Saturday, February 17, 2007

Migration of military case law

In his very perceptive post on Moreno, Guert points out that the New Mexico Court of Appeals has cited Moreno. In ruling on a speedy trial issue, the New Mexico Court of Appeals cited Moreno for the proposition that "where appellate defender requested numerous delays due to 'other case load commitments,' court declined to hold the defendant accountable for such delays, concluding that ' "[o]ther case load commitments" logically reflects that [the defendant's] case was not getting counsel's professional attention, a fact that is the very antithesis of any benefit to [the defendant]' " State v. Stock, 147 P.3d 885, 892 (N.M. Ct. App. 2006) (brackets in original).

I would be fascinated to learn how the New Mexico Supreme Court discovered the Moreno case in the course of deciding Stock. Was it cited by one of the parties? If so, how did counsel for that party discover it?

Several years ago, there was an initiative by CAAF to ask West Publishing to cross-digest military appellate decisions under non-military digest topics and numbers. I believe that Gene Fidell has also been a long-standing proponent of such cross-digesting. (In fact, I think the use of "migration" in this post's title harkens back to something Gene wrote. Gene, am I right about that?) I wonder whether cross-digesting is less important today. I would be fascinated to know how important West digests remain as a tool for finding the law. As use of electronic databases has become necessary to the effective practice of the law, I suspect that use of West digests, even through the use of digest numbers on WESTLAW, has markedly declined. While I use both LEXIS and WESTLAW, I tend to use LEXIS much more -- probably because I learned it first and and I'm better at using it, not necessarily because it is better to use. In LEXIS, military appellate decisions are included in the GENFED file. I wonder whether either the New Mexico Court of Appeals or a counsel arguing Stock before that court found Moreno through a GENFED search while looking for federal case law declining to attribute delay sought by an overworked public defender to the defendant.

Is the migration of military case law to civilian courts desirable? If so, how can that process be stimulated? And does cross-digesting remain an effective tool to promote such migration?

--Dwight Sullivan


John O'Connor said...

There is some potential for mischief in migrating military case law to the civilian courts. Courts-martial are not just civilian criminal trials where everybody wears matching outfits. There are policy considerations underlying court-martial practice ("it is the primary duty of armies to fight and be ready to fight") that have no application in civilian criminal systems.

Does that mean that military cases can never have persuasive value or povide useful analogies for civilian courts? Of course not. But I worry about the prospect that military case law principles could be used in civilian courts where they simply don't belong.

Kathleen Duignan said...

I hope that federal civilian judges are wise enough to draw from military case law in appropriate situations and eschew it in others. There are many points of crossover between the civilian and military systems, and both systems benefit from looking outside the corners of their jurisdictional viewpoints. I can only imagine the blogging string if this conversation rose to one discussing the use of international legal principles.

In my humble opinion, there is much to be learned by at least looking at all legal systems for ideas. Hopefully, our vetting system for judges is one that actually produces judges who exercise judgment. One hopes judges are sage enough to use principles that hold true to the society in which they operate. After all, isn't this the key difference between a common law and civil law system? Otherwise, we might as well convert our system to one that abides by a civil code.

No Man said...

I don't think you will find Justice Scalia citing military case law in his non-military opinions any time soon, or UK or any other case law other than the law created by old white revolutionaries from the 1700's. But I digress.

The actual reason for this comment is a middle ground on the whole Project Outreach debate, one that will never be utilized. The Art. 66 & 67 system is supposed to decide military cases and disseminate that law to guide the practice of military justice. I always thought that the perfect outreach program would be traveling to Camp Pendleton or Norfolk Naval Base. Getting an audience of judge advocates and non-lawyer legal officers together to actually see how the process works was my idea of improving the law. I even invited NMCCA to Norfolk once when I was an SJA. They actually accepted my invitation! Alas, the reason that it failed is the same reason such a project would fail at CAAF. An unnamed NLSO CO stopped the show when he realized one of his former counsel's cases was going to be litigated and it would involve discussion of trial defense counsel's mistakes. Since when is that a good reason to not hold a hearing? Does the Maryland Court of Appeals move a case from Annapolis when a local attorney's conduct is under review? How does this affect my idea of a useful Project Outreach? CAAF can't travel to military bases because it would show how badly our system can actually perform when at its worst. Senior, non-litigator JA's are unwilling to see the system for what it really is, just as flawed as any other justice system--by in large no worse, but also no better. I think that issue is also the reason that we will continue to have mandatory Art. 66 review and Moreno-like issues. Why try to improve the system when you can just add another layer of beauracracy to make it look like the system is performing better?

John O'Connor said...

I'm with No Man. The outreach worth doing would be to bring cases tio the fleet so TC and Dc alike might have even an inkling of making their record for possible appeal. In my experience, too many TC's try to get in any evidence the MJ will let them get in, with no sense of whether this will make the case vulnerable on appeal. As for DC's, they too often fail to preserve potential appellatre issues and too often get talked into withdrawing requests rather than annoying the MJ by making him/her rule against you.

I don't see much value in acting as if you're so startved for mainstream respect that you'll take your courthouse on wheels to any place where someone will let you borrow a conference room.

Marcus Fulton said...

I suspect they found it during the course of a Lexis or Westlaw dragnet of the large data bases for relevant case law. If memory serves from the time I was doing research on appellate delay at Code 45, there are some--but not scores of--cases that deal with inadequately staffed appellate "public defender" offices. So you have to take your authority where you find it.

As for whether civilian systems are well served by using military precedent, I share Ms. Duignan's confidence (well, I guess she expressed it as a "hope") that civilian practitioners will have the sense to know when a military case is useful authority. I'm more accustomed to military practitioners worrying about the encroachment of civilian thinking into military law. For better or for worse, I think the military system is much more affected by the civilian system than the other way around. By far my favorite rant on this subject is found in United States v. Jones, 7 M.J. 806 (NCMR 1978), in which the Navy court rails against a "motion to quash" a specification. It's a little long, but worth it:

"It is difficult to comprehend any intelligent purpose for the addition of a new descriptive phrase to military justice terminology, i.e., a "motion to quash," which is neither provided for in the Manual for Courts-Martial . . . nor is encompassed within normal military practice. At any rate, it is worthy of note that the High Court seemingly regards this and other civilian practice nomenclature appearing in its recent decisions to be "valuable and elevating" to the military, quite apart from any definite function it may perform.

In this connection, in United States v. Rivera, we expressed concern that a number of military lawyers appear relatively indifferent to the perpetuation of traditional military terminology, practices and procedures. Many have certainly taken to so-called "civilianization" of the United States military justice system like ducks to water. Yet the truth of the matter appears to be that this timorous and undisciplined spirit of conformism may be fraught with some serious problems.

A portion of the foreword in the 1978 fall issue of the Naval War College Review, by the President of the College, assist in putting the matter into focus. It states:

'That is to say that rational managerial concepts will cure all evils. The flaws of this viewpoint are brightly illuminated when it is applied to fighting forces -- that's one of the things Vietnam proved. The loss of that war demonstrated that we cannot adopt the methodology of business without adopting its language, its style, its tactics and above all, its ethics. We must regain our bearings.' [Emphasis supplied].

The precise point of interest here is, by the same token, the military forces cannot adopt the language, thinking, and legalisms of the civilian legal sector without ultimately breaking down the fixed and accepted beliefs, values and distinctions which enable us, effectively and militarily, to relate our conduct to each other. . . .

It should not be necessary for military justice to function on a muddle-through, put-it-over, or heroic can-do basis merely because of an arbitrary decision requiring capitulation of the unique military justice system to novel innovations in pleading, as well as civilian rules and procedures. . . .

Accordingly, the High Court is urged to institute efforts to halt so-called 'civilianization' and to reintegrate the body of military justice by reevaluation and modification of controversial decisions and doctrines in a manner which brings them back into balance with the traditional and militarily oriented thinking of the majority of those experienced in military affairs."

Id. at 808-09 (citations and footnotes omitted) (emphasis and brackets in the original).

I'm sure I owe an apology for putting such a monstrous (self-indulgent?) block quote in a three-inch-wide blog comment. I hacked a lot out of it, even at the risk of losing context. It's a fun case and worth reading the whole thing anyway. If you're a fellow Navy-Marine Corps Appellate defense alumnus, you may remember that the "ducks to water" quip was the genesis of the ducks appearing in Code 45's semi-official seal. And I couldn't bring myself to cut the Naval War College Review quote, which may have new resonance with many these days.

The point, for the two of you still reading this far down, is that the migration of military case law into the civilian world is a little like the migration of an opossum across an interstate. The contact between the two worlds has traditionally affected the military world more drastically than the civilian.

gene fidell said...

I don't think I used the term "migration" in "If a Tree Falls in the Forest ...": Publication and Digesting Policies and the Potential Contribution of Military Courts to American Law, 32 JAG J. 1 (1982) [ouch--that's 25 years ago!], and I'm not sure it's quite the right concept. I just think these bodies of law ought not to be artificially separated from one another. West created a work of art in the digest system--I really mean that--and relegating military jurisprudence to a digesting ghetto makes no sense. E-research is certainly one arrow in the modern quiver, but competent legal research cannot be done without using West's comprehensive digest system. West's failure to digest military cases under the conventional digest topics (Evidence? Criminal Law? Constitutional Law?) means (1) the lawyer's job is made harder or his/her work product made less rigorous, and--assuming one is concerned about The Law as such--(2) both military and civilian jurisprudence suffer. I hope the new team on E Street will be able to crack the digesting nut--including persuading West to retro-digest past cases.

Guert Gansevoort said...

Mr. O'Connor may in fact be partly right. Courts-martial are in many ways civilian courts where everybody wears matching outfits. The differences that remain are largely procedural ones that cannot migrate. I should also add that the differences that remain often inure to the benefit of military accused. See, Article 31. The Moreno delay analysis, much maligned as C.A.A.F. self aggrandizement, was taken from the delay analysis of the federal circuits. Harris v. Champion I, 938 F.2d 1062, 1065 (10th Cir. 1991); Muwwakkil v. Hoke, 968 F.2d 284, 285 (2nd Cir. 1992); United States ex rel. Green v. Washington, 917 F. Supp. 1238, 1274 (N.D. Ill. 1996). The few peculiarities of law that have existed are slowly vanishing. See e.g., United States v. Finch, 64 M.J. 118 (C.A.A.F. 2006)(overruling McOmber right to notice of counsel). In fact, I struggle to think of a single non-procedural rule capable of migrating. It would appear that the military justice system has achieved the "civilianization" so feared by the Navy-Marine Corps Court of Criminal Appeals. Good order and discipline is certain to collapse any day now.

In the interest of accuracy, I would point that the C.A.A.F. routinely hears project outreach arguments at military installations. Caaflog has cited one such case, and I believe that Moreno was heard on the USS Ronald Regan. While these arguments may go a long way to training personnel, or in Moreno's case, convincing 5,000 sailors that they too could be denied due process of law, adult supervision at the LSSS's and NLSO's might get better returns for the taxpayer.

Project outreach exists to inform the public about something that, as Ms. Duignan appropriately notes, is very mysterious to most. Military justice has changed most radically when two events intersect: conflict and ignorance about or concerns about the fairness of the military justice system and its applicability to the increased numbers of those recently put in harms way. This intersection led to the Ansel-Crowder controversy in 1918-19, which led to the amendments to the 1920 Articles of War, the UCMJ itself, and the 1968 amendments to the UCMJ. Between 1775 and 1918 military justice changed little. Our military again is engaged in a great struggle. For those who condemn project outreach, close it and retreat to the barracks. But don't be surprised when further civilianization comes calling.

CAAFlog said...

I doubt that Project Outreach encourages or discourages civilianization of the military justice system. It strikes me as a public relations mechanism, but probably an ineffectual one. The number of civilian institutions that can be visited is so small, and thus the amount of additional exposure of the military justice system so minimal, that I doubt it will have any real effect in altering public perceptions of the military justice system one way or the other.

My essential point remains, though, that it isn't CAAF's job to alter public perception of the military justice system. It is CAAF's job to decide cases fairly. I don't see Project Outreach as contributing to that mission and in some instances it seems to interfere with that mission. So regardless of whether Project Outreach does or doens't produce any positive collateral effects, it fails as a matter of first principles.

But, to quote Dennis Miller once more, that's just my opinion. I could be wrong.