Monday, February 12, 2007

Stop reading this blog

Instead, go directly to the TJAGLCS web site and click on the Army Lawyer link. Then click on the October 2007 link. (It's actually the October 2006 issue -- maybe that glitch will be cured by the time you log on.) Then click on the "Anatomy of a Random Court-Martial Panel" link. Now read the article. Go ahead. We'll wait.

Done? What did you think? I can't recall the last time I read a law review article this fresh and interesting. The article recounts a random court-martial member selection process implemented by V Corps. The CG obtained nominations for 500 court-martial members. From these, he selected 100 -- 50 officers and 50 enlisted. Then, each individual court-martial panel was randomly selected from among those pools.

I am also fascinated by LTC Huestis's explanation for what prompted this innovation: "First, the Staff Judge Advocate (SJA), Colonel (COL) Michele M. Miller, and the Commanding General, LTG Ricardo S. Sanchez, believed that the change would benefit Soldiers. At a minimum, by adapting a random seating system that more closely mirrored the popular American notion of how a fair trial should work, Soldiers' impressions of the military justice system would improve. Second, by doing this from within, V Corps could control the details of execution and fine-tune the new process over time." Lieutenant Colonel Bradley J. Huestis, Anatomy of a Random Court-Martial Panel, Army Law., Oct. 2006, at 22, 25-26.

In his selection order, LTG Sanchez observed, "I have selected a large pool of panel members, both officer and enlisted, from which panels for particular courts-martial will be randomly selected. This large pool of panel members ensures that more soldiers are actively involved in the military justice system, and that the military justice system in V Corps is as representative of the community as possible, while still adhering to the high standards of having the best qualified panel members under Article 25, UCMJ." Id. at 27.

The article also recounts the initial test of the new system, which withstood judicial scrutiny at the court-martial level. Id. at 29-30. The military judge in that case was COL Denise Lind, a very impressive judge advocate. That case didn't produce a sentence falling within ACCA's automatic jurisdiction, but presumably some of the V Corps cases from 2005 have made it up to ACCA by now. Hey Army Lurker, any judicial action on this concept yet?

The article also recounts various implementing individuals' assessments of the pros and cons of the new system. But the article's conclusion leaves little doubt about the author's view that the experiment was a success:

By testing a randomly seated panel system, LTG Sanchez took a calculated risk to benefit his command. By using a pool of qualified members and the [Random Number Sequence] seating system, he was able to seat random panels while still adhering to the high standards of having the best qualified panel members in accordance with Article 25, UCMJ. By selecting a large pool of panel members from which panels for particular courts-martial were randomly seated, LTG Sanchez actively involved more of his Soldiers in the military justice system. These courts-martial panels were also more representative of the V Corps community. By taking this risk and implementing a new method of seating panels, LTG Sanchez and COL Miller were able to move the V Corps panel selection and seating systems closer to the American ideal of fairness and due process without adversely impacting the Corps’ good order and discipline or military mission.

Do you agree with LTC Huestis? Is this system a desirable revision? Should it be formally required by statute or RCM? Is it sufficient -- if the system were reformed this far and no more, would that eliminate criticism of the CA member selection system? Let's hash this one out.

--Dwight Sullivan


Marcus Fulton said...

While the approach described in the article raises a few questions, it seems like it was at least a thoughtful approach. Insofar as it applies the Article 25 criteria, I think it would survive the scrutiny of our appellate courts.

Interesting that at least one officer had Article 25 concerns with how junior these panels were. If they are Art. 25 qualified when they were nominated, are they not still qualified when they are impaneled? Does Art. 25 apply only to members as individuals, or should you apply it to the whole?

Also, how big can your pool be relative to the size of your unit? If you have a unit of 100, and you pick from a pool of 75 that have been determined to be the best qualified of the 100, isn't that basically just random selection?

At any rate, if the commander and the SJA are anywhere near as conscientious about members selection as the article suggests, I suspect they are well above average for convening authorities in this regard.

Guert Gansevoort said...

I have recently listened to the podcasts of a fascinating seminar on military justice held this past November, which was hosted by American University and the NIMJ. In one presentation, the Deputy Judge Advocate General for the Air Force, Major General Charles Dunlap Jr., fielded questions about the V Corps experiment. One of his comments, and one that was discussed in LtCol Huestis's article, was that the V Corps experiment had to be abandoned when the unit deployed because it was unworkable. While I applaud General Sanchez and his staff for their desire to protect the statutory and constitutional rights of servicemembers, I must agree that the V Corps experiment appears unworkable in an era of constant deployments. Do we not create an equal protection problem if those in the rear get a randomly selected members panels while those on the front line get just the panel guaranteed by Article 25? I am sensitive to the arguments that may come from the Canadian Ministry of Justice, which apparently also sent speakers to the seminar in November, that the Canadian military has successfully implemented random selection for some time. But the Canadian system is centralized and, as LtCol Huestis points out in his article, the Canadian government is willing to fly randomly selected members from all around the world to the central authority in Ottawa. A similar system in our much larger military is simply impractical. John Adams, who helped draft the 1775 Articles of War, wrote "Discipline in an army is like the laws in a civil society. There can be no liberty in a commonwealth where the laws are not revered and most sacredly observed, nor can there be happiness or safety in an army for a single hour when discipline is not observed." Article 25, as drafted, provides the best means by which to balance the liberty interests of military accused with the need for swift and efficient military discipline. The Code provides that needed balance and reflects the wisdom of its framers such as Congressman Elston and Professor Edmund Morgan.

One of Professor Morgan's suggested reforms has long been forgotten. In an article originally published in the Vanderbilt Law Review in 1953, and republished in the Military Law Review in April 1965, he suggests that military judges and the judges of the boards of review should be civilians. Given that military judges may have to deploy to combat zones, there may be decent arguments that military judges should remain military officers. I am not sure how much weight this argument carries given the number of civilians on the battlefield in Iraq, and that the Navy has long taken civilians into harms way aboard its warships. But is there any reason why the judges of the CCA's should not be civilians? Many of the current appellate judges have little or no experience with military justice because the desire to create generalists in the military services. And why does the military invest millions of dollars to train appellate judges to remain in a very specialized billet for three years, never to return? Could not civilian judges, given a fixed term of office (sorry Gene), move cases through the system before servicemembers serve their lengthy terms of confinement? And would the quality of opinions and administration of justice not improve? Would a civilian judge have ever thought it acceptable to cut and past government briefs into a CCA opinion? See United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004). Would civilian judges assert that they could take appellate cases without briefs from counsel? See Greska v. United States __ M.J. __ (C.A.A.F. 2007). Would CCA's, staffed with civilian judges, be reversed by the C.A.A.F. more than the fifty percent average in the past few years? Some readers of this blog have suggested that this is the product of C.A.A.F.'s judicial activism. I submit that it is the product of poor workmanship by the lower courts. Others might say that C.A.A.F. only grants review of ten percent of cases in which it is petitioned. While this figure is historically accurate, the Army and Air Force practice of petitioning the Court in order to file cases on their merits masks the actual grant rate for cases with assigned errors. Is there any judicial system in the world that assigns judges to the appellate bench for two or three years and then sends them to be environmental lawyers or public international law attorneys after that?

If there is a gaping hole in military justice it is at the CCA's. And, unlike reform to members panels, convening authority power, or military judges, Congress has already authorized civilian judges to serve on the CCA's. Is there a single compelling argument to be made that the CCA's should remain under the influence and control of, as Professor Morgan put it, "military men?"

John O'Connor said...

I don't see how using random selection in the rear and more directed selection while on deployment creates an equal protection issue. I can think of the rational basis for that different treatment -- hey, we're deployed -- and there's no suspect class involved.

Guert Gansevoort said...

Fair enough, but how about soldiers in the rear who are not in V Corps? Or how about Marines or Sailors who do not get a random panel?

Marcus Fulton said...

I think Guert is just tying to bait Mr. Fidell into the discussion with purple talk and equal protection speak. Just like CAAFlog knows I can't pass on an Art. 25 piece.

Bridget Wilson said...

So, I am a little slow getting to this post-likely because I spent a significant part of last week getting booted from two jury panels, a med mal civil case and a civilian criminal matter. [I worked my way through law school in med mal defense & of course, defend CM, no one wants me on their jury.]

This left me reflecting on this series on "random" CM panels. It certainly would improve the public perception of military justice, but then again that perception is rarely accurate.

Juries however, are also not all that random. I was sent to a courtroom with a venire of 2-12 packs, in which 6 were attorneys. Random? In fact, the local court is currently undertaking a survey on the demographics of juries at the behest of defense counsel who have claimed the juries don't reflect the community. Hmm, to what extent can CM panels "reflect the community", especially in an environment burdened by operational needs.

Perhaps, contrary to the respected Sullivan's opinion, more peremptory challenges would help to level the field a bit. It might just slow down some of the implied bias litigation that seems to be the by product of too few peremptory challenges being available.

I would be curious to see the numbers on the RNS experiment. I have to wonder what the limits of having "representative of the community" could be in an RNS system? Perhaps we should reconsider the myth that the panels are not jurors.

Eugene said...

I don't want to divert this string from Art 25 issues, but is it true that we spend millions to train CCA judges? Personally, I think it's time for a fresh look at the whole appellate process. On Prof. Morgan's suggestion that trial and intermediate appellate judges should be civilians, who is a civilian? A retired regular who would be disqualified from serving on CAAF? The Coast Guard Court has had three chief judges in a row who were retired Navy Captains. Is this what Morgan had in mind?

Guert Gansevoort said...

CCA judges are trained during their two and three assignments to the courts. Just as some of them become qualified to serve as judges, they are replaced by environmental law specialist staff judge advocates. If you calculate the lost hours teaching senior O-5 and O-6 judges to be CCA judges, and about military justice in general, and multiply those hours by the salaries and allowances of senior military officers, and multiply that number again by the number of CCA judges from each service, you would certainly be dealing with millions of dollars lost every few years.

I agree that Professor Morgan may not have envisioned "civilians" as little more than retired military men. But is the C.A.A.F. any different? One of the new judges is a former appellate government lawyer, cca judge, and retired air force officer. I am prepared to call the judge's voting record right now. Still, I believe that CCA's populated largely by retired military men would still be better than the status quo. Might not a retired O-6 be more willing to tell his masters at Hell's Bottom where to go more than an active duty O-6?

John O'Connor said...

Huh? Guert, your last post says that one of the new CAAF judges is a retired Air Foce officer. Doesn't the UCMJ (Art. 67 I believe) expressly prohibit that?

CAAFlog said...

Guert, if I may -- one of the new judges is a retired colonel in the United States Air Force Reserve. The so-called Baum amendment, codified at Art. 142(b)(4), says, "For purposes of appointment of judges to the court, a person retgired from the armed forces after 20 or more years of ACTIVE SERVICE (whether or not such person is on the retired list) shall not be considered to be in civilian life." 10 U.S.C. 942 (emphasis added). So it appears that not even by forfeiting one's retirement pay could a retired active duty officer serve on CAAF, but a retired reservist may, as several have. See, e.g., Judge Wiss, Chief Judge Everett.

John O'Connor said...

Ahh, got it. Didn't think about the reversist angle.

Guert Gansevoort said...

Thanks for the correction. I thought that I had put the USAFR disclaimer on the last post.

Guert Gansevoort said...

I would also note the Judges Everett and Wiss were two of the finest jurists to have ever served on the Court. Perhaps the CCA's could be well served by military men of their caliber. And perhaps the recent appointee will join their number.

RH said...

Let me throw something out to you bloggers on this issue, hopefully for discussion, relating it to what appears to me to be a hot button topic in the blog world these days--the change to 10 USC 802(10)authored by Senator (reserve AF JAG) Lindsay Graham and passed as part of the 2007 Defense Bill that potentially places PMCs in the field under UCMJ jurisdiction during contingency operations.
If 10 USC 802(10) is something that the military really wants to pursue as a means to hold PMCs in the field accountable (and I think it should be for a host of reasons, including what appears to me to be the failure of MEJA to do so)should not random selection of Court members be embraced to mollify/demonstrate to the skeptics of the military justice system that exist in our Article III judiciary that sufficient due process safeguards will exist?
Wasn't much of the underlying rationale of Reid v. Covert and the series of decisions of the Warren Court that scaled back court martial jurisdiction really about a deep mistrust of the military justice system? And, if the military could point to random selection as yet another fundamental protection any PMC would receive in the MJ system, would not that be an important matter when Senator Graham's version of 802(10) was tested in the Courts?