Wednesday, July 25, 2007

CA ya later?

Greetings from downee ocean,

The extensive commentary to the Military Justice Doldrums post includes a discussion of whether the convening authority's action should be retained or thrown on the scrapheap of military justice history, along with branding irons and the convening authority's power to return a case to the court-martial to enhance the sentence.

As usual, I agree with JO'C. Eliminating the CA's action would strip the commander of his or her power to support mission accomplishment by, for example, commuting the sentence of a servicemember performing an operationally required function. It would also eliminate the CA's ability to ameliorate unduly harsh sentences. There is a counterargument, of course: the CA's action provides an opportunity for a commander to reduce sentences below what they should be in a case involving an unpopular or low-status victim. But when put on the balance against the CA action's positive effects, I think the balance tips in its favor.

As many of you know, when I evaluate potential changes to the military justice system, I always ask: how would this change affect the military death penalty? The answer here is: not well. Since the current military death penalty system came into effect in 1984, there have been 15 known cases in which a death sentence was adjudged. In 2 of those 15, the CA commuted the adjudged death sentence to confinement for life. (Interestingly, both of those were Marine Corps cases -- Turner and Gibbs.) Given the record of relative futility of death penalty cases on appeal (9 of the 11 death sentences that have completed appellate review reversed and 1 of the remaining 2 -- Loving -- on the DuBay trail to reversal), it makes sense to let a CA avoid committing the time and money that the United States would have to devote to what would probably ultimately be a failed attempt to execute the accused.

Let's look at an interesting comparative law example. In Findlay v. United Kingdom, 24 Eur. Ct. H.R. 221 (1997), the European Court of Human Rights invalidated the old British court-martial system, largely because it failed to provide an independent tribunal due to the CA's selection of the court-martial members. The decision was correct, in line with the Supreme Court of Canada's decision in R. v. Genereaux, 1 S.C.R 259; 70 C.C.C. (3d) 1 (S.C.C.) (1992), and should be emulated by the U.S. judiciary. But in response to a preliminary Findlay ruling by the now-defunct European Commission on Human Rights, Report of the Commission on Human Rights, Application No. 22107/93, Alexander Findlay (1995), the U.K. eliminated the position of convening authority and the CA's action with it. See Armed Forces Act 1996, ch. 46. So European human rights rulings designed to help military accused had the paradoxical effect of leading to the elimination of a court-martial procedure that could only help an accused by occasionally relieving a servicemember of a harsh sentence.

In my view, the Findlay changes were appropriate, but the collateral effect of killing the CA's action was unfortunate. I vote for moving the power to select members to a neutral authority not connected with the same authority who decides whether to prosecute while retaining the command's ability to commute sentences.


Sacramentum said...

I think that the commander's power to convene a court is inextricably bound to the commander's authority to grant clemency. If the commander can't decide whether to convene a court, then he shouldn't be deciding on clemency. That power should be left to the convening authority whether it be the commander or some neutral and detached authority.

John O'Connor said...

A couple of comments, going in reverse order.

Although I almost always agree with CAAFlog, I completely disagree with his premise that Findlay "should be emulated by U.S. courts." If a change is to be made that takes member selection out of the hands of the CA, one should take a walk across the street from the Supreme court and make that argument to Congress instead. I don't see how the history of courts-martial in this country can support a judge-compelled change to this practice.

On the CA clemency issue, I agree with CAAFlog and would like to offer a few real-world examples. When I was first assigned as a TC, I ended up prosecuting for that meat-grinder known as the School of Infantry. There was a disciplinary battalion there for young Marines awaiting court-martial or admin sep. We prosecuted lots and lots of UAs, most of whom asked for a BCD at trial. The CA developed what was more or less a policy that if a kid got a BCD on a UA charge, and wasn't reviled by the NCOs, he would suspend the BCD if the kid wanted to go back to training. If the kid didn't want to go back to training, but just didn't want a BCD, well, tough.

I've also had CAs give clemency they weren't required to give when an accused cooperated in other courts-martial post-trial. This is a useful tool for TCs, particularly if you gain a reputation for writing clemency letters for stoolies.

On the other side of the coin, I did have one CA who was new to miljus matters. His legal officer told me in passing that the CA was leaning toward suspending part of one accused's confinement. I asked the legal officer if anybody bothered to tell the CA that the kid had pleaded not guilty, and was told that the DC had pointed out that the CA had been willing to give a 60-day deal and that it hardly seemed fair to penalize the kid for exercising his constitutional right to plead not guilty. I told the legal officer that maybe we could set up a field desk in the office for the legal officer to prosecute the battalion's courts if they wanted to give the store away in contested cases (which would only encourage more contested cases). My recollection is that the CA saw the light. That example aside, I would hate to take away the CA's clemency powers, as it does have an ability to avoid injustice and give servicemembers a second chance that they might not necessarily deserve but is, in appropriate cases, worth the risk.

No Man said...

I don't mean to be a contrarian, but isn't the CA's power to grant clemency also a tool of bias? CAs who grant clemency for senior officers or senior enlisted I think instill a double standard in the MilJus system, and yes, in my raperuence' that is the target group for CA clemency. I agree that clemency also gets doled out a a fair amount for post-trial cooperation, but the more common case in my rapeerience was the CPO that popped positive and the CO had a policy of sending all pops to court martial. While CO's, and their SJAs, try to justify such clemency becrair they don't want to pinich the family of the Chief or feel the Chief deserves a break after his years of service, such a double standard is why the system has its detractors. Would a federal district court judge care if you did your job well for 10 years vs 2 or 3 when before him on a crack ppassession charge? Likely not. And what about the effect on the E-3's family when he starts out life with a federal conviction and a punitive discharge, when the Co could have just administratively separated him? I don't see clemency as all giggles and grins, though I will agree it does have some benefits. More later, blackberry is dying.

Anonymous said...

In my experience as TC, DC, and SJA, I've never seen CA's exhibit any post-trial bias towards senior or otherwise "favored" accused. In fact, I've always been impressed by how seriously the CA takes his/her responsibilities to all involved and how hard they work to do the right thing. In my opinion, if there's any bias towards which accused gets clemency and which doesn't, it's for the accused whose DC puts the effort into submitting a good package and against the accused whose DC blows it off as an exercise in futility.

I also think the CA's involvement in the military justice process (pretrial or posttrial) is essential; get rid of the CA and the entire justification for a separate military just seems to fall apart.

As an exercise, though, what such a military justice system look like? In the first instance, who would hold the prosecutorial discretion to refer a case to trial: TC/RLSO, SJA, NCIS?. Who would have the authority to decide the issues arising pre-trial that are currently decided by CAs (e.g. production of expert assistance, etc.): TC/RLSO, MJ? Who would have authority to order execution of sentences, suspension/vacation, and other post-trial issues? Would elimination/reduction of the CA's involvement necessarily mean more authority to TCs? Could it also result in reconstituting courts-martial as "standing" courts to decide/review the issues formerly decided/reviewed by CAs?


Rob said...

I throw in my two cents, predicated with the comment that I am a former Army TDS lifer and have never served as an SJA or even CoJ. I am not an appellate guy, thought I find the discussion interesting.

1. Abolishing Article 60: Bad idea. Like most Defense Counsel, I generally found 1105s to be an incredible waste of time, though some CAs would grant clemency more than others. I would disagree with the assertion that quality of DC submissions determined whether clemency was granted, however. In my experience, it depended more on the quality of the CA and the SJA. Certainly, it goes without saying that "bare bones", pro forma 1105s almost never win, but I put a lot of work into meritorious submissions that were frequently denied. In 5 years of recent TDS experience (spanning 15 or 16 different CAs that I can think of off the top of my head), I would say that I got clemency about 5% of the time. That number is high enough to warrant keeping it.

2. How about elminating or modifying the SJAR and CA action? How about expediting that piece of it by making the Result of Trial form (completed by the court reporter and approved by the MJ immediately after trial) slightly longer with a blank for the CA to approve or disapprove it summarily or for the CA to grant clemency within the form itself? No confusing SJAR required. The MJ who tried the case is far more likely to get it right than the SJA. ACCA is rife with unpublished opinions where the SJAR is screwed up and the CA approved the wrong offense. If you remove the SJAR and revise the action to make it part of the original result of trial form, there is less room for error. The SJA still has a role in taking the action to the CA, along with the accused's post-trial submission. If the CA wants to grant clemency or correct legal error, there would still be a process for it. This would also expedite the post-trial process significantly. For those rare cases where the PTA required some bizarre post-trial action that couldn't be covered within the result of trial form, I'm sure a procedure could be put in place. I know that a few years ago, in the annual report, then-Chief Army Trial Judge COL Vowell had recommended some expedited form of post-trial approval. This would certainly move things in that direction.

3. Panel selection. I know it's big concern from appearance issues. I tried cases in front of panels chosen by those same 15 or 16 different CAs. In general, I did not find the practice of panel stacking to be terribly common (and never where I could prove it). It happened in some jurisdictions and some jurisdictions had a reputation of being tougher than others. However, the CAs ability to select the panel certainly has the potential to be abused and looks bad to the outside world. I don't disagree with the notion of an outside CA selecting the panel. However, what does everyone think of the Army V Corps' random panel experiment? See the Army Lawyer Article by LTC Brad Huestis about his Frankenstein creation:$FILE/Article%203%20-%20By%20LTC%20Bradley%20J.%20Huestis.pdf

That certainly made a big enough pool of candidates that there could be no panel stacking and greatly decreased any appearance of impropriety.


No Man said...
This comment has been removed by the author.
No Man said...

Anonymous (SD),

I am not suggesting that I have ever seen anything "impermissible" in CAs granting clemency to senior officers and sailors. And I agree that 99.99% of CAs exercise their post-trial responsibilities with seriousness and care. What I am saying is that the CAs I have seen in the Navy are more moved to grant clemency to senior people because of the value they have shown to the military. I don't think that is in any way impermissible and, in fact, I think a decent argument can be made that such a pre-disposition is in line with the spirit of many portions of the UCMJ/MCM. But, permissible or not, the side effect of exercising authority in this manner is a perception of bias in favor of senior members of the military.

Like other commenters and contributors, I am not a fan of eliminating the CA. I just don't think the scale is totally on the side of clemency is A.O.K. as it stands today. Maybe a little tinkering akin to the stuff "rob" suggests, like requiring a statement of reasons for clemency. Not saying that's a good idea, just an example.

John O'Connor said...

Like "Rob," I never saw CA selection of members used to create a biased panel. In my experience, what happened most often with Special Courts-Martial is that those either pals with the legal officer or senior to the legal officer and willing to bully him around would tend to be relieved of member duties if they didn't want to do it. I don't think those sort of things happened with the GCMs I prosecuted, though the panels tended to be stacked more with people from the CA's staff (who were more or less under the SJA's thumb, than from the infantry regiments within the Division.

One thing I found sort of irritating is that because I perosecuted for 1st MarDiv and the School of Infantry, I don't believe I ever had a female member on a court-martial panel, simply because there weren't very many women in the division. This skewing of the panels was particularly important (in my mind) in "acquaintance rape" cases, which I found exceedingly difficult to prosecute.

John O'Connor said...

One thing I should clarify about my last comment. By saying that the GCMs I prosecuted tended to have Division staff officers who were "under the SJA's thumb," as opposed to officers from the subordinate regiments, I do not mean "under the SJA's thumb" in the sense that he SJA could pressure them to vote a certain way. I mean working around the SJA at headquarters such that they couldn't credibly claim that they were too busy to serve on a GCM. I found that service as a member was something that many senior officers tried to avoid because they felt they had better things to do, and staff officers had a harder time pulling that off when the SJA knew exactly what their commitments were. As I read my last comment, it occurred to me that it could be misconstrued.

Christopher Mathews said...

I have often wondered at the fact that of all the official players in the military justice system, only the convening authority -- the one with arguably the most power and certainly with the most discretion -- is chosen with no regard whatever for his legal acumen or judicial temperament.