Considering H.R. 3174

I remain an enthusiastic support of H.R. 3174, the aptly-named Equal Justice for Our Military Act of 2007. The equality point works in either of two directions: the bill would provide servicemembers with an ability to seek cert more equal to that of civilian criminal defendants and it would provide servicemembers with an ability to seek cert more equal to that of alleged unlawful enemy combatants tried by military commissions. Both of those classes can seek cert as the result of ANY criminal conviction. H.R. 3174 would broader servicemembers' ability to seek cert, though even under this legislation, servicemembers receiving sentences insufficient to trigger the CCAs' jurisdiction would be barred from seeking Supreme Court review unless the relevant Judge Advocate General happens to refer the case to the CCA.

The legislation would help to fix the grossly gerrymandered cert jurisdiction established by the Military Justice Act of 1983. That legislation guaranteed the prosecution a path to the Supremes (through the vehicle of a specified issue to CAAF followed by a cert petition) while denying such a path to servicemembers in the huge majority of military justice cases that CAAF doesn't review. That legislation also strongly favored the respondent (almost always the prosecution) in extraordinary writ cases, making it possible to seek cert in such cases only where CAAF has granted extraordinary relief. So this legislation would help to level the playing field. It's the right thing to do. And history teaches us that the additional burden on the various military appellate shops and on the Supreme Court would be minimal.

But what would the legislation's likely jurisprudential effect be? Interestingly, the two most likely answers are: (1) none; or (2) make the law more favorable to the prosecution.

As we have previously discussed, there have been only 8 cases under the Military Justice Act of 1983 in which the Supreme Court has heard oral argument on a cert petition to CMA/CAAF. So the odds are small that there would be a sudden tidal wave of cert grants even if H.R. 3174 were to become law. Most likely, either every cert petition in the expanded pool will be denied or there will be an occasional grant, vacate and remand (GVR), resulting in some individual servicemember obtaining a better outcome on the basis of some other newly announced Supreme Court opinion. See, e.g., O'Connor v. United States, 535 U.S. 1014 (2002) (GVRing for further consideration in light of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)); Goodson v. United States, 471 U.S. 1063 (1985) (GVRing for further consideration in light of Smith v. Ilinois, 469 U.S. 91 (1984)).

Now let's move to the less likely scenario: the Supreme Court grants cert in one or several cases that wouldn't have previously fallen within its cert jurisdiction. The likely jurisprudential effect would be a windfall for the prosecution. Since the Military Justice Act of 1983 took effect, the Supreme Court has been more prosecution-friendly than has CMA/CAAF. Consider, for example, Davis v. United States, 512 U.S. 452 (1994). Both CMA and the Supremes ruled against the accused. But the Supremes did so on terms far more beneficial to the prosecution. CMA had ruled that when a suspect undergoing custodial interrogation makes an ambiguous reference to counsel, the interrogator must stop and clarify whether the suspect wants a lawyer. The Supremes, on the other hand, said that there is no need to clarify; the interrogator can bull right ahead unless there is an unambiguous request for counsel. In United States v. Scheffer, 523 U.S. 303 (1998), CAAF had ruled that an accused has a Sixth Amendment right to attempt to lay a foundation to introduce an exculpatory polygraph result. That's a fairly modest holding, yet the Supremes stepped in to say no, the Constitution doesn't require an exception to the President's flat prohibition of polygraph results at courts-martial. And, of course, we all know what happened in Clinton v. Goldsmith, 526 U.S. 529 (1999). So unless you are the only person on the planet who is personally invested in the Appointments Clause and the de facto officer doctrine, see Ryder v. United States, 515 U.S. 177 (1995), the Supremes have been far more hospitable to the prosecution than has CMA/CAAF.

And while both the Supremes and CAAF have seen significant personnel shifts since Goldsmith (only one current CAAF judge was even on the court in 1999, and he didn't participate in that decision), there can be little doubt that the currently constituted Supreme Court is more friendly to the prosecution than the currently constituted CAAF.

So any case that reaches the Supremes under H.R. 3174's expanded jurisdiction carries the prospect of fixing the law in a more prosecution-friendly manner than would have resulted if CAAF were to decide the issue in a later case.

It probably isn't the objective of those supporting H.R. 3174 to move the law in a more prosecution-friendly direction (it certainly isn't mine), but that would be a not-improbable outcome were H.R. 3174 to become law.