Thursday, April 05, 2007

Doctoring a members panel

I previously noted that the Etibek case in the ACCA on-line database of published cases appears to be misfiled. WESTLAW now includes a to-be-published case from the Army Court that I can't find on ACCA's web site. I suspect it is the case that should have been uploaded where Etibek is.

Too bad, because United States v. Bartlett, __ M.J. ___, 2007 WL 942395, No. ARMY 20021244 (A. Ct. Crim. App. 29 March 2007), is a very interesting case,

As ACCA explains, the staff judge advocate in this guilty plea unpremed murder case advised the Convening Authority, "Pursuant to Army Regulation (AR) 27-10, Chapter 7, you may not detail officers assigned to the Medical Corps, Medical Specialist Corps, Army Nurse Corps, Dental Corps, Chaplain Corps, Veterinary Corps, nor those detailed to Inspector General duties as courts-martial panel members." Id.

The resulting doctorless panel sentenced LTC Bartlett to confinement for 25 years and a dismissal. (He murdered his wife at Carlisle Barracks.)

At trial, the "defense asserted Article 25, UCMJ, lacks any language authorizing limitation or amendment by the Service Secretary concerned; therefore, the Secretary of the Army improperly attempted to amend a statute via regulation when he exempted the designated branch officers from the convening authority's consideration." Id.

"In denying the defense motion for a new panel, the military judge made extensive findings and held the 'Secretary of the Army has the authority to limit, for a benign reason, the pool of officers from which the GCMCA is permitted to select court-martial members.'" Id. ACCA continued:

The military judge noted that 10 U.S.C. § 3013 created the Secretary of the Army's position and statutorily empowered him to “assign, detail, and prescribe the duties of members of the Army” and to “prescribe regulations to carry out his functions, powers, and duties ... which functions include, inter alia, organizing training, servicing, administering, and maintaining the Army.” The military judge also observed:

In excluding these officers from court-martial duty, and from nearly all other routine[,] non-[military occupational specialty]-related duties, the [Secretary of the Army] has determined that the Army's critical need for officers of their unique education, training, and experience to perform duties within their unique expertise is more important to the mission than is their service on courts-martial.

ACCA upheld the trial judge, ruling:

Appellant's contention raises the question of whether Article 25, UCMJ, limits 10 U.S.C. § 3013. At first glance, the Secretary of the Army's authority under 10 U.S.C. § 3013 may appear to conflict with Article 25(a), UCMJ, which provides: "Any commissioned officer on active duty is eligible to serve on all courts-martial for the trial of any person...." (Emphasis added.) However, this court recognized more than fifty-five years ago that the Secretary of the Army has the authority to exempt persons assigned to a particular branch from court-martial service. See United States v. Neville, 7 C.M.R. 180, 1952 WL 2530 (A.B.R.1952), rev. denied, 7 C.M.R. 84, 1952 WL 2997 (C.M.A.1952). "Except for the non-availability of chaplains for such duty (AR 660-10, para. 2), this rule [of universal officer eligibility for court-martial service under Article 25(a)] is unrestricted in the Army." Id. at 192 (emphasis added).

ACCA continued:

The Secretary of the Army determined that certain Army members are unavailable to serve on court-martial panels because of the nature of their duties. This decision affects the feasibility of their service under Army policy, not their eligibility for service under the law; accordingly, it does not run contrary to Article 25. Furthermore, the Secretary of the Army's determination regarding the feasibility of officers from certain special branches serving on courts-martial is separate from the convening authority's selection of panel members under Article 25, UCMJ.

ACCA then proceeded to accord Chevron deference to the Secretary of the Army's construction of 10 U.S.C. § 3013. The predictable consequence of the application of Chevron deference is that ACCA upholds the Secretary's decision.

I'm glad that the Kabul Klipper, who litigated the Dowty appeal, isn't around to see this one. I'll be noting in another post tonight that CAAF hasn't been granting review of many cases lately. This case seems to scream out for further review.


Jason Grover said...

Sorry Gene, but I cannot resist. Doesn't this raise an equal protection argument as a Sailor has a chance to get a doctor on the panel, while a soldier does not. Depending on the base, docs are often selected for members' panels in the Navy, as they are officers that have the flexibility to be out of work for a few days. I tried a lot of cases, on both sides, with all sorts of medical types on the panel.

This seems like the sort of case where an outside group might want to jump in with an amicus. Kathleen, Gene, what do you think?

Jason Grover said...

I don't have access to Westlaw. Did ACCA discuss the rule of lenity or the general principle that Chevron is inappropriate in a criminal law context. CAAF specifically avoided this issue in United States v. Miller, 62 M.J. 471 (2006). That particular avoidance made sense in light of the Court's decision in Miller (the government had certified the issue of the application of Chevron, but CAAF resolved the underlying issues without relying on Chevron). So CAAF has seen this issue briefed before. Regardless of one's views on the Secretary of the Army's ability to narrow the pool under Article 25, ACCA's decision seems ripe for a grant at CAAF just on the application of Chevron in a criminal law context.

For purposes of full disclosure, I argued an amicus in Miller. Long-time CAAFlog reader and contributor, Kathleen D., also argued an amicus.

egn said...

I once tried a special court-martial where my client was acquitted of all the charges, and during the members' debrief, it came out that the junior officer member, an Ensign from the Medical Service Corps, was one of the most thoughtful and articulate members on the panel, and it would appear to me that he would have had a large role in guiding discussions during deliberations. I think it would be a disservice to the military justice system if the Navy were to exclude all medical types from members' panels the way the Army does.