Navy JAG Corps: Truth? You Can't Handle the Truth!

This is going to be a long one that you may need a white-board and three colored markers to track - so go get a cup of coffee and come back.

OK, let's go.

Legal Stories are one of the hardest to keep track of. Part of the problem is that legal processes can drag out for years, can quickly devolve into small details that only an attorney can understand, and the connection between the initiating action and justice can bob, weave, and fade down rabbit holes. They also can be, frankly, boring - not a good thing to draw readership.

Now and then though - something happens in a legal story that brings out a larger story. You know what I mean - the things Momma Salamander taught me early - it isn't the mistake that is the problem; it is the coverup.

Well, it looks like we have one of these cases again - this time things are in play that any naval professional will recognize.

This story is so complicated, I have had to tap in to some reliable folks on my email list to bounce ideas off of. With their permission - I have lifted parts of their explanations in whole and wedged them in this post. I'm good - but not that good.

As is usually the case in such topics - they don't want to be anywhere near this post, don't want thanks, hat tips, or even a Christmas Card. So, I'll claim it all.

Here we go - stick with me on this.

Some of you may recall my post from over a year ago criticizing the Navy’s decision to let a serial sexual predator walk, and some of the commenters who seemed to be “in the know” noted that this deal was made by the Convening Authority without the approval or endorsement of the trial counsel. Well, the saga continues, as the Navy has claimed a new victim: The one person who tried to put him behind bars.

On 26 SEP, the Navy Times (sorry, can't find an online link) reported the findings of an internal JAG Corps “Investigation” in which senior members of the beltway JAG Corps issued findings that officers at Region Legal Service Office Japan had violated the law regarding victim’s rights in a case from May of 2010. That is a serious charge, and as you read the article, things get even more serious; this report has since resulted in professional responsibility complaints (disbarment proceedings) against the attorneys involved in the case.

Per the Navy Times, the Navy’s second highest ranking JAG, Rear Admiral Nanette DeRenzi has endorsed these findings and has also publicly announced that the prosecutor in this case was “overwhelmed” and made “false or misleading statements.”

I don't know about you, but that got my puzz'r puzzl'n.

But, to quote Paul Harvey…perhaps it’s time to hear “the rest of the story.” Ignoring, for a moment how it is that so much internal personnel information and from a case over a year old managed to suddenly be sent to the Navy Times amidst an ongoing proceeding, let’s start where all good stories start:

At the beginning.

In 2008, four women in Atsugi, Japan reported that their physician, LCDR Anthony Velasquez, had sexually assaulted them. The case was investigated by NCIS and forwarded to the Region Legal Service Office, Japan, for a recommendation as to whether to bring charges. The assigned prosecutor, (who has since been promoted) recommended no charges. The prosecutor did not contact any alleged victims in this case, prior to making this recommendation. Upon the dropping of this case, victims were required to return for medical treatment to the clinic at which LCDR Velasquez worked, and at least one victim reported being bullied by her command and pressured not to contact the media for reporting her assault. This victim has since joined a class action lawsuit against the DoD for alleged mishandling of sexual assault cases. The NCIS agent assigned to the case alleges that the prosecutor, when questioned as to the decision not to charge, stated, “I have better things to do than waste my time with hysterical dependents and little girls who don’t know their own bodies.” Despite the fact that this comment was reported by the agent to NCIS co-workers over a year before the Velasquez case became the subject of controversy, the JAG Corps has elected to unsubstantiate the allegation of a federal agent because “none of the victims were minors, therefore factually it did not fit the facts of the case” (paraphrased). The victims at this time included three navy wives, and one 19 year old E3. Apparently the JAG Corps is unfamiliar with hyperbole.

Concurrently, Naval Hospital Yokosuka initiated a peer review in which a senior medical officer recommended that Dr. Velasquez only see male patients. Despite this recommendation, LCDR Velasquez was sent on an IA to Kuwait where, in less than six months, NINETEEN MORE WOMEN, NINETEEN MORE ACTIVE DUTY SOLDIERS AND SAILORS reported assaults. These were preventable.

At this time the case was forwarded to a different prosecutor. The new Trial Counsel got the case preferred, successfully litigated the Article 32 hearing, was prepared to go forward to trial, and ultimately got a serial sexual predator to plead guilty on a case earlier discarded as a waste of time. So, with a zealous prosecutor, and a voluminous credible witness list, what went wrong?

Money.

Although senior officers within the JAG Corps have routinely denied this fact…a fact sure to raise the eyebrows of the HASC and SASC, this travesty of justice occurred because then Commander Navy Region Japan did not want to fund the trial. The prosecutor, now maligned as a liar in this small community of only 700 some odd officers, has been the only officer with enough integrity to acknowledge this, and produced to the investigators' e-mails corroborating that cost was the overlying concern of the convening authority. The JAG Corps response: (paraphrased) Cost was not a factor. It has been corroborated that the SJA from CNIC confirmed that there was adequate funding available. Again, JAG Corps…your logic. I have enough money in my bank account to buy Mrs. Salamander a Hermes purse. It does not mean I will, and it doesn’t mean that the price tag isn’t the reason why.

So, against the prosecutor’s recommendation, two other JAG Officer’s favorably endorsed, and a Two Star Admiral approved, SEVEN DAYS of confinement for a man who had sexually assaulted multiple women. Several verbal protests were made by the prosecutor and on 20 May, prior to the signing of the deal, the prosecutor submitted a written disagreement, advocating directly opposite the position taken by the prosecutor’s entire chain of command.

The e-mail, in relevant part stated (1) that the prosecutor had not been included in the substantive negotiations; (2) that the prosecutor assessed the evidence as strong, and the likelihood of conviction good; (3) that there was no justice sending an E3 to the brig for 90 days for going UA, but sending a sexual predator for jail for 7 days; (4) that this was a poor message to send regarding disparity in officer and enlisted ranks; (5) that it was a worse message to the victims; (6) that the victims would not be happy with the deal; (6) and that the pressure to deal due to cost savings did not justify such an inappropriate outcome.

THAT, Admiral Greenert, is integrity. THAT, Admiral Greenert, is courage. THAT, Admiral Greenert is exactly the kind of free thinking, critical junior officer the Navy needs to retain, and instead, your counsel have chosen to, in the wake of the anger over a bad acceptance of a PTA decision, a decision that was foolish on its face made by a Two Star Admiral, scapegoat and destroy the career of the one person who said “Timeout! This is wrong!”

After all, it is just another JO - we print them like the Fed prints money. One more LT under the bus, who will notice?

Ahem.

The excuse now being used to destroy the career of this junior officer is that the Trial Counsel failed to deliver a trifold brochure to the victims in accordance with the Navy’s VWAP (Victim Witness Assistance Program). The trial counsel provided over 400 documented communications with the victims to the JAGMAN “investigators”. However, trial counsel did not hand out the brochure. (And, as the JAGMAN reports, neither did multiple other attorneys at this Command). When asked, trial counsel acknowledged this, and stated a lack of training – consistent with the fact that a subsequent audit found that 75% of trial counsel at this command were not properly executing their VWAP duties, and a later 2010 JAG-wide audit that found the VWAP system broken throughout the fleet.

This is precious. Read the next few bullets twice. Franz Kafka, LT, JAGC, USN - please call your office.

And there are some other curious facts about this case:

1. Although the JAG Corps has alleged that the Trial Counsel made false statements regarding the lack of adequate VWAP training and oversight, the JAG Corps did not even have a VWAP instruction until June, 2010, AFTER the conclusion of the Velasquez case. Go to the link, read it, and screencap it fast while you can!
2. The VWAP instruction written in 2010 referred to the “statutorily designated rights of victims” (page 8) – rights which have not been in effect since 2004 when Congress repealed 42 USC 10606 and replaced it with 18 USC 3771.
3. The JAGMAN was convened the same month that the DoD IG reported systemic failures of leadership and oversight in the JAG Corps administration of military justice in the wake of the US v. Foster travesty.
4. The Investigating Officer was the Chief of Staff for OJAG.
5. The investigation omitted voluminous evidence, relied on hearsay, failed to interview relevant witnesses, and took the unsupported speculations of the investigator as “Fact”.
6. The top JAG acknowledged to Congress that in FY 2010, significant resources were invested in improving VWAP, consistent with the allegedly false statements regarding existing issues with training and oversight.
7. In the 2010 SARC Report, the JAG Corps reported only the sentence issued by the military judge, making no mention of the fact virtually all confinement was suspended, suggesting a desire to bury the disgraceful outcome of this case (Navy case #283)

Certainly looks like VWAP was broken before the Velasquez case. So why not just fix the system, change course and move on? Why shoot everyone in the head who was unlucky enough to be involved in the case that just happened to bring the flaws into the light? Perhaps because after being called out for incompetence on appellate issues, the JAG leadership needs to make examples. Or perhaps given the pending class action lawsuits regarding the mishandling of sexual assault cases, the Navy needs to make a few people responsible, rather than admitting the system was flawed.

See, I told you any naval professional would recognize what is going on. As is a habit, when we see "responsibility" bandied about, we see the quasi-feudal "responsibility for thee; but not for me" from those with the best parking spaces.

I could go on and on with this strange tale: About how the whole Investigation was launched after the NCIS agent on the case reported systemic failures at the RLSO office subsequently faced significant reprisals; or about how documents contradictory to the investigator’s “findings” have been “redistributed” without records being maintained. I could tell you about how a Navy-wide VWAP inspection revealed that training was defective throughout the fleet, consistent with Trial Counsel’s allegedly false statements. I could let you know that among the “reasons” cited by senior JAG Officers as to Trial Counsel’s unfitness to practice law is the fact that in one e-mail exchange, the husband of a frustrated victim was told that the civilian defense attorney was an asshole. Or how in February the trial counsel took and passed a polygraph. Or how at least one victim reported to the Japan Times that the trial counsel , now accused of violating victims’ rights was reprimanded for telling her the terms of the plea deal. Or how when Trial Counsel asked another Senior JAG for a statement relevant to defenses against the allegations, the reply was that that officer had been ordered to “steer clear” by DJAG.

But I think we’ve at least covered the meat and potatoes: In fairy tales, the kid who shows everyone the Emperor is naked is a Hero. In the JAG Corps, that person ends up with their head on a pike outside the palace.

That is how it reads from here. Tell me I'm wrong. If I'm missing something - I'm all ears.

Admiral, remember…these are your advisors. Ask hard questions as only a nuclear-trained officer knows how to.