Solo, Small Firm and General Practice Division ABA 2014 Midyear …€¦ · · 2018-02-19General Practice Division ABA 2014 Midyear Meeting February 6 – 9, ... SAPR, Legal Assistance

Solo, Small Firm and

General Practice Division

ABA 2014 Midyear Meeting

February 6 – 9, 2014

Air Force Special Victims’

Counsel Program: One Year Later

Friday, February 7, 2014

2:30 p.m. – 4:30 p.m.

COLONEL DAWN D. HANKINS

Colonel Dawn D. Hankins is the Chief, Special Victims’ Counsel (SVC) Division, United States Air Force Legal Operations Agency. She is responsible for developing policies and procedures for the Air Force’s SVC Program and provides professional oversight for 40 part-time and 24 full-time judge advocates serving as SVCs in 22 locations worldwide. Colonel Hankins received a direct commission as an Air Force judge advocate in March 1995 and entered active duty in June 1995. She has served as a wing staff judge advocate, deployed staff judge advocate, deputy staff judge advocate, major command staff officer, area defense counsel, and legal advisor for two Aircraft Accident Investigation Boards and for the Air Expeditionary Force Battlelab. While serving as the 49th Wing Staff Judge Advocate, her office received the 2011 Air Combat Command Legal Office of the Year award. Colonel Hankins’ major awards and decorations include the Meritorious Service Award with three oak leaf clusters, the Iraqi Campaign Medal, the Korea Defense Service Medal, the Air Force Expeditionary Service Ribbon with Gold Border, the 2005 Air Force Space Command Outstanding Judge Advocate of the Year, and the 1997 Twelfth Air Force Outstanding Judge Advocate of the Year award. Colonel Hankins earned her J.D., summa cum laude, in 1994 from Syracuse University College of Law, and her B.A., magna cum laude, from Louisiana State University. She is admitted to practice law before the State of New York Supreme Court, Appellate Division, Third Judicial Department and the United States Court of Appeals for the Armed Forces.

CAPTAIN AMANDA K. SNIPES

Captain Amanda K. Snipes is a Special Victims’ Counsel (SVC) with the United States Air Force Legal Operations Agency and is currently assigned to Scott Air Force Base, Illinois. She provides independent legal representation to and advocacy on behalf of sexual assault victims during the investigation and prosecution process. Captain Snipes received a direct commission as an Air Force judge advocate in December 2009 and entered active duty in January 2010. She has served as an Assistant Staff Judge Advocate at Joint Base Elmendorf-Richardson, Alaska, and Scott Air Force Base, Illinois. While serving as an Assistant Staff Judge Advocate, she was recognized as the Company Grade Officer of the Year. Captain Snipes’ major awards and decorations include the Air Force Commendation Medal and the Air Force Outstanding Unit Award. Captain Snipes earned her J.D., magna cum laude, in 2009 from Faulkner University, Thomas Goode Jones School of Law, and her B.S., magna cum laude, from The University of Alabama. She is admitted to practice law before the Supreme Court of Tennessee, the United States Court of Appeals for the Armed Forces, and the Air Force Court of Criminal Appeals.

I n t e g r i t y - S e r v i c e - E x c e l l e n c e

Headquarters U.S. Air Force

Air Force Special Victims’ Counsel ProgramOne Year Later

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Col Dawn [email protected]

Capt Amanda [email protected]

This document contains internal matters that are deliberative in nature and/or are part of the agency decision-making process, both of which are protected from disclosure under the Freedom of Information Act, 5 U.S.C. § 552.

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Overview

SVC Program Background

Selection and Training of SVCs

Purpose and Role of the SVC

Representing Clients in the Military

Measuring Effectiveness

Future of SVC Program


Current Issues

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Acquitted

Perceptions

26,000 sexual assaults in the military yet number of prosecutions is minimal

Commanders can’t be trusted because the perpetrator is someone they know

More victims will report if the sexual assault allegation is handled by an independent entity outside the chain of command

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Pressure to improve…

How do we increase trust and confidence of victims in the military?

How do we increase reports, keep victims in the system, and take care of our people?


Existing Programs – VWAP, SAPR, Legal Assistance

Legal assistance in the military – 10 U.S.C. § 1044

2012 NDAA – 10 U.S.C. § 1565b “A member of the armed forces, or a dependent member, who

is the victim of a sexual assault may be provided…legal assistance provided by military or civilian legal counsel pursuant to section 1044 of this title”

Representational legal assistance not provided

DoD Policy Memo on Legal Assistance to Victims of Crime, 17 October 2011


OSD/GC Memo, Legal Assistance to Victims of Sexual Assault, 9 Nov 12 “ …in a military justice sexual assault prosecution, to the

extent the victim could retain the advice or representation of a private counsel, §§ 1044 and 1565b [2012 NDAA] authorizes, and certainly does not prohibit, JAGs from providing the same legal advice and representation, to the same extent.”

This memo is the direct authority that allowed the AF JAG Corps to establish the SVC Program

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Purpose of SVC Program

Advocate: protect the rights afforded to victims in the military justice system

Advise: develop victims’ understanding of the investigatory and military justice processes

Empower: remove barriers and give victims a voice

Providing this service to victims will result in a more robust opportunity for victims to be heard, to retain and take advantage of their rights, and enhance the military justice system while neither causing unreasonable delay, nor infringing upon the rights of an accused.

SVC Program Timeline

Nov 12 – Jan 13 SVC Rules of Practice/Procedure and SVC Charter developed Agreement SVC Program would be a “pilot program” for DoD

10-12 Dec – 60 JAGs trained at AF JAG School

28 Jan 13 – SVC Program implemented SVCs initially served “part time” out of base legal offices Interim program housed in HQ Military Justice Division

10-24 May – 34 JAGs and 10 paralegals trained 1 Jun 13 – Independent program under AFLOA/CLSV – Special

Victims’ Counsel Division 24 JAGs/10 paralegals at 22 regional and satellite offices

serving full-time as SVCs and SVPs 3 HQ staff

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Outside Direction

Secretary of Defense directed all the Services to implement victims’ advocacy programs that provide legal advice/ representation by 1 Jan 14

Mandated by Congress in FY14

NDAA

Founding Policy Documents

AFGM1 to AFI 51-504, Legal Assistance, Notary, and Preventive Law Programs

SVC Rules of Practice outlines eligibility for program, referral process, and guidance for SVCs (e.g., notices of representation, duration of atty-client relationship, functional relationship with other support services)

SVC Charter mirrors defense counsel Charter and outlines scope of practice for SVCs

Requirements to Serve as SVC

Certified as trial counsel under Article 27(b), UCMJ Graduate from Judge Advocate Staff Officer Course Serve effectively as trial counsel on some number of courts-martial Be recommended for certification by supervisory SJA and a military

judge

Hand selected by TJAG Successfully complete TJAG-approved SVC Course Current cadre of SVCs (average)

1.79 assignments 6.88 courts-martial 37.25 months as a JAG 10 female, 14 male

18-24 month assignment

SVC Training and Oversight

SVC Training Course 5 days at AF JAG school Instruction by civilian experts, military justice instructors,

psychologist, and other AF/DoD subject matter experts Combined classroom instruction with practical “role play”

exercises and moot court motion practice

Joint Service SVC Training Course HQ Oversight - O-6 Chief, O-4 Deputy, E-7

Geographic separation is a consideration Frequent dialogue by email and phone Monthly webcasts for training and collaboration Attendance at additional training opportunities and

conferences (e.g. Crime Victim Law Conference)

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Eligibility

Air Force – AD/ARC (if incident occurred while in status) The status of the perpetrator does not matter (Air Force, other

service, civilian, or unknown) Both restricted and unrestricted reports

Adult Dependents of AF Members Perpetrator must be an AF member Both restricted and unrestricted reports

Other Services – AD/ARC (if incident occurred while in status) Perpetrator must be an AF member Unrestricted reports only

Adult Dependents of Other Services’ Members Perpetrator must be an AF member Unrestricted reports only

For sexual assaults under UCMJ Articles 120, 125, and 80 Entry-level status Airmen in UPR involving physical contact of a

sexual nature with BMT or TT faculty/staff

FY14 NDAA – adds child sex offenses, stalking and other sexual related crimes

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SVC Role

First and foremost – taking care of the client’s needs

Advocacy to military justice actors May attend interviews May advocate to convening authorities

In court-representation Rape shield/mental health records/privileges

Asserting CVRA rights

Advocacy to AF/DoD agencies/offices Expedited transfers

Advocacy to civilian prosecutors/agencies May NOT represent victims in civilian courts

Collateral misconduct

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SVC Standing

First week – US v Daniels

Under what circumstances should victims’ attorneys be allowed to motion the court and present legal argument?

Does recognizing a victims’ attorney standing in court throw the “serious business of trial work into a state of disarray…turning courts into carnivals?”

Fear: SVCs given “free reign to act as third parties in courts-martial…is a charred landscape littered with the remnants of what used to be the constitutional rights of the accused”

Is there any difference between a victim asserting rights and members of the press/individuals battling the propriety of subpoenas to be heard through counsel?

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Victim Standing in Courts-Martial

LRM v Kastenberg, 72 M.J. 364 (C.A.A.F. 2013)

“A reasonable opportunity to be heard at a hearing [under MREs 412 and 513] includes the right to present facts and legal argument, and that a victim or patient who is represented by counsel be heard through counsel”

“It is not a matter of judicial partiality to allow a victim or a patient to be represented by counsel in the limited context of MRE 412 or 513 before a military judge, anymore than it is to allow a party to have a lawyer”

Judges may impose reasonable limitations

Does not provide an entitlement to counsel

Does not create a right to appeal

Does the CVRA apply to courts-martial???

Crime Victims’ Rights Act –Enforcement Mechanism?

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(3) Motion for relief and writ of mandamus. – The rights described in subsection (a) shall be asserted in the district court in which a defendant is being prosecuted for the crime or, if no prosecution is underway, in the district court in the strict in which the crime occurred. The district court shall take up and decide any motion asserting a victim’s right forthwith. If the district court denies the relief sought, the movant may petition the court of appeals for a writ of mandamus. The court of appeals may issue the writ on the order of a single judge pursuant to circuit rule or the Federal Rules of Appellate Procedure. The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed. In no event shall proceedings be stayed or subject to a continuance of more than five days for purposes of enforcing this chapter. If the court of appeals denies the relief sought, the reasons for the denial shall be clearly stated on the record in a written opinion.

AFCCA (LRM v Kastenberg) found CVRA did not apply to military courts-martial.

FY14 creates a military CVRA with enforcement mechanisms to be determined by SecDEF.

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Common Concerns – Militaryand Civilian Victims

Privacy Concerns (top issue) Mental health records, cell phones, prior sexual history

Respectful Treatment

Feeling Alone

Self-blame

Safety concerns

Civil legal matters

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Issues Unique to Military Victims

Collateral misconduct May have joint representation with an Area Defense Counsel

Unit Impact Feeling ostracized by co-workers and social peers Having to work with the assailant

Military Orders To participate To testify

Career Impacts Collateral misconduct, missing training, having PTSD

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Challenges

Access to information

Scheduling conflicts

Enforcing CVRA consultation requirements – dismissal of charges

Exclusion of victims/SVCs from the courtroom

Geographic separation from clients Limits on non-litigation travel

Art 32 hearings – Investigating Officer experience & role of SVC

Protecting Privacy -- Mental health records, cell phones, access to private information

Figuring out how to integrate SVC with SARC, VAs, VWAP, Investigators, Trial Counsel, etc

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Successes

Service “comfort” dog in court proceedings

Obtained 2d opinion on mental health diagnosis – waiver obtained to keep Airman on active duty

Direct access to convening authorities to express views

Resolving technical training conflicts to allow airmen to keep their preferred career field

Removal of bad note in training record from instructor who was disciplined for retaliating against victim for reporting

Educating commander about post-assault misconduct of victim to focus efforts on treatment options vice punishment

Getting online news org to remove comment about victim

Professional Experience as an SVC

Standing up a new practiceo Resourceso Education and Outreacho Networking

Outreach and Partnership

Professional Experience as an SVC

Redefining Success

SVC Items of Interest

Represented 660 victims over life of program; 477current caseload

Attended 110 courts-martial and 122 Art 32 hearings Attended over 930 interviews with investigators,

defense counsel and trial counsel

a/o 26 Jul 13

While SVCs are providing in-court representation to victims, their mandate is to provide full spectrum legal support and they are showing the wide range of their talents, dedication, and effectiveness in addressing issues for their clients ranging from workplace concerns, to access to mental health services, to traditional legal assistance issues.

* data current a/o 13 Dec 13

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SVC Clientele

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• 80% of clients are AF Active Duty

• 89% of clients are female

*Data current a/o 24 January 14

80%

11%

3%3% 1% 1% 1%

Victim DemographicsAir Force Active Duty Dependent SpouseAir Force Reserve Air National GuardOther Services Dependent Non-SpouseQualifying Civilian


SVC Clientele

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• 71% of military clients are E-1 to E-4

• 89% of clients had made an unrestricted report by the time they requested an SVC

• 4% of clients – allegations include UPR• In only 38% of those cases is the

UPR the only allegation – the rest also include a sexual assault allegation

• 5% of clients indicated their assault occurred at a deployed location• 1% of requests were received

from deployed locations

*Data current a/o 24 January 14

71%14%

3%3% 7% 2%

Victims Represented

E-1 to E-4E-5 to E-6E-7 to E-9CadetO-1 to O-3O-4 to O-5


Victim Impact Survey

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• Implemented 20 March 2013• Questions based in part off of

RAND Study of NCVLI victims’ rights clinics

• Key element of comprehensive impact evaluation of SVC Program

• Questions also evaluate VWAP and military justice process overall

• Provided to victim when the atty-client relationship is terminated

FAQs:

• Anonymity?• May fill out form anonymously• May also provide name and contact

information – victims MAY be contacted (we have not done so yet)

• SSL encrypts information so it is secure

• IP addresses are not stored

• Confidentiality?• Clients advised not to share

information they would like to remain confidential

• We are sharing feedback provided with senior leaders, civilian partners, and members of Congress

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Measuring Effectiveness

Victim Impact Survey (VIS)

90% “extremely satisfied” with the advice and support SVC provided during the Article 32 hearing and court-martial

98% would recommend other victims request an SVC

92% indicated their SVC advocated effectively on their behalf

94% indicated their SVC helped them understand the investigation and court-martial processes

SVC-represented Clients who Converted from Restricted to Unrestricted – 34 of 72 (47%)


Thoughts about SVCs

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I highly recommend an SVC because not everyone fully understands the legal process and not only is the emotional support important, the legal support is too. I would have been lost without the help of my SVC during trial.

When you’re a victim you don’t know who to trust. The SVC gave me that trust I needed. Also everything with her was confidential and that made me feel more safe. It was nice having someone to speak for me and to help me.

I cannot imagine how difficult the court process would be without an SVC. The SVC is there for you and you only. They do a great job at keeping your privacy. I felt like I understood the court process a lot better.

If it were not for my SVC I would not have been able to handle myself in the professional manner that is expected of me. His knowledge, support and diligence of the case made it a million times easier for me to take the stand and make it through the days.

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Keys to Initial Success

100% dedication from SVCs and SVPs Trail blazed a new practice area in the military Compassion care and dedication to providing every client world

class legal representation

Effective outreach, partnership, and policy development at the HQ level

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Result:Improved Victim Care

Empathy and sensitivity

Recognize the impact of trauma

Help empower victims By providing information By providing choices By giving them a voice

Help victims understand their rights and options

Help victims make informed decisions

Help protect victims rights

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Future of the SVC Program

Grow capabilities of SVCs Continued training and resources Identify best practices / collaborate with other Services

Continued outreach with civilian organizations

Expansion to child victims

Expansion to other victims of crime?

Address challenges

Identify necessary changes to AFIs, MCM, Court Rules


Conclusion

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“The feedback from the victims who have used [Special Victims’ Counsel] is exceptional so far...I think that’s one program that is one of those potential game changers.”General Mark A. Welsh, III, Air Force Chief of Staff


Questions?

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www.afjag.milwww.facebook.com/airforcesvc