Sunday, August 19, 2007

Serving the addendum SJAR on the defense

We recently had an extended conversation about serving the addendum SJAR on the defense. Due to Friday's extensive development, that conversation has already dropped off of CAAFlog's front page.

Most commentators thought that SJAs in the field simply don't have the experience to make the correct cost-benefit analysis concerning service of the addendum SJAR. If that's right -- and it probably is -- then shouldn't the system make that choice for them? Shouldn't the Joint Services Committee see the problem and recommend that R.C.M. 1106(f)((7) be amended to require service of the addendum SJAR on the defense regardless of whether it contains new matters? So that the defense can't delay the CA's action forever by continually responding the addendum SJARs, thus providing a new 10-day period, how about also expressly providing that the CA may act on the case after either: (1) 10 days have passed from service of the addendum SJAR; or (2) the defense has responded to the addendum SJAR. Under such a rule, the CA could act even if the defense introduced a new allegation of legal error to which the SJA had not responded.

Such a rule change would promote fairness, eliminate hundreds of hours of work at the appellate level each year and reduce the average time that servicemembers with court-martial convictions spend on appellate review. Is there a downside?

13 comments:

Publius said...

I see a couple of problems with your suggested rule.

(1) If the defense was granted an opportunity to respond, I suspect additional issues or matters would be raised upon which the convening authority would want the SJA to opine before the CA reached a decision. So where do you cut the system off. I doubt letting the defense have the last say to the CA is going to be approved.

(2) Since we seem to be processing cases in only 7-8 years, when are we going to find the time to give the accused an additional 10 days to respond.

John O'Connor said...

Sign me up.

Gene Fidell said...

If there were no requirement for CA action, there'd be no need for an SJAR, much less an SJAR addendum.

Anonymous said...

Agree with Mr. Fidell. Eliminate the CA's action.

And if we add another 10 days to the process, CAAF will have to rewrite all of their questionable post-trial time requirements (ie, "presumptions"). Wasn't actual prejudice a better standard for the post-trial delay issue? The only thing that the presumptions, Barker factors, balancing, and looking for "egregiousness" do is create a full time employment act for lawyers. (Do many service members even know what "egregious" means - CAAF judges may need to attend opinion drafting 101). Can't we just stick with the substance? Prejudice worked for all the services but one, the dilatory Navy-Marine Corps team. And that team's problem was its inability to institute a cradle to grave case tracking system. The Army and the Air Force had one. Shame on the Navy JAG leadership for its failure to develop one. And all the other services have to suffer as a result!

Anonymous said...

Incredible, evidence exists that some SJA offices don't perform post-trial processing effectively and the recommendation is . . . eliminate post-trial processing. Those procedural safeguards can only benefit our servicemembers and help maintain the appearance of fairness in our MJ system.

NoMan said...

From the perspective of a contributor to this site, I am always amazed at the level of interest and "feeling" (for lack of a Better word) in our post trial related posts. Post trial processing always brings out the most comments and the greatest agreement that the MilJus system is to some extent broken. Thus the fires don't need stoking here, but I will wonder out loud why we get so many comments on this topic. Is it a) post trial processing causes such frustration with non-SJA miljus practitioners (our core target audience) that they are moved to blog? b)
Post trial rights are low hanging fruit for those that want to scrap the miljus system? c) miljus practitioners feel these are important rights and feel the need to zealously advocate for them? d) opinions about post trial processing are like. . . everyone has one and they all stink? Just threw that last one in to see if you were awake.

John O'Connor said...

Well, to answer No Man's question, issues with SJARs and CA actions rile me up because the errors committed with respect to them are often what I would call, for lack of a better word, "stupid."

The correct way to draft a CA action that approves a BCD but orders everything but the BCD executed is obvious, yet the same mistakes happen time after time after time.

With SJARs, it seems to me that the SJAs generally should be exceptionally risk adverse in dealing with SJAR issues. You're on the CA's staff, the CA probably won't go against you if you cross swords with the DC, so why would you possibly create appellate issues by not serving an SJAR on the defense when it says anything more than "I disagree."

I do strongly disagree with Gene and one of the anonymous posters who intimate that all of these issues could go away if Congress got rid of the CA's action. The commander's control over the proceedings is, in my view instrumental to the existence of courts-martial as a tool of discipline. Getting rid of the CA's action (and/or the CA's prosecutorial discretion) undermines the rationale for a court-martial system. Plus, it is a reasonably low-level way to get clemency if there is a real injustice that occurs at trial that might be legal but just seems unfair.

Phil Cave said...

I'm in favor of complete transparency in the "advice" and input the CA gets, on post-trial matters relating to clemency. While we all know from experience that few clients get clemency, it would be nice to know why not. That is especially so if the CA is getting erroneous input from SJA's on a clemency submission. I realize they don't really do much with 38(c) "briefs," but clemency requests could matter.

I agree with Gene if we are dealing solely with the administrativa. Finance and the Brigs already use the Report of Results of Trial and PTA, to do their calculations. The Brigs and C&PB's would have to change their procedure a little, because you don't get there before a CAA. Post-trial, the CA's role could be reduced to -- a clemency request was/was not submitted; the request was denied, granted, are granted in part, etc. That would then go to the Brig, to adjust calculations if required. In the mean-time, the ROT could be sent on to the CCA to start the appellate process. To CCA at that point, clemency would continue to be irrelevant, and they'd still be able to look at sentence appropriateness. If there is clemeny, that can be sent directly to the Brig as is already done.

That does not account though for 38(c) submissions. That's a different topic.

John O'Connor said...

I Pretty much agree with Phil Cave. In fact, I had started a comment arlier today that suggested the best result was to retain the CA's clemency powers but to remove the administrative requirements of SJAR's and clemency requests, essentially giving the CA a set period of time after authentication of the record to grant clemency if he is so inclined.

Anonymous said...

I like the idea of the CA only retaining clemency. Then, give to the trial judge the authority and responsibility, in the first instance, to review for legal error. Maybe Art. 66(c) should be even be amended to allow the trial judge o review for "factual sufficiency"? After the trial judge ruled on any errors assigned, she would then approve the findings and sentence and forward the case to NMCCA (which would only have jurisdiction to review errors raised before the trial judge?

SD

Phil Cave said...

I do think allowing the MJ to set-aside a finding(s), after announcement of sentence is something to debate, and I suspect I could be persuaded.

In some members cases, I've asked the MJ to set aside some of the findings, citing United States v. Griffith. I usually do the unwinable 917, then renew at the close of the case, and then a Griffith motion. So in a sense there is a limited power already for MJ's to review for "sufficiency." I've only had success once. But changing the rules may remove some of the MJ's reluctence to "disturb the findings, without specific authority."

Phil Cave said...

Sorry, meant announcement of findings.

But that creates a problem of what to tell the members when they deliberate on sentence.

If the MJ doesn't tell them that despite their decision, he's set-aside the finding, what then happens when they come back with a sentence for all of the findings they announced.

So, it's not easy to resolve and needs debate, once you start to pull a thread.

Guert Gansevoort said...

I write only to address the first post in this string by anonymous. Does the Toohey decision, which grants relief for egrigious delay where three of the four Barker factors weigh heavily in an Appellant's favor, really create a "full time employement act for lawyers?" By my count, despite appeals by several very similarly situated Appellants, CAAF has applied Toohey to only one case...Toohey. Many other Appellants have tried to applyToohey to their cases; all have failed. I too find it regretable that the Navy JAG forced this situation upon the services, but Toohey is little more than a symbolic head on a pike. The Court should have gone further in the face of willful defiance of the rule of law. The CAAF has required actual prejudice in every post-trial case except Toohey. See, e.g. United States v. Harvey. As for the other services having to "suffer" under a regime of presumptions that requires appeals to the CCA's to occur within eighteen months of docketing, the Judge Advocates General may seek comfort from the men they have confined on defective courts-martial. They can be reached at the USDB at 913-758-3740.