Monday, October 08, 2007

Roger Williams University Law Review's military law symposium issue

The military law symposium issue of the Roger Williams University Law Review is now out, though you wouldn't know it by checking the law review's web site. If you click on the link labeled "Download/View the Current Issue Table of Contents," you will get a pdf that is neither a table of contents, nor from the current issue. Rather, it's a masthead from the Fall 2005 issue. And the "Visit the Law Review Table of Contents Archive" link hasn’t been updated since 2003.

But if you somehow manage to find the Spring 2007 issue, it includes several worthwhile articles. It starts with an introductory essay by Professor Jon Shelburne. The issue also includes articles about military commissions and operational law. It ends with an interesting piece about the effects of stop loss policies on military lawyers. Captain Elizabeth Cameron Hernandez, The United States Army Reserve: Welcome to the Hotel California, We Are All Just Prisoners Here, 12 Roger Williams U. L. Rev. 904 (2007).

The article of greatest relevance to CAAFlog's mission is a provocative essay by Eugene R. Fidell. Is There a Crisis in Military Appellate Justice, 12 Roger Williams U. L. Rev. 820 (2007). The article is the text of a lecture that Eugene Fidell the Sagacious (EFTS) gave at Roger Williams on 31 March 2006. As Professor Shelburne notes in his introductory essay, the lecture preceded the Moreno earthquake, as well as the Hamdan v. Rumsfeld shift of tectonic plates. Those seismic events have altered the military justice landscape. This essay, which is interesting and important in its own right, also serves as a pre-Moreno/Hamdan time capsule, reminding us of just how much the ground has shifted over the past 18 months.

EFTS first notes the insularity of the military justice system, reflected by the paucity of civilian court citations to military appellate decisions. Id. at 821. EFTS then notes "a remarkable indication of congressional disdain for the military appellate system[:] . . . Congress conferred on the United States Court of Appeals for the District of Columbia Circuit judicial review authority over the military commissions and Combatant Status Review Tribunals. . . . So far as [is] known, no consideration was given to conferring that appellate authority on the Court of Appeals for the Armed Forces, where – at least as to the military commissions – one would expect it to reside . . . ." Id. at 821-22. Three months after EFTS uttered those words, of course, the Supreme Court held that the military commission system was "illegal." Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2793 (2006). Interestingly, when Congress established a new military commission system in Hamdan’s wake, it expressly considered placing CAAF in the military commission appellate chain. The 14 September 2006 version of S. 3901 that emerged from the Senate Armed Services Committee would have made commission convictions reviewable by CAAF with further review potentially available from the Supreme Court by writ of certiorari. But Congress ultimately rejected this approach in favor of an appeal to a newly created Court of Military Commission Review followed by an appeal as of right to the D.C. Circuit with the possibility of a cert petition to follow. See 10 U.S.C. § 950g. At that time, I was the Chief Defense Counsel for the military commissions system, so I followed these legislative developments closely. One high placed official, who was in a position to know, told me that the appellate authority was shifted from CAAF to the D.C. Circuit because some foreign governments were mistrustful of sending commission appeals to a "military" court and wanted them to go to an Article III court, which was perceived as more independent, instead. While those of us immersed in the military appellate system would find it laughable to suggest that CAAF is subservient to DOD, it's an interesting example of how labels and wire diagrams – see 10 U.S.C. § 941 – can create unwarranted image problems. Didn't someone suggest recently that the time has come to move CAAF's administrative supply line from DOD to the Administrative Office of the U.S. Courts? That experience demonstrates the wisdom of considering such a move.

While arising in the context of discussing the Detainee Treatment Act of 2005’s snub of CAAF, EFTS's essay also subtly tweaks CAAF for the small size of its docket, observing, "Roughly speaking, since the 2004 term, the court has issued about one decision per judge per month." 12 Roger Williams U. L. Rev. at 823. It will be interesting to see whether the recent change in CAAF's personnel results in more grants of review.

The article also expresses concern with the practice of "at least one" CCA (NMCCA) of "designat[ing] a single panel member to read the record of trial." Id. EFTS argues, "Considering the unique powers of those courts to set aside findings of guilt and reduce sentences, the 'reader judge' approach is disturbing." Id. (footnote omitted).

EFTS then sagaciously observed, "Of all the problems currently vexing the system, the gravest, in my opinion, is that of delay. So far, the Court of Appeals has been unable to find a way to remedy this. . . . But the real problem lies with the courts of criminal appeals – mostly, but not exclusively, the United States Navy-Marine Corps Court of Criminal Appeals." Id. at 824. Of course, what happened over the next 18 months is largely a happy tale. Forty-one days after Gene's lecture, CAAF would issue its opinion in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). Following Moreno, both NMCCA and the NAMARA appellate codes received additional personnel and the number of high enlargement cases has been reduced to a handful. This demonstrates that solutions can be found for even seemingly intractable problems. But in my almost 20 years of studying the military justice appellate review system, the problem of inordinate post-trial delay has been cyclical. Now that the problem is largely fixed, the personnel who fixed it are being reassigned to other duties. It remains to be seen whether post-trial processing times will balloon again.

EFTS also discusses more sweeping military appellate reform. For example, he observes, "There is a conversation to be had as to whether the military appellate layer cake is too complicated, and whether the service courts should be abolished." 12 Roger Williams U. L. Rev. at 826. He then suggests that "the UCMJ could usefully be amended by providing for the appeals as of right to the Court of Appeals [for the Armed Forces] across-the-board. The court can manage its caseload by ruling summarily on many cases. Dispensing with the petition [stage] would save time and effort all around. It would also afford GIs the same right to petition for discretionary review by the Supreme Court as other criminal defendants enjoy. The current discrepancy is indefensible." Id. at 827 (footnote omitted).

EFTS then suggests the possibility of eliminating the services' appellate defense shops and tasking trial defense counsel with litigating their cases on appeal as well. Id. at 827-29. He also mentions the possibility of civilian members of CAAF's bar being voluntarily appointed to CAAF appeals to provide pro bono representation. Id. at 829. He argues, "This would entail no expense to the government but would give military accused and the appellate military courts the benefit of a truly fresh, outside look at the cases." Id.

So much has changed over the past 18 months that I would love to see a pocket part updating this article. Perhaps some legal education institution--such as EFTS’s and my shared alma mater, the Naval Justice School--could invite Gene to make an address in March 2008 called something like, "Is There a Crisis in Military Appellate Justice? – Two Years Later," and publish his remarks.


Marcus Fulton said...

Interesting how close in time the lecture was to the Moreno decision.

John O'Connor said...

With the caveat that I haven't had a chance to read Gene's essay (for the reasons CAAFlog notes in his post), I will say that, all respect to Gene, I view leaving appellate litigation in the hands of detailed defense counsel as an uncommonly bad idea. There are two reasons that I hold this view.

First, my experience when I was a trial counsel was that trial defense counsel, while there were exceptions, just weren't fully versed in the complexities of appellate case law in the way one would expect an attorney who is detailed solely to appellate litigation. Indeed, because there is a tendency to give trial billets to relatively new lawyers, even the good ones do all they can to get up to speed on trial litigation to say nothing of appellate litigation. So I have grave doubts about the quality of appellate representation an accused would receive from his trial defense counsel.

Second, the constant shifting of personnel would create issues beyond the threshold competence issue described above. How would an accused feel if his trial defense counsel (and current appellate counsel) is now an SJA or trial counsel, or is currently deplayed to Iraq or on a float? Or if the DC is immersed in a capital case and (arguably) neglecting his clients on appeal? I suspect in these cases there would have to be a withdrawal of counsel and assignment of a new, local defense counsel who would handle the appeal. If that would be the protocol, just how many accuseds would still have their defense counsel able to represent them when their case goes to CAAF two years later? And are we going to fly these counsel in from across the globe for appellate arguments? You might end up, then, with a bunch of trial lawyers, with fleeting appellate exposure and experience, litigating appeals for cases that somebody else actually tried a year or more earlier.

I do believe, though, that leaving appeals to the trial defense counsel would have the potentially salutary effect of reducing the number of IAC cases considerably . . . .

On a number of the other issues highlighted in CAAFlog's post, I tend to agree with what are stated to be Gene's observations of structural flaws in the military appellate system.