make c-span your primary source for campaign information and 2018. >> the washington journal live every day with news and policy issues that impact to you. coming up thursday morning democratic strategist and republican strategist talk about the best and worst political advertisements of the 2018 elections. boston college law school professor joins us to discuss estate and inheritance tax laws. be sure to watch the washington journal live on thursday morning. join the discussion. >> the sexual-- a sexual assault litigation specialist talks about the negative impact that the charge of sexual misconduct can have on the career of service members. she spoke before the defense advisory committee.

>> good morning. i would like to welcome the members and everyone in attendance to the 10th meeting of the defense advisory committee on investigation prosecution and defense-- defensive sexual assault in the armed forces. the secretary of defense pointed 16 members to the committee,-- 13 of home are physically present. major. general. marsha anderson will be joining us later this morning. it is with a very heavy heart and great sadness that i report that the third committee member not with us today, savannah law

school associate dean and professor of law passed away on august 15 after a brief illness a. dean harrison was a beloved member as well as a dear friend, colleague, leader and husband. he had the distinguished career of legal education is both a teacher and an administrator. he was especially proud of his service in the us coast guard before beginning his academic career. his kindness, wisdom and contagious enthusiasm will be deeply missed by all of us and we hold his family in our thoughts and prayers as we meet today. >> created by the secretary of defense for fiscal year 2015 as amended. our mandate is to advise the

secretary of defense on the prosecution and defense of allegations of sexual assault and other misconduct involving members of the armed forces. today's meeting will be transcribed and the complete transcript will be posted on the website. we will begin with testimony from a civilian defense expert who will speak about the effects of sexual assault investigation on accused servicemembers in cases where no charges are preferred. this will be followed by testimony from a panel of civilian investigators from baltimore and albuquerque. after a break the committee will resume with the presentation from the case review working group on its review of 166 investigative case files and the initial findings and recommendations. this will be followed by the final deliberations on the department of defense expedited transfer program and a briefing from staff on the judicial

proceedings panel that the general counsel has asked to examine for its march has asked to examine for its march 2019 report. after that the committee will receive a briefing on a provision from 2019 and daa. on related to sexual assault. last session the committee will receive an update from the data working group like to comment on an issue please direct your request to the staff director. public comments will be heard at the end of the meeting and at the discretion of the chair. written comments may be submitted for committee consideration.

the ipad recognizes that we are advising not only the investigation and prosecution of sexual assault in the military but also on the defensive sexual assault and remains committed from hearing testimony of individuals who have been accused of sexual assault where no charges were ultimately brought. the impact that these accusations have had on personal lives and military careers. such testimony will be heard by the-- will be heard at future meetings or meetings. thank you for being here. you may begin whenever you are coming. >> good morning members of the committee. i am one of 2 civilian attorney advisors formally called hqes . for the marine corps defense services organization, i am a career defense attorney and spent 32 years as a public defender.

for the last five years i have been privileged to try to train assist and consult with marine defense put-- defense counsel. thank you for the opportunity to address the impact of charges which were preferred or referred but ultimately withdrawn or dismissed. these are based on my personal observations and do not necessarily reflect the views of the marine corps, the department of the navy, or the department of defense. sect-- increase in sex crimes charging within the military, many of which are later acquitted. in the marine corps in fiscal year 2018 out of a total of 45 contested general court- martial's, there were 12 complete acquittals and 23 partial acquittals. many partial acquittals or many

partial convictions were for minor misconduct like violations or underaged-- like violates-- underage drinking. significant numbers ultimately have their charges dismissed. for example, dot wide in 2017, the last year for which we have a record, 776 sexual offenses were preferred and of these, 105 cases or 13.5% were dismissed. i've had the opportunity to check the staff and the number you have is 13.8% so the numbers correlate. frequently they are put on legal hold over six months which delay or cancel due to your station transfers, which is especially onerous where

individuals are separated from their family and not allowed to return to the us to reunify while there is a case pending. is scheduled for a competitive school or duty assignment they will lose that which causes loss of competitiveness for promotion or reenlistment. that will be held up, frozen during the case, and sometimes even after a dismissal. they are frequently publicly singled out by the command and the reputation within the unit and on the base as a whole is in tatters. this is particularly problematic in jury selection where our members are selected from the same command as the accused. other members do not want to associate with the accused.

if you seek the transfer after that his reputation will often precede him. many exonerated clients decide it is a career that they had positioned in the military is no longer for them which results in the risk-- which results in the loss of training and experience on part of the services who have invested in these servicemembers. others who would like to remain are denied the opportunity to do so by doing refused-- refused to reenlistment approval. loss years of retirement that they have worked hard and diligently towards acquiring?-- towards acquiring. socializing and even the ability to interact with work colleagues, and at least in one case that resulted in a young marine that lived in the barracks being unable to eat in

the hall. on the personal side it prevents the accused from leaving active duty until the case is resolved and forces him to explain to a wife, parents, siblings or children that they've been accused of a heinous crime. it may limit their ability to participate in a child's sporting her ex-- extracurricular activity. it may destroy marriages and has resulted in the loss of child custody. will put in a database and is extremely difficult to be removed from the database once you are entered. i've put together a few real- world examples where charges were withdrawn but lasting harm was done to the exonerated marine. although i am here on behalf of

the marine corps, i have experienced talking with many members of all branches of this service. in fact, we train at all branches and defending sexual assault cases. i have an opportunity to inquire about what is going on in the other services and i believe this is pervasive. in one case, charges were dismissed after motions. it was preferred, referred, and the order management was issued. deadlines were met and there was a litigated-- there was a significant period of time into the case and the charges were dismissed when the motions revealed serious credibility issues about the complainant.

after dismissing the charges they refused to take him off of non-recommended status for promotion for months. finally, headquarters battalion attempted to njp the marine for having sex in the barracks. they charged the violation of an order that wasn't even in effect at the time of the incident. ultimately he received a 6105 canceling. his orders were canceled and never reinstated. to date, his promotion has not been back to the. on top of this one reporter from the tribune did a story in the paper based only on the charge sheet. anytime you google this marine, that story comes up. in another case after one had his case dismissed, he was given a 6105 canceling stayed in

that up-- stating that after command open the investigation it was found that he entered a female student marine's room without permission. this case was specifically dismissed after the article found that there was no forensic evidence whatsoever tying the accused to that rim. the duty officer testified that no one had been in the hallway that morning, and the complainant said that it could have been another individual that entered her room. the mere use of the word sexual assault on that form is probably going to prevent this young marine from reenlisting. >> what is that? >> that is a written formal counseling entered into the military servicemembers record and remains there for the tendency of their career.

in another case, a marine placed on legal hold actually lost his seat in medical school because he was delayed before the case was dismissed. under the standards as i'm sure everyone knows, prosecutors have an ethical duty not to bring charges whether it's little likelihood of can vision- - conviction beyond a reasonable doubt. may choose to refer charges, i'm sorry, refer charges never the less. in one case, and 05 preliminary officer, relatively experienced , a very experienced judge advocate, found no probable

cause. i have read the preliminary hearing officer's report. i have also read the response of the convening authority, which said, send the case to trial, specifically, and the reason was, "my recommendation is consistent with your sexual assault policy. " that was the justification for pushing the case behind -- beyond a finding of no probable cause. the marine was acquitted, but not before his life was completely in tatters. i'm not saying that sexual assault allegations should not be fully investigated, and if appropriate, referred to a court-martial. but fear of looking weak on sexual assault must not purpose -- permanently taint the reputation of a servicemember with an unprovable explosive accusation. the accusation alone permanently impacts the innocent . it is really apparent that

some reform of the system is imperative. these consequences cannot be erased once the charges are brought. the sooner an innocent client exits the system, the better and less damaging will the accusation be. i have been asked to offer specific six jostens -- suggestions to reset the imbalance. my advice would be to reinstitute the article 32 preliminary hearing as a tool for defense discovery and investigation. as you all may be aware, the only branch right now who has defense investigators is the navy. one of the justifications for the original robust article 32 was that that was where the defense would conduct much of its investigation. we now no longer have access to that. most article 32's are a paper shuffle. coming, aside from my prepared

remarks, coming from a background of california, when we moved from a hearsay preliminary hearing, or from a non-hearsay preliminary preliminary hearing to a hearsay preliminary hearing, we found there was a significant increase in acquittals when prosecutors did not have access or choose to put the witness on the witness stand. i believe that is also happening in the military now. so, i believe the article 32 should be a robust investigative tool. it should include the right to call defense witnesses and liberally granted the -- request for defense witnesses, particularly if they are co- located at the side of the hearing. we have situations in which we have asked individuals, who are on the base where the preliminary hearing is being held, and have not been allowed to call those witnesses at the article 32.

because of the very narrow vision on the part of the preliminary hearing officer that only issues related to probable cause would be relevant. to the effect that the credibility of the complainant is not an issue related to probable cause. something we take great issue with what we believe that you can never predicate affable cause on a witness testimony if that witness has impeaching material that the hearing officer has not heard. >> how do you reconcile the reform, i understand your point, but how do you reconcile that with federal grand jury systems. there is no defense opportunity to cross or call witnesses, and the probable cause determinations by those systems are not generally seem to be as lacking in merit. the conviction rates are not

appreciably lower. that you are saying they are in the military system. >> i have been asked dacian answer for that, sir. >> that is why i asked the question. >> every federal defender in this country has federal defense investigators. i cold called every federal defender in the country. the average numbers are about one investigator for attorneys. we have zero investigators. our attorneys are right out of law school by and large. for the last time we did this calculation, if you can find senior defense counsel and defense counsel's experience, they are combined -- they are combined average experience was 14 months. they have no training and investigation. the first case that they may receive assigned to them, will be a sex offense.

it may be a lifetime offense. they have no subpoena power, which is also very common in the federal system, so that they can obtain an investigative material by way of subpoena and using a skilled and trained investigator with appropriate investigative tools and a database. >> i had. >> i wonder if i could ask you. i would like to have you fly up about 50,000 feet and looked down on the landscape you spent 30 years as a public defender in the criminal justice system. as one of the challenges is that the function of the military justice system, you think is different than the criminal justice system in that we understand that it has the promotion of good order discipline and it has a disciplinary purpose for the

force itself. that has been the explanation given as to why the military does not want to have this function taken away and given to career prosecutors and defense attorneys along the line of the systems that would happen in the civilian criminal justice system. inherent in that is the ability, for example, to have a jury make decisions that are not being driven by the prosecutor who has to prosecute the case and his evaluation of the advocate -- evidence, the judge advocate, the statute abdicates opinion as to whether the case go forward or not. that in itself is affected by how that commander may view the function of the prosecution investigation as part of the broader function of the military. as long as that duality exists, are you ever going to have reforms that address the core

of what you are talking about are you they sure are you essentially -- or are you essentially putting a band-aid over what you have talked about? >> i do not think good order and discipline is ever achieved by conviction of an innocent person. >> i'm not disagreeing. i'm saying that it is a system where those who make the decisions as to whether it is referred are not bound to follow the recommendation of the prosecutor. the prosecutor in the civilian system does not believe there is probable cause, they do not take the grand jury. this is why we do not get the kind of concerns in the federal system with regard to bringing charges to the grand jury. whereas my judicial colleague has pointed out, there is no right to cross-examine.

what you have is a system where the prosecutors, with their ethical responsibilities and guidance as to what is, what has to be present before you bring a charge make the final decision. that does not happen in the military structure by the way in which the structure is created. as long as you have that, how are you going to address the problems? i'm not undermining your concern, i share it. how are you going to fix it within the current instruction? >> -- structure. >> anytime there is a finding of no probable cause made at the article 32 hearing, that that decision should be binding on the convening authority, unless he chooses to appeal the decision to a magistrate or military judge or present new evidence to increase the level of profit -- probable cause. i believe that the commander has a role in the process. i do not believe that the

current system where there is inordinate pressure, social pressure, often unacknowledged upon commanders that they are never going to get in trouble by referring a case to a jury or a court-martial and allowing the members to sort it out. absent increased intestinal fortitude on the part of our commanders, i think what we need to do is allow them, if you will -- that is the word. top cover is what they say in the marine corps. saying, okay, well i disagree with this finding, but my gut says go forward. i want a gut check with someone with more experience. right now, unless the case is extraordinarily serious, the foes tend to be first door captains, or reservists.

sometimes reservists with a family court practice, or a wills and trusts practice. they are not that conversant with criminal law. if we instead say, okay, you feel strongly about that commander, let's run this up the flagpole and see what a very experienced military judge says. and then allow that to be the failsafe. and i believe that that is, would answer the problem. >> does that create in your mind problems between now you are involving the judiciary and the decisions about charging? that is a concern that i have. i do not disagree with an experienced prosecutor, i also understand there could be merit in saying that the article 32 has to be, defines no probable cause. unless finding additional evidence. where some other change in the underlying piece of what it was. and i also agree with the notion that you want to have

experience at the preliminary hearing officer level that has more than your 14 months example of combined experience. but is there concern that you had about involving the judiciary? we have taken in the military, great pains to take the military judges away from the ordinary command structure. are we throwing them into doing something in chart -- terms of being charged with deficiency outside the context in which they usually get a, like a motion to discuss they should dismiss the charges? >> i do not believe so. that is informed by my experience in california. when a preliminary finds no probable cause, the prosecutor is entitled to refile those charges. that is subject to a motion to a judge to review emma we call it a 99 five -- 995 medicine. the question to the judge is a dual one. what is the preliminary hearing magistrate correct in his legal

assessment, or as the prosecutor submitted additional sufficient evidence to overcome that? >> like a motion to dismiss or suppress based upon probable cause? >> right. and judges do that every day, they are uniquely trained to do that. the military judge is not saying yes, convening authority, good order and discipline, go forward. he is strictly making a legal decision. that is what we train judges to do. that is what we expect. that is what they do every day. we have already got this. we have a paradigm in at least one state that i practiced in for 25 years, 24 years after a hearsay prelim was instituted. and it worked. not always as well as i would have liked it too, but it did work. -- >> we want to make sure we got

through your recommendations before we do too many questions. if there were investigators assigned to it, does that mitigate your request for the 32 to go to a different iteration? >> the answer is, yes. however, we would need sufficient, and this is my final recommendation. so can i run through and then i will get there and we can talk about it? so the other option i believe is, we can require them to evaluate not just operable cause , but whether or not there is sufficient evidence, likely to be admissible, to prove the case beyond a reasonable doubt. and they should have to make that finding and report on it. i believe that if the so said

there is probable cause, no, there is not likely to be said they should sufficient evidence to confer a conviction. i think that should be subject to judicial review. the other thing is a question of training in cis, cid investigative agent. we spent a lot of time over the dip -- past decade and training them to be in a victim led investigations. and look. as somebody who has worked in the criminal justice system for many many years, whose clients are often victims of sexual assault, i will say to you that i think it is good that we have victim led investigations. but i also know that we are being told by agents on the witness stand that they are being trained not to seek

evidence that will contradict the complainant, simply to accept the complainants story. so if you want to effectuate a change at a level, before a case is ever preferred, you train cid and in cis investigators to respectfully investigate and seek evidence that will confirm or disprove allegations. i just want to lay out my bona fide thanks. i am a longtime public defender. my younger sister and brother were both police officers. my brother has just retired and is a decorated detective. my sister also is a police officer. they do a hard job and try to do it well. this is a failure of our training them. and i believe that if we train them they will follow their training. i do not think, however, that is ever only the answer to just train our law enforcement better. because at the supreme -- as

the supreme court has described it, law enforcement is often competitive. so we want to move more towards an objective investigation, but that alone will never solve the problem. finally, every service branch utilizing the navy model, currently in effect, should act as an independent, dedicated, trained in -- defense investigators, in sufficient numbers to assist the early investigation and development which way on charging decisions. and, create a mechanism to share that information confidentially with the convening authority before he makes the referral decision. the reason for that is, right now, we can share evidence that we may have been able to cobble together as a defense counsel

that bears on the charging function. and we may share that with the convening authority, but when we do that, that is a direct pipeline to the prosecutor. and remember, investigations, defense investigations, are almost always driven by confidential privileged client communication. so, we are in, we are not in aqua post, but we are in tension with representing our client in the hopes of having them exit the system as soon as possible, and trying to knock out the charge before it gets filed. in the realizations that there are very real social pressures that may lead to the case being charged and giving up this information to the prosecution may enable them to prosecute our client. so i think that there has to be a mechanism for that confidential sharing of information. to address your issue, ms.

garvin, here is the situation. in my opinion, defense investigators might obviate the need for as robust a preliminary hearing, but it will never solve the problem if the way out of this alone is in order to convince the phone with that there is no probable cause, if we are not allowed to call witnesses to establish that. so i think that, i understand that right now, and to veer off topic, there is a very strong commitment that complainants will not be required to testify at the preliminary hearing. they are not even required to beat prosecutors. i can tell you the prosecutors

are as frustrated with that as defense counsel in many cases. you know the military justice, indeed any criminal justice system is like it's really goat stool. -- a three-legged stool. if you make anyone longer than the other, it will topple over. if in california we have the hearsay preliminary, after the first couple of years were in effect, prosecutors saw a dramatic decrease in convection. routinely, prosecutors in child abuse, sexual abuse, and domestic violence situations routinely take every case to a preliminary hearing. but more importantly, in california, there is a hearsay prelim. the hearsay complainant is always permitted to be impeached by anything they would have been impeached with

if that witness has testified live. we do not have that provision. when the article 32 changes were being proposed, i was passed by our then cdc colonel steve newman to look at the hearsay prelim, and compare it with my experience. i believe senator boxer was actively involved in drafting that. and he's tracked at that time pretty well the hearsay preliminary hearing in effect in california. by the time it made it out of committee and into the law, every defense leaning protection of the preliminary hearing has been stripped out. so the problem is, that we have, in many ways, overbalanced the system. that does not advantage complainants. it does not advantage victims.

because if victims are shielded , with -- from dealing with persecutors, from meeting with defense attorneys, which they can always refuse to do on the civilian side, because they should but if they have no exposure to that and step into the courtroom arena without having been exposed to that, they have unreasonable expectations of what is likely to occur in the courtroom, and as one senior, i'm sorry, regional vlc had to write to a convening authority, that the client, all the client wanted was a conviction at which she could give her victim impact statement. that was what she wanted. the convening authority was refusing a settlement that both

of the trial counsel, defense counsel, and vlc had approved. and major minnich is, who was the western regional vlc, wrote a letter explaining to force a complainant to go to trial under those circumstances with unreal expectations of what would would happen, could only serve to retraumatized her. in that -- retraumatized her. in that particular case, it was undisputed if something happened, but the question was, were both parties, did they have some alcohol on board? i will tell you, quite frankly, i have not seen more than one or two sexual assault in the military in the five years i have been doing this, where alcohol was not a major factor in the case.

so, i think that under those circumstances, and allowing they -- a better early vetting of the case will actually improve the outcome for everyone. >> can i ask a question about one of your recommendations? i want to flesh it out a little bit. you mentioned that particularly, if, for example, we were to combine the dedicated, qualified defense investigators for the defense as well as for the prosecution, and develop defense information , you suggested that there is a be some thought the committee should give to recommending that there be a mechanism of having confidential defense information brought to the attention of the convening authority, without having to share that with the prosecutor. here is the question that i have. if the convening authority has to make the ultimate decision,

and has to justify that to the command structure, and is going to consider information that i was, as we would say in the legal community, asked partake, how is that convening authority to explain the basis for a decision, for example, not to move forward, that is influenced by defense investigative information that is confidentially shared? that the government was not aware of, had no ability to meet it? i do not know how that could proceed in a way. i understand why the ability to make sure that where there is defense information that can be considered to whether or not the charges go forward, having that be available is a commendable goal. but i do not see how it would operate if it was confidential,

and was going to influence a decision when the decision itself is subject to a requirement to being explained, and reviewed by others. how does that operate? >> i think it operates like submitting a declaration under seal. when he says, i am pretty kidding this in part on confidential defense information , see attached sealed envelope with that information. >> that gets seen by who? >> whoever the convening authority has to justify it to, in order not to go forward on the 120. if he is the ultimate deciding authority, if he is the cg, then that is the person who would ultimately receive it. my concern is this. that mechanism not to exist at the defense discretion. obviously not every case can it

be required of the defense that they do that. sometimes that information may not exist early enough. sometimes there will be a tactical decision that they should not share that information. however, i think that you are looking at a system driven by a commander who is not a lawyer, and when you do that, you are going to have to come up with unique and innovative ways to deal with information. and that is the one that i think works. now would we have to spend some time creating that mechanism conscientiously think about it? absolutely, sir. but do i think that because something is initially seen as difficult but it is not worthwhile to pursue x no, i do not. i think that one of the things that i see every day is people's lives being destroyed

by these accusations. when you talk about 13 percent, more than one out of 10 referred charges. i'm sorry, strike that, preferred or referred charges. one out of 10. that is a huge number. i believe. an unacceptably large number. and the sooner that we can exit , those usually young men, almost overwhelmingly young men out of the system, the more just our system will be . and whatever else has happened, and i am the daughter of a career marine and the sister of a marine. and i will tell you that the one thing that you have to say about every single person who is a member of the armed services, is they have taken an

oath to defend us at peril of their life. i think the least we can do is give them the same level of due process that any civilian expects in any courthouse in the land. >> ms. klein, you have indicated that investigation is an area that is needed earlier in the process. two questions about that. when is an investigator available to the defense, and 2, how many investigators are available? in other words, if there is one for her, tell us how the investigation works. >> right now, i have been with the dso for five years. during that time we have had 2 investigators. granted, we had to go to court to get it, and in both of them, they involved individuals who were having to be investigated

in the foreign language. in one case we had a vietnamese client, it was a homicide case, a child homicide. and in order to develop information relevant for sentencing mitigation, we had to go to her home community where virtually everyone was vietnamese speaking. we were authorized 20 hours of an investigator for that homicide investigation. in another case, also a homicide that occurred in the caribbean, almost all the parties were creole speaking. so, we needed to obtain, and this was a military prosecution of a military service member for a homicide committed while on leave. and ultimately, that case resulted in a plea to a firearms charge. again, we were given very limited numbers.

in my five years with the marine corps, those are the only two cases we have ever had an investigator in. so we have no investigators. and we are frequently given the idea that a military judge can order them where necessary is quite frankly anodyne to our request, when reality does not match that. there is a lack of, even if we have our young people, our young defense counsel trained in how to do investigation, something which is a defense investigations are unique from law enforcement investigations, just in the terms of mitigation and extenuating. which, the standards of care requires that we do an active investigation on sentencing issues as well as guilt. so just and extenuating and mitigation secretly,

investigators need to have social science backgrounds and things of that nature, which our folks do not have. so while they are trying to learn how to try a case, and the military law, and run motions, they are having to try to figure out, how do i interview this witness? we have to take our 4421 legal services for -- support specialists and use them as approvers. by and large, the are they should these are land corporals to corporals who may only be in the defense bill it for 12 months. and we are asking them to act as approvers, because to interview a witness without a prover puts us in violation a likely violation of our canons of ethics. including the navy rules of professional responsibility. >> in addition to the

assistance of the special victims detectives that we have , i was just trying to count, i have six dedicated full-time investigators to supplement the police work just from it. so. >> what i would point out is, not only does the prosecution have prosecution and cis, cid, sometimes state or federal law enforcement, they have dedicated cid agents within the complex trial teams to execute just those what we used to call ta investigator functions. i have spoken with the cid agents in the ctt, and they have both told me, you guys got to have investigators.

my response was, from your lips to god's ears. one of the things is that it takes an extraordinarily long period of time and sometimes in the military to investigate a case before the referral decision is made. so the end cis cid, the law enforcement folks, may have had the case for a year to a year and a half. the case is referred. we have no investigators. they want to do an article 32 hearing within a week or two and then they want to set a due course trial date. so we are on a rocket docket. they are trying to get us to trial on a case they spent a year and a half investigating, in 3 to 6 months, in a situation where we have no investigators. and a shop, one of the largest shops in the marine corps, is at pendleton.

we have, i think right now, 14 attorneys, but we will end up with 15 in a minute. we have 2 support staff. and they have to open file, handle discovery, do everything administrative in the office, and be available as approvers for an investigation. so you have the lance corporal, who has files piling up behind him, getting called in by attorneys, saying come here, i have to do an interview, i need you to be my prover and make my notes, to do what i have to do and be available to testify. it is, it is an unacceptable situation in any public defenders office in the country. and i have worked in the philadelphia defenders office. i have worked in binghamton new york, i have been a federal public defender, and i was a san diego county public defender for 26 years, and nobody, nobody does what we did.

>> let me follow up with a question about experts. is there a disparity in being able to obtain experts in these cases? >> absolutely. military, the rules for court- martial, 703d, provides that whenever anyone wants to use an expert in their case, any party , they have to give notice to the other party with a complete description of the reasons for doing that. in practice, only the defenses does that. in five years i have never seen the prosecution serve such a notice on the party. we have to ask the prosecutors, please sir, may i have an investigator. i feel like oliver twist. and then we go to the convening authority.

so the prosecutor gets to say, yes, i think they need this expert, or no, i do not think they need the expert. of course, the prosecutor only has the information we give them, we have got to give them our entire case to justify getting an expert. if the convening authority says no, which is routine, unless the case is a homicide, i have never seen the convening authority ponying up with an expert of the first request. then we have to go into the court and litigate. the three things we have to prove in a military system, we have to prove what the expert will do for us, why they are necessary, why the attorney cannot do it for themselves. that last one has me completely baffled. right? why can't i be a pediatric forensic neurologist? because my undergraduate degree is in history and english and i have a law degree. i have not been a neurologist,

i do not know anything about neurology. i am being somewhat humorous, but we see that. and then we go in and for example, and this is a real world case that does happen. we go in and we say, we need this expert. and this expert has agreed to do all of the pretrial work, review the discovery, review medical records, write a report, consult with counsel, everything short of testimony, $10,000. now, anybody practicing in the civilian world would think, wow, that is a deal. 10,000 for that kind of an expert? we will go in and the prosecutor will unilaterally, for no reason, consulting nothing, say, no. you can have 5000. the convening authority will say okay, 5000. you cannot buy half a car, okay? $5000 will not answer the mail. so we have that problem. then we have the problem that we have sought an expert. the expert has given us an

opinion that is consistent with our defense. we go in and ask for the expert, the judge orders the expert. now that -- prosecution -- now the prosecution is given time to maintain an adequate government subsidy. we call this the inadequate government substitute, because what happens is, the prosecutor is thinking, i do not want doctor expert coming in, i would rather have masters degree, not so expert coming in. and then we are forced to litigate that. so what one of the problems, and the way the expert problem feeds into the investigative problem is, attorneys are having to spend so much time litigating for resources that they do not have time to prepare their case, or to investigate the case in the way that they should. --

>> all right. my question was, of the many things i wanted to ask you, you had made a statement that the investigators are being trained not to seek contradictory evidence in these cases, and sexual assault cases, which i would just posit is not from a prosecution perspective, but that is not what we teach when we teach investigation, which we feel is trauma informed end -- and victim centered. i am wondering if you can expand on who is teaching investigators that they should not, basically what you're saying is, they are being taught not to conduct thorough investigations in these cases, is that correct? >> when we get an ntis agent, when i say we, obviously i am a civilian, i am not sitting at counsel tailed -- table. i am sitting in the spectators wishing i could throw a pencil at my attorneys heads. not because they are unprepared

in the sense of, they have done all they can to get prepared, but we have not been given enough time. i am sitting in the spectators but i am hearing the testimony, which is, when asking the nci s agents, did you do this, no. why didn't you do it? well because, you know, we are not trained to do that, we are drain -- trained to do that they should this. so i get an answer over and over again to who is training them. they fight us on getting copies of their training manuals, so that we can see what the rules are given to them for conducting of investigation. over and over again, what we see our leads which are clearly within the text of the statement given by the complainant, which are simply not investigative.

it's like we have the complainant statement, we are done now. that is terribly unfair, and i think it is unfair to the victim and the accused. >> we have one final. >> thank you for being here today, the information has been helpful. you went through some logistical side effects that you see in someone who has been the target of a sexual assault investigation. one of the things i was concerning to me and i hope you can explain a little bit, when somebody has been identified or targeted as a suspect in a sexual assault investigation, they are singled out as a sex offender by command. can you describe what that looks like? >> that looks like a pma. a professional military brief is called together. and it may be that the senior

nco level, will call a crowd together and say, we have had this happen. remember, these are small groups of people and they understand, even if the client is not named, the facts that they are talking about. in other situations, we have had guys who are taken out of their assignment and who are basically sat at a desk on a quarter back and do nothing all day long, we have our clients who are in legal hold transferred to headquarters battalion where everybody, all the broken toys go, so it is a public acknowledgment that these people have been accused. so it runs the gamut from how it happens. we have seen commanders when something happens, send out a written notice, i will not

tolerate sexual assault within the command. but it is triggered by an incident which is being actively investigated. so in all those ways, that is what happens. >> thank you so much for coming. we appreciate your testimony. we will be on break until 10:40 when we will be hearing from civilian text -- sexual assault investigators. >> ♪ >> we have 13 days until the midterm elections. president donald j. trump tonight hosting a rally in most any wisconsin. a life picture there, it looks like an airplane rally. the crowd is gathered waiting for the president. president donald j. trump there supporting the reelection bid up governor scott walker and u.s. senate candidate lee of the. we will have live coverage for you in just a bit when the president arrives in wisconsin.

♪ >> ♪ >> please do not stop the music. please do not stop the music. ♪ >> as we wait for president donald j. trump to arrive at this rally in wisconsin, let's bring you a portion of

washington journal, we have consumer advocate ralph nader. >> ralph nader has served as a former presidential candidate, a consumer advocate, and the author of his latest book, to the ramparts. how bush and obama paved the way for the trump presidency and why it is not too late to reverse course. ralph nader, could morning. what was the intent of the book? >> it is to show that we are not doing our homework as citizens, and we allow a lot of things that we think trump started to have occurred, starting with reagan. just very briefly, reagan, again and again, falsified government statistics and created total fantasies. he made fun of homelessness, saying a lot of people like to sleep out. or hunger, a lot of people are on a diet. he was so charming he got away with it. and president donald j. trump was watching this on tv. then along came bill clinton. he broke the standards on the treatment of women in his

infidelities, etc. and was prosecuted for perjury. and he was reelected. and president donald j. trump is watching the tv. and then along comes a george bush. and he blows apart international law, cuts taxes for the wealthy, destroys law and order for consumer environmental health and safety, and he gets away with it and gets reelected. and president donald j. trump is watching this on tv. then comes obama. obama did not prosecute the wall street cooks. obama actually prosecuted journalists under the espionage act. and he doubled down on drones and other violations and armed force violations of international law in the constitution. and ruled a lot by executive order. and president donald j. trump is watching this and he sees obama getting away with it and getting reelected. and you wonder why trump's forty-year desire to become president saw all this ambitions and rewarding him for getting

away with it as president? and doubling down on fake news and abusing the standards of decorum and civility and spending day after day up to 18 fabrications and misstatements a day, now. so this book is basically our job as citizens under the constitution? are we getting our children to learn civic skills? and civic experience with adult supervision in their own entities? no. are we fighting voter suppression, after the civil rights act? all kinds of ways exist to obstruct people from voting. there is no western country in the world that obstructs voters and third-party candidates the way the state laws, not all of them but a good many of them are doing. >> what could have democrats done differently in the process,

leading up to the president's election? what could they have done differently? >> stand for the people. >> such as? >> such as, the stronger election laws. it is a left right coalition. you want to emphasize conservative, liberal convergence for a better country. not sandpaper the divisions the way the two parties do to get campaign contributions. it is divided role instead of unify. there are at least 24 areas of changes in this country that are overwhelmingly supported, including conservatives and liberals living wage, medicare for all, cracking down and there -- on the rich and powerful, and the crimes, corporate crime. breaking up the wall street banks, a fairer tax system. the democrats could have also started to wage peace. we need international treaties on cyber warfare. they did not start any of that. instead, they just extended george w. bush's water for --

warfare policy. and above all, the democrats should be ashamed. they should have given the people more power, as consumers, to fight back to the credit companies. invasion of privacy, ripoffs and payday loans and so on. they could have given people the right to use the courts more readily when they are subjected to malpractice. when they are subjected to wrongful injury under our court system. >> let me introduce colors into this situation. 202, 748-8000. democrats 202748 8000. you can pose thoughts or questions at our feed at space dacia c-span wj. you talked about three things democrats should be doing in order to gain the interest of the democratic party. one is to give a major address on waging peace you said they should address large gatherings of nonprofit organizations. those are the people that hold up our democracy.

they carve up from our daily routine enough time to be specifically engaged in our communities, states, regions and role. that is the constituency you want to support. instead they talk to chamber of congress -- commerce and business groups. the worst thing the democrats are doing right now is they are not making an emblazoned issue out of living wage, raising the minimum wage. they are on the records being the minimum wage is frozen at $7.25 an hour federally. but they could win the election on this issue. you talk to the afl-cio. why aren't you putting this in your ads, big time? workers in this country are making less wages adjusted for inflation then workers made in 1968. that is going backwards. those are the people who feel disempowered as the new york times reported the other day,

and not ready to vote, because they are so turned off. they do not want -- know what the parties a stand for and they do not know what the democratic party is standing for. >> there was a story this morning about what could happen if the democrats retake the house. the authors write, saying that the tension between investigating the president's administration while searching for common legislative ground would be a continual balancing act. nancy pelosi and others have made clear that much of their efforts would be dedicated to conducting oversight. they have demonstrated little regard for ethics rule and the regarding text. drop -- dollars but is that a good strategy? >> that is good but do not bet on it. they talk a good game and chicken out. i want the people to take control of the congress. democrats can taking -- taking control of one house, it may help a bit. but they have been squeamish about challenging the executive branch regardless of whether republicans are in the white house. so more and more power is being denigrated -- denigrated -- delegated from congress

unconstitutionally. to the white house, regardless of whether it is a republican or democratic president. i want the people to take control. i am so keen on this, pedro. i have even written a fable called how the rats reformed congress and you know, the subterranean area of the congress, the catacombs, there is a rat infestation. by the way that is so dangerous to the workers they will not allow any senator or representative to go down the elevator. so the rats come up in this fable. they invade the toilet bowl, and it has become very very embarrassing for the members of congress. a reporter breaks the story and you have mass derision by the people. and then some activists around the country say, we have got great public attention on congress, even more than c-span

puts on congress. let's do something. and then it becomes very serious. so this book is designed to make people laugh seriously. laugh themselves seriously in order to organize and take the congress back. i am not talking liberal conservative. so many of the great things we need in this country, families need, it does not matter what label they put on it. when you get down where people work, live, and raise their kids, the so-called red state blue state ideology dissipates. they won't allow themselves to be divided and ruled by these politicians. they want clean air and good health insurance. they want schools that are repaired. they want roads, bridges, and drinking water systems that are adequate for their kids. it does not matter whether they are conservative or liberal. rats reform congress.org. >> is called to the ramparts, ralph nader our guest, our first call comes from north carolina. you are on with ralph nader, good morning. >> good morning to you both and to america. thank you c-span.

you know, mister nader, i often have noticed that we have had so many presidents leading through the executive leadership or proxy. and you touched on that a little earlier. could you possibly talk about how that could be overwritten in the future and how such policies are leading to the executive signings can be overridden and what it might be just for short-term or long- term gain? >> it is called congress. our founding fathers made sure that there was separation of powers. they never dreamed that congress would give if it's constitutional authority in such a wholesale way. as bruce fein pointed out again and again in his writings. you have executive orders that violate constitutional prerogatives of congress, or violate statutes that are already on the books. congress has got to enforce that.

they can do it through resolutions and drink -- through strengthening executive law. the founding fathers did not want another king george. that is why they put the war declaration of authority. but what we have to do is recognize, what does this mean when the preamble starts we the people? it does not start we the congress. it does not start we the big operations. it starts, we the people. that is why in this book, i have a citizens summons on page 45 to 47. it puts the hands of power in your hands. and you summon your senators and representatives with a petition and a formal summons to your own town meetings back home. in public auditoriums. you completely reversed the dynamic and you prove what i have been saying for many years. it never takes more than one percent of engaged citizens, a congress watchdog hobby.

in every congressional district, representing a majority opinion. it takes that to turn congress around for only 535 put their shoes on like you and i every morning. >> larry and kansas, hi. democrats line. >> yes, could you hear me? i said can you hear me? >> yes, larry. >> oh, okay. yeah, mister nader, i am still mad at you for helping president bush get elected, and i was wondering why you do not work within one of the political parties instead of starting your own? because there is no way -- in the future that we are ever going to have another party. >> no way to give voters more choices and agendas, and voices? i do not agree with that. aren't you glad that some people in 1840 broke away from

the two major parties and voted for the antislavery with liberty party? or later for the women's right to vote parties? or later the farmer progressive party? the one that broke through and finally got the year of the two major parties to do the things we would like that we inherited from our forebears? you should not buy this florida nonsense. al gore does not. he does not think the green party took the election away. that election was selected. george w. bush was selected by a five minutes for boat led by scalia, the supreme court as you remember. and they blocked those five political judges blocked the florida supreme court ordering of a recount that was underway. don't you remember that gore won the popular vote by half 1 million? in most countries, you win the popular vote, you win the office know, the electoral college threw it into four.

did you know that 300,000 democrats in florida voted for george w. bush in 2000? and there are all kinds of sinequan nuns. you should not blame third parties. they have as much right to run for election as anybody else. i never say to people even if it i disagree with the candidate, i never say do not run because that is like saying, do not petition, do not assemble, and do not exercise your first amendment rights of free speech. you want to oppose them, fine. never tell them not to run. >> in new jersey, independent line, hello. >> hi, mister nader, i appreciate everything you do. i even voted for you in 1996. >> thank you. >> but since 2015, i have been trying to contact you about an idea i have and a political movement i am trying to start called one to men. the idea is basically that citizens will sign up on the website and commit to only vote for a small contribution

candidate. i have tried everything i can. i have sent questions to your radio hour, i have sent information to see srl as you instructed in an article you once wrote. i have tried to use your citizens summons. i took out a petition. you had a guy on your program that put out a $350,000 ad in the washington post, i got a copy of the washington post and did my own at into it. the information i have sent you and appreciate it if at some point you would review the information i have sent you and contact >> i like the idea of small contributions. i am sorry you couldn't get through. we will discuss this. anybody that has a civic energy you have deserves to be heard. so i am sorry about your not getting through a try again.

>> let me show you a headline. democrats split over medicare for all plan. what about the idea of health care? >> that is why the democratic party may lose. they don't like to talk about canada. they say we want to expand healthcare, preserve obama care, what do you mean exactly by that? tuned to know a majority of americans would like medicare for all with free selection of doctors and hospitals, no narrow network. it is cheaper. canada has it, it works. they have had it since 1970. for half of the money per capita, about $4500 per capita. they cover everybody, every body. it is a free choice of doctor

and hospital. they get money from the drug companies, from the hospital industry, from special interest groups. as i said the republican political are energized by greed and money, the democrats are compromised by greed and money. guess who has been winning? they don't come across as authentic. the majority of doctors and nurses want the full medicare for all, why? because they want to practice medicine, not bic keeping, bill collecting it back having a consulting firm telling them what to do on specific patients. why aren't the democrats doing this? you even have heads of general motors saying that canadian system is much better, it is much more efficient, it saves

lives. we lose 35,000 american lives per year because they can't afford to have health insurance. hundreds of thousands more preventable injuries and disease. that was a harbor coke -- that was a harvard medical study. in canada no one loses their life because i don't have health insurance. do you know why the big ceos like the single-payer system, they don't have to pay the premiums as much. it makes the u.s. companies more competitive because all other western countries have universal health insurance. the wide to the democrats do this? they keep dialing for the same commercial dollars with springs -- with strings attached. >> the current system burdened by the aca? >> no, it was a step forward. it did not control drug prices nor did donald trump, he promised but he didn't do it.

the second is it increased the coverage of about 30 million more americans. there are still 29 million not covered by insurance. there is a great book out "trumpcare" that is a great book. that is just modest steps forward. we need to cover everybody. we should never have a system that tells americans pay or die. pay for certain operations, the industry is subsidized by the taxpayers. they give them free research and development, drugs clinically tested, they give them tax credits from the treasury. they outsource the production of drugs into china and india. they then import them back to this country because it is less

safe. >> what are some of the ideas you are talking about with the president? >> you name it, he said he is going to rebuild infrastructure. the hasn't done anything. public buildings, you name it, bridges, highways, nothing, he said he was going to make the air soak your and the water so clean that you will be dazzled. he told all these mining companies to dump of the debris and poison the waters in places like west virginia creating more cancer, more respiratory diseases, he said he will hold wall street accountable, are you kidding! he has reduced the regulation of wall street. he said he would have a pure tax system where the great -- the great benefits went to the top one back%. they say he kept his promise on the wall, the wall? i mean how degrading can he put

this country. >> let's go to randy. hello. >> good morning, good morning, i really appreciate you for being a disruptor for all of these years and asking questions of power and those of us out here that are trying to add value in our communities appreciate that personality. i would like to share my experience in owning a small business in virginia that was built specifically to add value in and out of schools. with mobile health facilities. these are 50-foot trailers that have 30 stationary bicycles on them that for children four years old and up. the when you