Defense Articles

In 1965, on the same day that the Supreme Court held that the Fourteenth Amendment incorporated the Sixth Amendment’s Confrontation Clause against the states, the Supreme Court addressed in Douglas v. Alabama1 whether a prosecution for assault had contravened the Clause. The State alleged that Douglas and an accomplice had chased down and shot at a truck with the intent to hit the driver.2 When the accomplice invoked his privilege against selfincrimination at trial and refused to answer any questions, the state solicitor introduced as proof of Douglas’s guilt an out-of-court confession the accomplice previously had given to the police.3

The Supreme Court held unanimously that using the accomplice’s confession against Douglas violated Douglas’s right to confrontation.4 The Court’s opinion spans nine pages of the United States Reporter, and its legal analysis covers less than three pages. The analysis begins by stating that the Confrontation Clause secures to criminal defendants the right to cross-examine adverse witnesses.5 The Court then reasons that the reading of the accomplice’s confession “may well have been the equivalent in the jury’s mind of testimony” that Douglas committed the alleged crime.6 Yet the accomplice “could not be crossexamined . . . to test the truth of the statement.”7 Consequently, the Confrontation Clause was “plainly” violated.8 Case closed.

Ah, the good old days. I do not necessarily mean “good old days” in the sense of the days when criminal defendants won more cases in the Supreme Court (though the result in Douglas is clearly correct). Instead, I mean the days when criminal procedure was capable of being straightforward and clear-cut. The Court in Douglas found no need to ponder the ultimate purpose of the Confrontation Clause or whether excluding the accomplice’s confession furthered that purpose. Nor did the Court pause to consider the state interests that might be adversely affected by prohibiting the use of such extrajudicial testimony. In other words, the Court did not engage in balancing.

In the decades that followed, things have not been so simple. For instance, when presented in 1986 with another case, just like Douglas, involving whether a nontestifying accomplice’s confession was admissible against the accused, the Court divided five to four.9 Rather than applying the straightforward holding of Douglas, the majority began by opining that the purpose of the Confrontation Clause is to “promote[] reliability in criminal trials.”10 It then estimated the trustworthiness of the statement at issue to determine whether the defendant’s inability to cross-examine the accomplice should have precluded its admission at trial and concluded that it should have.11 But lest there be any doubt how dramatically the landscape of constitutional adjudication had changed during twenty years since Douglas, the 1986 dissent arguing for an exception to Douglas’s bright-line holding began by proclaiming-without a hint of irony-that it “yield[ed] to no one in [its] respect for the Confrontation Clause.”12 The dissent apparently had so much respect for the Confrontation Clause that it was prepared to condone the use of the very kind of ex parte statement-an accomplice’s confession-that the right to confrontation had developed to prohibit.13

As the Rehnquist Court considered other confrontation cases in the years that followed, the disintegration of clarity became complete: the confrontation right potentially applied whenever out-of-court statements were introduced in criminal trials, but it never categorically precluded using any type of statement.14 Every case depended on the Court’s assessment of reliability, not on the much easier question whether the trial had used the Confrontation Clause’s chosen means of enhancing reliability: cross-examination.

This progression from a bright-line rule to a balancing approach is emblematic of the shift the Burger and Rehnquist Courts implemented in several areas of constitutional criminal procedure. By “balancing approach,” I mean a method of adjudication that takes as its polestar the value a constitutional provision is aimed at furthering, and then, on a case-by-case basis, makes a calculated judgment concerning the reasonableness of a challenged governmental action. Under a balancing rubric, a right to a particular procedure or a particular kind of treatment is never absolute or categorical. Instead, rights are presumptions that may be disregarded or overcome when enforcing them strikes the Court as counterproductive or when necessary to further countervailing (and sometimes nonconstitutional) state interests.15 In the realm of criminal procedure, in particular, this structural conception of rights almost always favors the government;16 it allows the Court to sanction police practices and trial procedures that run against the grain of unqualified commands in the Bill of Rights.

Nevertheless, during the past two Terms, the Supreme Court gave the criminal defense bar two significant victories in the form of none other than categorical rules. First, the Court in Crawford v. Washington restored clarity to confrontation law, ruling that “[w]here ‘testimonial’ statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”17 Second, the Court in Blakely v. Washington held that the Sixth Amendment’s right to a jury trial must be enforced by a “bright-line rule” permitting defendants to insist that any fact-including facts laid out in sentencing-guideline or otherwise determinate sentencing systems-that would expose them to heightened punishment be proved to a jury beyond a reasonable doubt.18

This journal has devoted much attention to such an important problem as the development of arms and military equipment (AME). In the past, under state ownership of the means of production, the administrative-command system ensured the priority of public interests and highly efficient use of funds in the development of armaments. However, the transition to a market economy has brought about a fundamental change in the balance of interests of the parties involved and in the ways of ensuring these interests. The role of administrative methods is declining, whereas methods of economic stimulation (economic incentives) are becoming ever more effective. The state defense order (SDO) is placed, as a rule, on a voluntary basis with the use of economic methods, which mainly serve to regulate the degree of contractor interest in fulfilling the customer’s requirements. This interest is not necessarily confined to making profit, but can also depend on additional support on the part of the customer enabling contractors to strengthen their positions in the market. (1)

As we know, the main lines of stimulating defense production and the development of the armament system are determined at Federal level. These include: advance payment for work by government customers, tax benefits, subsidies and other forms of government support, and also administrative and criminal penalties. A general legal regulatory framework is also created at Federal level. In accordance with established rules and regulations, the government customer develops its own system for providing incentives to contractors based on the organizational peculiarities of AME development, the specifics of industrial production and past experience of such work. The key concepts here are terms of payment, price and contractor’s profit.

As we go on to examine the economic methods used to stimulate SDO contractors, let us note that today, according to available data, there is no generally accepted strict list of such methods. Stimulation (incentive) is taken to mean an inducement, a spur to action, an interest in doing something. This can be achieved either by an extension of certain benefits or by threat of punishment. As regards the economic methods of stimulating SDO contractors in the broad sense of the term, these include various kinds of inducements and constraints which impel contractors to reduce (limit) the costs allocated by the customer to product cost or which result in changes in profit (increasing it when the customer’s requirements are fulfilled or surpassed and decreasing it when these requirements are not met). Such methods are closely connected with the systems of planning, financing, pricing and contract work (see Fig.). Let us examine these connections at the level of government customer activities in reference to the specifics of shipbuilding. We shall confine ourselves to methods that are implemented through the contract or immediately precede its conclusion. Tax and investment incentives lie outside the scope of authority of the government customer and we shall not dwell on them.

[FIGURE OMITTED]

Economic incentives must be based on a balance (compromise) between the interests of the customer and the contractor, and also on an organic combination of inducements (rewards) and responsibility. The procedure and extent of the use of various incentives in each particular case are determined by the specifics of the existing situation so as to enhance the efficiency of the final result (performance), which is evaluated on the cost-effectiveness criterion (when the customer has an opportunity to vary the technical specifications for the products to be supplied under the contract) or is determined as the ratio of the original contract price to the final price (when it is necessary to observe the given technical specifications). The state’s attempts to establish, in a centralized way, a detailed list of economic incentives for enterprises do not always have a positive effect, because they apply equally to different contractors irrespective of the results of their work (for example, tax benefits, terms of payment, etc.). In other words, such measures stimulate a definite area of activity instead of particular contractors. Incentives offered to contractors must be targeted and must depend on their performance results. With this aim in view, it is necessary to determine at Federal level the permissible range of incentives (with the government customer entitled to choose the most appropriate of these) and to develop a mechanism and a set of criteria for the adoption of decisions on the types and amounts of incentives to be offered to SDO contractors.

The establishment of a legislative framework for the arms development process in the conditions of a market economy is now virtually complete, although it is in need of upgrading. In the matter of economic incentives for contractors, legislation provides fairly wide opportunities. At the same time, the deficiencies in the system of regulatory and methods documents at lower levels prevent efficient use of all these incentives for stimulating SDO contractors, with the result that many of them have not yet entered the stage of practical implementation. In performing work, the SDO contractor is guided primarily by effective legislation and the requirements of the government contract. Consequently, the customer can stimulate the contractor through the contract. In my view, the most effective economic incentives are those presented in the Table.

Senator John Warner (R-VA), chairman of the Senate Armed Services Committee, and Senator Carl Levin, ranking member, announced today that the Senate and House conferees reached agreement on the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005. The bill authorizes funding for the Department of Defense and the national security programs of the Department of Energy.

“We remain a nation at war against terrorism, and we will win because of the extraordinary Americans who volunteer to serve the cause of peace and freedom. All Americans are in their debt, and they and their families deserve our unwavering support,” said Warner. “I can think of no better way to honor the service and sacrifice of our servicemen and women and their families than to provide them with a higher level of pay and benefits and to give them the equipment they need to carry out their critical missions on behalf of our nation. I think it is particularly fitting that this bill is named after President Reagan,” Warner added.

“This bill improves the quality of life for our men and women in uniform, provides the equipment they need to perform their important and dangerous missions, and makes the investments we need to meet the challenges of the 21st century,” said Levin. “I am especially pleased that this bill increases the active duty end strength of the Army and Marine Corps, and increases the benefits for our active duty, National Guard, and Reserve forces, and for their families,” he added.

CONFERENCE REPORT HIGHLIGHTS

This conference report underscores the Committee’s strong support for the men and women of the armed forces who are fighting so bravely in the global war on terrorism. The conference report includes a 3.5 percent across-the-board increase in pay for all uniformed service personnel. It creates a new healthcare benefit for reservists by authorizing TRICARE coverage for Reserve members who served on extended active duty. It authorizes a permanent increase in special pay for duty subject to hostile fire or imminent danger and for family separation allowances, and increases special pays for members of the National Guard and Reserve for enlistment and reenlistment.

The conferees agreed to authorize a multiyear procurement for 100 new aerial refueling aircraft, while prohibiting the lease of KC-767A tanker aircraft by the Air Force. They also agreed to require that any contract for the maintenance and logistics support for new aerial refueling aircraft be competitively awarded.

The conferees reached an agreement that will maintain the authority for the Department of Defense to conduct a round of base realignment and closure in 2005. Warner stated, “This top Administration priority is absolutely essential and necessary for 2005, to allow the Department to evaluate its infrastructure and to make smart decisions to support a well-postured 21st century military. We must complete this crucial process over the next year in order to reduce aging [and] excess infrastructure, provide resources for the military where they need it the most, and provide investment and development opportunities for the local communities that so strongly support our military forces.”

In addition, the conferees:

* Authorized a 3.5 percent across-the-board pay raise for all uniformed service personnel

* Authorized increases in active-duty end strength of 20,000 for the Army and 3,000 for the Marine Corps

* Authorized an increase in the Survivor Benefit Plan annuity that will be phased in over 3.5 years and, by 2008, eliminate the existing two tier system

* Approved permanent eligibility for up to 90 days of TRICARE coverage for Reserve members and their families prior to mobilization, and 180 days of transitional health benefits for Reserves, active duty members, and their families when the member separates from active duty service

* Authorized a new program of educational assistance to members of the Selected Reserve, providing varying amounts of aid depending on the length of time mobilized

* Authorized immediate concurrent receipt, without phase-in, of military retired pay and veterans’ disability compensation for retirees who are rated at 100 percent disabled

* Included a provision that would expand criminal jurisdiction over federal employees and contractor personnel supporting the DoD mission overseas

* Removed the existing funding limitations on the military housing privatization authorities, which will allow the military services to continue to partner with the private sector to provide the highest quality housing for military members and their families in the shortest amount of time

* Authorized $10 billion for ballistic missile defense, and provided additional funding for the ground-based midcourse missile defense segment.

* Established new benefits under the Energy Employee Occupational Illness Compensation Program Act to compensate energy employees for illnesses resulting from exposure to toxic substances at a Department of Energy facility; the provision would direct the Department of Labor to administer this new benefit program, which is intended to provide a simple, fair, and uniform workers compensation system

IN December, after a federal jury convicted Virginia pain doctor William Hurwitz of running a drug-trafficking operation, the jury’s foreman made a puzzling comment to the Washington Post: “He wasn’t running a criminal enterprise.” Hurwitz, who was sentenced to 25 years in prison on April 14, was charged with drug trafficking because some of his patients abused or sold the narcotic painkillers he prescribed for them. Calling him a “major and deadly drug dealer,” prosecutors argued that his practice amounted to a “criminal enterprise” because he charged for his services and should have known that some of his patients were faking or exaggerating their pain.

Judging from the comments of their foreman, Ralph Craft, the jurors didn’t really buy this theory. But they convicted Hurwitz anyway, because they felt he was “a bit cavalier” in the way he prescribed opioids. They confused their role as jurors in a criminal case with the roles of the state medical board that regulates doctors and the civil courts that hear malpractice lawsuits. By convicting Hurwitz of, in essence, trusting his patients too much, they put physicians on notice that they can go to prison for prescribing opioids to people who turn out to be addicts or dealers. That knowledge is bound to have a chilling effect on pain treatment, which is already scandalously inadequate because of the fear instilled by the war on drugs.

The prosecutors did not dispute that Hurwitz, a widely known pain specialist and prominent critic of federal drug policy, had helped hundreds of patients recover their lives by prescribing the narcotics they needed to control their chronic pain. Instead they pointed to the small minority of his patients–5 to 10 percent, by his attorneys’ estimate–who were misusing the painkillers, selling them on the black market, or both. The prosecutors did not claim that Hurwitz got so much as a dime from illegal drug sales. Instead they pointed to his income as a physician, which they said was boosted by fees from bogus patients. The prosecutors did not allege that Hurwitz had any sort of explicit arrangement with those patients. Instead they described a “conspiracy of silence,” carried out by “a wink and a nod.”

The evidence supporting this theory was ambiguous at best, leaving plenty of room for reasonable doubt. None of the surreptitiously recorded conversations with patients-turned-informants presented by the prosecution included any acknowledgment of the conspiracy Hurwitz supposedly led. To the contrary, the testimony of former patients convicted of drug dealing tended to confirm Hurwitz’s defense that he was tricked by “predators” who always knew the right thing to say to get more drugs.

A former patient called as a prosecution witness testified, “I had a lot of pain, but I exaggerated it, trying to get the drugs.” On cross-examination, he added that he had “played a lot of doctors” over the years. He characterized Hurwitz as naive, saying, “He was concerned about me and my wife [also a patient]. Dr. Hurwitz is always concerned.” Another former patient recalled using makeup to cover injection marks on his arm and smoking crack before appointments so he would not seem suspiciously sleepy. All described the lies they told: complaints of unrelieved pain, reports of lost prescriptions, explanations for brushes with the law.

If there was a conspiracy, asked defense attorney Patrick Hallinan, “why would you have to lie?” And if Hurwitz and his patient-dealers were in cahoots, why would he carefully record all the potential signs of trouble the prosecution would later cite as evidence of his “head-in-the-sand attitude”? Hallinan conceded that Hurwitz may have displayed “a degree of naivet,” and “even foolishness” in accepting some of his patients’ stories. But he persuasively portrayed Hurwitz as “the perfect mark for these people”: a doctor dedicated to helping patients in pain and reluctant to cut them off when they misbehaved.

Prosecutors maintained that Hurwitz’s intentions didn’t matter. As they put it in a post-verdict brief: “It is sufficient to prove a physician prescribed controlled substances while acting outside the bounds of medicine, regardless of whether he had a good faith belief that he was fulfilling a legitimate medical purpose.” Since Hurwitz was “acting outside the bounds of medicine,” the government argued, his prescriptions amounted to drug trafficking.

Hence the death of one patient from a morphine overdose that the government attributed to Hurwitz’s excessive prescribing (the defense emphasized that the dose she took was smaller than what she had safely tolerated the day before) was not simply malpractice; it was “drug trafficking resulting in death.” More generally, the prosecution criminalized (and federalized) what would ordinarily be treated as allegations of medical negligence. The point is not that Hurwitz’s practice was beyond reproach. When the Virginia Board of Medicine reviewed allegations similar to those underlying the Justice Department’s case, it considered them serious enough to place him on probation (although it did not revoke his license). But Hurwitz’s performance as a doctor is not the proper concern of federal drug agents and prosecutors.

ON THE NIGHT OF December 29, 2003, Morio L. Billings was AWOL from the Army, in violation of his probation, and driving a BMWX5 sport utility vehicle he’d stolen less than a day earlier. The 31-year-old was staying with his mother in Chicago, but he wanted “blow and crack” badly enough to risk yet another jail stay. He had been taken into custody at least six times in 2003, with police alleging residential burglary, receiving stolen property (twice), driving while suspended (twice), auto theft (three times), and possession of a controlled substance.

Driving to Wilmette, a Chicago suburb, Billings parked the SUV on Laurel Avenue, a short walk from his target house on Linden Avenue, the same place he’d hit the night before. Last time he’d gone through the dog door, but he’d taken the keys (along with a Sony PlayStation 2, a TV set, and the SUV) before leaving. He “didn’t care if anyone was home,” he’d later tell police.

Entering the house through the kitchen door, Billings heard an alarm go off but proceeded to explore the home anyway. He saw a computer monitor and tugged on it.

Hale DeMar, a 54-year-old restaurateur who had recently separated from his wife but was watching their two children that night, was asleep upstairs when Billings entered his kitchen. DeMar had been unable to get his locks changed on short notice after the previous night’s burglary (he would later be accused of not trying hard enough), but he had activated the security system. He had also put six hollow-point rounds into his Smith & Wesson .38 Special and placed it under his bed. It was one of two handguns he’d owned for more than 20 years without loading them; until the burglary he’d kept them locked in a safe, still in their original packaging.

Around 10:30 p.m. DeMar was awakened by the security system, which indicated a kitchen-door entry. Relying on the system to contact police, he grabbed the .38 and went downstairs. Months later, Chicago Tribune columnist Eric Zorn would call DeMar–who is five feet, nine inches tall and weighs 140 pounds–a “suburban cowboy.” Wilmette Chief of Police George E. Carpenter would say he put himself at risk “unnecessarily, on multiple levels.”

Shots in the Dark

DeMar faced more than second-guessing after the break-in. He was charged with violating Wilmette’s handgun ban, an offense that carries a $750 fine. His attempt to challenge the fine in court shows how difficult it can be to assert a right to armed self-defense in the United States, despite an explicit constitutional guarantee that would seem to preclude gun laws like Wilmette’s. Illinois courts have been so hostile to this right that DeMar’s lawyer never cited the Second Amendment in his arguments, relying instead on other, tangentially related constitutional provisions. Ultimately it was the state legislature rather than the courts that prevented DeMar from being punished for daring to protect himself and his family.

When he got downstairs, DeMar saw a man in his dark family room. Since he “didn’t see any flesh,” he thought the intruder was masked. He was right. From the kitchen, DeMar fired two shots. One struck Billings in the upper left arm.

Now both men wanted the same thing: Billings out of DeMar’s house. Billings ran, heading through the family room, dining room, and living room. He passed a door leading outside but didn’t go through it. “I don’t know,” he’d later say. “I guess I should’ve. I just wanted to get the luck out.”

Billings came to a hallway connecting the kitchen, front door, living room, and stairs. DeMar fired two more shots, one of which dug into Billings’ left leg. Billings broke a living room window, climbed through, and ran westward through the dark. DeMar went back to his bedroom. Trembling, he called the police.

At some point the phone rang, and DeMar’s 10-year-old son, Jack, picked it up. It was the alarm company. Jack explained the situation.

As the police responded, a neighbor called in a suspected burglary. Billings, once again in DeMar’s SUV, had cut through a yard on Laurel Avenue, breaking a fence on his way to Evanston’s St. Francis Hospital. It was further than Evanston Hospital, but he wanted to get as far away as possible, and he was more familiar with St. Francis, which is the hospital where he was born.

Arriving at DeMar’s house to find him on the phone with their department, the police took both of his guns. They came across several bullet holes, a black and tan baseball cap, a “skull cap/dew [sic] rag,” and blood. At the property on Laurel Avenue through which Billings had driven they found broken pieces of plastic from the SUV’s passenger-side mirror housing. At St. Francis Hospital were the rest of the vehicle and the offender. Billings had parked the SUV across a sidewalk near the hospital, gotten out, and collapsed; staff had taken him inside. In August 2004 he’d receive a seven-year prison sentence.

Two days after the break-in, the Cook County state’s attorney’s office released a statement declaring DeMar’s actions self-defense. But Illinois requires gun owners to keep a firearm owners’ identification card, and DeMar’s had expired in 2000. On January 8, 2004, he was charged with that violation, which carries a maximum penalty of a $2,500 fine and a year in jail. Prosecutors dropped the charges about a month later, saying they did not want to “revictimize” DeMar for a “lapse.”

In the course of a two-year assignment as a trial defense counsel (TDC), most defense attorneys are likely to represent numerous Soldiers at courts-martial and administrative separation proceedings. Likewise, most TDCs routinely assist Soldiers who are the subject of commander’s inquiries (2) and investigations under Army Regulation (AR) 15-6. (3) The formal and informal training TDCs receive, focuses on these aspects of their practice. Because of this emphasis and the volume of cases, most TDCs develop a good working knowledge of criminal investigations, AR 15-6 investigations, and commander’s inquiries. There is another type of investigation, however, that most defense counsel may only see once or twice over the course of a two-year assignment–Army Inspector General (IG) investigations.

Inspector general investigations come with their own set of rules and procedures. (4) Like other investigations, they can adversely impact the Soldier under investigation. Many aspects of an IG investigation are similar to the other investigations that TDCs work with on a regular basis. There are, however, several unique aspects of an IG investigation. (5) This article explains the IG investigation process and provides a primer that will assist defense attorneys to understand their role in protecting the interests of a client under investigation. The article will discuss investigations conducted at both the installation and command level as well as investigations conducted by the Department of the Army Inspector General (DAIG). The paper will first examine the rules of the IG investigative process. Next, it will consider the process. The article will also provide suggestions and highlight particular areas for TDCs to consider. The article concludes with some observations about the due process issues at stake.

Background

Before discussing IG investigations as they relate to a particular client, it is important to understand the IG’s regulatory role and the IG’s responsibilities in the context of an investigation or investigative inquiry. (6) Most judge advocates JA) are familiar with many of the local IG office’s day-to-day functions. One of the IG’s most important functions is to conduct inspections. (7) These inspections are intended to help leaders assess their organization’s ability to accomplish its wartime and peacetime missions. (8) Another function is the IG’s responsibility to provide assistance to Soldiers, family members, civilian employees, and retirees in resolving problems. (9) These functions are not the focus of this article.

The function with which most JAs are less familiar is the IG’s investigative responsibility. The Secretary of the Army (SA), the Under Secretary of the Army (USofA), the Chief of Staff of the Army (CSA), the Vice Chief of Staff of the Army (VCSA), the Inspector General (TIG), and commanders can direct that the IG conduct investigations or investigative inquiries. (10) The stated purpose of investigations is to “provide the directing authority a sound basis for decisions and actions. Inspector general investigations normally address allegations of wrongdoing by an individual and are authorized by written directive.” (11) The purpose of investigative inquiries is “to gather information needed to address allegations of impropriety against an individual that can accomplish the same objectives of an IG investigation.” (12) It is clear from these provisions that the IG uses investigations and investigative inquiries to look into allegations of individual misconduct.

Type of Investigation

Generally, investigations conducted by the command IG at the direction of a local commander are investigative inquiries. Investigative inquiries are less formal than investigations. (13) Investigative inquiries typically involve witness statements and a review of documents. Witness statements are not required to be sworn or recorded verbatim. (14) At the conclusion of the inquiry, a report of investigative inquiry (ROII) must be completed, and a legal review is required for any substantiated allegation. (15) The directing authority must approve the ROII, and the subject or suspect of the investigation must be notified in writing of any substantiated allegation. (16)

Investigations involve a more formal procedure and are typically conducted at the DAIG level. An investigation is a formal fact finding process. The investigation will include a formal directive from the directing authority and a notice to the subject or suspect and to the appropriate commander that an investigation is being conducted. (17) Sworn witness statements and verbatim transcripts of interviews; a report of investigation (ROI); a formal legal review of the ROI; and notification to the subject or suspect, the respective commander, and the complainant of the results of the investigation, are all requirements of a formal investigation. (18)

Inspector General Action Request

Investigations and investigative inquiries are most often triggered by someone making an Inspector General Action Request (IGAR). An IGAR is “[a] complaint, allegation, or request for information or help presented or referred to an IG. An IGAR may be submitted in person, over the telephone, through written communication, by electronic communications, or through the DOD Hotline referral.” (19) A complaint is “[a]n expression of dissatisfaction or discontent with a process or system….” (20) A complainant is “[a]ny person or organization submitting an IGAR. The person can be a [S]olider, family member, member of another Service, Government employee, or member of the general public. The organization can be any public or private entity.” (21) Finally, an allegation is “a statement or assertion of wrongdoing by an individual….” (22) Taken together, these definitions show that any person or any organization can bring information of suspected wrongdoing or misconduct by a military individual in virtually any form, including anonymous tips, and that information may trigger an investigation or investigative inquiry.

ON THE NIGHT OF December 29, 2003, Morio L. Billings was AWOL from the Army, in violation of his probation, and driving a BMWX5 sport utility vehicle he’d stolen less than a day earlier. The 31-year-old was staying with his mother in Chicago, but he wanted “blow and crack” badly enough to risk yet another jail stay. He had been taken into custody at least six times in 2003, with police alleging residential burglary, receiving stolen property (twice), driving while suspended (twice), auto theft (three times), and possession of a controlled substance.

Driving to Wilmette, a Chicago suburb, Billings parked the SUV on Laurel Avenue, a short walk from his target house on Linden Avenue, the same place he’d hit the night before. Last time he’d gone through the dog door, but he’d taken the keys (along with a Sony PlayStation 2, a TV set, and the SUV) before leaving. He “didn’t care if anyone was home,” he’d later tell police.

Entering the house through the kitchen door, Billings heard an alarm go off but proceeded to explore the home anyway. He saw a computer monitor and tugged on it.

Hale DeMar, a 54-year-old restaurateur who had recently separated from his wife but was watching their two children that night, was asleep upstairs when Billings entered his kitchen. DeMar had been unable to get his locks changed on short notice after the previous night’s burglary (he would later be accused of not trying hard enough), but he had activated the security system. He had also put six hollow-point rounds into his Smith & Wesson .38 Special and placed it under his bed. It was one of two handguns he’d owned for more than 20 years without loading them; until the burglary he’d kept them locked in a safe, still in their original packaging.

Around 10:30 p.m. DeMar was awakened by the security system, which indicated a kitchen-door entry. Relying on the system to contact police, he grabbed the .38 and went downstairs. Months later, Chicago Tribune columnist Eric Zorn would call DeMar–who is five feet, nine inches tall and weighs 140 pounds–a “suburban cowboy.” Wilmette Chief of Police George E. Carpenter would say he put himself at risk “unnecessarily, on multiple levels.”

Shots in the Dark

DeMar faced more than second-guessing after the break-in. He was charged with violating Wilmette’s handgun ban, an offense that carries a $750 fine. His attempt to challenge the fine in court shows how difficult it can be to assert a right to armed self-defense in the United States, despite an explicit constitutional guarantee that would seem to preclude gun laws like Wilmette’s. Illinois courts have been so hostile to this right that DeMar’s lawyer never cited the Second Amendment in his arguments, relying instead on other, tangentially related constitutional provisions. Ultimately it was the state legislature rather than the courts that prevented DeMar from being punished for daring to protect himself and his family.

When he got downstairs, DeMar saw a man in his dark family room. Since he “didn’t see any flesh,” he thought the intruder was masked. He was right. From the kitchen, DeMar fired two shots. One struck Billings in the upper left arm.

Now both men wanted the same thing: Billings out of DeMar’s house. Billings ran, heading through the family room, dining room, and living room. He passed a door leading outside but didn’t go through it. “I don’t know,” he’d later say. “I guess I should’ve. I just wanted to get the luck out.”

Billings came to a hallway connecting the kitchen, front door, living room, and stairs. DeMar fired two more shots, one of which dug into Billings’ left leg. Billings broke a living room window, climbed through, and ran westward through the dark. DeMar went back to his bedroom. Trembling, he called the police.

At some point the phone rang, and DeMar’s 10-year-old son, Jack, picked it up. It was the alarm company. Jack explained the situation.

As the police responded, a neighbor called in a suspected burglary. Billings, once again in DeMar’s SUV, had cut through a yard on Laurel Avenue, breaking a fence on his way to Evanston’s St. Francis Hospital. It was further than Evanston Hospital, but he wanted to get as far away as possible, and he was more familiar with St. Francis, which is the hospital where he was born.

Arriving at DeMar’s house to find him on the phone with their department, the police took both of his guns. They came across several bullet holes, a black and tan baseball cap, a “skull cap/dew [sic] rag,” and blood. At the property on Laurel Avenue through which Billings had driven they found broken pieces of plastic from the SUV’s passenger-side mirror housing. At St. Francis Hospital were the rest of the vehicle and the offender. Billings had parked the SUV across a sidewalk near the hospital, gotten out, and collapsed; staff had taken him inside. In August 2004 he’d receive a seven-year prison sentence.

Two days after the break-in, the Cook County state’s attorney’s office released a statement declaring DeMar’s actions self-defense. But Illinois requires gun owners to keep a firearm owners’ identification card, and DeMar’s had expired in 2000. On January 8, 2004, he was charged with that violation, which carries a maximum penalty of a $2,500 fine and a year in jail. Prosecutors dropped the charges about a month later, saying they did not want to “revictimize” DeMar for a “lapse.”

Introduction

In the course of a two-year assignment as a trial defense counsel (TDC), most defense attorneys are likely to represent numerous Soldiers at courts-martial and administrative separation proceedings. Likewise, most TDCs routinely assist Soldiers who are the subject of commander’s inquiries (2) and investigations under Army Regulation (AR) 15-6. (3) The formal and informal training TDCs receive, focuses on these aspects of their practice. Because of this emphasis and the volume of cases, most TDCs develop a good working knowledge of criminal investigations, AR 15-6 investigations, and commander’s inquiries. There is another type of investigation, however, that most defense counsel may only see once or twice over the course of a two-year assignment–Army Inspector General (IG) investigations.

Inspector general investigations come with their own set of rules and procedures. (4) Like other investigations, they can adversely impact the Soldier under investigation. Many aspects of an IG investigation are similar to the other investigations that TDCs work with on a regular basis. There are, however, several unique aspects of an IG investigation. (5) This article explains the IG investigation process and provides a primer that will assist defense attorneys to understand their role in protecting the interests of a client under investigation. The article will discuss investigations conducted at both the installation and command level as well as investigations conducted by the Department of the Army Inspector General (DAIG). The paper will first examine the rules of the IG investigative process. Next, it will consider the process. The article will also provide suggestions and highlight particular areas for TDCs to consider. The article concludes with some observations about the due process issues at stake.

Background

Before discussing IG investigations as they relate to a particular client, it is important to understand the IG’s regulatory role and the IG’s responsibilities in the context of an investigation or investigative inquiry. (6) Most judge advocates JA) are familiar with many of the local IG office’s day-to-day functions. One of the IG’s most important functions is to conduct inspections. (7) These inspections are intended to help leaders assess their organization’s ability to accomplish its wartime and peacetime missions. (8) Another function is the IG’s responsibility to provide assistance to Soldiers, family members, civilian employees, and retirees in resolving problems. (9) These functions are not the focus of this article.

The function with which most JAs are less familiar is the IG’s investigative responsibility. The Secretary of the Army (SA), the Under Secretary of the Army (USofA), the Chief of Staff of the Army (CSA), the Vice Chief of Staff of the Army (VCSA), the Inspector General (TIG), and commanders can direct that the IG conduct investigations or investigative inquiries. (10) The stated purpose of investigations is to “provide the directing authority a sound basis for decisions and actions. Inspector general investigations normally address allegations of wrongdoing by an individual and are authorized by written directive.” (11) The purpose of investigative inquiries is “to gather information needed to address allegations of impropriety against an individual that can accomplish the same objectives of an IG investigation.” (12) It is clear from these provisions that the IG uses investigations and investigative inquiries to look into allegations of individual misconduct.

Type of Investigation

Generally, investigations conducted by the command IG at the direction of a local commander are investigative inquiries. Investigative inquiries are less formal than investigations. (13) Investigative inquiries typically involve witness statements and a review of documents. Witness statements are not required to be sworn or recorded verbatim. (14) At the conclusion of the inquiry, a report of investigative inquiry (ROII) must be completed, and a legal review is required for any substantiated allegation. (15) The directing authority must approve the ROII, and the subject or suspect of the investigation must be notified in writing of any substantiated allegation. (16)

Investigations involve a more formal procedure and are typically conducted at the DAIG level. An investigation is a formal fact finding process. The investigation will include a formal directive from the directing authority and a notice to the subject or suspect and to the appropriate commander that an investigation is being conducted. (17) Sworn witness statements and verbatim transcripts of interviews; a report of investigation (ROI); a formal legal review of the ROI; and notification to the subject or suspect, the respective commander, and the complainant of the results of the investigation, are all requirements of a formal investigation. (18)

Inspector General Action Request

Investigations and investigative inquiries are most often triggered by someone making an Inspector General Action Request (IGAR). An IGAR is “[a] complaint, allegation, or request for information or help presented or referred to an IG. An IGAR may be submitted in person, over the telephone, through written communication, by electronic communications, or through the DOD Hotline referral.” (19) A complaint is “[a]n expression of dissatisfaction or discontent with a process or system….” (20) A complainant is “[a]ny person or organization submitting an IGAR. The person can be a [S]olider, family member, member of another Service, Government employee, or member of the general public. The organization can be any public or private entity.” (21) Finally, an allegation is “a statement or assertion of wrongdoing by an individual….” (22) Taken together, these definitions show that any person or any organization can bring information of suspected wrongdoing or misconduct by a military individual in virtually any form, including anonymous tips, and that information may trigger an investigation or investigative inquiry.

Here is how our executive branch last week waged its legal war on terrorism against the detainees at Guantanamo Bay, Cuba. While federal lawyers and intelligence officials earnestly prepared behind the scenes to put on trial some of the major terror suspects, a skuzzy Pentagon lawyer was front and center on the radio attacking the motives and integrity and even the patriotism of detainee defense attorneys and the law firms that support them.

One hand of government prepares in secret for the upcoming battle by identifying workarounds to constitutional due process and the congressional mandate that information gleaned from torture may not be used in the military commissions that may be up and running this summer. The other hand of government works in broad daylight to undercut perceptions about the loyal opposition by suggesting that the law firms whose attorneys work for free on these detainee cases — it’s called pro bono work and it is the law’s highest calling — may be taking money from terrorists or other nefarious sources.

On Friday we learned from the New York Times that the “Bush administration has set up a secret war room in a Virginia suburb” so that government attorneys and military officials can sort through “classified files” containing among other things the “interrogation reports” of top-shelf detainees like Khalid Sheik Mohammed. Their goal is to prepare to try Mohammed and other high-level terror suspects (like fellow 9/11 planner Ramzi Binalshibh) under the Military Commissions Act of 2006, a new federal law that set the rules that govern how the men may be tried.
Advertisement

“Prosecutors could use hearsay evidence or second-hand testimony, but could not use information obtained under torture,” report the Times’ Neil Lewis and David Johnston. “Even so,” they add, “that would mean virtually any information obtained by the C.I.A would appear to be admissible because, under Justice Department legal opinions, none of the harsh techniques amounted to torture.” That’s certainly convenient in theory — we’ll see how viable it is in practice. Remember, the new Congress has the right to look anew at the Commissions Act and the federal courts have yet to resolve the new questions it raises.

If there is nothing surprising about a group of prosecutors preparing for trial — even the sort of one-sided terror mega-trial that U.S v. Mohammed would become — it is, as The Washington Post suggested Friday, downright shocking that a government attorney would denigrate the work of attorneys and their colleagues who have chosen to help men who sometimes quite literally have no one else on their side. The malfeasant culprit is a man named Charles “Cully” Stimson, deputy assistant secretary of defense for detainee affairs, and there is simply no excuse for the tone or the tenor of the remarks he made Thursday on Federal News Radio.

Usually, administration officials take pot shots at the detainees — calling them “killers,” for example, even when the vast majority of them are not. But Stimson took his shots at the powerful law firms that have allowed and in many cases encouraged their bright attorneys to represent the detainees. According to The Post, Stimson said: “when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms….”

Stimson also attacked the motives of the men and women, and their bosses, who have accomplished so much in defending the rights of the grim men in Guantanamo Bay. “Some will maintain that they are doing it out of the goodness of their heart, that they’re doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I’d be curious to have them explain that.” You don’t need to understand the rich history of pro bono work in this country to understand how odious Stimson’s remarks are, or how much of a threat they constitute to men and women of goodwill everywhere.

For the sake of argument, however, let’s look a bit at the American Bar Association’s Model Rules of Professional Conduct — guidelines for how lawyers ought to behave. Rule 6.1 “Voluntary Pro Bono Publico Service” states that “every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono… legal services per year and should “provide any additional services through delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights.” I can think of no other cause that better satisfies this solemn responsibility than providing legal help to the Gitmo detainees. Can you?

Now let’s spend a minute looking at Stimson’s responsibilities as a government lawyer or as a spokesman for federal attorneys. First, Rule 3.4 “Fairness to Opposing Party and Counsel” states that a lawyer “shall not… allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witnesses, the culpability of a civil litigant or the guilt or innocence of an accused.”

Part one of this article focused on cognitive biases and how they can contribute to criminal investigative failures. Part two presents probability errors and organizational traps that can lead investigations astray. It also offers recommendations and additional strategies that investigators may find helpful.

[ILLUSTRATION OMITTED]

PROBABILITY ERRORS

Probability and Psychology

Anyone who has spent a few hours watching people gamble will realize that probability is a difficult concept for the human mind. Individuals often use heuristics–and suffer from biases–when dealing with probability. Police officers find it particularly hard to think probabilistically. Because of their street experiences, they prefer black and white, rather than shades of gray. Probability errors in criminal justice most often occur in the forensic sciences but also can happen in criminal profiling.

Coincidences and the Law of Small Numbers
Advertisement

A common problem with probability results from looking for patterns in, or drawing inferences from, a small number of incidents. For example, an analyst examines the dates for a series of 15 street robberies and observes that none of the crimes occurred on a Thursday. Is this pattern meaningful? Probably not. With only 15 crimes, chances are at least one day of the week will be free of robberies.

Skeptics often say they do not believe in coincidences. However, when looking for patterns within large numbers of items (i.e., events, suspects), coincidences are inevitable. The comparison of Presidents Kennedy and Lincoln provides a well-known example. The list of remarkable similarities is strictly the product of chance (with 43 U.S. presidents, 903 possible comparisons are possible) and cherry picking (noting similarities, while ignoring differences).

What role does coincidence play in major crime investigations? If enough suspects are looked at, by sheer chance, some will circumstantially appear guilty. A few people will just be in the wrong place at the wrong time. Efforts to solve a crime by “working backwards” (i.e., from the suspect to the crime, rather than from the crime to the suspect) are susceptible to errors of coincidence. If you look hard enough, you can usually find some sort of connection. These types of errors often are seen in the proffered “solutions” to such famous cases as Jack the Ripper.

Coincidences can be a trap when offender modus operandi and similar fact evidence are used for crime linkage purposes. Trawl search problems occur when only similarities, and not differences, are examined. (1) Comparisons of common similarities (e.g., vaginal intercourse in rape crimes) lack utility, while misspecifications of similarities can be misleading. Consider two juvenile murder strangulations involving body transportation and concealment.

While the similar crime characteristics suggest a link, more detailed examination reveals important inconsistencies. One victim was a 3-year-old male, manually strangled, his body found in a dumpster 100 yards from his house. The other victim was a 14-year-old female, strangled with a rope, her body found dumped in a river 20 miles from her home.

Double Counting

Extracting two elements of a crime from a common source and then erroneously treating them as separate aspects can mislead a criminal investigation. A rumor heard from more than one person does not necessarily verify the information as both individuals may have received it from the same source. Consider a behavioral profile of a child murderer. Amongst other details, the profile estimates the offender’s age and his vehicle type, derived from automobile insurance data. Using the profile, investigators evaluate two suspects–one matches both the age and vehicle criteria, and the other only the age. Who is the better suspect vis-a-vis the profile? Actually, they are equal. Derived from the age estimate, the vehicle type is not an independent profile element drawn from the crime scene (as opposed to a vehicle sighting by a witness). Treating age and vehicle type as two separate match points constitutes double counting.

Conjunction Fallacy

The conjunction fallacy occurs when investigators assign a higher probability to the overlap of two events than to either event separately. Probabilities are combined by multiplying them together, resulting in a product smaller than either initial probability (given noncertainty). (2) Conjunction fallacies have occurred in DNA matching, offense-linkage analysis, and crime forecasting. (3) Imagine that a witness reports seeing a vehicle flee a nighttime gas station robbery in which the clerk was shot dead. He states that he had only a quick glimpse but is reasonably sure the vehicle was a gray domestic minivan. How much weight should be placed on this description?

[ILLUSTRATION OMITTED]

This question has two parts. First, what is the probability the witness actually saw the offender’s vehicle? In major crime cases, especially those involving significant publicity, the public’s desire to help or become involved is high, but their information often proves unreliable. A generous assumption gives the witness a 75 percent chance of actually having seen the robber’s vehicle. Second, how accurate is his vehicle description? The witness provides three descriptive elements. Assigning witness accuracy probabilities of 70 percent to the make, 90 percent to the type, and 60 percent to the color (under some streetlights, blue looks gray) puts the likelihood that the witness saw a gray American-made minivan at only 38 percent. The probability that the offender was driving such a vehicle is only 28 percent (the probability the witness actually saw the vehicle times the probability of witness accuracy). This does not mean his information is not valuable. Obviously, suspect vehicles that are gray domestic vans should be prioritized and investigated. The problem only occurs when other suspect vehicles (e.g., blue imported SUVs) are ignored.