JO'C on military appellate review cont'

We previously noted JO'C's new article, John F. O'Connor, Foolish Consistencies and the Appellate Review of Courts-Martial, 41 Akron L. Rev. 175 (2008).

As is typical of JO'C's articles, it is thoughtful and scholarly. JO'C argues that too many courts-martial go on appeal and that many of these appeals violate public policy by constituting direct attacks on the accused's own position at trial. At trial, the accused was trying mightily to convince the military judge that he or she was actually guilty to take advantage of a pretrial agreement. Yet, on appeal, the accused turns around and says, "Remember all that stuff I told the court below about being guilty? Sorry, I really wasn't." (My made-up-quote, not JO'C's.) JO'C argues that this violates the invited error principle. He also argues that clogging up the system with so many meaningless appeals delays cases with real issues, which makes it less likely that any relief in those cases will be meaningful.

To remedy this problem, JO'C suggests not limiting the right to appeal, but rather giving the accused a new right: the right to bargain away appellate review. (He also notes, no doubt correctly, that changing the system to require a notice of appeal would not substantially limit the number of appeals, since trial defense counsel would almost certainly advise all of their clients to exercise that right.) JO'C would change the law to expressly provide that the accused can enter into a pretrial agreement in which he or she waives the right to appellate review.

JO'C argues that being able to appeal a case isn't sacrosanct. Federal civilian defendants are allowed to waive their appellate rights as part of a plea bargain. And military defendants are allowed to waive their right to appeal -- they just aren't allowed to get anything in return, which means that almost none of them do.

JO'C acknowledges that the likely result of such a rule is that almost every PTA would include a waiver of the right to appeal. But he views this not as a fault, but the very beauty of his proposed rule.

[JO'C, not that you ever require any encouragement to comment -- which I view as a very good thing -- but obviously feel free to correct or augment that thumbnail sketch of your views.]

In discussing United States v. Tate, 64 M.J. 269 (C.A.A.F. 2007), here, I previously asked, "Should R.C.M. 705(c) be relaxed to promote a freer marketplace for pretrial agreements?" I also favorably cited the Supreme Court's observation in Mezzanatto that a "defendant can 'maximize' what he has to 'sell' only if he is permitted to offer what the prosecutor is most interested in buying." United States v. Mezzanatto, 513 U.S. 196, 200-01 (1995). So I find myself largely in agreement with the article.

But it would be interesting to contemplate what a JOCian military appellate world would look like. In FY 2007, 2,289 cases were docketed with the CCAs for review under Article 66 (ACCA = 917; NMCCA = 986; AFCCA = 386; CGCCA = 21). Now that doesn't represent those courts' complete case load -- for example, those stats don't include sub-jurisdictional cases referred to the courts under Article 69 or remands from CAAF. But those numbers certainly represent the lion's share of those courts' dockets -- almost certainly well more than 90%. To think about what those courts' dockets would look like in a JOCian world, we have to make and apply some assumptions. Let's assume that 20% of general and special courts-martial are fully contested and that 80% of those result in some finding of guilty. Given those assumptions, then 366 of the cases docketed with the CCAs in FY 2007 would have been from fully contested cases.

Let's further assume that of the guilty plea or mixed plea cases, 80% of them included a pretrial agreement. And let's assume that in a JOCian world, 90% of PTAs would require waiver of appellate review. That would mean that of the 1923 guilty plea or mixed plea cases docketed with the CCAs during FY 2007, only 576 would have been docketed under JO'C's system (384 cases with no PTA + 192 cases in which the PTA did not include an appellate waiver provision). So, given these assumptions, in a JOCian world, the total number of cases docketed with the four CCAs during FY 2007 would drop from 2289 to 942.

That would mean that the total case load for all four CCAs combined would now be the same as the caseload of ACCA or NMCCA alone. Now that figure is somewhat misleading, because the cases that would go up on appeal would be the most difficult and time consuming. So while the total number of cases would be only 40% of the current total, the workload would still be more than half of the current total.

Of course, in such a world the services would likely cut the staffing of the appellate courts and probably the appellate defense and government divisions as well. If so, total processing times wouldn't go down. And if the bean counters based the cuts on total number of cases (as seems possible), processing times might actually go up because fewer counsel and judges would have to wrestle with almost the current number of substantive cases. But JO'C's system would still avoid the personnel opportunity cost that he views as one of the problems with the current system, as well as vindicating the principle that an accused should not be able to prevail on appeal on grounds directly at odds with his or her position at trial.