Friday, December 15, 2006

CAAFlog Talk with Linda Richman

Do you remember that recurring Saturday Night Live scetch in which Mike Myers would play Linda Richman, the hostess of Coffee Talk? Here's Wikipedia's entry on the sketch's format (yes, OF COURSE there is a Wikipedia entry on Coffee Talk):

Whenever Linda would get upset, she would put her hand on her chest and say "I'm all verklempt" or "I'm a little verklempt". Then she would say, "Talk amongst yourselves." She would often follow this with an example, by saying, "I'll give you a topic." The topic would usually follow the format: "(Two/three-part phrase) is neither (first part) nor (second part) nor (occasional third part). Discuss."


"The radical reconstruction of the south after the Civil War was neither radical nor a reconstruction. Discuss."
"The Holy Roman Empire was neither holy nor Roman nor an empire. Discuss".
"The peanut is neither a pea nor a nut. Discuss."
"The Partridge Family was neither a partridge nor a family. Discuss."
"The Prince of Tides was neither about princes nor tides. Discuss."
"The Mormon Tabernacle Choir was neither Mormon, nor a tabernacle, nor a choir. Discuss."
"Duran Duran was neither Duran nor Duran. Discuss."
"The Italian Neoealist Movement in film was neither Italian nor neo nor particuarly a movement. Discuss."
"The Progressive Era was neither progressive nor an era. Discuss."
"The Thighmaster was neither a thigh nor a master. Discuss."
"Rhode Island is neither a Rhode nor an island. Discuss."
"FDR's New Deal was neither new, nor a deal. Discuss."
"The chickpea is neither a chick, nor a pea. Discuss."
"Ralph Fiennes' name is neither spelled Rayph nor Fines. Discuss." (footnotes omitted) (the footnotes in the original, by the way, link to SNL transcripts; unbelievable, baby!) (pop culture alert: the use of "baby" in the previous parenthetical refers to an even more popular Mike Myers character).

Today -- a day when the various military justice web sites seem to contain nothing that is both new and interesting -- we are introducing a new CAAFlog feature: CAAFlog Talk with Linda Richman.

Talk amongst yourselves. I'll give you a topic. Gene is right that the four CCAs should be eliminated and CAAF should be given mandatory jurisdiction over all general and special court-martial convictions. Discuss.

My understanding is that there are 19 judges on the Navy-Marine Corps Court of Criminal Appeals. Additional military officers serve as commissioners for those judges. In this time of armed conflict when U.S. military forces are strained near the breaking point, this seems like an incredible misuse of military personnel. How many officers could be diverted to far more useful duties if the Navy-Marine Corps Court, ACCA, AFCCA, and CGCCA just went out of business, transferring all of their duties to the civilian personnel at 450 E Street, N.W.? (Okay, not many in the case of the Coast Guard Court, but a lot among the other three.)

Additionally, the whole system would move at a much faster pace. Instead of an initial appeal to the CCA, a petition to CAAF, and then briefing on the merits to CAAF, there would be just one round of briefing. CAAF's case load would go up, but the number of SUBSTANTIVE cases that it sees would not increase appreciably. Also, the review that CAAF gives to cases coming in on petition is astounding -- almost certainly at least as in depth as that which one of the Article III courts of appeals gives to cases that it summarily affirms. The amount of work that would go into a summary affirmance would not be appreciably greater than that required for a petition denial. But because the number of cases initially coming in through CAAF's doors would be greater than the current caseload, I would provide that CAAF would sit in three-judge panels with en banc review permitted, so that the Court could iron out any differences among various panels. This would reduce the number of cases that any one judge would have to resolve and probably end up with a similar case-per-judge number as in the current system.

If cases were moved faster, appellants would receive their DD 214s more quickly, thereby further reducing DOD costs by decreasing the appellate leave population, which gobbles up some amount of military resources, particularly medical and dental assets.

Such a system would eliminate the need to devote massive resources to the tip of the tail to solve the Moreno problem. Indeed, it would save resources that could then be devoted to teeth, not tail.

One question that would have to be addressed: in a system where CAAF is the only appeal short of certiorari to the Supreme Court, should CAAF be given Article 66-type factual sufficiency and sentence appropriateness powers, or should CAAF's review resemble that which one of the geographic courts of appeals would give to a criminal conviction from a U.S. district court?

I'm getting all verklempt just thinking about it. What is your reaction?

--Dwight Sullivan


gene fidell said...

Since Dwight's post has generated no response whatever, let's ratchet things up a bit by modifying his statement of an alternative appellate design: make all noncapital cases reviewable on notice of appeal, i.e., at the express initiative of the accused (capital cases remaining subject to mandatory review). While we're at the store, and at the risk of reviving an old, old question, just why is there a sua sponte review of the whole record by the Central Legal Staff in a system where every accused--rich or poor--has free lawyer counsel? Isn't it time, after 55 years, to take the training wheels off and (1) act as though we are confident counsel will do their duty . . . and (2) treat our military personnel as adults who can make informed decisions as to whether they want to pursue an appeal? Isn't this paternalism an insult to everyone?

Dwight Sullivan said...

I disagree with my learned friend's suggestion that judicial sua sponte review of the entire record should be eliminated. One of the weaknesses of the military appellate system is that appellate defense counsel constantly transfer out, leading them to redistribute their cases. This weakness, though, sometimes becomes a strength because follow-on counsel will identify an issue that the original counsel didn't. I've seen this happen many times -- where the original counsel never briefed a strong issue that would lead to meaningful relief for the client. And, historically, sometimes it has been CAAF, rather than counsel, who has identified an issue missed by appellate defense counsel. See, e.g., United States v. Jones, 34 M.J. 270 (C.M.A. 1992). This is a case that my friend Jay Crisfield took over, and won, after CAAF had identified a meritorious issue that both the original appellate defense counsel and the Navy-Marine Corps Court had missed. I support the practice of full judicial review of the record not on the basis of any principle, but rather on utilitarian grounds: it works. And until the various appellate defense divisions are staffed with experienced counsel with manageable caseloads, I think it provides an important fail-safe.

gene fidell said...

If 5 lawyers read a record in sequence, it is true that more issues will have been identified by the 5th read than by the 2d. But is any other system of appellate justice in this country built on that premise? Personnel turbulence in the appellate defense divisions is certainly a concern, but I'd attack the root cause of the problem rather than jettison the normal common-law-countries appellate process that relies on counsel to do their job. When counsel leave, precisely what arrangements are there for hand-off to successor counsel? What role does the supervisor play when there is a hand-off? How about terms of office for appellate defense counsel? Just how long is a tour in Appellate Defense? Two years is insufficient.

Guert Gansevoort said...

I agree with Mr. Sullivan. In a system where servicemembers are represented at courts-martial and on appeal by neophyte attorneys, the paternalism, if we must call it that, of the Court of Appeals for the Armed Forces is necessary.
For that same reason, the CCA's should remain in place. Although, in my humble opinion, they often get it wrong, and take too long to do so, it is an additional layer of protection for servicemembers that should not be discarded. The problem with the CCA's is that they too are staffed with inexperienced attorneys. Yes many of the judges have twenty to thirty years of military experience, but only a handful of those attorneys have practiced in the area of military justice since Miranda was decided. In light of Weiss, Mabe, and Graf, I don't think terms of office for military trial and appellate judges or appellate counsel are on the horizon. Until the public takes interest in the way that the sausage of military justice is made, servicemembers must be afforded every possible protection from the excesses and abuses of command-excesses and abuses I have seen first-hand.

Marcus Fulton said...

Didn't mean to step on your transmission. I second Gansevoort. Again, most people don't really care about military justice. Frankly, I think a lot of judge advocates haven't cared much about military justice. We say we do, but we don't. That's the most charitable explanation I can think of for the state of the practice the last few years; especially the appellate practice (See my 25 Nov post under "Black Friday.")

Dwight Sullivan said...

Guert, would you be willing to trade CCA review for CAAF review in EVERY case? I think a system in which CAAF reviewed every case would result in more overall relief for accused in less overall time -- something of a win-win. (Of course, there wasn't ANY appellate review on the Somers, so EITHER CCA review OR CAAF review would be a marked improvement over your experience with naval justice.)

Guert Gansevoort said...

It is my perception, having spoken with a few individuals at the service appellate defense divisions, that the C.A.A.F. already grants review of nearly all meritorious issues presented to the Court in supplements.

Where the system breaks down is with system-wide jurisdictional challenges that focus solely on questions of law. The untrained military justice practitioner's that comprise most of the CCA's are ill equipped to handle sweeping constitutional challenges or legal challenges to the court-martial system itself. See e.g., United States v. Gaines, 61 M.J. 689 (N-M. Ct. Crim. App. 2005)(NMCCA addresses a challenge to the lack of tenure for NMCCA judges under equal protection component of due process). Unfortunately, as happened in the Gaines case, this is also one area that the C.A.A.F. appears willing to allow the CCA's to decide the issue. But, since these cases are seldom raised by the untrained military justice practitioner's that comprise most of the trial and appellate defense divisions, these issues are seldom preserved or raised if present in the case at all.

In my opinion, the CCA's are an additional layer of protection for servicemembers because the C.A.A.F. already has de-facto mandatory review for most cases with meritorious issues. According to the past few annual reports, the C.A.A.F. grants review of more than ten percent of cases where a petition is filed. Given that both the Army and Air Force appellate divisions appear to file petitions in every case, that number is deceptively low.

gene fidell said...

Sorry, but I don't find a grant rate of "more than ten percent" very comforting. "De facto mandatory review" is also cold comfort since a denial--based on an amorphous "good cause" standard--precludes review by the Supreme Court. As for training, that was supposed to have happened in law school and the service JAG schools (of which we only need one, by the way--lurking congressional appropriators take note). Of course, we could experience a sea change with two savvy new associate judges (enough to grant) and a new Chief, and hope springs eternal that some of the institutional habits that developed on E Street over the last half-century may be re-examined. But there are serious limits to what the Court alone can do by way of change, even if the judges were personally disposed to do more. The whole appellate design needs a fresh look, and I hope it gets one in the next Congress.

Dwight Sullivan said...

Note also that in my proposal, CAAF would be given mandatory jurisdiction over EVERY military conviction, including the considerable number of cases that are now sub-jurisdictional at the CCAs and receive only Article 69 review in the absence of the Judge Advocate General's referral of the case to the CCA. Providing a more meaningful form of appellate reveiw for these cases is also an important goal worthy of the new Congress's attention.

gene fidell said...

I could not agree more that subjurisdictional cases should be afforded normal appellate-court review, but I'd call it an "appeal as of right" and reserve "mandatory" for capital cases.

Dwight Sullivan said...

The Right Honorable Gentleman from NIMJ's friendly amendment is accepted.