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Friday, January 18, 2008
Code Committee meeting 4 March
CAAF has announced that the Code Committee will hold a public meeting at 0900 on 4 March. The meeting will be held at CAAF's courthouse. Here is a link to the meeting announcement.
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The Code Committee should give the public more specific information on what will be discussed. What are the "proposed changes" to the Code and Manual? What are the "other matters relating to the operation of" the Code? Why not post on the website the "read ahead" packets the Code Committee's members have either already received or will receive some time before March 4? CAAFlog should conduct one of its periodic challenge contests (prize to be determined), this time a two-part test requiring estimates of (a) the duration of the meeting and (b) the number of outside observers in attendance.
Gene, the problem with that contest is it would require that someone from CAAFlog be there to find out the right answers -- and I don't think that's going to happen. :-)
The problem with the Article 146 Code Committee is that the 5 CAAF judges seem to believe that they are ethically prohibited from participating in or recommending any substantive changes to the UCMJ. Hence, they do nothing, and the Code Committee is an annual waste of time and money. I disagree with that ethical stance, especially since Congress requires them to participate on the Committee. I've heard the only legislation that the CAAF judges wish to propose is for Congress to amend Article 146 to take them off the Committee. Frankly, if they are not going to participate, they should be off the Committee, and perhaps Congress could put some real Article III judges on as replacements. Right now, the only organization that functions as a Code Committee is the Joint Service Committee. And the JSC, although it does great and yeoman's work, is not an independent reviewer.
I agree with the CAAF judges' ethical stance and further believe that current appellate counsel - either Government or defense - should not participate, either. For example, an appellate defense counsel should not be defending clients, on the one hand, and potentially advancing rules that undermine their rights, on the other. This is a policy-making vehicle, and only attorneys detached from current cases and controversies should participate.
Why shouldn't those participating in the system -- who probably know its strengths and weaknesses better than anyone -- participate in discussions about appropriate reforms? And given the effective dates of changes, it would seem almost impossible for a statutory or regulatory revision to either help of hurt a defense counsel's existing client.
CAAFlog, you are probably right that there is no per se conflict. But your strict focus on timeframes is misplaced. The issue is one of integrity and consistency. And if Government counsel were making policy recommendations that tightened-up the UCMJ, whereas defense counsel made recommendations in favor of the accused, then there would be some level of consistency. But would you have confidence seeing a doctor who, say, had previously made recommendations to the FDA against the course of treatment he or she is now proposing for you?
I don't thing the M.D./J.D. distinction holds up. The mission of a medical doctor is very different than that of an advocate. A medical doctor's goal is to cure the patient. A litigator's goal is to persuade the decisionmaker.
Also, the law doesn't place a premium on advocates' consistency. As we have previously noted in discussing an attempt by Air Force appellate government counsel to make counsel eat words he wrote advocating for one client in the case of a different client, a lawyer advances a client's interest, not his or her own. So take a defense counsel who is litigating for a client who won an Article 62 appeal at the CCA level. If the Judge Advocate General certifies the case, the lawyer will likely argue to CAAF that it has no jurisdiction to consider the case. Now let's assume that in a later case, the lawyer's client lost at the CCA on an Article 62 appeal. That same lawyer not only can, but is expected to, attempt to invoke CAAF's jurisdiction because the lawyer is advancing each client's interests, not his or her own.
And, interestingly, CAAF rejected the appellate government motion to make counsel eat his words. See United States v. Webb, __ M.J. ___, No. 07-5003/AF (C.A.A.F. Dec. 6, 2007); United States v. Miller, __ M.J. ___, No. 07-5004/AF (C.A.A.F. Dec. 6, 2007).
So I would find it untroubling if a trial counsel, TDS counsel, appellate government counsel, or appellate defense counsel took one position in a proposal to the JSC and then took a contrary position in court. For better or worse, subordinating one's own view of the "right answer" to the client's interests is demanded by our profession.
If CAAF judges don't want to play on the Code Committee, then they should request an ethical opinion from the ABA, AO's office, or their state bar to justify their position. Then they may take that to Congress as leverage to be relieved of their duties. If they don't get such an opinion, then they should play the game.
Judge Robby Everett never had a problem fully participating on the Code Committee, and you couldn't find a more ethical gentleman.
CAAFlog, good points, you convinced me. I had a faulty vision in mind of an attorney with moralistic views of what the law should be applying those judgments, perhaps subtley, against his or her client. But as long as the attorney uses every strategy available under the current law, then there would be no problem - even if the attorney harbored doubts about the validity of a case, rule or precedent.
Anon, one might wonder what it says about our profession that we don't fear that litigators will act in a moralistic fashion. :-)
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