “as confusing rather than clarifying her views,” and further determined that “a reasonable member of the public might well question the fairness of including CAPT Villalobos on the panel.”

This overturned conviction would never have happened if MJIA had passed because an experienced lawyer would not have assigned Villalobos as a juror. MJIA calls for the elimination of commanders convening courts-martial and replaces them with Offices of Chiefs of Staff on Courts-Martial, staffed by experienced lawyers in the rank of O-6 or higher, who would assign jurors for trial.

In the Woods case, the CAAF explained, “the notion that criminal defendants are innocent until proven guilty is at the core of our judicial system.” Villalobos was similarly incorrect when she stated that service members give up their civil rights. Nonetheless, Ponds selected her as a juror anyway. This is problematic and demonstrates a failure in the military justice system for a number of reasons.

First, Villalobos’s comments on the military justice system demonstrate a clear misunderstanding about the burden of proof. Her view about service members giving up their civil rights is unquestionably incorrect and an experienced lawyer would have know that this recorded viewpoint could result in the case being overturned. However, Ponds, who had Villalobos’s questionnaire on hand for more than two months before selecting her as a juror, did not have the experience to take this into consideration.

The selection of Villalobos calls into question the criteria Ponds was using to select the best-qualified jurors. It is difficult to reconcile Villalobos being selected as a juror who is “best qualified” when she expressed views about the burden of proof at a court-martial that were so clearly incorrect.

It is rather shocking that such a senior Navy officer would harbor such incorrect views about basic principles of justice, as those voiced by Villalobos. It is not as though she was some junior officer uneducated in military matters. Villalobos explained that she reached her conclusion about a higher standard for military members --- “you are guilty until proven innocent” --- after discussing the matter with her husband, a member of Army Special Forces. While this higher standard of conduct is a commendable goal for service members to strive for, it has no place in a court of law.

Further, as a Navy captain, it would be common for Villalobos to serve as a commander. Thus, under the current system, she could be responsible for determining if a sexual-assault case goes to trial, yet she lacks the basic knowledge of military justice necessary to make an informed decision. If commanders are to be the final arbiters on whether sexual-assault cases proceed to trial, they must possess a more-detailed knowledge of legal standards.

Some will attempt to characterize this critique as a general attack on the competence of these naval officers, but this is nothing but a red herring detracting from the central arguments in favor of MJIA.

I am not suggesting Ponds is anything but a highly qualified surface warfare officer or that Villalobos is not a proficient dentist. Rather, I mean to emphasize that these naval officers are not trained experts in the area of military justice. As the CAAF judge explained, Villalobos’s “mistaken belief as to the burden of proof in criminal law …  could impact the public’s perception of fairness.” Accordingly, if Ponds possessed the required level of expertise in military law, he would have never assigned Villalobos as a juror.

MJIA would take these important decisions out of the hands of untrained commanders and place the decision to prosecute serious crimes, and other details such as selecting jurors, in the hands of independent, trained, professional military prosecutors.

MJIA will only professionalize military justice and avoid the type of elementary mistakes that occurred in the Woods case, which resulted in the highest military court overturning a conviction in an aggravated sexual assault. Members of the military deserve an impartial and professional system of justice.

Photo by Staff Sgt. Jeremy Bowcock
(Reuters/Jose Luis Gonzalez)

MEXICO CITY (Reuters) - Mexico has deployed almost 15,000 soldiers and National Guard in the north of the country to stem the flow of illegal immigration across the border into the United States, the head of the Mexican Army said on Monday.

Mexico has not traditionally used security forces to stop undocumented foreign citizens leaving the country for the United States, and photographs of militarized police catching Central American and Cuban women at the border in recent days have met with criticism.

Mexico is trying to curb a surge of migrants from third countries crossing its territory in order to reach the United States, under the threat of tariffs on its exports by U.S. President Donald Trump, who has made tightening border security a priority.

Read More Show Less
(Associated Press/Don Treeger/Michael Casey)

Packages containing suspected heroin were found in the home of the driver charged with killing seven motorcyclists Friday in the North Country, authorities said Monday.

Massachusetts State Police said the packages were discovered when its Violent Fugitive Apprehension Section and New Hampshire State police arrested Volodymyr Zhukovskyy, 23, at his West Springfield home. The packages will be tested for heroin, they said.

Zhukovskyy faces seven counts of negligent homicide in connection with the North Country crash on Friday evening that killed seven riders associated with Jarhead Motorcycle Club, a club for Marines and select Navy corpsmen.

Read More Show Less

On Nov, 10, 2004, Army Staff Sgt. David Bellavia knew that he stood a good chance of dying as he tried to save his squad.

Bellavia survived the intense enemy fire and went on to single-handedly kill five insurgents as he cleared a three-story house in Fallujah during the iconic battle for the city. For his bravery that day, President Trump will present Bellavia with the Medal of Honor on Tuesday, making him the first living Iraq war veteran to receive the award.

In an interview with Task & Purpose, Bellavia recalled that the house where he fought insurgents was dark and filled with putrid water that flowed from broken pipes. The battle itself was an assault on his senses: The stench from the water, the darkness inside the home, and the sounds of footsteps that seemed to envelope him.

Read More Show Less
(U.S. Army/Pvt. Stephen Peters)

With the Imperial Japanese Army hot on his heels, Oscar Leonard says he barely slipped away from getting caught in the grueling Bataan Death March in 1942 by jumping into a choppy bay in the dark of the night, clinging to a log and paddling to the Allied-fortified island of Corregidor.

After many weeks of fighting there and at Mindanao, he was finally captured by the Japanese and spent the next several years languishing under brutal conditions in Filipino and Japanese World War II POW camps.

Now, having just turned 100 years old, the Antioch resident has been recognized for his 42-month ordeal as a prisoner of war, thanks to the efforts of his friends at the Brentwood VFW Post #10789 and Congressman Jerry McNerney.

McNerney, Brentwood VFW Commander Steve Todd and Junior Vice Commander John Bradley helped obtain a POW award after doing research and requesting records to surprise Leonard during a birthday party last month.

Read More Show Less
(U.S. Marine Corps/Staff Sgt. Andrew Ochoa)

Editor's Note: This article by Gina Harkins originally appeared on Military.com, a leading source of news for the military and veteran community.

Hundreds of Marines will join their British counterparts at a massive urban training center this summer that will test the leathernecks' ability to fight a tech-savvy enemy in a crowded city filled with innocent civilians.

The North Carolina-based Kilo Company, 3rd Battalion, 8th Marines, will test drones, robots and other high-tech equipment at Muscatatuck Urban Training Center near Butlerville, Indiana, in August.

They'll spend weeks weaving through underground tunnels and simulating fires in a mock packed downtown city center. They'll also face off against their peers, who will be equipped with off-the-shelf drones and other gadgets the enemy is now easily able to bring to the fight.

It's the start of a four-year effort, known as Project Metropolis, that leaders say will transform the way Marines train for urban battles. The effort is being led by the Marine Corps Warfighting Laboratory, based in Quantico, Virginia. It comes after service leaders identified a troubling problem following nearly two decades of war in the Middle East: adversaries have been studying their tactics and weaknesses, and now they know how to exploit them.

Read More Show Less