Legal Docket: When trust is violated

NICK EICHER, HOST: It’s Monday morning, December 18th. One week until Christmas! This is The World and Everything in It. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

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Up next on Legal Docket, Big Changes to Military Justice, and this is Part 3.

Today we wrap up the series —because big changes are coming and those take effect next week.

And they represent the biggest transformation since the adoption of the Uniform Code of Military Justice almost 75 years ago.

EICHER: Announcement of the military justice overhaul made big news when we first learned of it back in July. This was CBS:

CBS: President Biden signed an Executive Order Friday reforming the Military Justice system. A key part of that reform focuses on how the military handles cases of sexual assault and other violent crimes.

The changes were part of a bi-partisan effort contained within the National Defense Authorization Act of 2022, and it comes after an independent review of sexual assault cases in the military. The Executive Order effectively removes prosecution decisions from the military chain of command to an independent set of military prosecutors for cases involving sexual assault, gender-based violence, domestic violence, murder, and other serious crimes.

EICHER: These changes take effect December 28th.

To review …

In part one of our series that we began in August, we talked to the military lawyer who would have made these decisions for the Army: Brigadier General Warren Wells. At the time, he was the Army’s Lead Special Trial Counsel. In other words, its top prosecutor.

But just a few weeks ago, General Wells became the Army’s former top prosecutor. And it was because an email he sent a decade ago that came to light. It prompted Secretary of the Army Christine Wormuth to fire Wells on December 1st.

At the time of the email, Wells was a Lieutenant Colonel in charge of a group of junior Army defense attorneys. In the email, Wells had questioned the ability of Army commanders to make fair decisions in sexual-assault cases. He thought that as long as there was misinformation on the subject among some in Congress making those decisions would be extra difficult.

Wells acknowledges it was inappropriate as a prosecutor to raise such a question and explained he meant only to highlight the role of Army defense attorneys.

No matter. He’s been replaced for now by his former deputy lead special trial counsel, Army Colonel Robert Rodrigues.

REICHARD: In part two of our series, we talked to the Army’s top defense counsel, Colonel Sean McGarry. He explained what the legal changes mean in practice for military defense lawyers.

So those are the parties in a court-martial: the prosecution and the defense counsel who represents the accused.

Of course, there’s also someone else vital to a sexual assault case: and that’s the victim.

EICHER: It was about 10 years ago that the military branches began the Special Victims’ Counsel program, known by the initialism SVC.

SVCs are lawyers who represent victims for certain offenses under military law.

Here to tell us more about SVCs and how they’re preparing for the changes coming next week is World Correspondent, Jeff Palomino. Jeff is a retired Air Force Colonel. On active duty he was a military lawyer and tried more than 75 courts-martial and practiced military justice most of his twenty-three year career. Good morning, Jeff!

JEFF PALOMINO: Good morning Nick and Mary.

You know, there’s something especially egregious in the violation of trust when sexual assault is alleged in the military. That’s why each military branch has lawyers specifically assigned to represent victims.

The Judge Advocate General of the Army, Lieutenant General Stuart Risch, recently talked about those victims at the Pentagon:

STUART RISCH: These clients, as many of us know, arrive in our care amid one of the most traumatic events anyone might have to endure. It’s an unfortunate reality that a large number of their clients are friends, they’re family members, and civilians of all of us. They are our sons and daughters, our wives and husbands, our sisters and brothers. And they are so often the victim of the most personal and violative crimes we prosecute in our Army.

Colonel Evah McGinley runs the Army’s SVC program.

EVAH MCGINLEY: A Victims’ Counsel is a government attorney that is specifically appointed to represent a victim's interests in sexual assault cases or domestic violence cases.

Currently, we've got about 58 full time Special Victims’ Counsel or SVCs, and about 29 part time. And when I say part time, I mean, they are splitting their duties with another function within their office.

Generally, we have both captains and majors as victims counsel.

Victims can request an SVC at any time in the process. Like defense counsel, the military provides them at no cost to the client. Unlike the defense, though, Army SVCs don’t work for Colonel McGinley in the Pentagon.

MCGINLEY: The Special Victims Counsel, we are not what's called a stove-piped organization. So, that means that all of those individual counsel fall under an Office of the Staff Judge Advocate where they are. And it's just to make sure that they have got all the right support at their specific installation.

This model had proved successful in the Army, because an SVC’s legal advice is confidential and independent from the chain of command.

MCGINLEY: They advocate for what the client wants to see happen in that specific case. They have their own separate attorney client relationship with that client. Their professional obligation is to that client and only that client.

Colonel McGinley and her team provide technical support and training to SVCs in the field. They also coordinate the SVC certification course at the Army’s legal school. That’s the same school that trains military judges, Army prosecutors and defense counsel.

MCGINLEY: The training for Special Victims’ Counsel in the Army is robust. In addition to information and training and familiarity with how to deal with victims, how to talk to victims, the other entities involved, such as our social workers or medical personnel, they're also given really a rich background in the law that applies. So they're sort of fine tuning their military justice practice as well as getting that background in dealing with those individual clients.

Army SVCs represent soldiers, but their clients are not all service members. Some are dependents and some are Defense Department civilians; about 85 percent are female. SVCs also have a different legal relationship with their clients than most lawyers.

MCGINLEY: We specifically represent the client's wishes. There may be times when the client's wishes are not necessarily in their best interests. So our attorneys have the obligation to walk them through that to explain what is probably objectively in their best interest, but ultimately, the client gets to decide what path they want to pursue. And that's especially important for sexual assault victims, because as part of as part of that crime, some of their choice has been taken away. And so by restoring that to them, even if it seems counterintuitive.

So it’s the client who makes the decisions, not the lawyer. In other words, the SVC advocates for what the victim client wants. How does that work?

MCGINLEY: So, for example, I think it's probably safe to say that the government hopes to vigorously prosecute every credible allegation of sexual assault across the Army. That may not be consistent with what a given victim’s wishes, it's the SVC’s role to advocate just for what that victim wants to see happen in a given case without without becoming distracted by what the larger Army interests are.

The Army emphasizes that no two clients are the same. Clients may want different things… even if the facts of their cases are similar.

MCGINLEY: Every individual victim has individual interests and individual hopes and expectations for how their case will come out. You may have a client who wants to see a conviction and wants a substantial sentence of confinement, and nothing less will be acceptable.

There are some victims where they want to see this in an administrative proceeding, because they just want to make sure that that suspect is out of the Army as quickly and cleanly as possible.

Or maybe they don't want to see anything at all happen to the accused, but they just want to never encounter that accused again.

Like the other military branches, the Army puts a lot of resources toward helping sexual assault victims.. But, the SVC is the only person to help victims through the legal process…from the victim’s first interview with law enforcement all the way to a court-martial, if that happens.

When there is a court-martial, SVCs have a different job than the other parties.

MCGINLEY: An SVC has a unique role in a court-martial because, of course, they're not responsible for defending the accused and they're not responsible for prosecuting the case. So they're not there conducting cross and direct examination of every witness that's on the stand.

That means the SVC’s principle role is in legal arguments before trial.

Here’s where two Military Rules of Evidence really come into play. One involves evidence of the victim’s prior sexual conduct. The other is when conversations between a victim and counselor can be discovered by the defense. SVCs can file briefs and even argue on behalf of the client on these issues.

MCGINLEY: That's an area where the special victim counsel can make a motion and can argue on behalf specifically of that victim in that case.

They're not, again, serving in the role of the prosecutor or defense, but they can still be heard by the court making those motions.

Colonel McGinley is tracking the changes to military justice coming next week. These are mostly for the prosecution. So, while significant, they don’t create a lot that’s new for SVCs.

MCGINLEY: We do not anticipate any significant changes in our daily work ah when we shift to the Office of Special Trial Counsel. We anticipate that we'll have the same professional working relationship with the Office of Special trial counsel as we do with the prosecutors now. But the things that they are advocating for on behalf of their clients will remain the same.

She says it’s satisfying work:

MCGINLEY: We're hoping that at least our victims have confidence that their desires were advocated for. It may be that they don't get the outcome they wished for, but at least they will know that there was someone there advocating on their behalf for that outcome.

And that’s this week’s Legal Docket! I’m Jeff Palomino.

REICHARD: We’ll put links to the earlier coverage of changes to the military justice system in today’s show notes. (Part I and Part II)

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