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Within the last year, Congress has created a series of new rules which relate to the uniform code of military justice (UCMJ). These rules are transforming the way the defense attorneys need to defend their soldier clients at courts-martial. One of the things that has been radically changed is the discovery process. Essentially the military has enacted a victims rights act. This victims rights act has created barriers and in some cases tends to infringe on a Soldier’s constitutional rights to defend himself. Congress has set up barriers between the Soldier’s detailed defense counsel and an alleged victim. Statutorily, the defense counsel cannot directly talk to the alleged victim, unless he works through government counsel or victim advocates. There needs to be a chaperone, trial counsel, or special victims advocate alongside the alleged victim whenever the defense counsel is talking to that alleged victim. This is an unprecedented discovery barrier in what has otherwise been an open discovery system under the uniform code of military justice.

The other things being limited for defense counsel is the use of discovery and open discovery at the article 32 hearing. What was once a means of delving into the government’s full and complete case has now been likened to a “preliminary hearing”.. The problem is that in most civilian systems there is a grand jury process where a group of neutral citizens review whether or not a case should go to trial. By using the preliminary hearing system, and continuing to use the referral process with commanders, the military is destroying any controls that would be in place to protect the soldier from frivolous allegations. The Article 32 creates a paper trail that makes it look as though there is a real investigation going on, but by essentially excluding the defense counsel from active participation, the Article 32 is a one way street for prosecutors to present a case. The rubber stamp approach does not give the General Courts-Martial Convening Authority a real understanding of the strengths and weaknesses of the case.

This may not matter.  May Commanders are afraid of dismissing Article 120 cases because they feel this will jeopardize their careers.  Scrutiny from Superior Commanders, DOD and Congress make it virtually impossible for a Commander to dismiss an Article 120 without real harm to their career.  The problem with this is that with the new Article 32 and lack of Command discretion, innocent Soldiers are being forced to go all the way to trial.

These new rules and discovery have placed a burden on the appointed trial defense counsel working for the Government. There seems to be an opening under the rules for civilian defense counsel to be able to act quickly and prior to preferral and referral. Civilian counsel prior to the case being officially picked up are arguably not under government authority. There is an argument that they can talk to the alleged victim.

Essentially, most posts do not detail any trial defense services counsel until after the charges have been preferred. A soldier that have the means to hire civilian defense counsel can do so at any time, even before an investigation. It appears that if a Soldier suspects for any reason that he may be charged in the future with an article 120, sexual assault type case, he needs to seriously consider hiring civilian counsel almost immediately. This would be one way to get around some of the discovery rules, and allows the defense counsel through either a private investigator or by calling any potential witnesses himself to be able to get early discovery.

The counterargument of course is that the problem of sexual assault in the military must be dealt with harshly. The victims must be protected and the perpetrators must go to jail. This doesn’t account for the uniqueness of the military justice system. Our soldiers give their lives and sacrifice everything for this country. When we begin to take away their basic freedoms and rights under the United States Constitution, the very thing that they fight for, we jeopardize all of our freedoms