Saturday, December 09, 2006

Air Force JAG may want to check a few more bar licenses.


There is no military precedent to support the assertion by "Air Force officials" that defense attorneys do not have to be licensed by a state bar for a military verdict to be valid - unless they are looking at CMA's 1963 decision in United States v. Culp, 33 C.M.R. 411 (C.M.A. 1963). In Culp, the CMA found that there was no sixth amendment right to counsel at courts-martial and that servicemembers were entitled only to the counsel that Congress gave them. The Court also discussed the Navy's law specialist program and how the navy was unable to provide counsel to its sailors at special courts-martial because "of the distribution of its personnel worldwide, many in small ships upon which no qualified counsel are available." Id. at 416.

All of that changed with the Military Justice Act of 1968. I am told that yesterday was the 39th anniversary of the founding of the Navy's JAG Corps and that punitive discharges are no longer awarded to sailors represented by commissarymen who have attended a two-week law specialist program in Newport. And, although Culp has never been directly overruled, it is now generally accepted that at least those portions of the Sixth Amendment that deal with the right to counsel apply to servicemembers.

While the assertion by the Air Force that military attorneys do not have to be licensed for a military verdict to be valid is of dubious validity, there is at least civilian precedent that supports their second assertion that convictions of defendants represented by unlicensed attorneys may be upheld. In fact, the circuits have split on whether representation by an unlicensed attorney is jurisdictional error requiring per se reversal or whether, like in the Jackson case cited by Mr. Sullivan, such errors will be tested for prejudice under the traditional Strickland framework. Compare, e.g., United States v. Maria-Martinez, 143 F. 3d 914 (5th Cir. 1998); Vance v. Lehman, 64 F. 3d 119 (3d Cir. 1995); United States v. Stevens, 978 F.2d 565 (10th Cir. 1992); United States v. Williams, 934 F.2d 847 (7th Cir. 1991); United States v. Mouzin, 785 F.2d 682 (9th Cir. 1986) with, e.g., United States v. Novak, 903 F. 2d 883 (2d Cir. 1990); Solina v. United States, 709 F. 2d 160 (2d Cir. 1983); Harrison v. United States, 128 U.S. App. D.C. 245 (D.C. Cir. 1967).

Mr. Sullivan's prediction that "we might see some additional case law develop in this area" may be a great understatement.


Anonymous said...

And, although Culp has never been directly overruled, it is now generally accepted that at least those portions of the Sixth Amendment that deal with the right to counsel apply to servicemembers.

What does "generally accepted" mean? Is this a scientific principle or a legal position. The fact is that although CMA/CAAF (an Art. I court) has held court-martial cases to be "criminal prosecutions" for 6th A. purposes, the Supremes have not. It may have been once "generally accepted" that the world is flat -- it doesn't make it true.

Guert Gansevoort said...
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Guert Gansevoort said...

I think generally accepted is the best way to describe a principle that has been widely accepted by both the academic community and the Article I Courts that govern courts-martial - which you equate with the Flat Earth Society - but not yet confirmed by the Supreme Court. As the Court said in United States v. Culp, 35 M.J. 450 (C.M.A. 1992), "In past years there has been substantial scholarly debate on applicability of the Bill of Rights to the American servicemember. This Court's position is clear and well established: The protections in the Bill of Rights, except those which are expressly or by necessary implication inapplicable, are available to members of our armed forces." Id. The scholarly debate cited by the Court in Culp dates to the 1950's.

It is true that the Supreme Court has explicitly reserved judgment on the issue. Middendorf v. Henry, 425 U.S. 25, 34 (1976). But, until the Supreme Court decides to grant cert in more than one C.A.A.F. case every five years, if the C.A.A.F. says that the world is flat, it does make it true.

Dwight Sullivan said...

A majority of the Supreme Court has expressly stated that "Congress, of course, is subject to the requirements of the Due Process Clause when legislating in the area of military affairs, and that Clause provides some measure of protection to defendants in military proceedings." Weiss v. United States, 510 U.S. 163, 176 (1994). Note the "of course." The Supremes have also invalidated a congressional statute dealing with the pay of servicemembers on equal protection grounds. Frontiero v. Richardson, 411 U.S. 677 (1973). Note also this very important statement from Chief Justice Vinson's plurality opinion in Burns v. Wilson, 346 U.S. 137, 142 (1953): "The military courts, like the state courts, have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights." (Note also that Justices Douglas and Black expressly opined that portions of the Bill of Rights applied at courts-martial.) Since 1960, CMA/CAAF has consistently applied portions of the Bill of Rights, including the Sixth Amendment, to courts-martial. See United States v. Jacoby, 11 C.M.A. 428, 430, 29 C.M.R. 244, 246 (1960).

The courts -- including the Supreme Court -- have long since rejected the notion that the Bill of Rights doesn't apply to the military. If it didn't, Frontiero couldn't have been decided as it was. The majority opinion in Weiss states that the Due Process Clause does limit Congress when dealing with mlitary matters. Amd 46 years of unrepudiated CMA/CAAF jurisprudence should count for something.

Finally, anonymous's flat earth metaphor falls flat. The world is, in fact, either flat or not flat. (I vote for "not flat.") But whether the Sixth Amendment applies to courts-martial isn't a question of fact or truth. It's a matter of judicial opinion. The Supreme Court isn't final because it's infallible; it's infallible because it's final. See Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring). When dealing with a jurisprudential question that has no absolute "right" or "wrong" answer, general acceptance is probably the best we can do.

No Man said...

It would also be good to remember in this debate (a good one) that though the Sixth Amendment right to jury trial does not apply to courts-martial, except in at least one opinion by Judge Crawford, the military system affords GREATER not lesser rights than "criminal prosecutions in some Sixth Amendment areas. See United States v. Wiesen 57 M.J. 48, 50 (C.A.A.F. 2002) (juror selection) available at Further, the entire concept of military due process, though there is some debate of its continued vitality, incoporates a whole set of rights that parallel those in "criminal prosecutions" because the UCMJ incorporates US District Court standards in some cases. See Art. 36, UCMJ. What was that recent Supreme Court case citing Art. 36 . . . .

Dwight Sullivan said...

Note that in one of the weirdest bits of military jurisprudence, CAAF -- in an opinion by JUDGE CRAWFORD -- said an accused has a Sixth Amendment right to a fair and impartial jury. REALLY? United States v. Curtis, 44 M.J. 106, 133 (1996) ("Appellant has a Sixth Amendment right to a fair and impartial jury."), rev'd on other grounds, 46 M.J. 19 (C.A.A.F. 1997).

Anonymous said...

There's a big difference between saying that Congress is subject to the Due Process Clause when legislating in the MJ arena and that a court-martial is a "criminal prosecution" within the meaning of the Sixth Amendment. The Supreme Court has been very careful in not appearing to apply other provisions of the Bill of Rights to courts-martial. See, e.g., Davis v. United States, 512 U.S. 452, 457 (1994). When discussing the applicability of the Bill of Rights to courts-martial, I think that it important to keep in mind that it is only CAAF that has held that the Bill of Rights (beyond the DP Clause of the 5th A.) does apply . . . and that they're probably wrong.

Dwight Sullivan said...

Why would the Fifth Amendment Due Process Clause be different from every other portion of the Bill of Rights? What is there in the Due Process Clause's language or history that would suggest that it, and it alone, applies to courts-martial? Nothing that I can see. The Supremes have told us that the Due Process Clause applies. What have the Supremes said that would suggest that, say, the Sixth Amendment right to confrontation doesn't?

And the Supremes' reservation of the Self-Incrimination Clause's applicability in Davis or the Cruel and Unusual Punishment Clause's applicability in Loving is nothing more than an example of the doctrine of constitutional avoidance at work. Courts are SUPPOSED to avoid gratuitous constitutional pronouncements and since both Davis and Loving lost at the Supremes, there was no need to hold that those constitutional provisions applied. Moreover, in the latter case, the Supremes referred to its “assumption that Furman applies to this case.” Loving v. United States, 517 U.S. 718, 755 (1996). Certainly not dispositive, but hardly an indication that CAAF is “probably wrong” in holding that some Bill of Rights provisions other than the Due Process Clause apply to courts-martial.

Note also the Supreme Court plurality’s language in Burns v. Wilson: “The military courts . . . have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights.” 346 U.S. 137, 142 (1953). “[C]onstitutional rights.” Plural. Neither Burns’ plurality nor its dissenters (together making up a majority of the Court) appear to believe that the Due Process Clause alone applies to courts-martial.

Anonymous is certainly mistaken in asserting that “it is only CAAF that has held that the Bill of Rights (beyond the DP Clause of the 5th A.) does apply.” In fact, other federal courts have held precisely that. Here are two examples:

“[T]he Sixth Amendment to the Constitution of the United States applies to proceedings before special courts-martial in the military service, as far as concerns the right to the assistance of counsel on the part of an accused, particularly where the charges are substantial or involve moral turpitude or may result in a substantial deprivation of liberty.”

Application of Stapley, 246 F. Supp. 316, 320 (D. Utah 1965).

“The Fifth Amendment to the Constitution provides that 'no person shall * * * be deprived of life, liberty or property without due process of law * * *"; and the Sixth Amendment guarantees that 'the accused shall enjoy the right * * * to have the assistance of counsel.' These rights were denied plaintiff.

“It would seem to go without saying that these Amendments apply as well to military tribunals as to civil ones. Why they should not, we cannot conceive.”

Shapiro v. United States, 69 F. Supp. 205, 207 (Ct. Cl. 1947) (ellipses in original).

This isn't an exhaustive list; rather, these are two cases I found very quickly through a simple LEXIS search. So CAAF isn’t out there alone.

Guert Gansevoort said...

I would add that the Supreme Court has not remained entirely silent on this issue. In Middendorf v. Henry, 425 U.S. 25, 44 (1976), the Court had this to say in footnote 20. "Judge Quinn's broad view of the applicability of the Bill of Rights to members of the military is well established. Concurring in United States v. Culp, 33 C.M.R. 411 (C.M.A. 1963), he stated that its protections run to the Armed Forces 'unless excluded or by necessary implication, by the provisions of the Constitution itself." Id.
And Chief Justice Warren, in a lecture for the New York University Law Center, which was later published in the New York University Law Review, famously argued that "our citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes." The Bill of Rights and the Military, 37 N.Y.U.L. Rev. 181, 188 (1962).
Thus, in addition to the Court of Appeals for the Armed Forces, and nearly every Article III Court addressing the issue since 1955, the Supreme Court has certainly suggested that the Bill of Rights, with the single exception of the Sixth Amendment's jury right, does apply to military servicemembers. One might say that the applicability of the Bill of Rights to servicemembers is now generally accepted regardless of the constititional clause from which the reviewing court derives its authority.