By Capt. Kent Ferriss
Chief of Military Justice, Goodfellow Air Force Base in San Angelo
Collaboration can make all the difference. Whether prosecuting crimes committed by an Air Force member at the state court level or at a court-martial, a healthy Air Force-civilian prosecutor relationship can help secure convictions. Take the following for example:
A 5-year-old girl (we will call her Julie) in Arizona outcried to her grandmother that her stepfather was making her “suck it like a popsicle.” The grandmother called police and filed a report. A few days later, Julie was interviewed by a child forensic interviewer, and after listening to the interview, the prosecutors in the local office decided not to indict the stepfather as the chances of winning at trial were too slim.
However, the accused was an active-duty military member, and as such, the Air Force Base legal office where he was stationed reviewed the interview recording and discussed the case in detail. Although there were potential challenges with the case, Air Force prosecutors met with the victim and her family to discuss the case further. Julie’s biological father and grandmother wanted the accused to be held accountable for his actions and, upon speaking to the victim, the Air Force prosecutors found her to be credible and believed her testimony alone could secure a conviction at a court-martial.
Despite their confidence in the case, the Air Force prosecutors were new to their careers and had never tried a child sex assault before. While the Air Force has Circuit Trial Counsel—very experienced litigators who travel to each base to assist with prosecuting cases—the Air Force prosecutors did not have a Circuit Trial Counsel on this case. Furthermore, most of the Air Force Office of Special Investigations (AFOSI) investigators had never investigated a child sex assault. The Air Force prosecutors reached out to local Arizona prosecutors to brainstorm on how to proceed. Both offices worked together all the way through the life of the case, including matters involving jurisdiction, trial strategy, and trial preparation. Ultimately, the defendant was convicted of forcible sodomy of a minor (a felony military charge) and sentenced to 25 years in a federal military penitentiary. Without the assistance of the city prosecutors and the special victims’ division of the local prosecutor office, it almost certainly would have been impossible to see this offender held accountable.
Collaborating with our military counterparts
This is a prime example of how military and civilian prosecutors can work together to pursue a criminal case toward a just resolution. Unfortunately, this level of collaboration has not been everyone’s experience. I recently learned from former and current Texas prosecutors that they have experienced many frustrations when working with military prosecutors from several services. The difficulties include that they didn’t understand the military justice system, they did not have a working relationship with the military prosecutors, and they were concerned the military prosecutors wouldn’t pursue a case, much less get a conviction—especially for sexual assaults and domestic violence. If that type of experience and belief continues within our fields between civilian and the military prosecutors, it could lead to cases falling between the cracks and victims not being heard.
But it doesn’t have to be that way! The example of the Arizona case shows that working together can lead to great results. I’ve learned that successful collaboration is rooted in understanding, communication, and support. We should provide all three to our counterparts to build working relationships and create synergy. That’s my intent here.
To do so, I’m providing a primer on our military justice system, available resources for victims, and specific examples on how Texas prosecutors can collaborate with your Air Force counterparts, especially for sex-related and domestic violence cases, so that we can achieve successful, sustained prosecutions.
Achieving understanding
We hear it all the time: The only constant thing is change. Whether that’s the law, resources, policy, or personnel, our legal practices are constantly changing. Constant changes makes it even more important to understand each other’s practices and perspectives when the time comes to work together. Going back to the example of Julie, at the outset of the outcry, civilian prosecutors agreed to meet with Air Force prosecutors to discuss a variety of topics. When they met, both Air Force and civilian prosecutors swapped information on each other’s processes. Local prosecutors began by explaining grand jury, why it would be tough to indict the case, and why it would likely be unsuccessful at trial if it made it that far. After the Air Force prosecutors explained the military justice process, local prosecutors agreed that its streamlined process would not only preserve the testimony of the very young victim, but also make it easier for a judge to produce the necessary witnesses and evidence. Understanding your counterpart’s processes is critical to this collaboration.
The military is unique: worldwide deployment of military personnel; the need for instant mobility of military personnel to ensure mission readiness; maintaining good order and discipline; the need for speedy trial; mobility issues involving witnesses; and the peculiar nature of military life all necessitate a separate military justice system. Having a separate system drives the efficiency and effectiveness of the military and strengthens national security. To address the peculiar nature of military life and types of misconduct that come with it, we have a number of unique crimes enumerated in the Uniform Code of Military Justice (UCMJ), the military’s criminal code equivalent, that do not have a civilian criminal equivalent. Those crimes include extramarital sexual conduct, absence without leave, conduct unbecoming of an officer, failure to go to a prescribed place of duty, gambling with a subordinate, jumping from a vessel, malingering, and unprofessional relationships—just to name a few.
Perhaps one of the most unique concepts of our justice system and the one that civilian attorneys find most interesting is that our justice system is commander-driven. Prosecutorial discretion is vested in commanders, not lawyers. Service members are under the control of their chain of command, and there are multiple commanders within a chain of command. Typically, a service member’s first commanding officer, called the unit or squadron commander, in the chain of command decides what action to take on the service member. From the beginning stages of an investigation when the commander, Air Force Office of Special Investigations (AFOSI), or the legal office learn of an allegation of a crime, up until the charging decision, the commander consults with Air Force prosecutors. After the commander decides how to proceed, he or she is consulted throughout the process until final disposition of that case.
Basic overview of military practice
At this point it makes sense to give a 30,000-foot view of our practice. Air Force “base legal offices” are similar to United States Attorney’s Offices in their organizational structure. The highest-ranking officer and the person in charge of the legal office is called the Staff Judge Advocate (SJA). The subordinate attorneys are called Assistant Staff Judge Advocates or ASJAs. Each base legal office is separated into different practice areas. The fundamental sections include: Military Justice, Civil Law, and Operations Law. The ASJAs working on military justice matters are considered Air Force prosecutors. Typically, they are junior attorneys beginning their careers.
To supplement the prosecution teams at base legal offices, the Air Force has a robust Circuit Trial Counsel (CTC) program, as I mentioned earlier. CTCs are typically more senior attorneys with years of litigation experience prosecuting complex cases who travel from base to base to assist with prosecuting cases. With few exceptions, base legal offices have a courtroom on-site where all legal proceedings are conducted. Currently, there are five Air Force bases in Texas: Dyess, Goodfellow, Sheppard, JBSA-Lackland, and Randolph, and there is also an Air Force legal office at Fort Sam Houston.
A primer on some of the key phases in our military justice process after receiving an allegation of a crime and leading up to a court-martial follows:
Jurisdiction: To put it simply, the military has jurisdiction over its service members regardless of where they commit an offense. Our formal guidance found in Air Force Instruction 51-201, Administration of Military Justice, tells us that: “Courts-martial have exclusive jurisdiction of purely military offenses. However, when a member is subject to both the UCMJ and state (non-federal) or foreign jurisdiction for substantially the same act or omission, the determination of which sovereign shall exercise jurisdiction should be made through consultation or prior agreement between appropriate authorities. With this in mind, Convening Authorities (along with the local SJA) should foster relationships with local civilian authorities with a view toward maximizing Air Force jurisdiction.” The Air Force’s policy for maximizing jurisdiction is directly tied to those overarching concepts of ensuring good order and discipline, along with mission readiness. By propagating the policy of maximizing jurisdiction at all base legal offices in the country, the Air Force creates a more standardized system of discipline, sending a message to members that they cannot escape good order and discipline by committing offenses off base, no matter where they are in the world. The underlying idea is that commanders have more control over their airmen and that this consistency will better enable service members to operate in multiple jurisdictions. While this policy is obviously not an absolute mandate that we must maintain jurisdiction in all cases, it highlights the goal of maximizing jurisdiction for the previously stated reasons, while understanding that some cases may be better suited for state and local prosecution.
Investigation: AFOSI agents investigate criminal activities similar to local law enforcement agencies, having received advanced training with other federal law enforcement agencies. Security Forces (SF) provide the security function, similar to that which a police agency may provide, for the installation. Additionally, SF also investigate certain offenses that are not under the purview of AFOSI.
Preferral: Service members are not typically placed under arrest in a similar fashion as their civilian counterparts. As they are by nature under the control of their chain of command, liberty restrictions can be placed swiftly on service members through the chain of command. As such, being informed of the charges they face is also performed through a different process. In the Air Force, an accused is formally notified of the charges he will face through a process called “preferral.” It typically involves being served with those charges by the commanding officer and is typically the first official step in the court-martial process.
Article 32 Hearing: If the charges preferred are similar to felonies in the civilian world, a preliminary hearing may be held. This is commonly called an “Article 32 Hearing,” as it is codified in Article 32, UCMJ. The burden of proof is on the government, hearsay is allowed, and both sides can present evidence. However, there does not have to be a judge involved. The person overseeing this hearing is called the preliminary hearing officer (PHO). The PHO also does not make a finding of whether probable cause has been met in the same manner as a judge would, but rather he or she makes a recommendation that addresses whether probable cause has been met. This is forwarded to the convening authority, a higher-level commander than the unit or squadron commander, who, upon the advice of the SJA, will decide whether the case will proceed forward.
Referred to court-martial: Once the PHO’s recommendation has been reviewed, if the convening authority decides to proceed, the case is “referred” to court-martial. He or she is in essence giving the green light for trial.
Courts-martial: There are three different types of courts-martial that may be convened: General, Special, and Summary. There is an additional nuance to the special court-martial in that cases can be tried by a military judge alone. The least severe in terms of sentencing for the accused is a summary court-martial, and the most severe is a general court-martial. In any given court-martial, the motions, findings (finding of guilt-innocence) and sentencing all happen at the same time. There is an option for bifurcated motions hearings, but typically written motions are submitted in the weeks leading up to trial and held orally on the first day trial is scheduled.
Victim resources
In the Air Force, victims of sexual assault can request to be represented by an attorney throughout the entirety of the sexual assault allegation process. These attorneys are called special victims’ counsel (SVC), and they provide independent legal advice and representation to victims of qualifying offenses, which include sexual assault, aggravated domestic violence offenses, and the wrongful broadcasting or distribution of intimate visual images. SVCs are independent from both the client’s (victim’s) and accused’s chain of command, which allows for unbiased advice unhindered by potential conflicts of interests. SVCs advocate on their client’s behalf to protect enumerated rights, which may be found at Article 6b, UCMJ. These include the right to be reasonably protected from the accused; the right to receive reasonable, accurate, and timely notice of certain hearings; the right not to be excluded from any public hearing or proceedings; the right to be heard at certain hearings; the reasonable right to confer with the counsel representing the government at certain proceedings; the right to receive restitution as provided by law; the right to proceedings free from unreasonable delay; and the right to be treated with fairness and with respect for the victim’s dignity and privacy. While SVCs often work with Air Force prosecutors, the stated interests of their clients may not always align with the traditional goals of an Air Force prosecutor. (SVCs represent their client’s stated interests, not their best interests.) As such, an SVC may be arguing a position more in line with the Area Defense Counsel (ADC) and the accused, rather than the prosecutors.
SVCs can assist victims in a number of ways, for example, with requesting an expedited transfer (ET). An ET is the process affording servicemember victims (who file an unrestricted report of sexual assault) the option of a permanent change of station or temporary or permanent change of assignment to a location that assists with the victim’s immediate and future welfare. SVCs also ensure their clients who are dependents of the accused are financially supported in accordance with Air Force regulations. This may involve working with the base legal office to advocate to the accused’s commander to order appropriate dependent support based on a formula found in Air Force Instruction 36-2906, Personal Financial Responsibility.
Additionally, SVCs ensure qualifying clients receive transitional compensation. It is the policy of the Department of Defense to provide monthly payments and other benefits for dependents of service members who separate following dependent abuse. Eligibility is triggered by an accused being separated from the military due to dependent abuse and does not require a criminal conviction. Therefore, criminal misconduct handled by civilian prosecutors may be used as a triggering event for a military discharge action and subsequent separation. While SVCs do not practice in local jurisdictions, they may advocate on their client’s behalf in those jurisdictions.
Moreover, the National Defense Authorization Act of 2020 calls for SVCs to familiarize themselves with various law and procedures of the jurisdiction in which they are stationed to provide full advice on jurisdictional differences between civilian and military processes. This can also present an opportunity for a prosecutor’s office located in the same area as a military installation to receive training on the military processes, including services available to crime victims even when the cases are prosecuted in civilian courts. Providing a victim with the understanding of the difference between a diversion program, an accountability court, or a traditional conviction lets that victim give input based the full range of possibilities. Currently, there are four Air Force SVCs working out of Texas Air Force bases.
Communication and support
I realize that those reading this article may also work with prosecutors from other service branches, and I recognize that other services may interact with their state and local prosecutor counterparts differently, so I can’t promise that you will be able to duplicate the efforts laid out here with other military prosecutors—but it won’t hurt to try. It is certainly possible to get more mileage out of the basics set out in this article with other military prosecutors because communication and support are concepts that transfer seamlessly. If we look once again at the example of young Julie, the sexual assault victim, the local prosecutors in that case not only invited Air Force prosecutors downtown to sit and talk about exercising jurisdiction over the crime, but they also agreed to review evidence, including watching the entire victim interview with them, point out strengths and weaknesses in the victim’s testimony, and discuss trial. These are just some of the many opportunities to come together to make a difference.
The local prosecutors in that case contributed a wealth of knowledge and greatly assisted in preparing for trial. They explained some of the delicate intricacies of re-interviewing a child victim (something the Air Force prosecutors had to do to clarify some of the issues with the first interview). The Air Force regularly brings in highly experienced forensic psychologists and other relevant experts from around the country to assist with trial preparation, but even so, the local prosecutors still shared their best practices with their Air Force counterparts on how to properly use the forensic examiner to explain some of the odd descriptions the victim used in her interviews. They also helped identify potential evidence of the defendant’s crimes or other bad acts that could be admissible at trial for limited purposes under Rule of Evidence 404(b). Their guidance led the Air Force prosecutors to look for more 404(b) evidence through electronic searches and interviews of other family members. In fact, a later search of the accused’s phone led prosecutors to numerous photos and videos of concerning 404(b) misconduct, including videos of the accused engaging in sexual activity with his unconscious wife.
Finally, the local prosecutors helped the military prosecutors understand the importance of eliminating other potential suspects, including the victim’s biological father and his roommates. In child sex cases, this is apparently a common defense, that the crimes happened but that the child is mistaken as to who committed them. Eliminating other suspects was not especially difficult, but it was still extremely important to establish alibis for each of the other men who had access to the victim.
On the other hand, there may be times when Air Force prosecutors can support civilian prosecutors working cases involving Air Force members. For example, one Texas prosecutor was working a sentencing case against a military member whose defense counsel argued that his client had already been discharged from military service for his crimes and should therefore receive a lesser sentence because he had already been punished. Afterward, the Texas prosecutor reached out to the servicing legal office. He learned that the defense counsel’s argument was erroneous: The accused would have been discharged from military service in any event for his previous pattern of misconduct.
There are times when we can share information that will better equip local prosecutors to combat those arguments so that you are not caught off-guard. But that’s just one example. Doubtless there will be many other opportunities to consult with your counterparts before an issue is presented in court so you are prepared to address it. This can make a big difference, especially on appeal. To the extent we can, we should be sharing information.
Training and exchange program
Another area of collaboration is through training. It would be highly beneficial to create a sort of exchange program, where the civilian prosecutor’s office and the base legal office swap a prosecutor for the day and train him so that the prosecutor can return to his office and share that information. This exchange also may be helpful to open up the lines of communication with your counterpart on a range of topics to support each other.
Point of contact
Turnover in the military is constant. Judge Advocate Generals (JAGs) normally work on a two-year rotation. Understandably, it can be frustrating if you are working with a JAG one day and she is gone the next. There are a couple ways to ease the frustration. First, my contact info, including my office’s Military Justice Email address, will be around long after my rotation is up ([email protected]; 17TRW.JA.Military [email protected];325/654-3203).
Secondly, in our office, any time we transition from one job to the next, we make it a habit to train our successor so she can seamlessly take over our position. Typically, we have a brief period of shadowing, or on-the-job training. Other times we create physical binders or PDF binders containing continuity memoranda and documents that explain to the successor step by step how to operate in that position. I will make sure to save this article or link to it for the next person to take my seat. Please feel free to reach out to me or the Goodfellow Air Force Base Military Justice team with any questions or if you need help getting in contact with another Air Force JAG at a different base. I look forward to working with you all in the future, and thank you for all you do.[1]
Endnote
[1] The views expressed herein are my own and do not represent the views of the Department of Defense or the Air Force.