Why Would Anyone Waive an Article 32 Hearing?
A high-profile case at Fort Hood has put a rarely-discussed question in front of a lot of people: why would a service member facing serious criminal charges give up the right to an Article 32 preliminary hearing?
Major Blaine McGraw, an Army OB/GYN, faces dozens of allegations of indecent visual recording under Article 120c, five specifications of conduct unbecoming an officer under Article 133, one specification of willful disobedience of a superior officer under Article 90, and one specification of making a false official statement under Article 107 of the UCMJ.
Keith discusses the case and the implications of waiving an Article 32 hearing in the segment below
When asked about the waiver, the Army confirmed there was no plea deal and that the accused simply waived the hearing, which appears to give the government an unimpeded path for referring the case to a General Court-Martial.
The defense attorneys must have a reason. We’re not involved with that case and we’re not going to second guess their decision.
But if we’re asked, as we often are, why should someone ever waive such a significant right, our answer is going to be, They shouldn’t. Trade it? Maybe. Waive it? No.
What the Article 32 Actually Does
Most discussions about Article 32 hearings focus on probable cause: the government has to show enough evidence to justify taking the case to trial.
That framing makes waiver seem more reasonable than it is. Probable cause is a low standard. It only requires the prosecution to prove that it’s more likely than not that the allegations are true. “Probable” in this context means 50.00001%. Even a single unsupported allegation can be enough to meet that standard.
It’s not uncommon for some charges to fail to meet that standard at an Article 32 hearing, but it’s extremely rare for all charges to fall short. Which means that if you go by the probable cause standard alone, the government will almost certainly clear that bar on at least one charge, satisfying the minimum technical requirement for recommending a case should go to court-martial. This is why the battle over probable cause is the least interesting thing about an Article 32 hearing. If that were all the hearing accomplished, skipping it might look like a minor concession.
The hearing is also the defense’s first real, official opportunity to sell its case, mostly by reframing the government’s own evidence, without any risk whatsoever to the client, to the people who decide whether this case goes to trial and how hard they want to fight it. The Office of Special Trial Counsel, the elite prosecution office that handles serious UCMJ cases, is not running a conviction assembly line. OSTC obsessively tracks its win percentage. It would rather drop a weak case early than lose at trial. The Article 32 hearing is when a well-prepared, creative, and persuasive defense team can create genuine doubt about whether the government will want to commit its time, money, and winning percentage to this prosecution. You want to do this before people invest their egos and reputations in formal court-martial charges.
This is why we say it’s not a probable cause hearing: it’s a reasonable doubt hearing. More on this in a moment. Simply put, waive your hearing and you lose that chance to derail the case before it really gets going.
Three Reasons Lawyers Waive, and Why They’re Not Enough
The first and most common reason is that some lawyers think the hearing is pointless for the defense.
The reason inexperienced or misguided defense attorneys think the preliminary hearing is a waste of time is that it looks like a waste of time if it’s not done right, and they’ve never seen it done right.
At a typical preliminary hearing, the government doesn’t call witnesses. The government more or less hands the investigative file to the preliminary hearing officer and makes an argument. Because the defense rarely calls witnesses either, to the uninformed observer this looks like a paper drill.
But the defense has the opportunity to recalibrate all of that evidence for the preliminary hearing officer’s and OSTC’s consideration. Highlight inconsistencies and impossibilities in the witness accounts. Present contradictory evidence. Present exculpatory crime scene photos. Make legal arguments. Propose a lesser form of resolution than a general court-martial. Present a letter from the victim’s counsel showing that the victim supports avoiding trial. There are dozens of things the defense can do at this hearing, even when no witnesses testify.
The Article 32 is also a great opportunity to build rapport within the defense team, establish deeper working relationships with the prosecution, hash out issues that will matter at trial, assess OSTC’s true commitment to the case, and get the client acclimated to the courtroom, which will pay off if the case develops. As noted above, the primary goal is to create reasonable doubt. A favorable report from the preliminary hearing officer goes a long way toward that. You won’t get that report if you waive the hearing. You won’t influence OSTC either.
What these defense attorneys imagine is that nothing is happening. But the only way nothing happens is if you do nothing. And waiver is the ultimate form of doing nothing.
There’s one more thing to keep in mind if you have a civilian attorney: if the preliminary hearing is waived, you can rest assured the case will be referred to a general court-martial, and that’s when the attorney’s biggest fee comes due. So a civilian military attorney has an even greater obligation to explain why waiver is in the client’s best interest.
A second reason, less common but worth understanding, involves a calculated gamble on charging defects. If a defense attorney identifies a technical problem with how the charges are drafted, he might reason that a preliminary hearing officer, who is required to review the legal sufficiency of the charges, will spot the defect and alert the government, giving them a chance to fix it. By waiving the hearing, the theory goes, you hide the problem and spring it at trial when it’s too late to correct.
It’s a long bet, and it forfeits too many advantages. The government can seek permission to amend charges at any point, including at trial. A judge can deny that request, or grant it. Meanwhile, you’ve traded away everything the hearing offered (the early exculpatory presentation, the attack on the prosecution’s case, the chance to make OSTC wonder whether this is worth their time, the rapport building and recon) on the chance that a judge will later refuse to let the government fix a drafting error. This is a classic case of “too clever by half.”
The third reason is the only one that makes sense: a genuine, enforceable pretrial agreement that exchanges the hearing for something of real value, like a specific charge dropped, a cap on the sentence, or an alternate disposition. In terms that are in writing and binding on the government. In that case, you’re not really waiving the hearing. You’re trading it for something better and guaranteed.
The Question You Must Always Ask: What’s in it for Me?
If you are advised to waive your right to a preliminary hearing, one question needs a real, concrete, no-bullshit answer: what are you getting in return?
If the answer is “nothing” or “we’re getting out of a process that won’t matter anyway,” that’s not good enough. It’s a cop-out. The hearing isn’t a formality for your attorneys to endure. It’s the best opportunity in the entire case to change the prosecution’s calculation before they’ve committed themselves to trial.In reality, the usual thinking that goes into waiving an Article 32 hearing is about as sophisticated as this: “It’s just a probable cause hearing. Hearing officers always find probable cause. It’s a waste of time. I’d rather be doing something else.” And if there’s a civilian attorney involved? Maybe: “And my biggest fee depends on this case getting referred.”