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Offices Of The Special Trial Counsel Background Interview On Reforms To Improve The Prosecution Of Sexual Assault And Other Serious Criminal Offenses In The Department Of Defense

SENIOR DEFENSE OFFICIAL 1:  Today's briefing will focus on the stand up of the offices of Special Trial Counsel. But before I turn it over to my legal colleagues to speak about this historic turning point for military justice, I want to briefly emphasize the broader context in which these reforms are taking place.

So, as you all know, Secretary Austin has placed an unprecedented priority on stopping the scourge of sexual assault in the military.  This led him to stand up the Independent Review Commission on Sexual Assault in the Military and approve all 82 recommendations as modified from that Commission.

But accountability and military justice is just one line of effort that we are undertaking as a result of this.  We are also taking major steps in the areas of prevention, climate and culture, and victim care and support.  And while the focus of our discussion today is going to be on the offices of Special Trial Counsel and military justice, I think all my colleagues here would agree that these reforms are one piece, a major piece, but one piece in a broader effort that also includes preventing these crimes and ensuring we provide exceptional care and support to victims.

Simultaneous to the important accountability efforts we'll discuss today, the Department is also standing up a dedicated and specialized integrated primary prevention workforce that will take a public health approach to preventing a range of harmful behaviors to include sexual assault.  The Department is hiring over 2,000 of these specialists that will be located at every installation around the world.  We're also working to realign and professionalize the existing sexual assault response workforce to ensure that sexual assault victims receive exceptional care from full time and well-trained response professionals.

Throughout the discussion today, I urge everyone to remember that it is only with this comprehensive approach that we can prevent these crimes and work to restore the trust and confidence of our service members.

SENIOR NAVY OFFICIAL:  Again, thank you, everybody, for joining us.  The Navy Office of Special Trial Counsel's primary mission is to achieve justice and in doing so, to provide an effective, efficient, respected, and trusted tool for maintaining good order and discipline in the Navy.

The Navy Office of Special Trial Counsel falls under the direct supervision of the Secretary of the Navy without any intervening authority.  This independence gives the Office of Special Trial Counsel the ability to evaluate each case on a case by case basis and make decisions based upon the evidence and the law, free from any external influences or pressures.

The Navy Office of Special Trial Counsel is a worldwide organization with personnel assigned to 10 Navy installations.  The headquarters is located at Washington Navy Yard and is led by an O-7, Lead Special Trial Counsel, and an O-6, Deputy Lead Special Trial Counsel.

The Office is divided into two regions.  These two regions are located or housed in Norfolk and San Diego, and the regions are led by O-6, Regional Special Trial Counsel.  The 10 field offices then fall within these two regions.  And all the field offices are led by either O-5s or O-4s.

The eastern region consists of field offices located in Norfolk, Virginia; Washington, D.C.; Mayport, Florida; Groton, Connecticut; Great Lakes, Illinois; and Naples, Italy.

The western region consists of field offices in San Diego, California; Bremerton, Washington; Pearl Harbor, Hawaii; and Yokosuka, Japan.

The Office of Special Trial Counsel is staffed with 47 lawyers, 24 of whom have been certified as Special Trial Counsel by the Judge Advocate General of the Navy.  These 24 attorneys have demonstrated the requisite education, training, temperament, and experience needed to execute their mission and had previously been members of the Navy's military justice litigation career track.  A staff of 17 sailors and 26 civilians serving in paralegal and administrative billets will support these attorneys throughout the regions.

The Navy Office of Special Trial Counsel has been fully resourced and supported by the Department of the Navy and the JAG Corps leadership.  The OSTC team has been in place since September 1 and is prepared and ready to assume its weighty responsibilities beginning on 28th December 2023.

SENIOR DEFENSE OFFICIAL 2:  All right.  Sorry about that.  I was experiencing massive phone problems; I had to switch to a different phone.

So, on Thursday, December 28, a monumental improvement of the military justice system will take effect.  The power to decide whether to prosecute by court martial allegations involving sexual assault and certain other serious offenses will shift from commanders to specialized, highly-trained military lawyers independent of the military chain of command.  Those expert military litigators, who are called Special Trial Counsel, will also lead the prosecution in cases involving those offenses that are tried by court martial.

This shift should assure sexual assault victims that if they choose to make an unrestricted report, the case will be handled professionally and consistently with the best practices and procedures of civilian prosecution offices.

We will now hear from a senior Marine Corps official.

SENIOR MARINE CORPS OFFICIAL: And thank you, ladies and gentlemen, for joining us.

Our service members are our most valuable resource.  Taking care of those service members is priority number one for our Marine Corps.  This includes keeping them safe and protecting their legal rights.  The establishment of the Office of Special Trial Counsel, as well as the other military justice reforms implemented over the past few years, will enhance our ability to do just that.  And they are an investment and a justice system worthy of their trust.

The OSTC will also be an essential element in further sharpening our good order and discipline and high personnel readiness, already hallmarks of our Marine Corps.  The Office of Special Trial Counsel exercises its authority under the direct supervision of the Secretary of the Navy without any intervening authority.  Again, like previously stated by the Navy Official, this independence gives the Office of Special Trial Counsel the ability to evaluate each case on a case by case basis and make decisions based upon the evidence and the law, free from any external influences or pressures.

The Marine Corps Office of Special Trial Counsel is also a worldwide organization consisting of four geographical support regions, with OSTC personnel located at 10 Marine Corps installations across the globe.  Its headquarters is led by an O-7, Lead Special Trial Counsel and an O-6, Deputy Lead Special Trial Counsel and is located at Joint Base Henderson Hall Fort Myer here in the National Capital Region, and they exercise centralized oversight responsibility.  Its regional headquarters and teams are located in our fleet concentration areas.

Foundation of the Marine Corps Office of Special Trial Counsel is its 33 Special Trial Counsels, all who volunteer to serve as Special Trial Counsel and each possessing the specialized education, training, experience, and temperament needed to execute their mission.  The Special Trial Counsel is supported by a cadre of enlisted and civilian support staff assigned to each Office of Special Trial Counsel.

The OSTC will also be supported in the Marine Corps by their general crimes prosecutors and enlisted support staff at the Marine Corps Trial Service Office.  Since its initial stand up in July of 2022, the Marine Corps Office of Special Trial Counsel has been and will continue to be fully resourced and supported by the Department of the Navy and Marine Corps leadership.  They are prepared and ready to assume their weighty responsibility beginning 28th December 2023.

I will now pass to the Department of the Air Force senior official.

SENIOR AIR FORCE OFFICIAL:  Good afternoon, everybody.  Happy holidays.

The mission of the Department of the Air Force Office of Special Trial Counsel is to provide expert, specialized, and independent representation for the investigation and trial level litigation of covered offenses as prescribed by Article I of the UCMJ Uniform Code of Military Justice.  Like the other services, we report directly to our Secretary with no intervening authority.

We really appreciate the opportunity to highlight just a couple aspects of the Department's unique organizational structure.  Starting next week, we have disposition authority over 13 covered offenses under the Uniform Code of Military Justice; the 14th offense, sexual harassment, being added in January 2024.

We got Special Trial Counsel stationed at six different locations in districts around the globe ready to fulfill that mission.  Of course, there are obviously more than 14 offenses in the UCMJ, so we deliberately tried to create a seamless prosecutorial framework.

In particular, we have aligned our six districts with the Air Force's major commands and the Space Forces field commands.  This allows each district the opportunity to not only prosecute the cases across a specific domain, but also allows them to track trends in misconduct involving covered offenses and provide consistent training for younger counsel on that command who will sit second chair.

Each of our 40 OSTC litigators is specially selected, specially trained and qualified and vetted from nomination through certification.  This process ensures our counsels are experts in the execution, management, and supervision of litigation in complex covered defense cases.

Another key aspect of our organization is our partnership with our law enforcement agencies.  We have two special agents from the Air Force Office of Special Investigations on our staff.  They serve as our primary liaison with law enforcement over issues impacting the investigation of offenses under our authority.  This relationship allows us to support our law enforcement partners across the enterprise and to inform investigations of covered offense allegations from the outset.

We also partner very closely with our Wing and Delta legal office personnel partners from investigation to prosecution of covered cases.  We are certainly resolute in our commitment to the success of the OSTC.  We're confident in our ability to execute our new mission.

Thank you, again, for the opportunity to speak with you today.  And we certainly look forward to your questions.

I'll now turn it over to Army senior rep.

SENIOR ARMY OFFICIAL:  Thank you.  Good afternoon, everyone.  I'd like to provide you all with some updates on the status of our standup at the Army Office of Special Trial Counsel.

First and foremost, we're proud to be at the forefront of a comprehensive approach to address sexual assaults and other serious crimes in the Army.  Our personnel are in place, they're trained, and they're ready to begin exercising their independent authority and prosecuting cases.

To give you a little context as to how we're organized, we've got approximately 150 total personnel assigned to our Office with our main headquarters at Fort Belvoir, Virginia.  We've got eight regional headquarters, six of those in the continental United States and two outside the United States, one in the Pacific and one in Europe.

Each of these regional headquarters are led by our O-5, Lieutenant Colonel Chief Circuit Special Trial Counsel.  They directly supervise our Special Trial Counsel prosecutors, noncommissioned officer paralegals, and special victim liaisons who are located at 28 field offices across the globe.

I'd like to quickly go into a little more detail about our Special Trial Counsel prosecutors.  We've got 65 prosecutors who have been specially trained and certified to handle serious crimes such as sexual assault, domestic violence, and murder.  Before being certified, each Special Trial Counsel had to meet minimum experience and training requirements, including passing a specifically-tailored certification course.

As an organization, the most important distinction of our Office is the exercise of independent decision authority.  Our Office is empowered to independently evaluate and prosecute cases based on the facts and evidence, free from outside influence.

Our goal is to seek justice in every case.  We will evaluate cases on the merits and apply an expert legal analysis to determine which cases should go forward to trial.  We will make these decisions based on the evidence and in consideration of fairness for all involved in the military justice process.

A key feature of how we will do business is our victim engagement plan which will give every victim the opportunity to have face to face interaction with our prosecutors and provide their input in every important stage of the case.  In addition to promoting justice, we believe the use of our independent authority will ultimately help to restore trust in the military justice system.  That includes the trust of victims, as well as those accused of crimes.

I appreciate the opportunity to speak with you all today about our Office and I look forward to your questions.

STAFF:  Thank you, all, for providing that overview.  We will now take this time to address your questions.  I ask that you limit your questions to one question and one follow up.  With that I will start with the first person listed, Meghann Myers, Military Times.

Q:  Thank you very much.  So, a couple of weeks ago, the Army had to relieve its lead trial counsel because of some past comments he'd made.  I wanted to ask to the Army but also to all of these services, has there been a review into the selection of your lead trial counsels or any consideration about the backgrounds of some of these people in light of -- in light of what went on with the Army?

SENIOR ARMY OFFICIAL:  Hey, this is the Army.  Thank you for that question.  I'll go ahead and take the first crack at it.

So, there's a process in place to select the lead Special Trial Counsel.  And that process is actually currently ongoing right now to select a new lead Special Trial Counsel.  There are a number of steps in that process including a promotion board reviewed by the Secretary of the Army and the Secretary of Defense, and appointment by the President with the advice and consent of the Senate.  So, there is a process in place, there's a vetting process in place.

I cannot speak to any changes that have been made in that process as a result of the Secretary's decision to remove the previous lead Special Trial Counsel, and we'd have to defer on speculating as to any changes.  Thanks.

Q:  All right.  Well, follow up for the Army, who is in charge of the Office now while that process is ongoing?  And any of the other military departments, have you sought to undertake any reviews into your selections for your lead trial counsels?

SENIOR ARMY OFFICIAL:  I just want to say, like any sort of unexpected change, this has been a test of our resiliency as an organization.  But I'm happy to say we've passed that test with flying colors.  Just to be clear, there's been no impact on our ability to begin exercising independent authority on December 28 and start doing our jobs.  Our team is in place, they're trained, they're resourced, and ready to get to work.  And this change has not affected our readiness in any way.

SENIOR NAVY OFFICIAL:  My answer is the same with respect to the promotion selection board process.  That was how the lead Special Trial Counsel was selected.  Same thing vetted through the process.  I'm not aware at this time of any changes that have been made in reaction to it.  So at this stage, I believe the process remains what it is, a selection board that's routed up through the secretary, and then confirmed by the Senate.

Q:  Thank you.

STAFF:  The last, the Air Force.

SENIOR AIR FORCE OFFICIAL:  Okay.  Okay.  Thanks.  Yes, and my answer would be exactly the same.  [We used ] the most -- the normal processes, including checks on any derogatory data that might have prevented promotion.

STAFF:  Okay, thanks. 

SENIOR MARINE CORPS OFFICIAL:  This is the Marine Corps.  As far as -- my answer is the same.  The only thing that I would add would be that any -- whether or not any changes have been directed.  That that would be a question that would be more appropriately addressed to the individual departments.  With respect for the Navy and Marine Corps that would be the Department of the Navy, as well as the Department of Defense.

STAFF:  Thank you.  We will now move on to Anri Higa, Kyoto News.

Q:  Yes.  Thanks for this.  I addressed to inquire.  Am I correct I understand that -- that this reform will be implemented -- implemented within the military forces deployed outside the United States?

STAFF:  We have a hot line.

SENIOR DEFENSE OFFICIAL 2:  I'm sorry.  As I heard the question was whether the same changes would apply to U.S. military forces stationed outside of the United States.  Did I get that correct?

Q:  Yes.

SENIOR DEFENSE OFFICIAL 2:  And the answer to that question is yes.  In fact, several of the -- of the OS -- of the Offices of Special Trial Counsel will be located outside the United States.  So maybe it makes sense for the -- for somebody from each of the military services to discuss their OSTC coverage outside the United States.  Shall we start with the Senior Navy Official?

SENIOR NAVY OFFICIAL:  Absolutely.  So, we will have one office in Yokosuka, Japan, which is a major fleet concentration area for us.  And then we have another office in Italy, which is another -- there on the European side, which is a major fleet concentration area for us.  And with respect to outside of the continental United States, we also have an office in Hawaii.  So we're confident between those three offices we will be able to meet all of the needs outside the continental United States.

SENIOR DEFENSE OFFICIAL 2:  All right.  Senior Marine Official?

SENIOR MARINE CORPS OFFICIAL:  Thank you.  We, the Marine Corps Office Special Trial Council also will have offices, a regional office at Camp Foster, Okinawa, Japan.  We'll have a team site and at Marine Corps Base Hawaii.  With regard to other coverage for the other areas that are not in the, specifically in the INDOPACOM area, those cases will be handled through the OSTC headquarters.  And the OSTC headquarters will either source the Special Trial Counsel from within the headquarters or assign that case to a team at another location.

SENIOR DEFENSE OFFICIAL 2:  Thank you. Senior Department of the Air Force Official?

SENIOR AIR FORCE OFFICIAL:  Thank you.  We have a district out of Kadena Air Base in Japan that will handle the Pacific, Hawaii and Alaska.  We have a district at Ramstein that will handle Europe.  And also provide some support to the AOR and the CENTCOM AOR.  Though a lot of those cases will go back to the districts of the accused, whoever that accused may be, those cases are likely to be -- come back stateside and go to whatever district, either stateside, or OCONUS base that the accused is actually assigned to.  Over.

SENIOR DEFENSE OFFICIAL 2:  Senior Army Official?

SENIOR ARMY OFFICIAL:  Thank you.  So we've got offices in Hawaii, and Korea, South Korea that are responsible for providing coverage in the Pacific.  And then we also have offices, two in Germany, and one in Italy that will be responsible for providing coverage throughout Europe.  Thank you.

Q:  Thank you very much for the answers.

STAFF:  Thank you.  I'll now call on Lita Baldor, AP.

Q:  Hi, thank you.  I wanted to make sure I had all the numbers correctly down here.  Can you each just say specifically, how many total personnel you have?  And how many specific prosecutors you have?  I think most of you actually talked about your number of prosecutors, but just the number of prosecutors.  And then in addition to those prosecutors, how many other staff you have?  And then can you talk about your expected case-loads?  How many cases do you expect are sort of sitting there waiting for you to start right now?  And just kind of give us an assessment of sort of day one?  Are you able to kick off and start doing those cases?  But can you just give us an idea of how many cases you have sort of and how many each attorney might have to deal with?  Just an idea of caseload.  Thank you.

SENIOR DEFENSE OFFICIAL 2:  Why don't we start with Senior Navy Official?

SENIOR NAVY OFFICIAL:  Sure.  So we will have a total of 90 people in the office.  Forty-seven of them will be attorneys.  So with us we have 24 will be certified attorneys as STCs, which means that for those cases that are investigated or go to trial we'll have at least one of those attorneys on every case.  The remaining 23 attorneys will be helping to support and sit second chair and support those so that they can support the certified, and then also so we can train kind of the next batch of attorneys to be certified.  We're going to have support staff, including 26 civilians that will be filling paralegal and kind of trial administrative roles, and 17 enlisted sailors who will be helping also similarly, primarily our enlisted workforce, our paralegals that will help in all the offices.  So that's how we get to 90.

With respect to caseload it might be a little easier to the way we set up, and when we tried to figure out staffing for the offices, we kind of took a look at five year case history.  And did look at proportional cases.  And so, the expectation was roughly that each certified counsel, dispose of 50 investigations, and eight trials a year.  So we then took that number to staff, our busiest offices, so Norfolk and San Diego are two of our busiest offices.  We expect that they will handle the most cases.  And so, for example, we have roughly, we're going to have 10 attorneys in Norfolk.  And so, by that metric, we're hoping that throughout the year, they can clear 500 cases with respect to investigations.  So right now we're tracking with those numbers.  The numbers are going to fluctuate a little bit, but we have actually been in place providing recommendations since September on these cases.  So, serving commanders are still making the decisions.  And so, we've got a pretty good handle on all of the cases since we've been in place for almost three months, taking a look at them and providing recommendations as needed.


SENIOR MARINE CORPS OFFICIAL:  With regard to the number of, I'll start with the total number of the panel and the number of cases and how we got there.  The Department of the -- within the Department of the Navy, I'll just say that the Navy and the Marine Corps came down to the same number of cases that each counsel was expected to be able to handle.  And again, we did our analysis and our look through that, and our critical metrics that we pulled for those who were in conjunction with the Department -- with the Navy within the Department of the Navy.

With regard to specific numbers, as I indicated at the beginning, they were right now we currently have 64 personnel, 33 of Special Trial Counsel.  Those are all certified Special Trial Counsel.  Every judge advocate in the Marine Corps Officer Special Trial Counsel is a certified Special Trial Counsel.  We do not have at this time any non-certified judge advocates who are a part of the Office of Special Trial Counsel.  We will be adding next year, this next fiscal year or next summer and May, June timeframe three additional judge advocates who were not slated to be Special Trial Counsel.

We have 14 civilian office administrators.  And then we have 16 enlisted support staff.  And those support staff are both made up of noncommissioned officers, meaning E-4s and above and staff noncommissioned officers, E-6 and above in the Marine Corps.  Those, all of those enlisted personnel or legal service specialists, all of them had experience in military justice backgrounds.  Thank you.

SENIOR DEFENSE OFFICIAL 2:  The Department of the Air Force?

SENIOR AIR FORCE OFFICIAL:  Thank you.  We have currently have 46 personnel assigned.  Forty of those are STCs.  All are certified.  We have six paralegals.  We also have two OSI liaisons assigned to their office.  So technically not part of our manpower at our FOC end state, which is Fiscal Year 2027.  We will have 82 personnel.  Sixty-six of those will be certified counsel.  That includes reservists as well.  We have 14 paralegals, enlisted paralegals.  And we also have two civilians on our staff here at the headquarters.  And we'll continue to have those OSI LNOs.

In terms of our cases, we did a five year look back as well.  And in our investigations in our cases loads levels are pretty similar.  Our optimum caseload is between eight and 12 cases per counsel.  They were going to be able to meet that.

We do have carryover cases.  So we've been providing advice on covered defense cases pre-authority since IOC, which for us was June of 2022.  So we've been providing advice and non-binding disposition advice on those, as well as providing litigation support for those.  So, we will carry over those cases, along with any new cases that come up once we hit offenses on or after 28th, of December.  Thank you.


SENIOR ARMY OFFICIAL:  Thank you.  So in terms of personnel, we have got 150 total.  Sixty-five of those are our Special Trial Counsel prosecutors.  We also have our Special Trial Counselor, noncommissioned officer paralegals, which are 57.  And then at each field office, we also have a Special Victim Liaison, who is a civilian responsible for providing support to victims throughout the process.  So that's what we look like.

In terms of caseload, you're going to hear some similar numbers from the Army as well.  One thing we did do is look at civilian prosecutors' offices to get a little bit of context and best practices.  So for example, the National District Attorneys Association, and other organizations like that, in terms of recommended caseloads for prosecutors.  So we did the math, came to similar numbers.  We've looked at 50 to 70, being the ideal number of investigations being handled by each counsel a year.  And then eight to 12 courts martial per year per counsel.  So that is how we organized our counsel out it at installations.

Those with high volumes of cases may have three attorneys.  Smaller installations might only have one.  There are some installations that don't have enough volume of casework to justify a prosecutor sitting there full time.  So we will flex as necessary on a regional basis than to have prosecutors go out and assist on or try cases at their smaller installations as necessary.  Yes.  That's all I got.  Thank you.

STAFF:  Okay.  We'll move to our next person.  Patty Nieberg, Task & Purpose.

Q:  I thank you all.  Two -- one is a clarifying question and then I'll get to my -- my other question.  Can you just clarify like the difference between the certified attorneys versus the regular -- regular attorneys that each of the services are hiring?  And then my question is, the Air Force mentioned carryover cases?  How is that being dealt with?  Is there like a time -- like a time -- is there a limit on which cases you're going to take up that may have existed before the office is fully running and functional?  Thank you.

SENIOR DEFENSE OFFICIAL 2:  I think the difference between the certified and non-certified Navy, I think that that is primarily a Navy concept.  Am I right about that?

SENIOR NAVY OFFICIAL:  I think that might be correct.  Yes.  And just to clarify that.  It's  we have the military litigation career track is kind of the baseline that we have in the Navy.  And that was a baseline that we, that the JAG determined that we needed for certification.  And so, we started, and that's how we have 24.  We anticipate certifying another 10 this summer, once they've gone through the class, and reached the training requirements.  But for now, we expect like you said 24, certified counsel, and there's more than a senior litigators, and then the remaining 23 will be there to help assist with the cases, and then learn from the senior litigators.  And hopefully we get them certified in the next year or two.  So the goal would be that all of the remaining ones would be certified upon their -- when they leave.  They just need to -- we need to make sure that the selection process for the litigation track is a different animal.  So we need to make sure that they meet those wickets as well.

SENIOR DEFENSE OFFICIAL 2:  And Marine Corps, you mentioned that all of your counselors are certified Air Force, in the Department of the Air Force?  Are all your counsel certified?

SENIOR MARINE CORPS OFFICIAL:  You're right.  They are all certified.

SENIOR DEFENSE OFFICIAL 2:  Roger that. Army, all your counsels are certified?

SENIOR ARMY OFFICIAL:  That's correct.

SENIOR DEFENSE OFFICIAL 2:  Roger that.  Okay.  And then there was also the question about carryover cases.  The Department of the Air Force.  I think you raised that point first.  You want to address that first?

SENIOR AIR FORCE OFFICIAL:  Sure.  What I mean by that is our authorities are for offenses, that happen on 28th, December, and beyond 28th of December of 2023, and beyond.  So anything pre- that time, our advice would be non-binding on command.  And so, since we have a lot of the litigation expertise now in the department, OSTC litigators will be assisting in those cases.  So, I just use carryover case, I guess pre-authority would be the same thing.  So we would -- anticipating -- anticipate that the OSTC would approve litigation support for those cases.  We're also providing support to those investigations, helping our law enforcement partners as well, and sorting through those pre-28th, December offenses.  That -- that would be covered offenses after that day.  Over.

SENIOR DEFENSE OFFICIAL 2:  And Marine Corps, it seems to me that the discretionary reach back authority may be relevant to this.  You want to address that?

SENIOR MARINE CORPS OFFICIAL:  Sure.  Well, I'll address both. Just discretionary reach back authority, as well as the carryover cases.


SENIOR MARINE CORPS OFFICIAL:  As we've been building towards the 28th, December of 2023, of being at full operational capacity and having our authority -- having the OSTC having the authorities.  As the Air Force -- the Department of the Air Force representative said, a lot of the prosecutorial litigation expertise has been coming over into the OSTCs, into the Office of Special Trial Counsel.  And it seemed -- to ensure that those cases that those offenses that are occurring, prior to the authorities taking place to ensure that they had -- they had experienced, capable trained prosecutors to handle those cases.  The Marine Corps made the decision to make available to our trial Service Office, those Special Trial Counsel who had already come over into the Office of Special Trial Counsel.  And we began doing that almost the day that the Marine Corps Officer Special Trial Counsel was stood up back in July of 2022.

That's 15th October of this year, the Marine Corps Officer Special Trial Counsel has been in the lead on any covered offense cases.  And when I say in the lead, I mean that the Special Trial Counsel are engaging with the criminal investigative office on the investigation of those, and we are handling those as we refer to them, commander type cases, commander referred cases.  And in an advisory role to the commander, meaning, we're providing the Marine Corps OSTC is providing a non-binding input to the commander on those cases.

So, with regard to the discretionary reach back authority, there will be offenses that may occur, just before the transition of the authority, that the -- that the services don't find out about until after the transition of authority.  And with the expertise, the vast majority of that expertise for the prosecution of those victim based offenses residing in the Office of Special Trial Counsel, that discretionary reach-back authority gives the Office of Special Trial Counsel, the ability to reach back to those offenses that occurred prior to 28th December 2023 to be able to take those on for investigation and prosecution.

And also imported in that reach back authority is as the offices in the Special Trial Counsel look at those offenses even that occur after 28, December 2023 there may be offenses committed by the same subject.  Those would be known offenses or by others surrounding that subject, such as witnesses that occurred prior to 28 December 2023.  Those would be the related offenses that the Special Trial Counsel believes are necessary to exercise authority over in order to adequately investigate and prosecute the offense that occurred after 28 December.

There are other reasons why that reach back authority is important.  It also has to do with the straddling are offenses that start on one side of that 28 December date and end on the other side of it such as kidnapping.  It is also as we go further down the road a lot of times disclosures of things of offenses that occur occurred long after the offense occurred.  And as that we get further and further away from 28 December, having that resident experience in the OSTC will make it work so that those Special Trial Counsel can exercise the authority over those offenses to best investigate and prosecute those offenses.  Thank you.

SENIOR DEFENSE OFFICIAL 2:  And that discretionary reach back authority that the senior Marine Corps official was just discussing, the legal authority for that is in the National Defense Authorization Act for Fiscal Year 2024, which has been passed by both chambers in Congress and has been presented to the president and last I checked was still pending signature.

So would that, Army on the carryover case issue?

SENIOR ARMY OFFICIAL:  Sure, thank you.

Similar comments.  But the one thing just to make clear, our Special Trial Counsel haven't just been sitting at home waiting for December 28 or to hit before we start doing work.  So, like the other services said, they've been working on these cases that are occurring before 28 December.  So there's not going to be a sudden flood, right, that comes in and overwhelms us.  We've already been working on those cases.

And we have discretion once the president signs the F.Y. '24 NDAA, like our senior defense official number two just mentioned, then we have discretion at that point to exert authority over those prior offenses.  And that's going to be a conversation on a case-by-case basis in terms of what cases we choose to exert authority over.  Certainly the more developed case is, right, if it's the day before trial, I wouldn't anticipate that we would come in and pump the brakes on that and try and restart a process.

But certainly, those cases that are just being reported or had just started an investigation, those would be good candidates for us to exert authority over those cases that occurred or reported before 28 December.  Thank you.

SENIOR DEFENSE OFFICIAL 2:  All right.  And Senior Navy Official, we haven't forgotten about you.


Same thing.  So all of our people have been in place in September.  And so in September we started to turn over all the cases that would be covered offenses, where those same types of offenses because we also took a lot of the prosecutors from the existing trial shops and took them over.  And so we brought them over to our shop so that kind of just made sense that we would take a lot of the cases with us.  And so we took a lot of the cases in September, we've been working those cases since then with the important caveat that we are doing what prosecutors on the past were advising commanders on what decisions to make with their STAs.  And then if they agree that a case should go to trial, we've been prosecuting those cases as we have in the past.

And so we've had all those carryover cases since September 15th.  And so we're well aware of the cases and we're staffed, ready to continue to do those cases as well as any new cases that arise.

STAFF:  Okay, last questions will be with Heather Mongilio, USNI.

Q:  Thanks so much.

For my first question, I was wondering if you can address some of the criticisms that have been mentioned about the Special Trial Counsel including that the way that turnover happens within the forces means that special prosecutors will get training and then often leaving inexperienced people and that the person leading the Special Trial Counsel, all four of you haven't been in a courtroom in some time making people question if you have the experience to be able to lead this team.

SENIOR DEFENSE OFFICIAL 2:  All right.  Navy shall we start with you?


I mean, I think one of the things the professional development of the officers within the Navy JAG Corps is that we need to get them the opportunity to experience different things whether we have defense counsel on the litigation side, victims legal counsel, prosecutors, we need to go out to see.  And so we will rotate people.

I think one of the things that the statute does do is guarantee that the prosecutors and the Special Trial Counsel remain in our office for three years, unless [lead Special Trial Counsel ]sign off that they can leave earlier.  And so I think that's an important change.  So that will ensure some stability.  And then when we can phase in there the way that we're rotating people, so in an ideal world, we'd be rotating the office one-third every year so that we're bringing in new people and training them as we come so that we'll never have kind of the dearth of experience that you were referencing.

And then add to the experience of the Special Trial Counsel and the senior ones including lead Special Trial Counsel, again, on the Navy, they've all been selected to be in the litigation track.  So all of our Senior 0-6 the 07 have just been judges.  So they've been in the courtroom as judges.  One just left running the command, the Defense Office.  So we do have some experience in the courtroom, recent experience based on litigation track.  And so hopefully we'll continue to grow people so that we can continue that in the future.

SENIOR DEFENSE OFFICIAL 2:  Thank you.  Marine Corps.


Much like the Navy, the transition, the 36 months in the Marine Corps when a judge advocate receives orders into the Office of Special Trial Counsel and that judge advocate is certified as a Special Trial Counsel, they have a 36-month, those orders are for 36-month tour control factor.

What that basically means is that the Commandant of the Marine Corps, the Deputy Director for Manpower & Reserve Affairs, the Staff Judge Advocate to the Commandant of the Marine Corps, none of them can move that individual, that Special Trial Counsel short of that 36-month tour obligation without the express written approval from the lead Special Trial Counsel with the Marine Corps.

So that is one tool that, at least in the Marine Corps, that we have to control the mass exodus of the experience.  But also recognizing that we're standing up this organization and all of our Special Trial Council have come into this organization within the last 12 months.  There would be a mass exodus of the experience, although new experience would be brought in but there would be a mass exodus of experience if everyone rotated 36 months from now.

So utilizing the lead Special Trial Council, the Marine Corps will utilize that discretion to get to that third, a third and a third balance so that the Marine Corps can avoid that massive loss of experience of any time.

With regard to the criticisms of the counsel who are leading the Office of Special Trial Counsel as well as the senior leaders throughout the Office of Special trial Counsel, the lead Special Trial Counsel for the Marine Corps has extensive military justice experience, served as the chief judge of the Navy Marine Corps Court of Criminal Appeals, served as the Circuit Military judge for the Eastern Judicial Circuit down at Camp Lejeune.  Served as the Deputy Director for Military Justice for the Staff Judge Advocate to the Commandant, did multiple tours as Regional Trial Counsel, Regional Defense Counsel, Trial Counsel and Defense counsel.

That match just the lead Special Trial Counsel with regard to our regional leads.  One of the regional leads just left the bench as a military judge, extensive trial and defense experience as well as military judge experience.  Another has extensive experience not only as a trial counsel and defense counsel, Regional Trial Counsel, Regional Defense Counsel, Senior Trial Counsel, Senior Defense Counsel, but also was an Appellate Government Counsel at Code 46, I believe it is what the appellate government is in the Department of the Navy.

There's another who 0-5 Regional Special Trial Counsel who rotated to their current position coming off of the staff at the Army JAG school, TJAGLCS where that 0-5 was a professor of Military Justice and actually the, I believe, the department heads were military justice while there.  And then our fourth Regional Special Trial Counsel has 20 plus years in the courtroom.  And that's just the 07 and the 0-5s & 0-6s multiple tours on the bench, multiple tours as a prosecutor appellate government experience.

So, again, I believe that the leadership as well as even down to the most junior member of the Marine Corps Office of Special Trial Counsel have a path as required by the statute, extensive military justice experience.  Thank you.

SENIOR DEFENSE OFFICIAL 2:  Department of the Air Force.

SENIOR AIR FORCE OFFICIAL:  So we are very similar to the other services our folks are on a three-year tour.

We have plans to properly rotate folks, we have the ability to keep them longer, if we so desire.  But as some of my fellow briefers noted, it's also very good for them to go back to the Air Force and then perhaps come back to us in a leadership role.  All of our folks, including our most junior counsel had to meet rigorous qualification standards.  They had to be in our career litigation development plan.  There has to be two [or] three meaning, they had experienced coming in.

Most of them came out of Defense billets, Senior Defense billets, Senior Trial [counsel] billets,[and] some Special Victims Counsel [billets], all of them went to our qual course, all of them had to be interviewed by experienced senior litigators.  And then they were all recommended for certification by the Lead Special Trial Counsel before our TJAG or Department of Air Force TJAG, I should say certified them. In terms of qualifications of the district chiefs, they've all had senior litigation background, we have former judges within our OSTC, we have former senior defense counsel, former [senior] trial counsel.

Our district chiefs also have all been staff judge advocates, which is very helpful in understanding the command climates as they make decisions.  Our Lead Special Trial Counsel has been on the appellate bench, also ran the Military Justice Division and taught military justice at the Air Force JAG school, was also the commandant of the JAG school.  Additionally, he ran the Military Justice Division at the Air Force level where he sat on the Joint Service Committee for Military Justice during the time when the Military Justice Act of 2016, those changes were being implemented.

We are very comfortable in the experience level of our counsel, both in leadership positions all the way down to our litigators.  And also, more importantly, we understand our role in training the next generation of Special Trial Counsel.  So with that in mind, we partner very carefully with the [DAF] JAG Corps to make sure that we have the younger JAG assigned with us as we advise and inform investigations of law enforcement. [This] will be done with a Special Trial Counsel from OSTC along with a wing or installation level or delta level, legal professional.  As well as when we try a court martial, the senior litigators will have a litigator from the installation level, sitting second or perhaps third chair depending on the seriousness of the offense to make sure that we use the next three years to grow the next generation of Special Trial Counsel.  Thank you.



So similar to the other services, we've got this three-year requirement on assignments that can be longer with the lead Special Trial Council's approval.  And the idea is having those folks for three or more years, and then, perhaps unlike the past the opportunity to bring them back into the organization after they've done another assignment somewhere else.  So there's room for growth and progression within the Office of Special Trial Counsel, whether that's at a sort of practitioner level at a field office, moving up then to a circuit chief and up from that to a deputy at our headquarters.

So in terms of sort of offsetting personnel moves, we got a deliberate plan to be able to not have a complete turnover after three years.  That's at the at the Special Trial Counsel level, all the way up our chain of command to include the 0-6 deputies.

In terms of sort of building the bench, right, we've got this great expertise and experience within our organization.  But we want to make sure we're helping to build the next generation who's going to come in to this organization in a few years.  And so that's why we do training with non-Special Trial Counsel to make sure that they get sort of the training they need and the experience they need to be able to qualify and be certified to become a Special Trial Counsel, there are minimum experience requirements to be able to get into this office.

As we talked about experience, I'll say just using 0-5 Lieutenant Colonel, Chief Circuit Special Trial Counsel as an example, we've got eight of those folks, the average military justice experience for them is over 10 years, that includes prosecuting, defending and supervising military justice practitioners, as well as being instructors at the Army Judge Advocate General School.

For those folks, that's going to represent more than half of their careers up until this point.  So we feel that we've got the right amount of experience.  I will say that this organization is the best trained, most experienced group of legal professionals and just the biggest group of prosecutors that's been in Army and in recent memory.

Our 0-6 deputies have extensive military justice experience.  The acting lead, Special Trial Counsel, we'll a bio put up on the website at some point, I'm sure.  But has been an Army lawyer for 22 years, 14 of those years has been spent serving as a Prosecutor, Defense Counsel, Appellate Counsel, Chief of Military Justice, Special Victim Prosecutor, et cetera.  So I think we're very comfortable with the amount of experience that we have, and have the right folks to do the job.  Thanks.

Q:  Great, thank you.

And just as a follow-up, looking at some of the cases and especially in the past couple of years, this is mostly within the Navy but I'm sure it applies to other people, it seems that the commanders are usually following the legal advice that is given to them before they make the decision.  So just wondering how is this Special Trial Counsel going to make better decisions if commanders were already following the legal advice already with many of these cases particularly focused on sexual assault?

SENIOR DEFENSE OFFICIAL 2:  I'll mention one thing before I kick it over to the Senior Navy Official.

And that is there was recently a change to the manual for courts martial concerning what a referral authorities should consider before sending the case to court martial.  So right now, what an SJA has to advise a commander in order for the commander to be able to refer a case to a court martial is whether there was probable cause to believe that an offense was committed and that the accused committed it, there are two other requirements.  But that's probable cause standard.

And one of the things that was changed in the manner of courts martial in the Executive Order 14103 that came out on July 28th was to say that the referral authority should consider whether there's probably sufficient evidence to obtain and sustain a conviction.  So they should consider whether there's probably enough proof to prove this offense beyond a reasonable doubt, whether there's sufficient admissible evidence and also to have that conviction hold up on appeal.

So there's been a recent legal change to what should be considered before a case moves on to the court martial stage, a general court martial stage.  And with that, let me kick it over to the Senior Navy Official.


And so that's a good way to springboard.  So we have this additional guidance that will help.  I agree that everybody's been taking military justice very seriously.  And so I think that the key now is that we just have more specialized people involved in the decisions.  So not just the commanders will still have a role, the statute requires their input, we welcome their input.  But our attorneys now we're just guaranteed to have one of the certified counsel on every case and that wasn't the case before.

So that wasn't a requirement before.  We did our best to apportion our resources accordingly, but this mandate, will now ensure that we have a certified person on every case and we do think that that will ensure that we have the best people that we can looking at the cases.

SENIOR DEFENSE OFFICIAL 2:  And shall we hear from the other part of the Department of the Navy, the Marine Corps?


I concur 100 percent with the Navy's senior representative.  But what I will add to that with regard to the advice that it is true that the commanders have always had availability to them, the advice of a judge advocate with regard to the decisions that the commander had to make in these cases.

Sometimes, however, that the judge advocate providing that advice was not as experienced in military justice matters.  And now those decisions are not just being advised on by those with military justice experience, but the decisions are being made by those with the extensive military justice experience.  Over.

SENIOR DEFENSE OFFICIAL 2:  And does either the Army or the Department of the Air Force have anything to add?

SENIOR AIR FORCE OFFICIAL:  I certainly would concur with everything that the Marine Corps and Navy said.

But I'd also add that having the ability to have senior litigators inform an investigation from the outset I think gives us a better investigative product and probably gets us to a better just results in each case in veteran forms our referral decisions so we're making the right call on each case. Over.



I mean, I think the last thing I would add on top of that is, yep, there were commanders making decisions being advised by legal advisors, judge advocates. But the sort of key difference here for us going forward is going to be that we are making decisions based on the facts, on the evidence and unencumbered, by perhaps, some of the pressures or concerns that the senior commanders might feel.

Our officers are not sitting there worried about what's going to happen to my promotion potential if I don't send this case forward.  We're making our decisions consistent with the guidance that's been published to evaluate each case on the facts and send those cases forward.  That when we believe there's evidence likely to sustain or maintain a conviction before a neutral, factfinder, full stop.  There's no concerns for our careers about which cases we send forward or don't send forward.  We're just interested in achieving justice.  So I think that's where if you're going to see a difference in the number or quality of cases getting referred, it's going to be reflective of that.  Thanks.

SENIOR DEFENSE OFFICIAL 2:  And I'll also add that when the Independent Review Commission on Sexual Assault in the military made the recommendations that grew into this opposite Special Trial Council concept, one of the things they thought was that if you assured the victims of sexual assault that these decisions would be decided outside the chain of command, they would be decided in a highly professionalized manner by lawyers that are applying the same standards that civilian prosecutors would apply that that would build trust in the system and we hope lead to more reports.

So we're also hopeful that in the future we'll have some people that in the past may have chosen not to make an unrestricted report based on restored faith in the system because of the reforms that we've been discussing, will then make the decision.  So we're hopeful that in the long run, there may be more cases coming in to the system to promote greater accountability.

STAFF:  This concludes our roundtable today.