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Appeals court affirms role of victims counsel

Jul. 28, 2013 - 06:00AM   |  
Eugene Fidell teaches military law at Yale University.
Eugene Fidell teaches military law at Yale University. ()
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A military appeals court recently ruled that an alleged rape victim in the Air Force has the right to have her own attorney represent her in certain pretrial matters.

The decision, handed down July 18 by the U.S. Court of Appeals for the Armed Forces, affirms the role of a newly formed cadre of Air Force attorneys assigned to any sexual assault victim who requests it.

It also marks what one military law expert calls a sea change in a criminal justice system that is increasingly recognizing the rights of victims.

“What has happened is a departure by degrees from the classical model that there were basically two parties to a criminal case,” said Eugene Fidell, who teaches military law at Yale University. “Now putative victims have a real seat at the table. This is a cultural shift in the way trials — including courts-martial — have traditionally been conducted. ”

The ruling stems from a case against Airman 1st Class Nicholas Daniels, who was charged in October at Holloman Air Force Base, N.M., with raping and sexually assaulting a fellow airman identified in court records as “LRM.”

LRM was among the first of nearly 400 alleged victims of sexual assault who have enlisted the services of a special victims counselor under a new Air Force program that provides attorneys to those who ask for one.

The Air Force began the program in January, after learning that many victims of sex crimes decide not to go through with their cases because of the often long and complicated legal process.

During Daniels’ Jan. 29 arraignment, LRM’s attorney, Capt. Seth Dilworth, requested copies of defense motions that sought to admit evidence about his client’s sexual and mental health history. Dilworth also told the judge he wanted to reserve the right to argue on behalf of LRM during motion hearings.

The law protecting such privacy is less clear about how that right is protected.

Military judge Lt. Col. Joshua Kastenberg ruled the victim had no standing. The accused would otherwise face two attorneys representing similar interests, causing a “significant erosion in the right to an impartial judge in appearance or a fair trial,” the judge said.

Col. Ken Theurer, chief appellate counselor on the case, argued the victim should have the right to be heard through her own lawyer.

“Why should a victim have to rely on someone who does not represent them to recognize their rights?” he said in an interview with Air Force Times.

LRM filed a motion to reconsider with the Air Force Criminal Court of Appeals, which refused to hear the case.

It was then presented to the Armed Forces appeals court.

“We were not that optimistic,” Theurer said. “The Air Force said they had no jurisdiction. We had to convince them they had jurisdiction and the victim was being harmed. ... The door was closed to her — [that] was the harm.”

The Armed Forces court sided with Theurer.

Its opinion will be returned to the judge for action.

A court-martial date had not been set at press time.

“What this case has now firmly established in the military is that the reasonable right to be heard means the reasonable right [of a victim] to be heard through an attorney, if that is your desire,” said Maj. Davis Younts, who worked on the case with Theurer.

The Armed Forces court opinion also “vindicates the Air Force providing counsel to victims of sexual assault. This is the first case in the military justice system where we’ve gotten the court to recognize that right. It’s fairly progressive for any criminal justice system,” Theurer said.


The National Crime Victim Law Institute, which helped the Air Force create the new special victims counsel program, heralded the opinion on its website as a “landmark victory for victims in the military and beyond.”

“It empowers victims to go forward and be an active role in protecting their own rights,” Theurer said. “It will instill confidence in victims. To the extent it encourages them to come forward, it will have a very positive impact.”

The ruling comes at a time when the military is under pressure from Congress to better protect victims and hold perpetrators accountable.

Retired Army Judge Advocate General Geoffrey Corn, a law professor at South Texas College, called the Armed Forces court’s opinion “a logical and smart ruling. It’s not a ruling that says every time there is a sexual assault, the victim has the right to appear through counsel.

“I don’t think this is going to be a common situation, and [it] certainly shouldn’t be read to mean any time you have a victim of sexual assault, you’re going to have their lawyer participate in the case,” he said.

Nor should the ruling create an extra burden for the accused, Corn said.

“This is not an issue of partiality,” he said. “This is just the judge getting a supplemental perspective on applicable law through victim’s counsel. It doesn’t dictate any outcome. It just better informs the judge of the interests at stake.”

Said Fidell: “The victim’s first line of defense will continue to be the trial counsel.

“Frankly, if I were directing one of the prosecution offices, I would take this is an incentive to get real busy making sure the victim’s rights were being vindicated through the trial counsel, leaving not all that much to do for victim’s counsel, whose role, in my view, should continue to be subordinate,” he said.

“It’s certainly going to complicate the lives of judges, prosecutors and defense counsel,” Fidell said. “Unless there’s some dramatic reversal of direction, I think we’re in for a period of trial and error as the various participants get used to the new rules of the road.”

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