Central District of California Eastern Division at Riverside

Case 2:04-cv-08425 Trial Day 2 Vol 3
350 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEBORAH D. PARKER, U.S. COURT REPORTER DEBORAH D. PARKER, CSR 10342 OFFICIAL COURT REPORTER UNITED STATES DISTRICT COURT 411 WEST FOURTH STREET SUITE 1-053 SANTA ANA, CALIFORNIA 92701 (714) 542-8409 D.PARKER@IX.NETCOM.COM REPORTER'S TRANSCRIPT OF COURT TRIAL PROCEEDINGS RIVERSIDE, CALIFORNIA WEDNESDAY, JULY 14, 2010 1:10 p.m - 3:54 p.m. ) ) ) PLAINTIFF, ) ) vs. ) CV NO. 04-8425-VAP ) VOLUME III UNITED STATES OF AMERICA AND ) ROBERT M. GATES (SUBSTITUTED FOR ) DONALD H. RUMSFELD PURSUANT TO ) FRCP 25(D)), SECRETARY OF DEFENSE, ) IN HIS OFFICIAL CAPACITY, ) ) DEFENDANTS. ) ___________________________________) LOG CABIN REPUBLICANS, A NONPROFIT CORPORATION, UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION AT RIVERSIDE HONORABLE VIRGINIA A. PHILIPS, JUDGE PRESIDING
351 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEBORAH D. PARKER, U.S. COURT REPORTER MAJOR PATRICK GRANT LITIGATION ATTORNEY 901 N. STUART SUITE 400 ARLINGTON, VIRGINIA 22203 RYAN BRADLEY PARKER JOSHUA E. GARDNER PAUL G. FREEBORNE TRIAL ATTORNEYS 20 MASSACHUSETTS AVENUE, NW WASHINGTON, D.C. 20001 and UNITED STATES ARMY LITIGATION DIVISION U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS W. SCOTT SIMPSON SENIOR TRIAL COUNSEL FOR THE DEFENDANTS, UNITED STATES OF AMERICA AND ROBERT M. GATES (SUBSTITUTED FOR DONALD H. RUMSFELD PURSUANT TO FRCP 25(D)), SECRETARY OF DEFENSE, IN HIS OFFICIAL CAPACITY: EARLE MILLER DAN WOODS AARON A. KAHN DEVON A. MYERS RACHEL J. FELDMAN WHITE & CASE, LLP 633 WEST FIFTH STREET SUITE 1900 LOS ANGELES, CALIFORNIA 90071 APPEARANCES OF COUNSEL: FOR THE PLAINTIFF, LOG CABIN REPUBLICANS, A NONPROFIT CORPORATION:
352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEBORAH D. PARKER, U.S. COURT REPORTER JOINT EXHIBITS: 29 65 E X H I B I T S IDENTIFICATION EVIDENCE 375 429 PLAINTIFF'S WITNESSES: DIRECT CROSS 404 REDIRECT 420 RECROSS I N D E X
ELIZABETH L. HILLMAN, PH.D.
353 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MS. FELDMAN: Q. Good afternoon, Professor Hillman. Will you please state what your current profession is, for the court. A. I'm a professor of law, University of California THE COURT: MR. WOODS: RIVERSIDE, CALIFORNIA; WEDNESDAY, JULY 14, 2010; 1:10 P.M. -oOoPlaintiff may call its next witness. Thank you, your Honor.
We call Elizabeth Hillman. And Ms. Feldman will be conducting that examination. THE COURT: Please raise your right hand.
ELIZABETH HILLMAN, Ph.D., PLAINTIFF'S WITNESS, SWORN THE WITNESS: THE CLERK: I do. Please state your
Please be seated.
full name and spell it for the record. THE WITNESS: Elizabeth L. Hillman. Last name is
Hillman, H-I-L-L-M-A-N, middle initial "L." THE COURT: Thank you. And it's Ms. Feldman?
You may inquire. MS. FELDMAN:
Yes, your Honor.
DIRECT EXAMINATION
Hastings College of law. Q. Let's begin with your educational and employment DEBORAH D. PARKER, U.S. COURT REPORTER
354 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. background. Where did you obtain your undergraduate education? Duke University. And what year did you graduate? 1989. And what degree did you obtain from Duke? A bachelor's of science in electrical engineering. And what did you do after you graduated from Duke
University? A. I had been an Air Force ROTC and I joined the Air I went on to active duty as an officer --
Force. Q. A.
And why did you decide to go into the Air Force? Let me re-answer that to answer that question. After I
graduated from college, I joined the Air Force, went on to active duty as an Air Force officer. And I joined the Air
Force because I was interested in public service and because I wanted a way to pay for college. Q. A. Q. And did the Air Force pay for your bachelor's degree? It did. Were you required to provide military service in return
for the Air Force paying for your degree? A. Q. A. I was. For how long were you required to serve? Four years on active duty, and then four years in the
inactive reserves. DEBORAH D. PARKER, U.S. COURT REPORTER
355 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. What training did you receive while you were at the Air
Force? A. While I was in the Air Force, I was trained as a space I also went
operations officer and as a strategic analyst.
through army airborne training and some field training exercises and certifications. Q. A. Can you describe your army airborne training? That was three weeks at Fort Benning with a lot of
other servicemembers from different services training to be qualified as parachutists. Q. A. And can you describe your field training? I was in -- I was -- it's part of the training that all
officers get to get some familiarity with different aspects of Air Force and other military operations. So I was at
Wright-Patterson Air Force Base for four weeks of training in the summer, which included a visit to army recondo school which was in North Carolina, but -- but mostly it was at Wright-Patterson Air Force Base in Ohio. Q. After your training, what was your first job in the Air
Force? A. Well, before I came on active duty, I worked at the And
strategic defense initiative office for a few months.
then my first active duty job was at Cheyenne -- was in Denver, actually. I was trained as an undergraduate -And then I went to Cheyenne
undergraduate space training.
DEBORAH D. PARKER, U.S. COURT REPORTER
356 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mountain Air Force Base. Q. Will you explain to the court what the Strategic
Defense Initiative organization is. A. That was the Star Wars office. It was in the Pentagon.
We worked on missiles -- ballistic missiles, strategic defense issues trying to protect the United States against a potential attack. Q. A. Q. A. And you said you were a strategic analyst for the SDIL? Yes. And what was your role as a strategic analyst? I worked in policy and analysis. I participated in war
gaming exercises.
I worked with a historian of the office
and I worked on some of the technical aspects of the antiweapon systems we were working on. Q. You said you did some work with war gaming. What type
of work did you do with war gaming? A. We devised and executed simulations with groups of
senior military officers and civilians at different locations in the United States. The -- the most extensive
of those was at -- in Newport with the Naval War College that would help to engage and educate leaders about the potential use of some of the weapons under development or defense measures under development, about how they would actually be -- be used in a -- in a potential conflict. Q. You said you did some work with the technical aspects DEBORAH D. PARKER, U.S. COURT REPORTER
357 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 said? of the SDI mission -- SDIL mission. court what you mean by that. A. One of the biggest problems that we faced was command Can you explain for the
control and communications, sort of integrating the different elements of weapon systems, and we -- I worked with some of the officers who were supervising the contractors who were working on the integration efforts, so the software application programs that were designed to integrate the different phases of interception of a missile that might be re-entering the atmosphere. THE COURT: maybe a third. THE WITNESS: THE COURT: Okay, your Honor. You are -- are you old Okay. About half that speed. Or
All right.
enough to remember vinyl LP's? THE WITNESS: THE COURT: to like a 33 -THE WITNESS: THE COURT: in the record. THE WITNESS: Shall I back up? THE COURT: Yes, please. To which point shall I back up? Okay. Shall I repeat things that I Okay. Yes. So go down
You're at about like a 78.
-- because we want to get everything
THE WITNESS:
358 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: How about to the point which started
with the words, "the biggest problem with command control." THE WITNESS: THE COURT: Okay.
That's about as much as I -- you're so So even though she's --
fast, I can't even hear you.
Ms. Parker is an excellent reporter and she may be able to get down most of what you say, but I can't follow. THE WITNESS: Okay. I want to -- want to -- you
asked what I did in terms of the technical aspects of the Strategic Defense Initiative organization mission. BY MS. FELDMAN: Q. A. Yes. And I said one of the biggest problems that that
organization faced was integrating the different elements involved in intercepting ballistic missiles, and I worked with the software related to that and the contractors related to that particular technical issue. Q. Did you receive any performance evaluations while you
were a strategic analyst at the strategic defense initiative organization? A. Q. Yes, I did. And what did your performance evaluations state at that
time? A. Q. They were positive. What was your next job with the military after you were DEBORAH D. PARKER, U.S. COURT REPORTER
359 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a strategic analyst? A. I was assigned to Lowry Air Force Base in Denver to
undergraduate space training. Q. And what did you do in your role with undergraduate
space training? A. I learned the basics of the space business in the Air
Force and prepared for my first active duty assignment as an operational officer. Q. And what was your first after-duty assignment as an
operational officer? A. I was at Cheyenne Mountain Air Force Base in Colorado
Springs, and I was an orbital analyst. Q. A. And what was your role as an orbital analyst? We tracked the objects in orbit around the Earth and
assessed potential threats to the United States among those objects. Q. All right. Did you have any other responsibility while
you were a -- an orbital analyst? A. I did. I trained and evaluated other analysts. Let me interrupt for a moment. I
THE COURT:
don't remember whether counsel asked you this question. What was your -- what was your rank? THE WITNESS: I entered the service as a second
lieutenant and I left the service as a captain. THE COURT: So at this point, when you had your
360 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 first -- I apologize. much time has elapsed. lieutenant? THE WITNESS: THE COURT: BY MS. FELDMAN: Q. We were talking about your first active duty Yes. Go ahead. I don't know if -- I don't know how So are you still a second
Thank you.
assignment, correct? A. Q. A. Yes. And how long did you serve as an orbital analyst? It was a part of my job for the four years that I was
at Cheyenne Mountain Air Force Base. Q. What do you mean it was part of your job for the four
years? A. I -- I also took on other responsibilities. I moved
into a different command and control center, the space defense operations center, and I worked there as a space control analyst. And then I moved into another office that
supported national programs. Q. A. And what did you do as a space control analyst? I provided support to United States satellite programs
and also assessed threats from space against United States assets. Q. You said you moved into a national program. What
was -- what was that program?
I'm sorry, missed it.
361 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. We called it the Vault. We worked with some classified
programs. Q. While you were at Cheyenne Mountain, did you receive
any performance evaluation? A. Q. I did. And what did your performance evaluation generally
state? A. Q. They were positive. After you were a space control analyst, what did you do
next? A. Then I moved into the Vault. And then after that I --
I applied to the Air Force Academy to -- to join their faculty. And the Air Force Academy sponsored me for a
master's degree in history so that I could go teach at the Air Force Academy. Q. A. Q. A. Q. Did you obtain your master's degree in history? I did. Where did you obtain that degree? The University of Pennsylvania. What year did you start your master's education at the
University of Pennsylvania? A. May I look at my CV to remind myself of what year I I just want to make sure I get the dates right. For purposes of identification, do you want to
started? Q.
Sure.
take a look at Exhibit 29? DEBORAH D. PARKER, U.S. COURT REPORTER
362 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. (Witness so complies.) Is this in your expert report that you filed in this
case? A. Q. A. Yes. Is your CV attached to that report? Yes. I had started at the University of Pennsylvania
in 1993. Q. And what year did you graduate from the University of
Pennsylvania with your master's degree? A. Q. 1994. And you said you obtained your degree in history;
correct? A. Q. Yes. Did you write a master's thesis in obtaining your
degree in history? A. Q. A. I did. And what was the subject of your master's thesis? It was about the unforms that were adopted when women
were integrated into the national service academies in the late 1970s. Q. And can you describe generally what your thesis
discussed regarding the uniforms that women wore. A. I analyzed the process by which the uniforms were
designed and distributed and I looked at their impact on the young women who wore them at the service academies. DEBORAH D. PARKER, U.S. COURT REPORTER
363 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And what did you conclude about the impact that it had
on the women who wore them at the service academies? A. It was not good. The early uniforms were difficult for They created
women to -- they were uncomfortable for women.
an appearance that made women uncomfortable and it made their jobs more difficult to perform; for instance, mandating skirts rather than pants in certain instances, and also some -- some supply and logistic issues related to having boots and clothing that actually fit the young women who were there. Q. And did any part of your master's thesis relate to the
issue of gays and lesbians in the military? A. Q. A. It did. How did it relate to gays and lesbians in the military? One of the primary concerns by the -- the officers and
civilians who were deciding about women's military uniforms was making sure women did not appear too mannish, that they look like men in uniform. And this was -- this was
reflected in the minutes of the boards that met and the committees and also in the designers' notes as they did this. And it was -- it was very difficult for the designers
to come up with acceptably feminine uniforms within the confines of a -- of the -- the functional requirements of those uniforms. So what I wrote about in part was how the fear of DEBORAH D. PARKER, U.S. COURT REPORTER
364 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 women looking like men, which is very closely related to the fear of women being lesbians, shaped the design of women's military uniforms. Q. Professor Hillman, did the military pay for your
master's degree education? A. Q. They did. In return, were you required to provide a certain
period of time of military service? A. Q. A. I was. And for how long were you required to serve? I was required to service three days for every day that And I believe I was in
I was actually in graduate school. graduate school for ten months.
And so I had 30 months when
I returned to the Air Force Academy. Q. And did you start that service period when you
graduated in 1994? A. Q. Yes, I did. So after you graduated, what job did you hold at the
Air Force? A. I was instructor in the Department of History on the
faculty of the Air Force Academy. Q. A. What courses did you instruct at the Air Force Academy? I taught world history, military history, American
history, and women's history. Q. Did you hold any other position while you were at the DEBORAH D. PARKER, U.S. COURT REPORTER
365 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Air Force Academy? A. Yes. I was also the personnel officer for my
department and I advised some different cadet groups. Q. A. What was your role as a personnel officer? I recruited and screened Air Force officers who might
join the faculty. Q. As a faculty member at the Air Force Academy, did you
ever consult with students on issues of homosexuality? A. Q. I did. What did you discuss with students concerning
homosexuality? A. Well, it came up in my course on women's history to But
some extent when we talked about women in the military.
on a more personal level, it came up with individual cadets who sought counseling about what was the challenges they were facing as a result of their sexual orientation. Q. These discussions occurred after "Don't Ask, Don't
Tell" had been enacted? A. Q. Yes. What did you advise students concerning whether to be
open with their sexual orientation? A. I did what I usually do when students ask me what they I ducked and asked them to think about what the I didn't tell them which
should do.
best decision for them would be. path to take.
But I tried to make sure they were aware of
366 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 minute. '94? THE WITNESS: THE COURT: Yes, your Honor. the risks that they faced if they chose to stay in the service under this policy. THE COURT: I'm sorry. Let me interrupt for a
Professor Hillman, you got your degree from Penn in
So you started -- and is that when you
started teaching at the academy? THE WITNESS: THE COURT: Yes, your Honor.
So when you started teaching, the
policy had been enacted? THE WITNESS: THE COURT: I started teaching in July of 1994. I'm sorry.
All right.
THE WITNESS: THE COURT: BY MS. FELDMAN: Q.
August of 1994. You can go ahead.
I'm sorry.
As a faculty member at the Air Force Academy, did you
ever consult with students on issues related to violence against women at the Academy? A. Q. Yes, I did. And what type of discussions did you have with students What types of
concerning violence against women?
discussions did you have with students concerning violence against women in the military? A. I had cadets in my classes and cadets whom I advised in DEBORAH D. PARKER, U.S. COURT REPORTER
367 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 extracurricular activities who had been sexually assaulted or were close to other cadets who had been sexually assaulted. And they were often concerned about the response of the Air Force Academy to their situation or their friend's situation. And I talked to them about the options
that were available to them in -- in reporting or getting assistance. Q. Did you receive any performance evaluations while you
were an instructor at the Air Force Academy? A. Q. A. Q. A. Q. A. I did. And what did your performance evaluations state? They were positive. They were good.
How long were you employed at the Air Force Academy? About two years. Why did you decide to leave the Air Force Academy? Because I realized I was a lesbian and that I couldn't
stay in the Air Force and still maintain the standards of professionalism that I felt obliged to maintain. Q. And what do mean by that, you felt that you couldn't
maintain the standards of professionalism? A. Every day when I walked past the elevator in -- on the
sixth floor of the building where my office was, I saw a sign that said "Academy core values: Integrity first, And I felt
service before self, excellence in all we do."
368 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that I couldn't be -- I couldn't maintain those values and not -- not be open about my sexual orientation. Q. Do you feel that "Don't Ask, Don't Tell" prevented you
from remaining a teacher at the Air Force Academy? MR. SIMPSON: THE COURT: Objection, your Honor. Leading.
Overruled.
You may answer.
THE WITNESS: BY MS. FELDMAN: Q.
Yes, I do.
Did you feel that being a lesbian made you any less
qualified to be a teacher at the Air Force Academy? A. Q. No, I didn't. Did you receive any awards of any kind during your
military career? A. Q. A. I did. What awards did you receive? When I was a cadet, I won the national cadet of the It goes
year award from the Air Force Association in 1988. to one cadet in the country.
When I was in field training, I won the most outstanding cadet in my -- in my unit at field training -in my flight at field training. When I was on active duty, I won the most outstanding company-grade officer of the quarter for the U.S. space command in 1992 just before I went back to graduate school. DEBORAH D. PARKER, U.S. COURT REPORTER
369 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 While I was at the Air Force Academy, I won the most outstanding world history teaching award. And I won -- I was also awarded the standard commendation medals that most officers got in the course of successful performance of their duties. Q. A. Q. A. Q. And when you left the military, what rank were you? I was a captain. And this was in 1996? Yes. And what did you do after you left the Air Force
Academy? A. I went back to school. I went to law school and also
pursued a degree in history, a Ph.D. in history, at the same time. Q. A. Q. A. Q. A. Q. Where did you attend law school? I went to Yale. And what year did you -- did you graduate? I did graduate. And when did you obtain your J.D.? In 2000. And you said you are also working on a Ph.D. in
history? A. Q. A. Yes. When did you obtain a Ph.D. in history? 2001. DEBORAH D. PARKER, U.S. COURT REPORTER
370 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. What was the focus of your Ph.D. in history? The military justice system in the United States from
1951 through the 1970s. Q. A. Q. A. Q. A. Did you complete a doctoral dissertation? I did. Just to go back, was your Ph.D. also from Yale? Yes. And what was the subject of your doctoral dissertation? I studied the courts-martial records from 1951 to 1973,
looking for a better understanding of what sorts of crimes were prosecuted and how the reforms of the Uniform Code of Military Justice affected justice inside the armed forces. Q. Did any part of your dissertation relate to the issues
of gays and lesbians in the military? A. Q. A. Yes. And can you explain that, please? Some of the courts-martial that I studied involved Some of the
criminal allegations of homosexuality.
courts-martial I studied involved defenses related to homosexuality. In other words, the argument that one
soldier killed another soldier because of a -- a gay panic, a fear of a homosexual assault or fear of homosexuality. And some of the courts-martial that I studied involved testimony that demonstrated prejudice against homosexuals. Q. And you said you were studying the military between DEBORAH D. PARKER, U.S. COURT REPORTER
371 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 answer. THE WITNESS: It changed during that time. But in 1951 and 1973, correct? A. Q. Yes. And what was the culture of the military with respect
to sexuality during that time? MR. SIMPSON: foundation. THE COURT: The objection is overruled. You may Objection, your Honor. Lack of
the early years of the Cold War, the period from 1951 through the mid 1960s, there was a very strong fear of homosexuality that was manifested much like the fear of communism. risks. There was fear about homosexuals being security
There was fear that homosexuals were weak and unable And that affected -- affected the fate
to perform duties.
of persons who were accused of crimes related to homosexuality, but also persons who were accused of crimes unrelated to homosexuality but were assumed or perceived to be gay or lesbian. Q. And after graduating from Yale with your J.D. and your
Ph.D., what did you do next? A. Q. A. Q. I joined the faculty at Rutgers University in Camden. And what position did you hold at Rutgers University? I started as an assistant professor of law. And what courses did you teach while at Rutgers? DEBORAH D. PARKER, U.S. COURT REPORTER
372 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. I taught constitutional law. I taught military law. I
taught a course on sex crimes and a course on women in the law. Q. A. What was the curriculum of your course on sex crimes? We studied American history. We studied the crimes
related to sex that had been prosecuted throughout American history, including crimes related to homosexuality, but also crimes related to sexual violence and marriage; for instance, bigamy, those sorts of things. So we studied a
number of different areas of human sexual action that had triggered criminal sanction. Q. And what was the curriculum of your women in the law
course? A. We focused primarily on the 20th century, but we also
studied some earlier history of women in the law and we studied women in the legal profession. related to women in the military. We studied the laws
We studied sexual
violence and reforms and the law related to the prosecution of rape and other similar units. Q. A. And how long did you remain a professor at Rutgers? Until I left to go to Hastings which I -- until 2000 --
until 2008. Q. And when you left Rutgers, what position did you hold
at that time? A. I was a professor of law. DEBORAH D. PARKER, U.S. COURT REPORTER
373 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And you say you are -- you moved to Hastings in 2008.
And that's where you're currently employed today; correct? A. Q. A. Yes, that's correct. And what classes have you taught at Hastings? I've taught the same that I did at Rutgers,
constitutional law, military law, several courses related to history, including law and biography, California legal history. And I've also taught wills and trusts, which I did
teach previously at Rutgers as well. Q. A. Q. Have you taught any military law courses at Hastings? Yes. Can you describe the curriculum for your military law
course? A. Yes. We studied the United States military justice
system, but also other -- other justice systems of foreign military and also international criminal law and the law of war. And we studied the codes and the cases related to
the -- to discipline and administration of military justice. Q. Professor Hillman, how has your experience in the
military influenced your professional career? A. Profoundly. It's difficult for me to separate my It was a formative experience
experience in the military.
for me, and it shaped my intellectual interest in very significant ways. Q. While you were in the Air Force, were you ever deployed DEBORAH D. PARKER, U.S. COURT REPORTER
374 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in combat? A. Q. A. Q. No. Do you have an understanding of what goes on in combat? Yes. On what do you base that understanding of what happens
in combat? A. I'm a military historian, and I have read and taught I also have had
widely in the field of military history.
interaction with many servicemembers who have had experience in combat activities. I also have a strong sense that by combat you mean direct ground combat, but "combat" itself is a term that encompasses many other aspects of the military mission, too. And I did have some experience in military operations related to combat, but not in ground base, direct ground combat operations. Q. And what was your experience in military operations
related to combat? A. Well, in the Gulf War -- the first Gulf War, we were We
tracking missiles that might harm United States assets.
were keeping track of space assets that provided information to battlefield commanding officers. In other words, we
had -- we supported the combat military mission, but we were not on the ground. MS. FELDMAN: Your Honor, I'd like to offer into
375 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CV. evidence the CV that's attached to Exhibit 29, which is her expert report. THE COURT: talking about? MS. FELDMAN: It's her expert report. It's two What pages of Exhibit 29 are you
pages, and it begins again at page 1, but -THE COURT: Not the expert report, the CV? Yes, just the CV.
MS. FELDMAN: THE COURT:
Would it be in Volume III? Yes, your Honor.
MS. FELDMAN: THE COURT:
Any objection? No objection, your Honor. Just the
MR. SIMPSON:
Not the expert report. THE COURT: It is ordered admitted.
(Joint Exhibit 29 received in evidence.) BY MS. FELDMAN: Q. Professor Hillman, have you conducted any research in
the area of military justice? A. Q. A. Yes. Can you please describe your research in that area. I studied the courts-martial records since World I have studied military case law, statutory reform,
War II.
the legislative history and legal scholarship throughout the period from 1951 through the present. Q. Have you published any materials on military justice? DEBORAH D. PARKER, U.S. COURT REPORTER
376 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Yes. What materials have you published? I published a revised version of my dissertation as a
book titled "Defending America" with Princeton University press. And I also am the co-author of a case book, Military
Justice, that I use in my military law classes and has been adopted by about two dozen other law faculty who teach a similar course. I've also written articles published in law
reviews and other academic journals related to military justice. Q. And you were just talking about your case book. Is
that called "Military Justice Cases and Materials"? A. Q. Yes. And does that book address any issues related to gays
and lesbians in the military? A. Q. Yes. What kinds of issues does it address related to gays
and lesbians in the military? A. It includes personnel policies and regulations and case
law related to the "Don't Ask, Don't Tell" policy and related to the policies of foreign militaries with respect to sexual orientation. Q. You said you published your doctoral dissertation in a
book called -- or was it called Defending America, Military Culture in the Cold War Courts-Martial? DEBORAH D. PARKER, U.S. COURT REPORTER
377 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes. THE COURT: are at the 78. BY MS. FELDMAN: Q. Defending America, Military Culture in the Cold War Same bad metaphor about the LP's. You
You need to go to the 33.
Courts-Martial? A. Q. Yes, that's the book that I published. And did that book address any issues related to gays
and lesbians in the military? A. Q. Yes. What did it address related to gays and lesbians in the
military? A. Q. A. Q. A. The same things that I talked about in my dissertation. Have you conducted any research on military history? Yes. Describe your research on military history. My book is -- both the case book and the Princeton
University book are both examples of military history so -that rely on official military records, secondary literature related to military history and primary archival research in government depositories. Q. Have any of your publications on military history
related to the issue of gender in the military? A. Q. Yes. And can you describe those publications, please. DEBORAH D. PARKER, U.S. COURT REPORTER
378 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes. I published a version of my master's thesis about I taught explicitly about women
women's military uniforms.
in the military and their vulnerability to courts-martial and to military discipline in my dissertation and book. I also discussed in the case book the issues of military crime that relate to women in the service. Q. Looking at your CV, do pages 2 through 4 list all the And
publications you have authored -- you had authored as of the filing of your expert report? A. Q. Yes. Have you authored any publications since filing your
expert report? A. Yes. None of which are yet in print, but, yes, I have
written some other things that are pending. Q. Are you currently working on any publications related
to gender or sexuality in the military? A. Q. In part, yes. And what are you working on related to gender and
sexuality in the military? A. I just finished writing a piece for a Chinese military
law journal about the United States policies with respect to contemporary military justice and military personnel issues, and there is a section in there on the "Don't Ask, Don't Tell" policy and the gender integration of the military. Q. Let's discuss some of your more recent work. DEBORAH D. PARKER, U.S. COURT REPORTER Can you
379 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 describe for the court, please, your work, "Front and Center, Sexual Violence in U.S. Military Law" published in Politics and Society in 2009? A. That is an article that came out of my concerns and the
research that I had already done on the prevalence of sexual violence in military legal precedence. And I wrote that for
a special edition of this journal "Politics and Society" that was focused on military sexual violence around the world. And I wrote the piece about the problem within the
United States military. Q. Can you explain what you mean by "sexual violence" in
military legal precedence? A. In that article I use that term to mean rape and other
forms of sexual assault, including forceable sodomy, also domestic violence and violent sexual harassment. Q. And what do you mean by -- strike that. Can you please describe your work, "The Female Shape of All-Volunteer Force in Iraq and Lessons of Vietnam or How Not to Learn From The Past" published in 2009? A. Yes. That's an article about the importance of women And it
in the military since the draft ended in 1973.
explores the policies that U.S. government and military leaders adopted in order to better utilize women in the armed forces. Q. Can you describe your work "Guarding Women: DEBORAH D. PARKER, U.S. COURT REPORTER Abu Ghraib
380 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and Military Sexual Culture" and "One of the Guys: Aggressors and Torturers" in 2007? A. That's an article about military sexual culture and how Women as
I felt based on the research that I did related to the incidents at Abu Ghraib and based on my own research into the larger environment of military sexual violence, that the particular form of the abuses that took place at Abu Ghraib were not surprising, given some of the norms that were allowed to flourish in military sexual culture. Q. What do -- what do you mean by "some of the norms that
were allowed to flourish in the military sexual culture"? A. In other words, some of the training and education that
had been done to try to prevent sexual violence in the military served not to promote the end of sexual violence in the military but instead created attitudes that tended to denigrate women, marginalize women, promote aggressive sexuality among both men and women soldiers in a way that made the form of the incidents that took place, especially the homoerotic content of the form of the abuses at Abu Ghraib, predictable rather than shocking. Q. And finally can you describe your work in "Gentlemen
Under Fire, the U.S. Military in Conduct Unbecoming," published in "Law and Inequality" in 2008? A. That's a -- an analysis of conduct unbecoming an That is a particular
officer and a gentleman prosecutions.
381 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 crime under the Uniform Code of Military Justice. And I
analyzed from the colonial era to the present how that particular crime had been prosecuted in the armed forces. Q. And were your research methodologies the same for each
of the four publications we just discussed? A. Q. Substantially, yes. And what where your research methodologies? Photos,
publications? A. I read everything I could find on the subject. I read
everything related to conduct unbecoming an officer and a gentleman that I could find in legal scholarship and historical literature, in military history, in government records, in public commentary, and I assessed what conclusions I could draw from all that information. Q. And are these methodologies accepted within the
academic community of history and military justice? A. Q. Yes. Have you any published -- have you ever published any
of your research in a peer-reviewed journal? A. Q. A. Yes. Which journal? Politics in Society is a peer-reviewed journal. The
law journals in the legal scholarship world, we don't technically have peer review, but they are accepted scholarly journals. DEBORAH D. PARKER, U.S. COURT REPORTER
382 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Professor Hillman, have you served on any board of
directors related to military issues? A. Q. A. Q. Yes. And what board of directors have you served on? The National Institute of Military Justice. How long have you served on the board of the National
Board of Military Justice? A. Since 2004. And prior to that, I was on their board of
advisors. Q. A. And what is the National Institute of Military Justice? It's a nonprofit dedicated to advancing the fair
administration of military justice and improving public understanding. Q. Can you describe your role on the board of the national
institute of military justice? A. Yes. I have been involved in many projects. I've been
the reporter on two commissions to assess any need for reform in military justice. I have chaired several
committees related to the mission of the organization, including the education committee, the awards committee and the search for -- the search committee for our staff. Q. Professor Hillman, have you ever testified before
Congress on issues related to gender in the military? A. Q. Yes. Before a subcommittee.
When did you testify before a subcommittee? DEBORAH D. PARKER, U.S. COURT REPORTER
383 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Last summer I testified on issues related to military
sexual violence before a subcommittee charged with oversight of the DOD group that is addressing sexual violence in the military. Q. A. And what was the nature of those hearings? The committee wanted the advice of experts prior to
their review of the next -- the pending report of the Sexual Assault Prevention Office. acronym. SAPRO. I think that's the right
The subcommittee wanted advice prior to
reviewing the next report of that organization. Q. A. And who asked you to testify before that subcommittee? The chair of that -- of that committee, the member of
Congress who chaired that committee. Q. Can you briefly describe your testimony before
Congress, please. A. I spoke about the limits of reform in addressing this
very persistent issue of sexual violence in the military. And I suggested that military prosecution of sexual violence might hinder its prevention, that civilian prosecutions might be more appropriate. And I also suggested that
lifting the restrictions on women's opportunities in the military might help and that lifting the ban on open service by homosexuals might help. Q. Have you studied the issue of whether lifting the ban
on open homosexuals will help decrease violence against DEBORAH D. PARKER, U.S. COURT REPORTER
384 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 women? A. To the extent it's possible to study such a future
issue, yes, I have. Q. Have you studied the impact of "Don't Ask, Don't Tell"
on women? A. Q. A. Yes. What have you -- what have you studied in that area? I -- when I first started to research women in the
military, there were studies being published about the disproportionate impact of the policy on women in the military. And I sought to analyze and understand better
whether those studies were correct. This was a part of my interest in women's military history generally. And it flowed naturally from the work
that I did on women's military uniforms. Q. Have you ever made any presentations in academic
settings and seminars on military issues? A. Q. Yes. Have you made any presentations in academic settings
and seminars specifically on issues of gender in the military? A. Q. Yes. Have you presented on issues in academic seminars on
"Don't Ask, Don't Tell" in particular? A. Yes. DEBORAH D. PARKER, U.S. COURT REPORTER
385 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. What types of presentations have you given on "Don't
Ask, Don't Tell"? A. I've been on many panels, many more than I thought that
I would be on related to the impact of the policy, the legality of the policy, the unevenness of the policy, virtually all aspects of the policy. I've -- I also
frequently spoke on the Sullivan Amendment related to the policy itself. Q. Professor Hillman, what would you say has been the
primary focus of your research during your career? A. I've been concerned with the impact of gender and
sexual norms on military law and culture and servicemembers in uniform. Q. And what specialized knowledge do you bring to this
case? A. My legal training, my training as a historian, and my
experience in the military and around the military since I left. Q. A. What was your assignment in this case? To consider whether my research supported the attempt
to point out the lack of a reason behind the policy itself. So to support the ongoing litigation. Q. And were you asked to specifically give an opinion as
to the impact of "Don't Ask, Don't Tell" on women? A. Yes. DEBORAH D. PARKER, U.S. COURT REPORTER
386 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. What materials did you consider in the process of
preparing your opinions for the case? A. I considered all the work I had done over the last
decade or more as well as the more recent work that has been published since I last published on this particular issue. MS. FELDMAN: Your Honor, I would like to offer
Professor Hillman as an expert on the subject of military justice, military history, and particularly women in the military. THE COURT: Any objections to the designation? No objection, your Honor. The witness -- you may
MR. SIMPSON: THE COURT:
Thank you.
proceed to elicit opinion testimony from the witness on the areas in which she has been designated. BY MS. FELDMAN: Q. Professor Hillman, have you studied the history of
female service in the U.S. military? A. Q. Yes. And let's just discuss women's service in the military Can you please describe the role of
in the 20th century.
women in the U.S. military prior to World War I? A. Women have always served in the United States military
and even in colonial militias, but only in the 20th century have they received official recognition within military institutions. DEBORAH D. PARKER, U.S. COURT REPORTER
387 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Century. The Army Nurse Corps was established in the 20th During World War I, women in the Army Nurse Corps
and the Navy Nurse Corps took on important duties in the course of that war, and women also took on additional duties outside of the medical field during World War I. Q. Can you describe the role of women in World War I and
World War II? A. World War II was a watershed for the women in the They served in much larger numbers.
United States military.
Upwards of 350,000 women served in uniform during World War II. They took on much more responsibility and much more They were members of
risk than they had in the past. separate services. military services.
They were not part of the regular They were part of women's services. But
after World War II, they were integrated into the regular services. Q. What types of occupations did women hold in the
military during World War II? A. Primarily medical and clerical. But they did take on
some more martial sorts of jobs, including ferrying airplanes, for instance. But -- but largely most of the
women in the military were in the medical or clerical fields. Q. And can you describe the role of women in the U.S.
military during the Cold War Era? DEBORAH D. PARKER, U.S. COURT REPORTER
388 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. After World War II ended, the military became much The women's
smaller, but there was still a draft in place.
services were integrated into the regular services, but there was a cap put on the number of women who could serve. So from 1948, when the women's services were integrated, until 1967, there's a two percent cap on the number of women in the military and there were also restrictions on promotion. But with the personnel needs of the Vietnam War and the sense of military leaders at the end of that war that women had to become a bigger part of military recruiting, the ceiling was lifted as -- in 1967, the two percent ceiling is lifted. Limits on women's promotion
were lifted, and women were aggressively recruited after the draft ended in 1973. Q. What do you mean "limits on promotions for women"? MR. SIMPSON: getting beyond direct. THE COURT: Sustained. Well, I think just on Objection, your Honor. We're
relevance, I would sustain that objection as to the last question. BY MS. FELDMAN: Q. Can you describe the role of women in the U.S. military
following the end of the draft and moving into the all-voluntary force? DEBORAH D. PARKER, U.S. COURT REPORTER
389 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Women rescued the all-volunteer force. Their quality
indicators were higher than the men who enlisted in those first years without a draft. Women gradually moved into an
increasing number of military occupations, and they also gradually moved up the promotion chain and were appointed and earned higher levels of military service and control. The restriction on women's ability to command men was lifted, and the rules regarding women not being permitted in certain jobs were lifted, especially in the 1990s. Q. Are there any current barriers to women's service in
the U.S. military? A. Q. A. Yes. What are those barriers? There is a ban on women's service in direct ground This means that there are certain military jobs These are about
combat.
that women cannot be assigned to.
five percent of enlisted specialties and less than one percent of officer specialties. But that's the number
of jobs, not the number of persons in those jobs. So the number of jobs actually open to women depends on the service. In the Army and the Marine Corps,
there is a larger percentage of jobs that are off limit. Those are infantry and armor field artillery, special forces. In the Air Force, there are very few jobs that
women are not authorized to be in, limited to, for instance, DEBORAH D. PARKER, U.S. COURT REPORTER
390 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 para-rescue. Q. Professor Hillman, have you studied the history of
violence against women in the military? A. Q. Yes. And in your opinion, has there been a history of
violence against women in the military? A. Q. Yes. When did the U.S. military first begin to see a
violence against women? A. When it started. But Congress first held hearings on
the subject in 1980 and the -- the issue exploded into public view in 1991 with the Tailhook event, which was naval aviators abusing and harassing women. That created a
momentum for change in the military, and there has been much attention from legislators and from military leaders on that issue since then. Q. In your opinion, has violence against women increased
or decreased with the increasing role of women in the U.S. military? A. It's very difficult -MR. SIMPSON: THE COURT: Your Honor, objection. Irrelevant.
I think you need to tailor the
questions more to the issues of the "Don't Ask, Don't Tell" policy. So I'll sustain the objection. MS. FELDMAN: Your Honor, I'm just trying to
391 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 provide a background of how "Don't Ask, Don't Tell" may affect women differently. THE COURT: Well, I have assumed that, and I've
furthermore assumed that opposing counsel has assumed that in allowing leeway in the background. But I think now you
should move towards the tailoring your questions to the development of the policy and tying what you have done so far to the policy. MS. FELDMAN: BY MS. FELDMAN: Q. Professor Hillman, based on your research, how has Okay, your Honor.
"Don't Ask, Don't Tell" impacted women in the military? A. Much more than it has impacted men in the military. The
The reason for that is what we just talked about.
military is a non-traditional career choice for women, and the appearance of women in military uniform is more masculine than the appearance of women in many other professions. For women to join a nontraditional masculine
profession, they are automatically suspect to accusations that they don't like men, that they wish to be men, that they are, in fact, lesbians. So women are vulnerable to
charges of lesbianism in a way that men in the military are not. Q. And have you studied the percentage of women that have
been discharged under "Don't Ask, Don't Tell"? DEBORAH D. PARKER, U.S. COURT REPORTER
392 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes. What percentage of women are discharged from the
military compared to the percentage of total women in the military? A. It's two to three times as high as the men who are In other words, women are 15 percent of the Women are, perhaps, 30 percent of the But I will say those discharge figures don't
discharged. total force. discharges.
represent the full impact, the disproportionate impact, of that policy on service women. Because in many ways the
harassment and derision that is associated with accusations of lesbianism doesn't show up in the actual discharge figures for the policy itself. Q. Okay. We'll discuss that in a few minutes. But first,
on what sources do you rely on for data concerning the percentage of women discharged from the military as a result of "Don't Ask, Don't Tell"? A. The DOD releases reports at the request of
organizations since the implementation of the policy on who is discharged, and many different scholars and organizations have analyzed those official reports. Q. And what publications or scholars have you relied on in
forming your opinion that "Don't Ask, Don't Tell" disproportionately impacts women? A. The servicemembers Legal Defense Network used to DEBORAH D. PARKER, U.S. COURT REPORTER
393 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 publish an annual survey of the disproportionate impact of the impact in general, and other scholars published in several different journals. Shall I mention one? For
instance, Francine D'Amico's article in an edited collection by Rimmerman, for instance. Q. You mentioned the SLDN annual reports. Can you explain
for the court what those reports are? A. They were a snapshot of the discharges and the
implementation of the policy during the first 10 years of the policies. Q. So I believe they run from 1994 through 2004.
How did the SLDN annual reports support your opinion
that "Don't Ask, Don't Tell" disproportionately impacts women? A. They show larger numbers of women in terms of the
percentage of women in the force being discharged each year under the policy. Q. Again, you mentioned a Francine D'Amico article; is
that correct? A. Q. Yes. How does that support your opinion that "Don't Ask,
Don't Tell" disproportionately impacts women? A. Likewise it shows from 1980 to 1990 that the number of
women discharged under the previous policy, really, and then after 1994 into the new policy, that the number of women discharged is much higher. It shows actually that the
394 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 number of women in the Marine Corps, female Marines, are especially subject to discharge. They are eight times more
likely, during that particular period that she studied, to be discharged than male Marines. Q. Based on Francine D'Amico's article, why are women
eight times as likely to be discharged under the policy during the period she studied? A. Right. She is a pre-"Don't Ask, Don't Tell" policy. But the same
So this is predecessor to the policy itself. Marine Corps largely existed then.
She argues that the
reason is women who are in the most nontraditional roles -and the Marine Corps puts women in the most martial positions of any of the services -- that they are more likely to be accused of being lesbians because of their appearance and because of their duties. Q. We have talked about this a little bit, but in your
opinion what are the causes of the disproportionate impact of "Don't Ask, Don't Tell" on women? A. The structure of military service in that it's -- it's
an environment in which women are a minority and women are taking on a role that has largely been ascribed to men. women in male-dominated professions face resentment and barriers to success that women in more traditional female professions don't face. Another reason for the disproportionate impact on DEBORAH D. PARKER, U.S. COURT REPORTER So
395 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 women is that women are not as likely to be married. This
is actually changing some, but it remains true that men in the military are married at higher rates than women in the military. And because of that, I know from experience,
being married is a way to keep people from thinking that you might be a lesbian or a gay man, and that protects more men from allegations of homosexuality. And then finally, that same structure of military service for women, it creates resentment among men in the service. And the "Don't Ask, Don't Tell" policy creates a
pathway for that resentment to be manifested in harassment. And the reason for that resentment is women in the military are not subject to the same risks as men. And that is --
that is simply because of the direct ground combat exclusion and because women are not eligible for the draft. aren't as likely to be in combat. So women
And we see that in the
casualty figures from the current wars. Yet -- yet men are subject to more risk, and they perceive that women have a different set of standards to which they apply, and they are frustrated sometimes at the advancement of women in the military. Q. And with regard to the last issue you were just
discussing, are there studies that relate to this resentment of women in the U.S. military? A. Yes. The Department of Defense sexual harassment DEBORAH D. PARKER, U.S. COURT REPORTER
396 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 surveys asked questions related to this. It was a major
surveys in 19 -- in 1988 and then again in the 1990s, again, at the Air Force Academy extensive surveys after the sexual assault scandals in 2003 and after. So there is -- there is
significant data on the resentment that some men, certainly not all, hold about women's progress and advancement in the military. Q. A. What do you think are the results of this resentment? Sometimes it results in harassment and it results,
because of the "Don't Ask, Don't Tell" policy, in accusing women of being lesbians. Q. Can you explain why you believe the resentment leads to
harassment of women? A. I think that because some soldiers feel aggrieved at
failing to advance as quickly or getting assignments or deployments that they don't want, whereas women don't get that. They have frustration at that. And they are able to
lash out within their workplace for many of the same reasons that sexual harassment happens in civilian workplaces. Their frustration at their own lack of advancement or situations creates a frustration that is manifested in this sort of harassment. Q. You mentioned "Don't Ask, Don't Tell" before. Do you
believe that "Don't Ask, Don't Tell" furthers the incident of sexual harassment against women in the military? DEBORAH D. PARKER, U.S. COURT REPORTER
397 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Yes. Why do you believe that's the case? Because it makes it more difficult for women to rebuff Because it makes lesbian-baiting
sexual advances of men.
possible because of the ban on women's open service by women who might be lesbians and because it creates a hierarchy of sexual orientation that clearly privileges heterosexuality over homosexuality. Q. Can you describe or explain for the court what
lesbian-baiting is? A. When a women is accused of being a lesbian and is
therefore subject to discharge and censure under the policy. Q. And you talked about a hierarchy of sexual orientation.
Can you explain what you meant by that? A. Well, if a women didn't have to fear being accused of
being homosexual, then there wouldn't be this potential for harassment and abuse within the confines of a military workplace. Q. I think you also said that one of the other causes of
the disproportionate impact of "Don't Ask, Don't Tell" was that more servicemen were married then servicewomen; is that correct? A. Q. Yes. How do you know that more servicemen are married than
servicewomen? DEBORAH D. PARKER, U.S. COURT REPORTER
398 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Military sociologists within the government and in Demographers have revealed The numbers today tell us Almost
academia have studied the issue. the statistics related to that.
that less than half of enlisted women are married. 60 percent of enlisted men are married. numbers are closer together.
Among officers the
Just about three-quarters of
both women officers and male officers are married, but male officers are still married at a slightly higher rate. Q. Do you believe that "Don't Ask, Don't Tell" has been
used by the military to punish servicewomen more than it has been used to punish servicemen? A. I would -- yes, except I don't think that the military,
as an institution, necessarily intended for that to be the outcome. The military relies heavily on its servicewomen,
and military leaders all know they can't operate without them. But in practice, whatever the intent of military
leaders, in practice the burdens of the policy have rested with great disproportion on the shoulders of women. Q. In your opinion, is that disproportionate impact of
"Don't Ask, Don't Tell" only a result of the way the policy is implemented? A. Q. No. I think it's fundamental to the policy itself.
In your opinion, given the current statute, is there a
way "Don't Ask, Don't Tell" could be implemented that would not cause it to disproportionately impact women? DEBORAH D. PARKER, U.S. COURT REPORTER
399 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. No. Why not? Given the structure of the military and of military
service and the history of the United States military, so long as there is a policy that makes homosexuality a reason for discharge, it will be used disproportionately against women. Q. Why do you believe that is the case? MR. SIMPSON: Your Honor, I think we're calling Objection.
here for a legal conclusion. THE COURT:
The objection is overruled. Because women are not represented at Because women are And those two
THE WITNESS:
the highest ranks of military service. not represented in tactical operations. things are closely related.
Because women are a small
minority in the military even today when we rely so much on their contributions. Because women in a nontraditional
male-dominated occupation are bound to be harassed and challenged within those workplaces -- that's military or civilian -- all of those factors make it impossible to have a policy that discriminates on the basis of sexual orientation that does not disproportionately hurt military women. Q. In your opinion, did the drafters of "Don't Ask, Don't
Tell" intend for the policy to disproportionately impact DEBORAH D. PARKER, U.S. COURT REPORTER
400 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 women? MR. SIMPSON: THE COURT: BY MS. FELDMAN: Q. Do you know whether Congress considered the impact of Objection. Calls for speculation.
Sustained.
"Don't Ask, Don't Tell" on women in enacting the policy? A. Yes. I know that they did not extensively consider the
potential impact on military women, in drafting the policy. Q. How did you -- do you know that they did not consider
the impacts on women in drafting the policy? A. The scholars who have studied the hearings and my own
look at the hearings themselves, the legislative records make clear that the concerns about the impact of homosexuality on military efficiency applied to male homosexuality and not female homosexuality. that debate was on men, not on women. Q. What do you mean by they applied to male homosexuality The focus in
and not female homosexuality? A. There was fear about sexual assault. There was fear
about shared close quarters and concerns about privacy and bathroom facilities, all of which were about -- all of which were phrased specifically in the context of men being uncomfortable with potential male homosexuals in those environments. The issues related to female homosexuality
that could have been brought up, were certainly a part of DEBORAH D. PARKER, U.S. COURT REPORTER
401 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 military law and history in the years and decades prior, they were not a focus of the hearings related to the policy. Q. In your opinion, how does the disproportionate
application of "Don't Ask, Don't Tell" affect military cohesion? A. I think it has a terrible effect on military
effectiveness and morale and respect for all the persons who together are charged with fulfilling military missions. Q. A. Why do you believe it has a terrible effect? Because it creates an opportunity for bad feelings and
potentially fleeting resentment to be realized in charges that can end careers and destroy the trust that servicemembers need to have in order to get their jobs done. Q. Do you believe that eliminating "Don't Ask, Don't Tell"
will reduce the incident of this resentment against women? A. Q. A. Yes. How? I think that much like the elimination of the racial
segregation of the military led over time, and in fits and starts, to much more enlightened attitudes about racial difference and the end of the -- closer to the end of racial prejudice. I think the same thing will happen with respect
to women in the military as this particular vector for frustration and harassment is knocked out from under those who would use it. DEBORAH D. PARKER, U.S. COURT REPORTER
402 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Aside from potentially eliminating resentment, how else
do you think that eliminating "Don't Ask, Don't Tell" will improve the overall quality of service for women in the military? A. I think it is most likely to improve the quality of
women in service who are African-American women who are well -- or overrepresented by a factor of two, actually, in the military today, because they have suffered most in both civilian and military workplaces under sexual harassment. I think it has the potential to encourage all of the soldiers and sailors, airmen and Marines in military units to take advantage of the contributions that each of them can bring to the mission they need to do and to not focus on irrelevant characteristics of members of their unit. Q. Have you researched the disproportionate impact of
"Don't Ask, Don't Tell" specifically on African-American women? A. Yes. I've read the research. Yes, I have read the
studies that have been done that report on this disproportionate impact. Q. And why does "Don't Ask, Don't Tell" disproportionately
impact African-American women? A. That answer is not extant in the literature. But the
scholars who study this surmise that it is because DEBORAH D. PARKER, U.S. COURT REPORTER
403 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 African-American women in many different workplaces who are in positions of authority are more likely to be challenged, and they are more likely to be challenged sexually, in particular. So they are in an even more vulnerable position
than non-African-American female servicemembers. Q. How does "Don't Ask, Don't Tell" harm women in the
military? A. It makes them -- if they are at all unliked by a person
in their unit, if they are too aggressive, if they look too mannish, if they push too hard, it makes them vulnerable to discharge, to the end of their military careers, and it creates a liability for servicewomen that similarly situated servicemen just don't have. Q. And why does it create a liability for servicewomen
that men don't have? A. Because servicemen are not assumed to be lesbians
nearly so quickly as servicewomen are assumed to be lesbians -- that is, servicemen assumed to be gay as servicewomen assumed to be lesbian. MS. FELDMAN: questions at this time. THE COURT: Thank you. We'll take our Your Honor, I have no further
Let's take our afternoon recess. afternoon recess for 15 minutes. Thank you. You may step down.
404 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. SIMPSON: Q. A. Q. Professor Hillman, good to see you again. Likewise. Would it be fair to say that -- I think you've already (Recess taken from 2:29 p.m. to 2:46 p.m.) THE COURT: Mr. Simpson, you may inquire. Thank you, your Honor.
MR. SIMPSON:
CROSS-EXAMINATION
testified to this -- the focus of your scholarship is military justice? A. Q. A. Q. A. Q. Yes. You write a lot about courts martial? Yes, I have. You do a lot of research on courts martial? Yes, I have. I believe you said that your master's thesis was on
women's uniforms at the military service academies? A. Q. Yes. Your thesis was later published under the title, quote,
Dressed to Kill, question mark, the paradox of women in military uniforms? A. Q. Yes. And among your current work, you're currently working
on a book entitled, quote, Fair Targets, question mark, American Bombing: World War II to the Present?
405 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes. I believe you testified on direct that you published in
a journal called Politics and Society (sic)? A. Q. A. Q. Yes. That a peer-review journal? Yes. Peer review is an essential element of rigorous
scholarship; correct? A. Q. Yes. How many pieces have you published in Politics and
Society? A. Q. A. One piece. Have you published any other peer-reviewed pieces? I have, otherwise, published in law reviews, and that's The coin of the realm there
because I'm on a law faculty.
is, generally, the law review which isn't subject to the same peer-review process that other disciplinary journals are. Q. So that one piece in Politics and Society was your only
peer-reviewed piece? A. Q. A. Q. Yes. What was the subject of that piece? Sexual violence in the U.S. military. Now, are you familiar, Professor, with an entity and
organization known as the "Palm Center"? DEBORAH D. PARKER, U.S. COURT REPORTER
406 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Yes. Can you describe that organization to me? Yes. It is a think tank that sponsors research and
publishes materials terms related to sexual minorities in the military. Q. That's also an advocacy organization that advocates for
the repeal of "Don't Ask, Don't Tell"; correct? A. Q. A. Q. Yes. You are the legal co-director for the Palm Center? I am one of three, yes. Now, regarding your service in the Air Force, you were
on active duty for seven years? A. Q. Yes. During what percentage of that period were you
fulfilling service obligations in return for educational assistance from the military? A. That's a little hard to answer. I initially owed the
Air Force four years on active duty, but I decided to stay in after those four years. So I did stay three more years.
But I incurred an initial service obligation, because I went to graduate school for my position at the Air Force academy, so I -- because I incurred that additional obligation, I was fulfilling a commitment throughout that time. Q. So 100 percent of your time in the military, you were
fulfilling service obligations in exchange for educational DEBORAH D. PARKER, U.S. COURT REPORTER
407 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 assistance? A. That's not true, actually, because the year that I was
in -- when I started my graduate degree at the University of Pennsylvania, I no longer had an active duty service commitment. So during that time, I don't think that I was;
but otherwise, I was. Q. But that one year, did that then fulfill part of your
service obligation that you incurred later for your master's? A. Q. No. Okay. Actually, you left the military a little bit
before fulfilling your final service obligation? A. Q. I did. You had to pay back some of the money from your
master's degree? A. I left the Air Force, I think, 55 days early, because I
wanted to start law school at the -- I had to start at the beginning of the semester, so I did -- I did ask to leave a few days early and the Air Force was trying to get rid of people at that point and they happily agreed. Q. So you had to pay -- excuse me. You had to pay back some of the money from your Master's Degree? A. Q. I did. Now, I think, you already testified to this. DEBORAH D. PARKER, U.S. COURT REPORTER While you
408 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were in the Air Force you were never deployed to a combat theater? A. Q. That's correct. You have no personal experience with what goes on in a
combat area? A. Q. A. Q. Correct. You were never stationed overseas? Correct. Now, regarding what you testified in relation to the
impact of "Don't Ask, Don't Tell" on female servicemembers, you're not saying that there's a broad scale intent to impact female servicemembers disproportionately; correct? A. Q. True. In other words, the disproportionate impact on female
servicemembers is not deliberate? A. That's true. I don't think it is the intent of the
leaders of the military or civilian government leaders to disproportionately punish women under the policy. Q. The disproportionate impact on female service members
is not evidence of malice? A. That's correct. I believe it's evidence of the
policies, gender impact, but it's not evidence of malice towards women. Q. I agree with that.
Now, Professor, I believe you said that some of the
information you're relying on in relation to the impact on DEBORAH D. PARKER, U.S. COURT REPORTER
409 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 women came from SLBM? A. Q. A. Q. A. Q. A. Q. Yes. Is that "Servicemembers Legal Defense Network"? Yes. That's not a government organization? No. That's a private entity; correct? It is a nonprofit, yes. Does SLDN advocate for repeal of "Don't Ask, Don't
Tell"? A. Q. Yes. Now, I believe you testified regarding "lesbian
baiting." Are you familiar, Professor, with the hearings before Congress that occurred before "Don't Ask, Don't Tell" was enacted? A. Q. Yes. Are you aware that a Judith Stiehm provided testimony
before Congress? A. Q. Yes. And are you aware that Judith Stiehm provided testimony
regarding this phenomenon that you've called lesbian baiting? A. Q. Yes. And no one listened to her.
Nevertheless, that testimony is included within the DEBORAH D. PARKER, U.S. COURT REPORTER
410 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 legislative record; correct? A. Q. Yes. A voice in the wilderness.
So, presumably, Congress considered evidence of that
phenomenon in enacting "Don't Ask, Don't Tell"? A. I don't believe that everything mentioned in the
hearings received the same weight as other aspects of testimony during the hearings, but it did appear in that -in the record there, yes. Q. You don't have any basis to testify that Congress did
not consider that testimony? A. My basis would be the response of the members of They did not follow up with her
Congress listening to that. on her statements. base my opinion on. Q.
But it's all in the record what I would
So, again, your -- in making that statement, you are
assuming because of the passage of "Don't Ask, Don't Tell" that they did not consider Judith Stiehm's testimony? A. Q. No. I'm not assuming that.
What other basis do you have for believing that they
did not consider that testimony? A. The extent of follow-up questions and discussion
related to Professor Stiehm's testimony. Q. Again, you don't dispute that the evidence is in the
legislative record? A. No, I do agree. I said that.
411 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Professor, are you aware that the Department of Defense
has recently issued new regulations regarding "Don't Ask, Don't Tell"? A. Q. Yes. Those regulations -- is it true, that those regulations
limit what constitutes credible evidence of homosexual conduct? A. Q. Yes. Would you agree that those regulations make more
difficult the use of lesbian baiting to discharge a female servicemember? A. Q. They might, yes. Would you agree, Professor, that most discharges under
"Don't Ask, Don't Tell" result from a statement? A. Q. Yes. Maybe I should go back a little bit on that. This
charge under "Don't Ask, Don't Tell" fall either within one caused by a statement or one caused by conduct, and act; correct? A. Yes, although there is a very blurred distinction I do know that the numbers
between statement and conduct.
of discharges that the government attributes to statements of sexual orientation accounts for the lion's share of discharges under the policy. Q. Do you know what that percentage is? DEBORAH D. PARKER, U.S. COURT REPORTER
412 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. I believe it's upwards of three-quarters. That are attributable to statements? Yes. Now, I think you said that there are several
circumstances that may contribute to the disproportionate impact of "Don't Ask, Don't Tell" in female servicemembers; correct? THE COURT: I'm sorry. Could we go back a moment?
When you asked the witness the question about three-quarters of the discharges were due to statements rather than conduct, was that limited to female servicemembers, or both male and female? BY MR. SIMPSON: Q. What is the answer to that from your standpoint,
Professor? A. That is a disaggregate -- that is an aggregate So it is for all discharges, not only women. I
statistic.
don't know the percentage for only women, the statement versus conduct. Q. Now, going back -THE COURT: servicemembers? THE WITNESS: BY MR. SIMPSON: Q. So, Professor, going back to the circumstances that may DEBORAH D. PARKER, U.S. COURT REPORTER Yes. I'm sorry. So that statistic is all
413 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 contribute to the disproportionate impact, one of those circumstances is that the percentage of lesbian women in the military is estimated to be higher than the percentage of gay men in the military; correct? A. That's not one of the reasons that I gave, but that is
one of the reasons often asserted. MR. SIMPSON: THE COURT: (Pause.) BY MR. SIMPSON: Q. Professor, did you give a deposition in this case Just a moment, please, your Honor.
Certainly.
earlier this year? A. Q. A. Yes. Deposition was on March 3rd, 2010? Yes. THE COURT: up a transcript? MR. SIMPSON: (Pause.) BY MR. SIMPSON: Q. Did you -- you were sworn to tell the truth in that Yes, your Honor. Excuse me. Are you about to hand me
deposition? A. Q. A. Yes. And you did tell the truth? Yes. DEBORAH D. PARKER, U.S. COURT REPORTER
414 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SIMPSON: If we could hand up -- handing a
copy of the transcript to opposing counsel and to the witness. THE COURT: (Pause.) MR. SIMPSON: I'm going to be referring, your Page 68, lines 4 You may approach. Thank you.
Honor, to page 68, lines 4 through 20. through 20. THE COURT: Any objection?
MS. FELDMAN: THE COURT: BY MR. SIMPSON: Q.
No objections, your Honor.
Go ahead.
Is it true, Professor Hillman, that in your deposition
you testified as follows: Question: Professor, have you seen any research
on the percentages of male versus female servicemembers who are likely homosexual? Answer: Yes. And if you remember, what percentages
Question: have you seen? Answer:
I don't remember exactly. Were the percentages of lesbian women
Question:
higher than the percentages of gay men in the military? Answer: that, yes. DEBORAH D. PARKER, U.S. COURT REPORTER Yes. Generally the guesstimates about
415 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Question: Would that be one reason for
disproportionate impact on women? Answer: Yes. But it fails to explain the extent
of the distinction of the disproportionate impact on women. So that, again, is one of the reasons for the disproportionate impact? A. No. I don't read anything here to say that we know
there are more lesbians percentagewise in the military than there are gay men. If there are, then yes. It would be a
reason for disproportionate impact. Q. Okay. Thank you, Professor.
Another circumstance that may contribute to that disproportionate impact is that -- I think you already testified to this -- women who choose to take on the traditionally masculine role of the soldier are more vulnerable to allegations of homosexuality than men? A. Q. Yes. I think you called it on direct a "nontraditional
career choice for women"? A. Q. Yes. Another circumstance that may contribute is that men in
the military are more likely to be married than women in the military? A. Q. Yes. Therefore, to the extent that male servicemembers are DEBORAH D. PARKER, U.S. COURT REPORTER
416 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 married, that is, married to women, they are less likely to be suspected of homosexuality than are the unmarried women in the military? A. Q. Yes. I believe when you were testifying on direct,
Professor, one of the things you said in relation to the potential reasons for this disproportionate impact -- I may have misunderstood your testimony -- but I believe you said that only men are eligible for the draft. Isn't it correct -- this is a minor point. Isn't
it correct that there is, of course, no draft currently in the United States? A. No military draft?
There is no draft, yes, but there is Selective Service
registration that only young men on their eighteenth birthday have to register with the selective service. So we
still do have a statute in place that makes men vulnerable to conscription and women exempt from that burden. Q. Now, Professor, you testified that Congress -- I
believe you said did not focus on -- I believe was your terminology -- the impact on women in enacting "Don't Ask, Don't Tell"? A. Q. Yes. Now, in fact, you're aware that Congress was presented
with the issue of sexual harassment of women if homosexuals were precluded from service; correct? DEBORAH D. PARKER, U.S. COURT REPORTER
417 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. You mean in Professor Stiehm's testimony? Well, actually, are you familiar with a congressional
research service report that is contained in the legislative history? A. Q. Yes. In fact, I'll have you pull out JX344, first of all,
page 20. Does this appear to be the title page for that Congressional Research Service report, Professor? A. Q. Yes. So, this is a report submitted to the Senate Armed
Services Committee from Dr. Burcelli -- I'm sorry, Burelli of the Congressional Research Service? A. Q. A. Yes. That's what it says.
Have you seen this before? Not recently. But I have looked at all the CRS reports So at some point,
related to homosexuals in the military. yes, I have seen this. Q. A. Q. Okay.
If we could turn to pages 50 and 51. What number is this? 344.
I'm sorry. Yes.
This is JX344.
We'll be showing it to you on the
screen here, Professor. Professor, you are aware that you can see on the screen in front of you what we are referring to? A. Yes. DEBORAH D. PARKER, U.S. COURT REPORTER
418 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. And if I can just read that to you.
On page 50, at the bottom the paragraph, it starts out saying: Critics of the policy have posited that the
current policy encourages the harassment of women in uniform. They argue that women who refuse sexual advances
by their male counterparts are labeled or threatened to be labeled lesbians. In one case an army staff sergeant finally confided to a friend that she was a lesbian in an attempt to deflect his sexual advances. This revelation was turned
over to the criminal investigation command which launched a three-month investigation into the staff sergeant's sex life that those involved say included telephone taps and hostile interrogations resulting in the staff sergeant's administrative discharge. In other reported incidents, lesbians in uniform have, quote, married, close quote, men in an effort to protect themselves from sexual advances or suspicious investigators. In rebuttal, it has been argued that sexual harassment for whatever purpose is against military regulations. While the services have been under vigorous
scrutiny following revelations of incidents concerning sexual harassment, the contention that women can be harassed by threats of exposing her as a homosexual parenthesis, DEBORAH D. PARKER, U.S. COURT REPORTER
419 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes. And then at the bottom of page 51, going to the top of i.e., lesbian baiting, close paren, have been made. In
these instances, DOD policies excluding homosexuals is viewed as a vehicle for sexual harassment. You saw that in there, Professor?
page 52 -- if we could pull those up. After going through that discussion, the author says -- the sentence that goes from page 51 to page 52: From this point of view, eliminating the policy on homosexuals would not end harassment and may, actually, broaden the number of forms it can take. Now, it's fair to say, then, that Professor Burelli reached a different opinion than the one you have; correct? A. Q. Yes. You don't dispute that the Senate Armed Services
Committee received this report? A. No. This is -- this is a -- two brief paragraphs in a
quite -- in a big legislative record and a relatively extensive report. It draws on the literature from Dacowits,
the committee created in 1951 to track issues related to women in the military. It does not reflect an extensive
study of the issue the way that the GAO and RAND reports of the same era do. It reflects what I would consider an
420 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cross. BY MS. FELDMAN: Q. Professor Hillman, I wanted to ask you about two of Your book, Defending anecdote and draws a conclusion rather than an extensive scholarly study. Q. You refer to the GAO reports and the RAND report. They
were also submitted to Congress; correct? A. Q. Yes. Would it be fair to say, Professor, that you simply
disagree with Congress' conclusion after analyzing these things in enacting "Don't Ask, Don't Tell"? A. I certainly disagree with Congress' conclusions. But
that doesn't affect whether or not they fully considered the issue of the impact on women of adopting the policy. MR. SIMPSON: THE COURT: No further questions, your Honor.
Thank you.
Redirect examination. REDIRECT EXAMINATION
your books that you have published.
America, Military Culture and the Cold War Court Martial, do you recall who published that book? MR. SIMPSON: Your Honor, beyond the scope of
I don't know where we're going here. THE COURT: Well, I think it's within the scope,
because I believe that your first couple of questions on cross were about whether or not her publications were DEBORAH D. PARKER, U.S. COURT REPORTER
421 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reliable? A. Q. Yes. They were the government's own statistics. peer-reviewed journals, so I believe this goes to the quality of the publishers of her publications. MS. FELDMAN: THE COURT: Go ahead. BY MS. FELDMAN: Q. A. Q. Do you recall who published that book? Princeton University Press. And your military justice cases and materials, that Yes, your Honor.
The objection is overruled.
case book we discussed earlier, who published that? A. Q. Lexis-Nexis. Mr. Simpson was asking you about the SLDN annual
reports and you testified earlier that you relied on statistics from those reports. Have you found those SLDN statistics to be
Can you explain what you mean by they were the
government's statistics? A. SLDN requested the information from the government in We rely in this arena almost
order to draft those reports.
entirely on what is self-reported by the military about discharge statistics. Q. Mr. Simpson was asking you questions about new
regulations that are currently being discussed. DEBORAH D. PARKER, U.S. COURT REPORTER
422 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. BY MS. FELDMAN: Q. Professor Hillman, are women still marrying men in the Are you aware of any studies, analyses, reports, or data on the impact of these new regulations on women in the military? A. Q. No. They're too new.
Just a second ago, we had Exhibit 344 on the scene,
pages, I think, 50 to 52 and you mentioned that you have believed that evidence was anecdotal. Are you aware -- in your opinion, are women still reluctant to report sexual harassment because of "Don't Ask, Don't Tell"? A. Q. Yes. In your opinion, are women still marrying men as a
result of "Don't Ask, Don't Tell"? MR. SIMPSON: Your Honor, I'm sorry. Objection.
We are beyond the scope of cross. THE COURT: This was specifically asked about on
cross about women -- well, this was specifically asked about on cross-examination. The objection is overruled. Do you remember the question? THE WITNESS: Could you, please, repeat the
military in order to avoid accusations of violating "Don't DEBORAH D. PARKER, U.S. COURT REPORTER
423 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ask, Don't Tell"? A. Q. Possibly. In your opinion, does "Don't Ask, Don't Tell" reduce or
increase sexual harassment against women? A. I think it increases the potential for sexual
harassment against women. Q. Can you give examples of what you mean by sexual
harassment against women in the military? A. There are many examples in the DOD surveys of Individuals changing the passwords of women in
harassment:
the unit to invoke slurs about homosexuality; repeated and unwanted advancement, sexual advancement that a women attempts to rebuff but she's accused of being a lesbian because she's not interested in the advances of a man. The forms that sexual harassment can take in military workplaces are much like the forms they take in civilian workplaces. Q. Do you consider violence against women a form of sexual
harassment? A. I think there is a spectrum of sexual harassment, and I
believe that assaults -- sexual assaults and other violent assault is at the far end of the spectrum of sexual harassment against women. Q. Do you think "Don't Ask, Don't Tell" increases violence
against women? DEBORAH D. PARKER, U.S. COURT REPORTER
424 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 markings. Did I have the objections? MR. GARDNER: You should have both, your Honor. A. I think that measuring the incident of violence against But I think "Don't Ask, Don't So
women is very difficult.
Tell" disfavors women's ability to protect themselves.
in that sense, I do believe the policy encourages and makes space for more violence against women. MS. FELDMAN: questions. THE COURT: Thank you. Your Honor, I have no further
You may step down. Plaintiff may call its next witness. MR. WOODS: What I would, actually, like to do
now, your Honor, is introduce into the evidence the 30(b)(6) depositions that we have to present to you. marked in accordance with your requirements. THE COURT: Right. I saw the designations, but I So although I had They have been
didn't have the deposition transcripts.
the markings without the transcripts, I could not -I'm trying to remember. I know I had the
If may, though, because -MR. WOODS: Excuse me, Counsel. Could I finish
what I'm doing, please? MR. GARDNER: Your Honor, may I address --
425 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 be clear. THE COURT: Just a moment.
Do you want to do all three of them? MR. WOODS: THE COURT: Yes. All right. And there's three
witnesses whose depositions you took under 30(b)(6)? MR. WOODS: THE COURT: Yes. You may hand them up.
What are their names? MR. WOODS: Their names are Dennis Drogo, DROGO;
Paul Gade, G-A-D-E and Colonel Jamie Scott Brady. THE COURT: (Pause.) MR. WOODS: I'm not sure how the court would All right. You may approach.
prefer to handle these, as there are some objections and there's also the related issue of -- some of the exhibits to the depositions are exhibits that I would like to offer into evidence, based on that deposition testimony. Now, I do not -THE COURT: MR. WOODS: Some of which is objected to. Presumably, yes. However, I want to
I'm not offering into evidence all of the
exhibits that were marked for identification at the deposition. I can tell you when it's convenient for you
which ones I would intend to offer from these depositions. THE COURT: All right. Why don't you --
426 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 weeks. Do you have them listed separately for each deposition? MR. WOODS: My notes, yes. I don't have them
typed in the form I can give -THE COURT: No, no. I don't need them typed. And
you have them by the deposition marked on the -- exhibit number from the joint exhibit list. MR. WOODS: Yes, your Honor. The same numbers we
used both at the deposition and on the joint exhibit list. MR. GARDNER: Your Honor, can I make a suggestion?
This is the first I've heard that there are certain exhibits they want to introduce with 30(b)(6). Because this is a bench trial and because both parties' objections are noted for the record, my suggestion is that plaintiffs' counsel can inform the government as to which exhibits they which to introduce through the deposition designations. We can discuss it. We can lodge
whatever objections we have, and we don't have to take up valuable court time doing this here. We have 17 witnesses in this case, your Honor, two This doesn't seem to be the most efficient use of
court time to read in deposition designations in a nonjury trial. THE COURT: I don't think it's being suggested That's not --
that we're going to read this testimony in.
427 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Is that what is being suggested? MR. WOODS: No, your Honor. Okay. I understood separately,
MR. GARDNER:
your Honor, that he does want to read it in, having you resolve these objections seriatim. If that's not the case,
I stand corrected, but that was certainly my impression. THE COURT: Well, wait a minute. I think --
Well, first of all, we are talking about two different things: First, we are talking about introducing That's what --
the deposition testimony. MR. WOODS: THE COURT: it into the record. MR. WOODS: your Honor.
Correct. And we are not talking about reading
That is not what I was suggesting,
I assume that the process that we followed in
accordance with your rules of marking the original pages in different colors and noting objections in the margins and so forth was your way of telling us that you would read them at some point in time when you thought it was appropriate to do that. THE COURT: different colors. MR. WOODS: some point. I think we even ran out of pink at Exactly. And thank you for using the
But we did what we could to comply with the
process that you would like us to do. DEBORAH D. PARKER, U.S. COURT REPORTER
428 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: I hate to tell you this, but I think It's not necessary to mark each
you, actually, overdid it.
line, but it's lovely that you did. So if what you want to do in the order in which you want to your case on, is now is when -- we can put another witness on now; and then, tonight I'll read this. MR. WOODS: I just want to get this to you now and
also advise you and opposing counsel which exhibits from the depositions we wish to offer into evidence so that when you read them, you have that in mind, too. THE COURT: All right. Why don't you list the
exhibits; and then, I can hear from the defense which ones they object to. Let me get the exhibit list here. interesting. It's very
Just as an aside, every bench trial, every set
of attorneys interprets that order a little differently. And I have no quarrel with the way you did it. done more than any other sets of attorneys. just ignore it. though. I have something in mind with my order, but it's just interesting to me that everybody reads it entirely artistically different with the markings. you've done it this way. All right. Exhibits. But, obviously, You have
Some of them
I've never seen it done quite this way,
429 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it. MR. WOODS: Well, I think, your Honor, when MR. WOODS: Yes, your Honor.
From the designated passages from Mr. Drogo's deposition, the exhibits we would offer are Exhibits 65, which is the 30(b)(6) notice itself. THE COURT: Any objection?
There is no objection to that, I take it. MR. GARDNER: It's not a proper exhibit. But, no
objection other than that. MR. WOODS: THE COURT: 66. 65 is admitted.
(Joint Exhibit 65 received in evidence.) THE COURT: 66. 66, we have the relevance objection. Well, I'll have to look at
MR. GARDNER: THE COURT:
All right.
counsel is talking about relevance, he's talking about the overarching relevance objection I make to any of our evidence. MR. GARDNER: THE COURT: Incorrect.
What's your objection? It is a relevance objection and the This document, which you can
MR. GARDNER:
specifics of the objection is:
see, is about enlistment waivers and the notion -THE COURT: I'm sorry. Is that the same thing as
430 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what some of the witnesses have called a "moral waiver"? MR. GARDNER: moral waivers. The majority of them are called
They are called properly enlistment waivers
by the military. And simply put, your Honor, the issue of enlistment waivers is entirely irrelevant. Absent the fact
that this is a facial challenge, absent the fact that there's a legal question, the issue of enlistment waivers is simply an irrelevant issue in this case. THE COURT: Next. MR. WOODS: 67, your Honor. We object to 67. It's a law review We'll look at the document.
MR. GARDNER: article, your Honor.
We object on relevance grounds,
hearsay grounds, hearsay within hearsay grounds and foundation grounds. THE COURT: Now, let me back up a minute.
Drogo is an expert witness? MR. WOODS: He is a 30(b)(6) witness, your Honor,
who is designated to testify about enlistment waivers by the government. MR. GARDNER: MR. WOODS: relate to. MR. GARDNER: And Mr. Woods is correct that we Correct.
And so, that's what these two exhibits
431 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Dr. Gade. designated Mr. Drogo on the topic of enlistment waivers. Mr. Woods, during the deposition, showed him a University of Miami Law Review article as part of the deposition. There is simply no basis for a University of Miami Law Review article to be admitted as evidence. THE COURT: Well, I would have to read what his
testimony is before I determine whether it's relevant, so I'll take that under submission. MR. WOODS: Let me just be clear, your Honor. I
don't want to comment on the objection, but the -- or the demeanor in which the objection is presented. But the pertinent part of this law review article is a chart that reflects numbers of discharges and the witness' testimony about numbers of people in the military. It's not about some law review article as such. But let me move on. The next deposition is
And from that deposition -THE COURT: There are only three incidents as to
the Drogo issue? MR. WOODS: Yes, your Honor.
From Dr. Gade, the exhibits I would offer would be beginning at 69, 70, 71, 72, 73, 74, 75 and 76. skipping others that I'm not introducing. Those are the only ones from Dr. Gade's DEBORAH D. PARKER, U.S. COURT REPORTER And I'm
432 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hearsay. deposition. THE COURT: All right. Objections to any of
Exhibits 69 through 76? MR. GARDNER: Correct. And I'll take them one by
one, because they are different for different exhibits. From Joint Exhibit 69, it is relevance. It is hearsay within hearsay. It is
It is foundation.
It is authentication. THE COURT:
And it is incomplete. So you're challenging that it really
is an excerpt from the U.S. Army Research Institute publication? MR. GARDNER: To be clear, Gwyn Harries-Jenkins is And, presumably, if they
not a DOD employee, your Honor.
want Mr. Harries-Jenkins' views, he would take the stand and explain, This is what I did. The fact that it comes from DOD doesn't authenticate the document. documents. I know your view about authentication, your Honor. I respect your view. But, frankly, just because it comes DOD has a lot of third-party
from DOD's files, it does not authenticate the document. MR. WOODS: Let me be clear, your Honor.
This report was prepared by the Deputy Chief of Staff of Personnel of the United States Army. so testified at page 33 of the deposition. The witness
The witness also
433 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 testified that he participated in the preparation of the report. MR. GARDNER: your Honor. The court can read the transcript,
But none of the facts Mr. Woods stated
overcomes the hearsay, hearsay within hearsay, relevance. THE COURT: It all depends on what it's being
offered for, and that depends -- I'll have to read the deposition to determine that. So I'll take that one under advisement. MR. GARDNER: THE COURT: Your Honor --
Let's see -- counsel, counsel, in
order for this record to be reasonably clear, you can't speak over me. When both of us speak at the same time, I So
have a pretty good idea of who the reporter takes down. if you want to have your words included in the record, you'll have to wait until I finish speaking. Your objection as to No. 70. MR. GARDNER: No. 70, your Honor, is a --
Joint Exhibit 70, the objections are relevance, hearsay, hearsay within hearsay, foundation and authentication. THE COURT: No. 71. Relevance. And the relevance
MR. GARDNER:
objection is not just some broad objection about a facial constitutional challenge. This is a document, as you will
434 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hearsay. see, which relates to foreign military experiences in Canada. It is irrelevant. THE COURT: All right. 72. Hearsay. Hearsay within
MR. GARDNER: Foundation.
Relevance.
Authentication.
This is an e-mail from a nongovernment employee to a government employee. MR. WOODS: Your Honor, sorry to interrupt, but I
do want to correct something as counsel continues to misspeak about the contents of these exhibits. I don't want
you to be misread before you start reading them. Exhibit 70 is a January 1994 study of the Canadian military experience commissioned by the United States Army Research Institute. The witness performed a technical
review of that study. Exhibit 71 is the witness's comment about Exhibit 70 in which he describes it as a well-written study. Exhibit 72 is not an e-mail from a nongovernment employee to a government employee. It is an exchange of
e-mail messages between the witness produced by the government in response to this 30(b)(6) notice and this other individual in the year 2000 in which they are discussing whether there is any change in the Canadian experience as of that date as compared to the date of the 1974 study. DEBORAH D. PARKER, U.S. COURT REPORTER
435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. GARDNER: THE COURT: Your Honor -I can tell enough from the
All right.
description on the exhibit list that some of these -- I mean -Well, there's just no further discussion. All right. objection? MR. GARDNER: within hearsay. THE COURT: And No. 74. Hearsay -- I'm sorry. 74, Relevance, hearsay and hearsay No. 73, what's the basis for your
MR. SIMPSON: relevance. THE COURT:
And No. 75. Relevance.
76. Relevance, foundation,
MR. GARDNER:
authentication, hearsay. THE COURT: MR. WOODS: THE COURT: MR. WOODS: THE COURT: 77. I didn't offer 77, your Honor. I apologize. Thank you. All right. Then, the last deposition 76 is where you stopped.
which is the deposition of -- oh, Colonel Brady. MR. WOODS: Yes. I have -- from that deposition,
I would like to offer Exhibits 84 -DEBORAH D. PARKER, U.S. COURT REPORTER
436 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I'm sorry. 84 is in evidence, I believe, in a
different document, so -THE COURT: MR. WOODS: Under a different number? A different number, yes. It's the
2005 -- 2005 GAO report. THE COURT: MR. WOODS: 2005. It's the same document as Exhibit 9,
your Honor, which is marked for identification only at this point. THE COURT: only at this point? MR. WOODS: THE COURT: MR. WOODS: (Pause.) THE COURT: MR. WOODS: Go ahead, Counsel. Anyway, your Honor, whether we marked Yes. All right. Any others? I'm sorry. Marked for identification
Just one moment.
it as "84" or "9," I would offer the exhibit as -THE COURT: MR. WOODS: THE COURT: MR. WOODS: Well, let's mark it as 9. Okay. It is marked as 9, so let's call it 9. Yes. So I'll be offering that when
you read that transcript. THE COURT: transcript. DEBORAH D. PARKER, U.S. COURT REPORTER All right. Well, that's for that
437 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time. JX6, the only objection is relevance and that is a DEBORAH D. PARKER, U.S. COURT REPORTER Honor. THE COURT: MR. WOODS: THE COURT: Colonel Brady? MR. WOODS: THE COURT: MR. WOODS: Sorry, no. Also 97, 101 and 102. I'm sorry. 86, 89, 95, 96? MR. WOODS: THE COURT: MR. WOODS: 86, 87, 89, 95 and 96. 86, 89, 95 and 96? I'm sorry. I didn't hear you, your
86, 87, 89, 95 and 96. All right. And that's everything for
102 says "not used." Okay. My apologies, your Honor. The
number was changed along the way, and that's found somewhere else, too. So 97, 98 and 101. THE COURT: MR. WOODS: THE COURT: MR. WOODS: So it's 97, 98 and 101? Yes. 98 is not used either. And 102 is renumbered, your Honor, to
No. 6, so I would offer that as well. THE COURT: 95, 96, 97, 101? Right. Now, objections? All right. Let's do them one at a Let me recap again: 6, 9, 86, 87, 89,
MR. GARDNER:
438 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you. MR. GARDNER: THE COURT: Sorry. general relevance objection to receive evidence in a facial constitutional challenge. Joint Exhibit 9 is also a relevance objection, but for a slightly different reason, your Honor. This is a
document that postdates the enactment of "Don't Ask, Don't Tell" and goes with issues such as costs associated with "Don't Ask, Don't Tell"." That is simply irrelevant to the
court's inquiry in this case. Then Joint Exhibit 86, the objection is relevance. 87, the objection is relevance, hearsay, foundation and it's incomplete. Joint Exhibit 89 -THE COURT: I'm sorry. Let me just catch up with
Just as to the last exhibit as to --
insofar as your objection is based on incompleteness, do you wish to offer the balance of the exhibit? MR. GARDNER: THE COURT: Do I wish to, your Honor?
Yes. No. As to 89?
All right.
MR. GARDNER: foundation.
Joint Exhibit 89, relevance and
Joint Exhibit 95, the objection is relevance. DEBORAH D. PARKER, U.S. COURT REPORTER
439 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hearsay. THE COURT: to this witness? MR. WOODS: THE COURT: Yes, your Honor. The only one I'm going to rule on at And those are all of the exhibits as is. And, here, I would just note, this is an organizational chart from 2008, your Honor. I can't possibly see how this
is relevant, regardless of the standard of review that would apply. Joint Exhibit 96 -THE COURT: Well, it depends on what the testimony
If the witness happens to be testifying that it hasn't But I'll have to read the
changed in 15 years, it could be. testimony of the witness. All right.
What's the next one? Joint Exhibit 96, same objection: This is a defense agency's
MR. GARDNER: Relevance.
Same reason.
organizational chart from 2008. THE COURT: All right. Joint Exhibit 97, the objection is
MR. GARDNER: relevance.
Let me know when you are ready. THE COURT: Go ahead. Joint Exhibit 101, relevance and
MR. GARDNER:
this time would be that very first one, which is Exhibit 6 DEBORAH D. PARKER, U.S. COURT REPORTER
440 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would be: Friday? MR. WOODS: Friday, your Honor, the witnesses which has already been admitted and the rest are under advisement. All right. MR. WOODS: And who is your next witness? Our next witnesses, your Honor, are They are all coming from out of
available tomorrow morning. town.
We moved much faster today than I had expected. THE COURT: All right. So who are your -- who are
your witnesses tomorrow? MR. WOODS: Our witnesses tomorrow, your Honor,
are Joseph Rocha, Aaron Belkin and Michael Almy. THE COURT: MR. WOODS: THE COURT: Belkin is -MR. WOODS: THE COURT: witnesses? MR. WOODS: THE COURT: Yes, your Honor. All right. What's your lineup for An expert. -- an expert. The other two are lay Is that it? I think that should occupy the day. Well, I should know this by now, but
Mr. Meekins, Professor MacCoun and Jenny
Kopfstein, K-O-P-F-S-T-E-I-N. THE COURT: When you were up here at the pretrial
441 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. conference, I thought counsel told me that you had worked out the testimony for Mr. Meekins so that you weren't going to call him as a witness? MR. WOODS: That's a different witness, your We had agreed about Mr. Engle's
It's Mr. Engle.
testimony not being necessary, and that does work out satisfactorily, but -THE COURT: I'm sorry. I made that mistake about Their names
mixing up Meekins and Angle. sound so similar. (Laughter.) THE COURT: calling Angle. MR. WOODS: THE COURT: All right. the stand? MR. WOODS: THE COURT:
I don't know why.
That must be it.
I'm sorry.
So you're not going to be
Correct, your Honor. You worked that out. Meekins. And you're calling him on
Yes, your Honor. All right. So that's Friday.
And what other witnesses remain for next week? MR. WOODS: The plan, your Honor, is on Tuesday
the 20th to have Mr. Nicholson about whom you have heard and Professor Korb -- Dr. Korb. THE COURT: somebody after Korb? DEBORAH D. PARKER, U.S. COURT REPORTER I'm sorry, Nicholson. Did you say
442 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WOODS: Korb, K-O-R-B. And depending on
timing, Anthony Loverde will testify that day, or on the Wednesday. THE COURT: If you finish -- if you finish early
tomorrow, are any of the witnesses from Friday available to come in tomorrow, or are they out of town? MR. WOODS: Mr. Meekins resides in New York.
Professor MacCoun is from Berkeley and Ms. Kopfstein is from San Diego. THE COURT: question is: So, if -- well, I guess, so my Is she
Could Ms. Kopfstein then come up?
available to testify so we don't -- if we finish early tomorrow, if it looks, say, by the noon hour, you're going to run short of witnesses, again. MR. WOODS: THE COURT: We'll inquire about that, your Honor. Will you, please.
And then the witnesses for Tuesday, are they all coming in from out of town? MR. WOODS: THE COURT: Yes. So they wouldn't be available on
Friday afternoon, if necessary? MR. WOODS: THE COURT: MR. WOODS: They would not. Are you planning to finish on Tuesday? No. On Wednesday, the 21st, we have
one other expert, Mr. Okros, who is coming from Canada, DEBORAH D. PARKER, U.S. COURT REPORTER
443 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 whose schedule only allows him to come on that day. And
then, we have one other expert, Ms. Embser-Herbert, again, an expert. And, unfortunately, her schedule only allows her
to come on Thursday, the 22nd. THE COURT: Wednesday? MR. WOODS: It's possible. It depends on what So you only have one witness on
happens on Tuesday and how long the examinations take. THE COURT: Well, you know, of course, better than
I do, but I would -- my suspicion is Mr. Nicholson will take a while. Do you agree? MR. WOODS: Yes. I don't think so from our
MR. GARDNER:
perspective, your Honor. THE COURT: witness -MR. WOODS: THE COURT: Yes, your Honor. -- correct? All right. And Korb is an expert
Well, I'm wondering if -- so Wednesday, the witnesses -- the expert who is testifying on Wednesday and the expert who is testifying on Thursday, those days -those days aren't very flexible is what your position is. So I mean, that's fine with me. I'm wondering if -- the defense side is here from DEBORAH D. PARKER, U.S. COURT REPORTER
444 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 D.C., if you want to have a longer weekend, you could maybe not be here on Tuesday. Have you talked about that? MR. GARDNER: questions. I guess I have a couple of
One, are we not having court on Monday? Well, I have court on Monday. We do not have court on Monday. It's the longest day of
THE COURT:
I have court.
the week for me, usually, Monday. MR. GARDNER: THE COURT: Understood.
So I just don't want to -- I think you
are under the impression that it's a vacation day here, but -MR. GARDNER: THE COURT: I wasn't thinking that. We have So you don't
I didn't think you were.
court on Monday, but there isn't room for you. have to be here on Monday.
So that's why I was thinking
now, if you're staying here, anyway, but if you would rather have a longer weekend and the witnesses who are scheduled to be here Tuesday -- and I don't mean by "weekend" that you're taking a vacation day either. But if you wanted to go home, if you put the Tuesday witnesses on for Wednesday or even Thursday -because that would give you Friday to argue. what your preference is. DEBORAH D. PARKER, U.S. COURT REPORTER I don't know
445 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 week? MR. FREEBORNE: Yes. But I think, really, the If they have -- they And I know that Mr. Freeborne may have -MR. FREEBORNE: that Saturday. THE COURT: Which Saturday? The following Saturday, a week I have vacation plans starting
MR. FREEBORNE:
from this coming Saturday. THE COURT: So you're planning to be here next
burden is on the plaintiff here.
should have their witnesses available to go Tuesday, Wednesday, and we should -THE COURT: Well, they are. They do have -- what
I'm wondering, just for the convenience of everyone, I'm trying to -- including the witnesses, including all counsel. But rather than have -- it doesn't matter to me, especially. I mean, I'm here. You're coming from across the country. are coming from all over the place. coming from Los Angeles. What I'm wondering for everyone's -- minimize the inconvenience is -- if we're going to have -I can't really gauge this. But if it looks like Witnesses
Plaintiffs' counsel is
Wednesday and Thursday we might not fill up the days, if we move the Tuesday witnesses to those days, if you would DEBORAH D. PARKER, U.S. COURT REPORTER
446 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 prefer to have -- you, meaning the defense side and maybe the plaintiffs' side -- I don't know. But the Saturday,
Sunday, Monday and Tuesday, as far as you are concerned dark; and then, put -- and come back on Wednesday, Thursday, as long as we finish by Friday. Are these all of your witnesses? On this
schedule, do you think you would finish if you put your witnesses, on the remaining witnesses on Wednesday, Thursday and argue on Friday? MR. WOODS: THE COURT: MR. WOODS: Yes. Would that work? That would work.
The only other task I see ahead of us, your Honor, is I have a number of government-produced documents to offer into evidence. And given how things have gone, I expect
there to be objections that would have to be resolved and argued. But I have -- but other than that, I'm agreeable to your plan, if that suits your convenience and counsel's convenience. MR. FREEBORNE: Your Honor, I don't think it's
practical for us to fly home. THE COURT: If you are planning to stay here
anyway, then we'll just go ahead on Tuesday. MR. FREEBORNE: What is the court contemplating in
447 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 problem. Well, those are famous last words. MR. FREEBORNE: THE COURT: So I think we should stick -Because I think terms of closing argument? We do have -- I have flight plans midday Friday. THE COURT: I think we wouldn't have any -- well,
when you say "midday," you mean 11:00? MR. FREEBORNE: THE COURT: 2:50.
Out of? Out of Ontario.
MR. FREEBORNE: THE COURT:
I don't think that's going to be a
So let's do that.
then we could, even if we started a little early, if necessary, on Friday, I don't think that's going to be a problem. MR. WOODS: It's even possible, your Honor, that
we could begin argument on Thursday afternoon. THE COURT: I think that's fine. Your Honor, one thing I just want to
MR. GARDNER:
raise with you for your consideration is that now that you heard from Dr. Frank, he has covered the absolute waterfront. In terms of all the other expert opinions, you And I would urge you with respect
have the expert reports.
to Dr. Okros, for example, who is going to testify solely about the Canadian experience, Dr. Frank testified about DEBORAH D. PARKER, U.S. COURT REPORTER
448 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that today. They want to put on Embser-Herbert next Thursday about the disproportionate treatment of female servicemembers. Dr. Hillman. Same thing is true with Dr. Belkin and Dr. Korb. Their opinions are cumulative of what Dr. Frank had to say. So if we are considering the schedule, I would urge this court to reconsider the 403 cumulative objection we made in our motion in limine, with respect to experts, particularly in light of Dr. Frank's opinions yesterday and today. THE COURT: MR. WOODS: Mr. Woods. Well, your Honor, this is, again, You heard from that this afternoon from
regurgitation of an argument that they made before which you have already ruled on. And there is no law, first of all, But even if there
that limits us to one expert per subject. was, the experts are different.
Dr. Frank didn't explain in any sort of detail the Canadian military experience, which is the focus of the testimony of Mr. Okros. No one has of yet explained in
detail the concept of unit cohesion, which is the subject of Professor MacCoun's testimony. It's impossible to -THE COURT: Well, let me ask you this: The one
449 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 area of overlap which I -- if I remember correctly, I believe was the area of a question at the time of the pretrial conference was, potential overlap between Professor Hillman and Professor Embser-Herbert, if I have his name correctly. a moment. What's the distinction between the testimony of those two experts? MR. WOODS: Well, I think there are differences. You may want to focus on that for just
But I appreciate that I thought Professor Hillman did an outstanding job today, explaining to you the impact that this policy has had on women. I thought she did so In light of that, we
persuasively and very convincingly.
are happy to go back and revisit the notion of whether, or to what extent we need Professor Embser-Herbert. I'm not calling people just to pile on. I
appreciate that you have better things to do, and I certainly also have better things than call duplicative witnesses. That has never been our objective. And I
guarantee you we will not call Professor Embser-Herbert, unless there is a darn good reason to do so and that her testimony will not duplicate what you heard from Professor Hillman today. THE COURT: impression. Well, I'm not trying to give the
This is not the first case I've said this in.
450 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 world. is. But I'll say it, because I don't want to give this impression. I'm not trying to give the impression that I
have better things to do. MR. WOODS: is what I meant. THE COURT: Everyone in this courtroom I'm sure I know you are incredibly overworked
But, you know, from time to time -- and I'm not I just want to make it clear
faulting what you just said. to both sides.
I'm trying to give both sides all the time
that both sides deserve for your arguments and your testimony and your examinations. I know that both sides feel -- I can't overstate how strongly both sides feel about their case. to understand that. I'm trying Every
I believe I understand that.
time someone -- every time someone says -- and it's a defendant who is being sentenced, or anyone says I don't want to waste the court's time, I just feel it's important -- it's humbling for me, because I feel like I need to say, This is what my time is supposed to be for. And I'm trying to listen to your arguments, carefully. The other side, whichever side I'm listening to,
the other side feels I'm giving too much time to, usually. I appreciate that, too. But I really --
Every case is the most important case in the I could not overstate, certainly, how important this DEBORAH D. PARKER, U.S. COURT REPORTER
451 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question: case is to both sides. I don't begrudge the time. I'm just
trying to, for both sides, use your time efficiently, as well as my time so that I can give the amount of thought that needs to be given to both sides in this case, because there's -- there's a lot of time -- not a lot of time -All things considered, not that much time in the courtroom that this case is requiring, but there's a lot of time outside the courtroom in terms of the amount of thought that I have to give to this case. time to it as well. And I want to give that
It's probably going to require more
time in terms of my thinking than it will in the courtroom, and I'm sure you all appreciate that. So that's all. In terms of the amount of time
next week, I think we've got plenty of time, court time. I'm not worried about that. I just want to use your time in
a way that it doesn't affect your personal lives any more than it has to and that we use the court time efficiently. MR. FREEBORNE: Your Honor, may I ask just one
What is the court contemplating in terms of
posttrial briefing? THE COURT: There may be -- right now, I take a
lot of notes for various reasons and I do put some notes in there as we go along. Sometimes, they're resolved as But some of the notes are about
another witness testifies.
things I may want to be asking you about, either to address DEBORAH D. PARKER, U.S. COURT REPORTER
452 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case. in your argument what I -- what I normally do is the day before you're going to argue, or even if it's the evening before, I sort of tell you: I think that are -They may be just factual things, or they may be legal arguments I would like you to focus on in your argument. And if they are things that require research, I Here's a couple of things that
will allow the parties to submit posttrial briefs. I don't know if it's going to be necessary in this If the parties desire to, or if I think it's It's a case-by-case thing.
necessary, then I will allow it.
I always try to avoid it, but most of the time there's at least one issue that needs it. But I think in this case we are going to have plenty of time to have a couple of hours -- I don't know that's it's going to require a couple of hours. But we're
going to have plenty of time for argument in this case, so it's not as though we're going to use posttrial briefs as a substitute for oral argument, if that answers your question. All right. 9:00 o'clock. MR. FREEBORNE: THE COURT: Thank you, your Honor. I'll see you tomorrow morning at
Thank you.
(At 3:54 p.m., proceedings were adjourned.) -oOoDEBORAH D. PARKER, U.S. COURT REPORTER
453 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEBORAH D. PARKER, U.S. COURT REPORTER ____________________________________ Deborah D. Parker, Official Reporter Date: July 14, 2010 CERTIFICATE I hereby certify that pursuant to Section 753, Title 28, United States Code, the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.

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Case 2:04-cv-08425 Trial Day 2 Vol 3

ELIZABETH L. HILLMAN, PH.D.

You may inquire. MS. FELDMAN:

Yes, your Honor.

inactive reserves. DEBORAH D. PARKER, U.S. COURT REPORTER

operations officer and as a strategic analyst.

Force? A. Well, before I came on active duty, I worked at the And

strategic defense initiative office for a few months.

undergraduate space training.

DEBORAH D. PARKER, U.S. COURT REPORTER

I worked with a historian of the office

You're at about like a 78.

-- because we want to get everything

DEBORAH D. PARKER, U.S. COURT REPORTER

358 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: How about to the point which started

That's about as much as I -- you're so So even though she's --

fast, I can't even hear you.

operational officer? A. I was at Cheyenne Mountain Air Force Base in Colorado

DEBORAH D. PARKER, U.S. COURT REPORTER

years? A. I -- I also took on other responsibilities. I moved

was -- what was that program?

I'm sorry, missed it.

DEBORAH D. PARKER, U.S. COURT REPORTER

361 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. We called it the Vault. We worked with some classified

programs. Q. While you were at Cheyenne Mountain, did you receive

take a look at Exhibit 29? DEBORAH D. PARKER, U.S. COURT REPORTER

correct? A. Q. Yes. Did you write a master's thesis in obtaining your

women to -- they were uncomfortable for women.

I was actually in graduate school. graduate school for ten months.

And so I had 30 months when

Air Force? A. I was instructor in the Department of History on the

homosexuality? A. Well, it came up in my course on women's history to But

some extent when we talked about women in the military.

best decision for them would be. path to take.

But I tried to make sure they were aware of

DEBORAH D. PARKER, U.S. COURT REPORTER

Professor Hillman, you got your degree from Penn in

So you started -- and is that when you

So when you started teaching, the

THE WITNESS: THE COURT: BY MS. FELDMAN: Q.

August of 1994. You can go ahead.

As a faculty member at the Air Force Academy, did you

concerning violence against women?

service before self, excellence in all we do."

DEBORAH D. PARKER, U.S. COURT REPORTER

You may answer.

THE WITNESS: BY MS. FELDMAN: Q.

Academy? A. I went back to school. I went to law school and also

criminal allegations of homosexuality.

372 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. I taught constitutional law. I taught military law. I

course? A. We focused primarily on the 20th century, but we also

course? A. Yes. We studied the United States military justice

experience in the military.

widely in the field of military history.

tracking missiles that might harm United States assets.

DEBORAH D. PARKER, U.S. COURT REPORTER

MS. FELDMAN: THE COURT:

Would it be in Volume III? Yes, your Honor.

MS. FELDMAN: THE COURT:

Any objection? No objection, your Honor. Just the

Not the expert report. THE COURT: It is ordered admitted.

You need to go to the 33.

women's military uniforms.