This story, initially reported by the Associated Press, is at very least ominous, and at most a reminder that the Biden Administration’s position is that a man accused of sexual assault is considered guilty until proven innocent.
Unless the man is Joe Biden, of course.
At the beginning of last month, the Army’s head sexual assault prosecutor, Brig. Gen. Warren Wells, was fired from his job by Secretary of the Army Christine Wormuth. The justification given was a 2013 email in which he had the audacity to remind Army defense lawyers that they were the last line of defense against false accusations. The message read,
“Expect no commander to be able to make objective decisions involving [sexual assault] allegations as long [as] Congress and our political masters are dancing by the fire of misleading statistics and one-sided, repetitive misinformation by those with an agenda. Hopefully a soldier will be able to get a fair trial. You and your teams are now the ONLY line of defense against false allegations and sobriety regret. You literally are the personal defenders of those no one will now defend, even when all signs indicate innocence.”
The nearly 11-year-old message caused “a loss of trust and confidence in his ability to lead,” according the Secretary of the Army’s spokesperson. As is usually the case when a subordinate in a lock-step progressive agenda-following bureaucracy is accused of not advancing the cause,Wells groveled to minimize the damage. “My comments were inappropriate in my description of policy makers’ concern about sexual assault,” he said. “My intent was to reinforce that defense counsel were a critical protection for soldiers accused of wrongdoing,” he said. “I do not want my comments to divert attention from the excellent work being done by the new Office of Special Trial Counsel to prosecute special victim crimes and care for victims.”
Wells has been re-assigned. Legal ethics specialist Alberto Bernabe, a professor at the University of Illinois-Chicago School of Law, asked, “Was the Army’s first-ever lead special trial counsel fired for urging lawyers to act ethically?” He adds that what Wells emphasized in his email is only “what we expect, and should expect, from all lawyers – particularly criminal defense lawyers.” That Wells was punished for fired for that “sends a wrong impression about what is important to the leaders of the military justice system.”
I’d say he was fired because it sent an accurate message about what is important to the leaders of the military justice system under their current “political masters.” The Army appears to be committed to the same theory of justice regarding accusations of sexual misconduct that the Obama Education Department pushed on colleges and universities: believe all women, and assume that the accused is guilty. Warmuth’s spin-artists told the media that Wells “negatively characterized developments in sexual assault response at the time and was dismissive of the principle of civilian control of the military exercised by both the Executive Branch and Congress.”
Well’s fate only supports his assessment.
Ethics Alarms 
And some wonder why there is such difficulty in meeting recruiting quotas.
Who in their right mind would advise a young man to enter the military with policies supporting false accusations in place?
Brig. Gen. Warren Wells should leave the military, take his pension, and run for Congress.
Denotatively, I agree, and I’d suggest that the statute of limitations should have run out on any allegations stemming from an email from over a decade ago.
Connotatively, however, Wells certainly seems to be suggesting that many (most?) allegations are “false” and the product of “sobriety regret.” Some, no doubt, are. But many, I’d suggest a clear majority, are not. The email may have been intended as a rallying cry for defense attorneys, but it certainly seems pretty damned dismissive of all claims, legitimate or otherwise.
That Wells has subsequently been accused of sexism shocks me about as much as learning that an NBA center is rather tall.
Where do you get the idea that Wells thinks that most allegations are false?
Do you believe that the statistics that Wells is most likely referring to (1 in 3 women are sexually assaulted, only 5% of rape claims are false, etc) accurately portray what it means to be a woman in the United States today?
His removal is inappropriate and unconscionable. This is an important fact: “Wells, who was a lieutenant colonel and the Army’s defense counsel for the Great Plains region in Kansas at the time, told his staff that ‘you and your teams are now the ONLY line of defense against false allegations and sobriety regret.’ He told them they now were the only defenders of troops no one will defend, ‘even when all signs indicate innocence.’” That means he was acting in his role as defense counsel, and encouraging other defense counsel to act within their legal and ethical duties. He was correct in doing so and should not have to face consequences for that statement – in fact, he should be lauded for reminding (though most defense lawyers don’t need reminding) defense counsel to “fight the good fight”. That he walked his comments back is truly depressing.
The logic in his dismissal as lead prosecutor would apply to any defense counsel who is now a prosecutor or a judge. This is the same logic underlying dismissal of a Harvard law professor because he had the audacity to represent Weinstein or Trump. The criminal justice system is required to protect the rights of the accused and ensure that the accused receives a fair trial. Cases are styled, “The State of ____ v. John/Jane Doe” or “U.S. v. John/Jane Doe”.
Most indictments have language that the accused has engaged in conduct that is against he dignity of the STATE and is accused of breaching society’s rules. The victim or accuser is not the named party and the state does not bring charges in the accuser’s name. If the accuser wants to prosecute claims against the accused, that is a matter for civil courts, not the criminal judicial process.
jvb
johnburger2013 wrote, “That he walked his comments back is truly depressing.”
He was likely ordered to make the groveling statements with a very strongly implied “or else” attached to the order.
He is a frickin’ brigadier general. He is afraid of an “or else”? Our military is doomed.
jvb
Maybe you’re one of the exceptional few that wouldn’t be afraid of a general court martial, dishonorable discharge, loosing your entire pension and everything you worked 20+ years for deliberately disobeying a direct order – if that’s what happened behind the scenes. Based on the fact that Wells did nothing wrong, I honesty think that’s exactly what happened.
Do you understand how much a brigadier general makes per month and how much their retirement will be after roughly 25+ years of service?
Do you understand what happens within a couple of years to someone’s life when that someone is court martialed at that rank with that many years in service?
Do you understand to negative ripples through a family when someone like this is court martialed?
Please don’t condemn until you’ve been in those shoes.
There are other ways of dealing with the unethical superior officers that forced him down this groveling path, why do you think I said he should leave the military, take his pension and run for Congress.
Some thoughts from someone who has both prosecuted and defended sexual assault cases in military courts.
Although it is a difficult concept for most civilian attorneys to grasp, the military justice system that was put in place in the early 1950s (as the Uniform Code of Military Justice) Is designed to accomplish two, sometimes contradictory, tasks. The first is to provide constitutional due process to service members accused of any of a specific list of crimes delineated by the UCMJ. Military defense counsel are obviously crucial in this process because they are frequently the only individuals with the capability to adequately overcome the tremendous advantage possessed by the prosecution on a military installation. Prosecution authority rests ultimately in a series of commanders at various levels. These individuals have unlimited resources at their disposal, including the ability to select potential jurors and to influence proceedings in any one of a thousand different ways, some obvious but most not. Military defense attorneys are generally removed from the formal chain of command so that local commanders cannot affect the career of a zealous defense counsel working to protect the interests of her client.
The second purpose of the military justice system is to promote good order, morale, and discipline within the ranks. This means that commanders have available to them procedures short of a formal trial proceeding by which they can enforce discipline. Article 15 of the UCMJ is one such mechanism that allows for a quasi-judicial proceeding before the commander, with or without the presence of a defense attorney, that is designed to quickly deal with the minor criminal infractions occurring in units every day. Commanders have significant autonomy and authority under this system and may elect to charge, ignore, or otherwise deal with issues that would normally be a matter of criminal concern to their military legal advisors. My recollection is that perhaps 5 or 6 times a year I confronted situations where my recommendation was to charge an individual under the UCMJ and the commander rejected it in favor of some other type of less severe action. Less frequent were the circumstances where a commander was adamant that we convene a court-martial even in circumstances where the evidence was less persuasive and I was much less confident of a guilty verdict. But in all circumstances, it was the commander who made the call, frequently in conjunction with advice and counsel from her own commander higher up in the military food chain.
It’s the second purpose that was creating heartburn for a number of female senators back in the 00s and early teens when this Army JAG wrote his e-mail. Commanders are given wide discretion in terms of the charges and the disposition of those charges. Military juries are perhaps some of the most educated and discerning groups before which I had the pleasure of practicing. They are also well-versed in military culture and generally have a wealth of experience dealing with disciplinary issues in their own units, either as observers or as actual commanders themselves. Perhaps just as important, the military population is not comparable to the civilian population in terms of conduct and bad motivation. Most of those people never make it past the initial recruitment process and are generally weeded out over the term of their first few years in service.
All of which is a long-winded way of saying that sexual assault and rape in the military looks completely different than it does in a civilian criminal court setting. Outright, predatory, sexual assaults are relatively rare; the vast majority of cases that I dealt with as a prosecutor and the few cases that I dealt with as a defense attorney involved ambiguous conduct on the part of both parties, almost always fueled by excessive consumption of alcohol. Cases of forcible rape were noteworthy and got the immediate attention of military law enforcement and command.
Given the less straightforward aspects of most of these sexual assault cases, commanders frequently found themselves trying to assess guilt or innocence with highly equivocal evidence. Those cases that went to trial confronted those military juries with the same issues. Often the accused was a person with an exemplary record who was alleged to have acted in a way that was completely inconsistent with their prior years of service. Accordingly, commanders would make a “split the baby” kind of analysis, electing to not formally charge individuals, reduce sentences imposed by juries, or figure out some other mechanism to deal with the problem short of formal criminal charges.
Progressives will say that much of this reluctance was due to some type of old boy network and that the males who predominate in the service are unlikely to hold their fellow men culpable except in the most extreme circumstances. Over the course of perhaps 30 or 40 sexual assault investigations during my JAG career, I never saw anything resembling this type of bias. It probably occurs, but my experience is that it is very limited.
But for several female lawmakers, caught up in the early stages of the “believe all women” movement, any acquittal, any resolution short of providing complete relief to a complaining party meant that the system was rotten and needed to be overhauled. From holding up or threatening to hold up all promotions for a particular service (yes, this was long before Senator Tuberville’s actions, check out Senator Schroeder’s threats following Tailhook) to working to remove the commander’s discretion in dealing with these cases, these officials worked to eat away at the protections for accused service members, both by altering procedural protections and by working to send a message to the command team that “not guilty” verdicts would endanger careers and funding for much-desired weapon systems and support.
It was into this environment that this Lieutenant Colonel sent his e-mail. Perhaps the most pernicious and dangerous issue within the military justice system is something called “command influence.” Command influence occurs when a commander or someone with significant authority intervenes in the judicial process by ordering jurors to vote for a specific result, or by establishing policies mandating particular results in military legal cases, or by threatening service members’ careers if specified results are not achieved. The actions of these female lawmakers and their threats to senior military leadership were clearly aimed at eliminating “not guilty verdicts” in sexual assault cases and limiting the discretion of commanders to deal with these issues in any other way than a trial, where the results would be effectively guaranteed. In other words, command influence at its very worst.
The Secretary of the Army is unworthy of her position by virtue of this action. She absolutely fails to understand that civilian control of the military does not mean that military lawyers must act to abrogate the statutory and constitutional rights of their clients in service to a particular ideology or political philosophy. I’m sorry that this general did not stand up and act like a big dog, telling this woman that she cannot undercut the ability of defense counsel to zealously defend their clients, even in Army courts. With any luck, the story will be offered as evidence of command influence on upcoming sexual assault trials and will be sufficient to overturn guilty verdicts.
Thanks. That is a great comment, with really interesting insight to the workings of UCMJ.
jvb