Saturday, March 01, 2008

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.


John O'Connor said...

Your summary of my article is, as they say, "close enough for government work."

I do find the discussion of a "JOCian world" a little unnerving. I can't read that without hearing Ted Kennedy say that America under John O'Connor would be segregated lunch counters and back alley abortions.

DB Cooper said...

I like the idea of permitting the accused to waive appellate review. It makes a great deal of sense. Yet I am not hopeful it will ever happen. The MJ system is too concerned with public perception. Even if it’s a well informed, bargained-for waiver of appellate review, it will still look to uninformed outsiders (e.g., Mom & Dad sitting in the gallery and the d-----bags at the Washington Post) like the accused was strong-armed into relinquishing his appellate rights.

Phil Cave said...

Why not change the UCMJ as well.

Why not take away automatic appeals in SPCM Guilty Plea cases?

Why not make an appellant in a SPCM GP case petition for review?

DHS may be able to correct me, but I would expect stats would show at least 50% of appellant's express no interest in their case post-trial. They don't write, they don't call, they disappear off the radar. Those SPCM GP appellant's who do care can petition for review and specify their issue(s) at the time of review.

CAAFlog said...

My Liege,

JO'C addresses the possibility of changing the default position from automatic appeal to appeal only upon petition. But he concludes -- and I agree with him -- that changing the default position would not substantially change the total number of appeals because the trial defense counsel is likely to advise every client that an appeal could only help and can't hurt and thus advise every client to appeal. So the TDC would likely collect a notice of appeal with every appellate rights statement and the numbers wouldn't change.

Phil Cave said...

Understand, however, I would require that there be a petition to appeal with or within 30 days of the notice of appeal. That document would require something similar to CAAF's current requirement.

Guert Gansevoort said...

JOC's article is in fact a fine piece of scholarship. And I would agree with JOC's analysis if every servicemember was tried in federal district court. But they are not. They are tried before a blue ribbon panel selected by their commanding officer. The judges in these cases are not tenured appointees but rather senior military officers. And their counsel rarely have more than one or two years of litigation experience.

Congress was aware of these deficiencies when it struck the delicate balance between the need for command discipline and the individual rights of servicemembers in 1947-48. One counterweight to the power of the convening authority and the diminished rights afforded an accused at trial is the right of automatic appeal. Another is the ability to seek clemency from the service boards of clemency and parole. See Tate. Until a court-martial truly resembles its civilian counterpart, or even its military counterparts in Canada or the United Kingdom, the Code should be left alone.

John O'Connor said...


I'm glad that my article has brought you, err, back from the dead.

I agree with you that the UCMJ should not be changed. One, because I don't think any non-radical change would do any good. And the radical changes would be mostly bad policy. Two, because I don't want to take away an accused's ability to seek appellate review in truly contested courts-martial. The reform I propose to RCM 705 would strike mostly at those one-hour court-martial where the sentencing authority is not handpicked by the CA, but is a military judge, with a PTA that limits downside risk, where the accused calls essentially no witnesses, and does little else in sentencing than make an unsworn statement and place into evidence some letters from home and from the girlfriend that the UCMJ requires be impregnated right before trial. I'd rather get that chaff out of the way so appellate courts can concentrate on the wheat.

Thanks for the kind words on my article.

Anonymous said...

What about cases that go to the CAAF without any assignment of error by either the accused or his counsel? Article 67(a)(3), UCMJ, states that CAAF shall review "all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted review."

If you send the case to the CAAF without assignment of error, it is hard to see how the accused has shown good cause for his case to be reviewed.

Anonymous said...

Well, all said and done, 1) since CAAF has decided it can hear petitions & writs outside of any statutorily imposed time restraints I assume they would be of the opinion that even with a waiver the appellant can still petition. It wasn't that long ago, early to mid 90's that appellate review was routinely waived at the request of the accused. Once explained that while on appellate leave an appellant was still subject to the UCMJ and, in particular, random drug testing most of my clients asked to waive their appeal. I'd be interested in hearing from any ADC from that time period that could comment on the numbers back then when waiver, pre-CA action, was allowed.

Anonymous said...

Theoretically, I've always been a fan of "whatever an accused can give away, he should be able to sell", particularly in those moments when I've found the President or a military judge telling me they know what's best for my client.

Practically, though, I wonder if the military justice economy is structured in a way that's really conducive to the trade of appellate review in a PTA.

Based on my experience, the average TC/SJA/CA would find a waiver of appellate review to be essentially worthless, because none of us directly bears any of the costs of such review. Each of us most likely has long moved on to greener pastures by the time the error is confirmed and remanded for correction.

Of course, we'd probably have no objection to cutting-and-pasting a waiver of appellate review among the growing assortment of "specially negotiated" provisions that have devolved to mere boilerplate and then declaring that there'll be no PTA whatsoever unless the accused accepts it as is. We wouldn't though, be willing to offer much consideration for it.

That is, unless, the term would allow us effectively to bury our own mistakes. In these situations, the term might be significantly more valuable because it affects our own direct interests.

Imagine, for example, how much a TC/SJA/CA might pay for appellate waiver in a case involving our own prosecutorial misconduct or unlawful command influence. On a macro level, though, should local market factors control the system so tightly?

As a defense counsel only too ready to sell my client's appellate review, I still might face my own problems in setting the right price for it. Even in a guilty plea case, how do I actually know what appellate review is worth until the court-martial has adjourned and the CA has acted?

After the convening authority has acted and some big enough error has been committed (mistatement of pleas, findings, sentence; failure to abide by the PTA), how do I act to then withdraw from the deal and move to set aside the accused's pleas?

I'm sure the civilian jurisdictions allowing appellate review to be bargained away must have confronted some of these same issues. I'd like to hear some more discussion of their experiences and how we would actually apply it before I finally decide whether this is something for the military justice system.


Anonymous said...

Two Comments:

1. If an accused could waive his appeal in a PTA, I don't buy the paternalistic concern that these will become standard boilerplate. I see this just like voluntary appellate leave provisions -- yes they have become included in almost every PTA, but these provisions are really only effective if the PTA cap is low enough that the accused does not "beat the deal." If the PTA has no impact on the sentence adjudged by the court, there is no mechanism to force an accused to go on voluntary appellate leave until CA's Action. Similary, there will be no way to force an accused to waive an appeal if he does not beat the deal.

2. I read recently that the USN/USMC has been actively lobbying to allow appeal waiver by PTA - see the last comment on the initial posting discussing the O'Connor article - that has some sort of revocation clause. I'd be interested in hearing more about that proposal.

John O'Connor said...

Anonymous #4:

I don't necessarily agree that there would be no way to enforce an appellate review waiver idf the accused doesn't "beat the deal." That waiver would be self-executing in that the record would never be forwarded for Article 66(c) review. So I think the deal would be easily enforceable regardless of whether the accused beats the deal.

I don't know anything about USMC/USN proposals to change RCM 705(c) (I hadn't heard that until I saw the same blog comment you did). I do klnow that my article is entirely independent of any such efforts that may be (or may have been) underway.

Anonymous said...

CA's already have the ability to remove a case from appellate review. The CA can simply approve a sentence below the jursidictional limits of the appellate courts.

Most cases are guilty pleas. The standard PTA includes a provision in part II that waives the right to a board in the event of admin separation. The CA could simply disapprove the punitive discharge and boot the accused with an OTH.

The vast vast majority of appellate cases are guilty pleas where the punitive discharge (BCD) is the trigger for appellate review. Disapproving the BCD and administratively separating the accused not only gets rid of appellate review, it avoids appellate leave, dumps a malcontent off the rolls and avoids the "lost battalion" issues that Col Miller discussed in his article last year.

Traditionally, I think a lot of commands have preferred the SpCM route because it dumps the comand's discipline problems off on the lawyers. Even though admin sep processing is far more efficient from the service perspective, admin boards are very inefficient, time-consuming, and disctracting at the command level. As a previous commenter pointed out, commands don't care about appellate issues because they don't feel the pain. Maybe rather than stripping accused's of their statutory appellate rights, we can work on the incentives to get commands and CAs to use the tools already available to them to efficiently handle discipline issues.

Rob said...

I like Phil Cave's idea of taking away automatic review of SPCM guilty plea cases.

Also, one thing to consider if the appeal is waived as part of a PTA, you will see a drastic rise in the number of habeas corpus petitions in federal court alleging IAC against their assigned military counsel. By doing away with appeal rights, you might be shifting the problem to another venue, which I would argue is less equipped to process the unique military issues.