Friday, February 23, 2007

New NMCCA Chief Judge

While attending the Walker oral argument at NMCCA today, I heard Judge Wagner referred to as Chief Judge Wagner. This led me to go back and look at NMCCA's opinions, and sure enough -- sometime after opinions were released on 11 January 2007 or before opinions were released on 12 January 2007 -- Senior Judge Wagner became Chief Judge Wagner. Compare United States v. Keltie, No. NMCCA 200500264, slip op. at 1 (N-M. Ct. Crim. App. 11 Jan. 2007) ("WAGNER, Senior Judge") with United States v. Smith, No. NMCCA 200600327, slip op. at 5 (N-M. Ct. Crim. App. 12 Jan. 2007) ("Chief Judge WAGNER and Judge VINCENT concur"). I would offer Chief Judge Wagner congratulations for assuming this important position and compliment Judge Rolph for his tenure in that position, but it would seem rather farfetched to think that either the current or former NMCCA Chief Judge would be reading CAAFlog to know that he was being congratulated.

As to the Walker argument, BZ to our very own Super Muppet of Appellate Advocacy -- who I assume will read this compliment -- for an outstanding oral argument. The bench was very engaged in the argument and each judge (Chief Judge Wagner, Judge Rolph, and Judge Vincent) was clearly well-prepared. To give you some idea of the gate at which capital cases can proceed through the military appellate system, LCpl Walker was sentenced to death on 2 July 1993 and had his case orally argued at NMCCA for the first time today. In fact, when Walker was sentenced to death, NMCCA was still NMCMR.


brian mizer said...

I agree. Jason did an excellent job. It seems apparent to me that there will be no Marines on death row by this time next year. I suspect that the C.A.A.F. will have to intervene in the Parker case after the Navy Court is finished answering the issues specified to it by the C.A.A.F. If my prediction is right, Jason will have been instrumental in setting aside two of the Navy's three capital cases.

Given that it takes thirteen years to get a capital case to argument at NMCCA, why are we still trying, or even contemplating trying, these cases? The Navy-Marine Corps bar does not have the skill to put on an error-free prosecution/defense. Even if it did, the heightened standard of scrutiny given to capital cases means that errors that would be dismissed in other cases become reversible error in capital ones.

I was struck by Maryland Governor Martin O'Malley's call to repeal the state's death penalty this week. "If the death penalty as applied, my friends, is inherently unjust and without a deterrent value, we are left to ask whether the value to society of partial retribution outweighs the cost of maintaining the death penalty." At Annapolis that day was Kirk Bloodsworth, who was both a former Marine and a former death row inmate who had been wrongfully convicted of the rape and murder of a nine-year-old girl. Governor O'Malley could have easily been speaking of the military death penalty. If the state criminal systems are convicting innocent Marines, and potentially putting them to death, what are the odds that the military justice system is doing the same?

Actually, not very likely. But this is not for want of trying. Despite there being a number of servicemembers on death row, including one who has exhausted his military appeals, the military has not executed a servicemember since April 13, 1961, when it hanged Private John A. Bennett. If the military justice system is incapable of successfully prosecuting these cases, and if a successful conviction may wrongfully convict an innocent servicemember, and if the punishment is never going to be carried out, why are we wasting hundreds of thousands of dollars on each of these cases? Each of these cases would have been finish filed in 1995 had the servicemembers been sentenced to life in prison. Instead, if past experience serves as any guide, they will each drag on until the cases are decades old or until the government finally gives up its quest for capital punishment.

John O'Connor said...

Well, yes and no. I think the reality is that, rightly or wrongly, the military appellate courts are gun-shy about capital cases and are far more likely to throw out a death sentence than civilian appellate courts. To me, that's the biggest reason why these cases spend years on a yo-yo between the appellate courts.

Regardless, this is the playing field that exists for military capital cases, and the government has to live with it. I agree with Mizer that, on that playing field, there usually is insufficient talent on both sides at the trial level and in the judiciary to get cases through appellate review.

One of the anomalies of court-martial practice is the complete lack of experience in those actually litigating the cases. Once someone gets a few years under their belt, they are taken out of trial and put in administrative positions or (gasp) legal assistance to "round out" their careers. As a result, when a capital case comes up, there usually just isn't the experience level in the TC and DC side to litigate a case sufficiently cleanly to get it through a very reluctant CAAF. In these cases, it is important for a TC not to try to do anything he thinks the MJ will let him do; you have to have an eye toweard whether what you're doing will stand up on appeal. That is a sense of perspective that, in my experience, was not common among the high-achiever, aggressive TCs who were likely to get a capital case if one arose.

The same institutional issues plague military judges, who get moved on and off the bench with regularity. To be clear, I actually believe that most military judges are probably as able or better able to try a capital case as the typical state court judge, but state court judges don't have such a flyspecking of every ruling on appeal like military judges do.

This post isn't about whether civilian appellate courts should be more like military appellate courts in reviewing capital cases, or vice versa. It's just that if the military appellate courts are going to perform such a rigorous review of capital cases, with a narrower harmless error standard than civilian courts would apply, then I agree that it is the rare case indeed when the actors at the trial court will have the talent to thread the needle to get a perfect record of trial.

CAAFlog said...

This discussion calls to mind a recommendation in the 2001 Cox Commission report, which is available at

One of the Cox Commission's recommendations was to "[a]ddress the issue of inadequate counsel by studying alternatives to the current method of supplying defense counsel." Cox Commission Report at 9. The report explained, "Inadequate counsel is a serious threat to the fairness and legitimacy of capital courts-martial, made worse at court-martial by the fact that so few military lawyers have experience in defending capital cases. The current system of providing and funding defense counsel shortchanges accused servicemembers who face the ultimate penalty. It has long been recognized by every U.S. jurisdiction with a death penalty that only qualified attorneys may conduct death penalty cases. The paucity of military death penalty referrals, combined with the diversity of experience that is required of a successful military attorney, leaves the military's legal corps unable to develop the skills and experience necessary to represent both sides properly. The Commission believes that Congress should study and consider the feasibility of providing a dedicated source of external funding for experienced defense counsel if military capital litigation continues to be a feature of courts-martial in the 21st century." Id. at 10-11.

As long-term CAAFlog readers know, I am generally allergic to purple, but I'm willing to admit that among the politically feasible methods to address this concern, a purple military defense unit -- to which I would assign the responsibility to represent the accused at trial, on appeal, and on federal habeas review -- is probably the best solution. (Gene, are you smiling at that concession?) There are so few capital cases in the military that only an office handling capital litigation in ALL of the services would be able to gain and maintain the expertise necessary to do these cases. If this office is to handle capital appeals, then some method would have to been devised for dealing with conflicts that would arise from the inevitable IAC claims. (Because of the military services' opt-out of the ABA Model Rule of Professional Conduct 1.10 imputed disqualification rule, some such method is certainly possible.) Also, to satisfy Article 70(a), this purple capital litigation group should be located within the office of one of the Judge Advocates General. (I would give it to Navy OJAG.) And, finally, tour lengths for this purple capital litigation group should be longer than the norm -- at least five years.

Jason Grover said...

5 years in a Purple capital defense unit- and I thought appellate defense was risky for the career. Better staff it with all colonels and captains ready to retire in 5 years.

I checked on it and apparently Chief Judge Wagner was designated Chief Judge by the Judge Advocate General on 5 or 7 Jan 07 (I cannot remember which). In light of the history of the case, it seemed worth asking to see the letter and the Clerk of the Court kindly showed it to me. See Walker v. United States, 60 M.J. 354 (CAAF 2004).

Thanks for the kind words gentlemen, mostly I am extremely grateful for the experience. And thanks to everybody in Code 45 and those outside Code 45 that helped with the moots.

Jason Grover

Chief Judge Wagner said...

Rest assured that the Chief Judge reads CAAFlog, as well as every opinion and order issued from the court, not to mention the CAAF cases, CCA cases, Supreme Court cases, etc. But I must confess to rather enjoying the CAAFlog the most becuase it is healthily irreverent and wonderfully focused on drawing out that which so often goes unsaid. While I obviously disagree with some of the post-opinion analysis, it is always educational and broadening to open your mind to the possibility that someone else is right and you are wrong.