Thursday, February 15, 2007

Plane error

CAAF's just-completed Project Outreach trip sparked some controvery. In light of our previous discussion, it seems amusing that Judges Baker and Ryan weren't present at the Southern University Law Center for CAAF's oral argument in United States v. Flores.

At the start of the argument, the audio of which is now up on CAAF's web site, Chief Judge Effron explained that "Judges Baker and Ryan unavoidably have been delayed due to transportation problems but they will be participating in this case on the record."

I'll bet all five judges could have made it to 450 E Street.

--Dwight Sullivan


HBellamy said...

I'm sure a lot of things could've happened if they had stayed at 450 E Street. Cut them some slack. They're new at their jobs, and the weather did stink this week.

I usually enjoy this blog because of its intelligence and insight, but it's starting to get a little self-indulgent and "cute" for my tastes.

CAAFlog said...

I'm not faulting Judge Baker (who isn't new) or Judge Ryan (who is) for failing to make it to Baton Rouge on 12 Feb. I'm faulting Project Outreach for expecting them to.

CAAF's job isn't to provide educational experiences. CAAF's job isn't to promote the military justice system. Its statutory mission is to review cases for legal error. See UCMJ art. 67(c), 10 U.S.C. 867(c).

Does Project Outreach help CAAF accomplish its statutory mission, hurt it, or have no effect? To answer that question, we must answer a preliminary question: does oral argument matter? If not, we are wasting massive amounts of time and resources that could otherwise be devoted to reducing delay at the CCA level. Let's assume what I believe to be true: that oral argument can (but doesn't always) help CAAF accomplish its statutory mission.

Given that assumption, then this week Project Outreach may have interfered with CAAF's accomplishment of its mission. Presumably if Flores had been heard at CAAF's courthouse, there would have been a five-judge bench. Because it was argued in Baton Rogue, there were only three judges. Both of the missing judges typically play active roles in oral argument. Both typically ask insightful questions. If oral argument helps CAAF produce better opinions, then the Flores opinion may not be as good because two judges will decide the case on the basis of a recording of the oral argument rather than by participating in it.

Should Project Outreach continue? If so, should the number of cases heard on the road be adjusted?

--Dwight Sullivan

John O'Connor said...

For once, I actually agree with caaflog. For want of a better word, Project Outreach is "stupid."

Kathleen Duignan said...

Perhaps for the first, and only, time, I respectfully disagree with CAAFLog. Without programs like Project Outreach, there is no public understanding of military law and military justice. In a non-conscription environment, that might be acceptable for some. But it will certainly continue to skew the views of the public, i.e., those who provide the impetus to recommend their sons and daughters enlist or accept commissions. I need only harken back to my experience in law school when I indicated my intent to apply for JAG. The reaction from my law school classmates was incredulous. The overwhelming opinion of my classmates (and professors) was that the military used a sub-standard system of justice that meted out bread and water punishments or life imprisonment using a ball and shackle for any offense, regardless of how minor.

While military justice may not be perfect (as no system is), I do not find the sentiments I encountered at my law school to be true. I believe that Project Outreach provides at least some small opportunity of exposure to law students, who then might become interested in the system (and might have not had any contact with it otherwise). I believe that Project Outreach has still has not made it to my law school during its years of operation and my 16 years since graduation from law school. Perhaps this indicates that there still might be more benefit to be had by the program. Not every law student has the resources to travel to 450 E Street, NW in Washington, DC.

It is also undisputed that the public cannot just attend any court-martial, because it is impossible to find out where and when they are being held. And even if you have this information, any member of the public will have great difficulty making it on to a military base to observe. Thus the trial system remains a secret system of justice to most. Any member of the public can observe civilian trials in the federal or state courthouse. At least Project Outreach has a chance of leveling firsthand exposure of civilians to the military system at the appellate level. Now that a portion of civilians will be subject to it, with the recent modifications to Article 2 of the UCMJ, perhaps this exposure is needed more than ever. I would not be so quick to scorn the program without considering the benefits it provides. It at least guarantees some small measure of transparency to a system that may begin suffering again in the court of public opinion.

CAAFlog said...

I was just looking at United States v. Moses, 45 M.J. 132 (C.A.A.F. 1996), for reasons unrelated to the CAAFlog blog, when I came across this footnote:

"This case was argued at United States Marine Corps Base, Quantico, Virginia, on May 29, 1996, without objection from the parties involved. . . . ." Id. at 133 n.2.

That made me wonder: is it CAAF's practice to ask if either party objects before scheduling a case as a Project Outreach argument? (If so, I guess Cabrera-Frattini made the wrong choice.)

John O'Connor said...

Yikes. The only thing I seem to agree with caaflog on is Project Outreach and the only this you disagree with caaflog on is Project Outreach.

Or are your words carefully chosen such that Project Outreach is the only issue on which yiou "respectfully" disagree with caaflog, the other instances being where you contemptuously disagree with caaflog? This latter possibility, I guess I could understand . . .

No Man said...

MCB Quantico, now there is an outreach location worth merit---see my comments under Migration of Military Case Law.

Anonymous said...

"CAAF's job isn't to provide educational experiences. CAAF's job isn't to promote the military justice system."

That is one of the reasons the quality of lawyering we hear on the audio continues to decline.