Guest post by Michael Conzachi
In 2014 the Department of Defense authorized the formation of the Judicial Proceedings Panel which later became the Defense Advisory Committee on the Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces, (DAC-IPAD).
This committee was tasked with the responsibility to address a variety of problematic areas of sexual assault, sexual harassment, and other forms of sexual misconduct in the armed forces. Since that time, the DAC-IPAD Committee has held a number of meetings, hearings, and have issued a number of reports detailing various problematic areas when service members have been accused of some type of sexual misconduct.
In 2017, the committee, produced two extremely scathing reports against the Department of Defense, highlighting how the government implemented unlawful measures to almost guarantee convictions in military sexual assault cases, even when the facts and evidence suggested that in many cases, service members had been falsely accused, wrongfully charged, convicted, and incarcerated.
Those reports titled "Barriers to the Fair Administration of Justice in Military Sexual Assault Cases" and "Report on Sexual Assault Investigations in the Military" uncovered what many defense analysts would consider certain due process and constitutional infringements and violations, that were present in military sexual misconduct cases.
There were a host of examples such as the military uses a weak standard requirement of probable cause that is not in line with the American Bar Association. The military essentially classified those who made allegations of sexual misconduct as victims before any substantive investigative effort was initiated. The prevailing belief was that by virtue of an allegation alone, a crime had been committed and the accused, by virtue of being accused was therefore guilty.
This misguided belief system created a process whereby the accused was presumed to be guilty, therefore the investigative and prosecutorial effort must be focused to secure a conviction. The concept of the presumption of innocence, due process, and constitutional protections took a back seat or was ignored entirely.
In a 2013 Air Force sexual assault case and ultimate conviction that was overturned by the Air Force Criminal Court of Appeals, then Air Force Judge Advocate General Lieutenant General Richard Harding was quoted in part,
“… victims are to be believed and their cases referred to trial…”
As we have seen this play out in other venues and forums, the prevailing attitude and belief system assumes guilt by virtue of an allegation alone, however we have also seen this belief system turned on its head once facts are known.
The reports by the committee revealed other problematic areas that involve Special Victims Counsels, who are attorneys assigned to persons who have made allegations of sexual misconduct against a service member. The reports concluded that in many cases SVCs were advising their clients (alleged victims) to refuse to turn over their cell phones for forensic review or to delete exculpatory evidence from their phones.
In any other scenario that would be considered an obstruction of justice. SVC’s also received training in ‘junk science’ theories that have different titles but are essentially the same and referred to as ‘victim-centered,’ ‘trauma-informed,’ or some other descriptor. These theories have been debunked in many military and civilian criminal courts as well as in college tribunals.
These scientifically deficient theories essentially say that whatever a victim says or doesn’t say, whatever a victim does or doesn’t do, no matter how many inconsistent statements or false statements a victim makes, well… that means they are telling the truth. Where… in any type of tribunal of any type, would such nonsense be accepted as fact?
On September 21, 2022, the DAC-IPAD Committee held another meeting, and heard testimony from former Air Force Major Clarence Anderson.
Major Anderson was falsely accused, wrongfully convicted, and incarcerated for sexually assaulting his wife during a contentious divorce and child custody proceeding.
Major Anderson discovered that his wife had been having an affair. He filed for divorce and was awarded 50/50 custody of his daughter. His ex-wife not satisfied with the fair and equal custody decision, accused him of sexually assaulting her, and colluded with others in doing so.
Based only on his ex-wife’s testimony and the testimony of the man she had been having an affair with Major Anderson was convicted of sexual assault and incarcerated for 42 months at the Miramar Naval Air Station Combined Brig in San Diego.
His former command cleared him of domestic violence allegations when it came to light that his ex-wife had a prior arrest record for domestic violence, and a fact that came out prior to his court martial where his ex-wife essentially offered to refuse to testify against him if he gave up custody of his daughter.
The trail of inequities, indifference and official misconduct spanned the highest levels of the Air Force. This included false statements to members of congress by then Air Force Secretary Dr. Heather Wilson, who shortly thereafter resigned.
During this process, an audio recording was obtained in which it was learned that Major Anderson’s former mother-in-law, bribed his ex-wife’s new lover with a payment of $100,000 to provide false testimony at the court martial.
Despite the fact that overwhelming evidence revealed that Major Anderson’s ex-wife manufactured the entire scenario, despite the evidence that bribery, collusion, obstruction of justice violations, and numerous examples of prosecutorial misconduct were exposed, the Air Force was relentless in their prosecution of him to guarantee a conviction. Then… they continued to lie about it up and down the chain of command How does a serviceman recover from that?
For further information on Major Anderson’s case, please visit his website which is linked below. The vast amount of material related to his case is too voluminous for this post and he continues to fight for his innocence to this day.
A solution to some of these inequities such as the one Major Anderson, and countless others experienced should warrant the formation of a Conviction Integrity Unit in the Armed Forces. That has yet to take place.
The National Registry of Exonerations promotes the implementation of Conviction Integrity Units and many prosecutorial offices across the country are forming them.
While most prosecutors in this country perform their duties in a professional and ethical manner, we also realize that some are motivated by other factors.
In an April 1, 1940, speech by Attorney General Robert H. Jackson before The Second Annual Conference of United States Attorneys in Washington D.C., he stated in part,
“…While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst…”
Links/References
https://twitter.com/c_anderson_iii?lang=en
https://www.majorandersoniii.com/
https://dacipad.whs.mil/images/Public/05-Transcripts/20220921_DACIPAD_Transcript_Final.pdf
https://www.law.umich.edu/special/exoneration/Pages/Conviction-Integrity-Units.aspx
https://www.justice.gov/sites/default/files/ag/legacy/2011/09/16/04-01-1940.pdf
https://www.majorandersoniii.com/Command_Investigation_Memo.pdf
About the Author: Michael Conzachi is an Army Infantry veteran of the 82nd Airborne Division, a partner in a private investigation firm and retired three-decade homicide detective in Southern California. He specializes in defense cases involving false allegations of domestic violence and sexual assault, while also identifying official misconduct in these cases that include law enforcement personnel, prosecutors, judges, political office holders and other public officials. He has authored over 100 official complaints to various oversight bodies such as State Bar Associations, Judicial Commissions, Grand Jury’s, the FBI Office of Professional Responsibility, the United Nations under the auspices of the ‘Declaration of The Rights of the Child’, and numerous components of the Department of Defense to include the Professional Responsibility Branches of the Judge Advocate General, the DoD Office of Inspector General, the Standards of Conduct Office and the Hatch Act Unit to name a few. He has been described as an ‘anti-corruption bulldog,’ has consulted in the past with retired NYPD Detective Frank Serpico, and has made appearances on Court TV, America’s Most Wanted, and Dateline NBC.
