Thursday, April 10, 2008

Marrying up the two themes of the week

CAAFlog's themes of the week have been: (1) fixation with the prospect of the first U.S. court-martial of a civilian since Vietnam; and (2) agitating for appellate review of subjurisdictional courts-martial.

Let's marry up those two themes.

A civilian can't be sentenced to a punitive discharge and so a civilian can't qualify for Article 66 review of a special court-martial conviction unless he or she were absolutely maxed out on confinement. So any civilian prosecuted by a court-martial is likely to have no right to appellate review. The civilian could petition the Judge Advocate General under Article 69 and the Judge Advocate General could refer the case to a CCA under Article 69(d), but the civilian with a brand-spankin' new federal conviction would have no assurance of any direct judicial appeal.

The civilian could qualify for a right to appellate review of a GCM conviction only if sentenced to death or a year or more of confinement. A contractor's GCM felony conviction with a resulting sentence of confinement for 11 months would be reviewed in the Office of the Judge Advocate General -- from which it could be referred to a CCA -- but the civilian contractor would have no right to a direct judicial appeal.

Perhaps Senator Graham -- who inserted the language into the DOD Authorization Act extending jurisdiction over civilians accompanying our forces in contingency operations -- could slip some language into next year's DOD Authorization Act closing the subjurisdictional gap.


John O'Connor said...

Maybe he should slip in a constitutional amendment repealing the Incompatibility Clause instead.

Anonymous said...

Wouldn't a habeus writ be the route to attack the conviction in this case?

Anonymous said...

This whole discussion about appeals of subjurisdictional casess seems to be sort of full employment welfare for appellate lawyers. No one wants this except those who benefit -- convicted criminals and thier paid advocates.

No Man said...

I agree with Anon #1 that habeas/mandamus (if not in confinement) writs for Art. 69 appeals are an option. But, that leaves Art. 69 defendants in a place less than normal defendants for two reasons:

(1) The habeas standard for review is far higher than direct appeal, and
(2) Some case law suggests there is a split of authority on whether Art. 69 review is entitled to habeas review. Compare Dew v. United States, 48 M.J. 639, 645-47 (A. Ct. Crim. App. 1998);with Dukes v. Smith, 34 M.J. 803, 806 (N.M.C.M.R. 1991).

Scotto said...

Were Senator Graham to close the subjurisdictional gap, would that be just for civilians tried under the UCMJ?

If so, wouldn't that leave a somewhat conspicuous disparity in treatment between civilians and military mbrs?

If so (again), is that really justifiable when some private contractors serve in roles similar to some service mbrs (only with better pay)?

Which suggests that the identified issue (leaving civilians without avenue to appeal) might be the boot upon which easier review of subjurisdicitonal cases for service mbrs could be strapped. (Or, is that the whole point of the post?)
It's an intriguing possibility--that the increasing "privatization" or out-sourcing of some military functions to private contractors could lead to a military justice system more in line with non-military jurisdictions.

What's next? More than one peremptory challenge?

CAAFlog said...

To anonymous #2 -- I'm sure that some people would like to see the elimination of the subjurisdictional court-martial gap because they really care about servicemembers. (Note that I am NOT attempting to suggest that someone who opposes the proposal doesn't care about servicemembers. Rather, I am suggesting that some people will support the proposal because they believe that it helps to protect men and women in our armed forces.)

While I'm not a cheerleader for the military justice system, I do believe that it reaches an accurate and just result most of the time. But like any government program, it isn't perfect and it sometimes makes mistakes. Innocent servicemembers are sometimes convicted. Of course, the military justice system isn't unique in this regard, as demonstrated most dramatically by the 128 exonerations of death row inmates since 1973.

Making all court-martial convictions subject to appellate review will likely correct some of the mistakes and ameliorate some of the injustices that will inevitably occur in any justice system.

Of course, no justice system is perfect. While I respectfully disagree with those who think the cost of granting a right to appeal every court-martial conviction outweighs its benefits, I do understand their analysis and position. And I'll bet a lot of them, while disagreeing with my position, would agree that its supporters are not limited to "convicted criminals and thier [sic] paid advocates" -- especially since most of their "paid advocates" are military officers who have also served as prosecutors and who would remain gainfully employed even if they weren't assigned to an appellate defense division.

CAAFlog said...


Don't even get me started on my Wiesen/one peremptory challenge rant again. :-)

I do want to close the subjurisdictional gap for every accused, not just civilians. But if I had to choose between closing the gap for civilians or closing the gap for no one, I would opt for closing the gap for civilians.

Anonymous said...

To Cafflog: Would you agree that a defect in the court-martial system is the rule that an accused cannot receive a more severe sentence at a rehearing than at the fist trial? Would it be better to allow an accused who challenges the providency of his guilty plea on appeal to be again subject to the maximum at a reharding? Wouldn't that provide some disincentive to challenging the providency of a guilty plea?

Anonymous said...

sorry for the typos. I'm sure you will "sic" them.

CAAFlog said...

The UCMJ already provides some disincentive to challenging guilty pleas based on the (reasonable) loss of the initial PTA protection if one changes one's pleas at a rehearing.

I will agree that there is some academic tension arising from allowing the accused to keep the original sentence that he or she might have obtained, in part, through the defense counsel's argument that he or she accepted responsibility and took an important step toward rehabilitation by pleading guilty.

That said, I don't think it's particularly in the military justice system's interest to make it too difficult to challenge the providence of one's plea. Now that's different than suggesting that it should be easy to win such a challenge. It's not. Among the many reasons is that most pleas are entered providently, the vast majority of military judges do a very good job of exploring and negating potential defenses (which for the reasons previously discussed is good for the military justice system), and the Felty doctrine cleans up a number of the rare instances in which a plea isn't provident to the actual offense pled.

Remember that stats suggest that CCAs provide relief in only about 3% of all cases they review. See Major Jeffrey D. Lippert, Automatic Appeal Under UCMJ Article 66: Time for a Change, 182 MIL. L. REV. 1 (2004).

So there's no epidemic of guilty pleas being set aside on appeal. The policy question is whether we should discourage appellants from even trying to challenge the providence of their pleas. I think the benefit to the system of allowing them to try outweighs the costs. Others disagree -- a position that I think is perfectly reasonable though obviously I don't subscribe to it myself.

Finally, I will reiterate that I support the JO'Cian proposal to allow court-martial accuseds to bargain away their right to file an appeal -- a proposal that would, in practice, likely eliminate almost all appellate challenges to the providence of guilty pleas.

John O'Connor said...

Well, I have to say I think the disincentive under the UCMJ for challeging providence on appeal is a little bit overstated. Perhaps the most important thing obtained through a PTA (in may cases) is certainty and elimination of downside risk. In those cases where the accused beats the deal, he had the benefit of eliminating downside risk (though he didn't actually need it), and, as CAAFlof correctly observes, got a sentence appropriate for someone pleading guilty, and can then turn around and keep that sentence based on a guilty plea and have that be a ceiling on sentence for a contested case.

Also, something I had thought about a little bit when I was a TC was that there is absolutely no disincentive for an accused to challenge his conviction on appeal where he has dealt a GCM back to a SpCM where the sole sentence protection is based on the lesser forum, or where charges are dismissed with prejudice in return for a guilty plea on other charges.