Saturday, April 12, 2008

A proposal to reform the military appellate process

Based on thoughts arising from our very helpful recent discussions, I propose the following statutory reform package for the military justice system's appellate review process:

1. Make all SPCM and GCM convictions subject to judicial review (absent waiver or withdrawal) without regard to sentence. (I am indifferent to flipping the current practice to provide an affirmative right to appeal that the accused must invoke. For the reasons discussed by JO'C in his recent article, John F. O'Connor, Foolish Consistencies and the Appellate Review of Courts-Martial, 41 Akron L. Rev. 175 (2008), in operation such a system would be almost indistinguishable from out current system. So I would neither affirmatively support nor actively oppose such a change.)

2. Allow an accused to offer the waiver of appellate review as part of a pretrial agreement.

3. Eliminate the Courts of Criminal Appeals.

4. Provide for the right to appeal any court-martial conviction to CAAF in a one-step process. CAAF would exercise jurisdiction and rule on the merits of every case appealed to it. CAAF would also exercise the Article 62 jurisdiction currently exercised by the CCAs.

5. Authorize CAAF to sit in panels of 3 with further authority to grant initial review or rehearing en banc.

6. Legislate a formal post-conviction process for claims relying on extra-record evidence. Do so by amending Article 73 to allow the accused to file a petition for new trial based on any extra-record evidence with CAAF within two years of the court-martial conviction. CAAF would review the petition and the government opposition to determine if any disputed issues of material fact exist. If none exist, CAAF would resolve the petition on the basis of the filings. If such disputed issues of material fact did exist, it would remand the case for a factfinding hearing.

7. Legislate formal limits for CAAF's extraordinary writ power. Declare that CAAF has writ jurisdiction over all cases for which an IO has been appointed under Article 32 or that have been referred to an SPCM or GCM, but not over summary courts-martial. Provide that CAAF's writ jurisdiction terminates in all instances upon Article 76 finality.

Such an appellate review system would be more just, substantially faster, substantially less resource intensive, and more predictable than our current military appellate review system. I considered whether to transfer the Article 66(c) sentence appropriateness and factual sufficiency review provisions from the CCAs to CAAF. I wouldn't. Those provisions are vestiges of an earlier military justice system substantially less fair and reliable than the one we have today. Court-martial panel verdicts should be disturbed only when a comparable civilian jury verdict would be disturbed. The question of sentence appropriateness is closer since in non-capital cases, a civilian jury would rarely impose a sentence. On balance, I wouldn't give CAAF sentence appropriateness power, but I think this is a closer question than giving whether to give it factual sufficiency power.

Do I hear a second? Amendments are welcome.


Norbert Basil MacLean III said...

Elevate CAAF to an article III court; rename it U.S. Court of Appeals for the Armed Forces Circuit; and increase the judges to a number similar to that of the Federal Circuit. By elevating the judges to article III you give them true independence. The criminal appellate practice before the new military appellate court should be brought in line to that of the geographical appellate courts with the right to file a petition for certiorari to SCOTUS. Making CAAF an article III court and increasing its judgeships would still be cost effective if you abolish the four service CCAs as suggested by CAAFlog. It’s a win-win situation for everyone. Long term cost benefits to the United States would evident by the abolishment of four service CCAs; full and fair appellate review for all servicemembers and any civilians tried under the UCMJ; and a modern military appellate justice system with true procedural due process protections more in line with that of our allies such as my other home country of Australia or Israel, Canada, and the U.K. If we are going to send our military off to war to promote democracy – a cornerstone of which is due process – we should at least afford those same uniformed citizens with real procedural due process otherwise we look like hypocrites.

John O'Connor said...

I think I'd take that system over the one that exists, all things considered. A couple of thoughts:

1. Waiver of appellate review can't just be something the accused can propose, it should be permissible no matter who proposes it. The old distinction whereby some provisions are okay only if proposed by the accused is, to use a precise legal phrase, stupid.

2. I actually think there's a better case for factfinding powers than there is for sentence appropriateness. Let me put it this way, I think it's important that some military appellate court have the power to make findings of guilt, for example, for an LIO when the evidecne won't support the greater offense because of the unique costs of remand in the military justice system.

3. I would create a permanent trial court to deal with factfinding requirements for the collateral review you propose rather than remand to some CA to create an ad hoc court to do it.

4. You'd need more CAAF judges, at least six and probably nine. But that would still be cost-effective and more efficient.

Cloudesley Shovell said...

I'm a little cloudy (no pun intended) on some of the specifics....

Would this new CAAF, absent the CCAs, have factfinding powers, or would it be strictly a court of law?

I gather that the intent here is that CAAF reviews all cases on petition. In other words, there is no more mandatory review, but now everyone has the right to appeal. They just won't necessarily have their case actually heard. Did I get that right?

Not sure I agree w/JOC that CA's could propose waiver of appellate review. I think you'd pretty quickly have a situation where nobody would get a PTA without that provision. Then again, I like the idea that under the current system, a CA can approve a subjurisdictional case, and immediately administratively discharge the accused. (Why more CAs aren't doing this with guilty pleas since nearly every PTA has an admin sep waiver provision continues to baffle me. The BCD just isn't that important, and to most people, OTH sounds worse.)

I do not agree with number 6. Courts-martial are different, and my opinion on the ultimate purpose of the system is that it's for good order and discipline, not some general societal interest in criminal justice. Under the current Art. 73, the executive branch re-acquires control over the case after judicial review. I think it should stay that way. Absent evidence that the current Art. 73 is not working, it should not be changed. Lawyers already stick their noses into too many places in the military (I've heard some horror stories about the overlawyering of combat), and we should resist the temptation to "over-judicialize" things. Control of the military is one of those things very central to the executive, and to a lesser degree, the legislature. The judicial branch has its place of course, but comes in a distant third.

Concur heartily with number 7.

I would also include a provision that no court-martial conviction shall ever be treated as a "conviction" for the purpose of any law, past, present, or future, unless the conviction is for a specific qualifying crime (I would include the specific crimes, such as murder, rape, arson, theft, etc., the classic common law felonies in the language of the statute--no uniquely military offense would ever qualify) AND the approved and executed sentence includes a DD and confinement for at least one year following a GCM.

I would also specify that any person administratively separated prior to completion of appellate review (where no punitive discharge is included in the sentence) would be entitled only to an upgrade of the discharge if the conviction were overturned. No back pay, no right to be back on active duty, etc. It's still the military, after all. Needs of the military in that regard outweigh any individual's "right" to be in the armed forces.

CAAFlog said...

I am happy to treat JO'C's point #3 as a friendly amendment and incorporate it into the proposal.

I disagree with JO'C that more CAAF judges would be needed under this proposal. (The prospect of adding even 1 CAAF judge would actually be fairly expensive because the CAAF courthouse isn't big enough to hold another Judge's chambers.)

First, if CAAF sat in panels, then each judge would sit on only 3/5 of the cases he or she currently hears. So even a 40% increase in cases wouldn't increase any judge's caseload. Second, each judge's workload would be further reduced by eliminating the grant-then-review system. Each case would get one look -- saving both CAAF's time and advocates' time. Third, I think that in a JO'Cian waiver-o'-appellate-review world, the total military justice caseload would shrink considerably. Fourth, even today, CAAF provides something approaching plenary summary disposition review to cases it denies, so deciding such cases by summary affirmance rather than petition denial would require little extra work. And fifth, CAAF's total granted caseload has been quite small in recent years. The court certainly has the capacity to take on additional work with no increase in membership.

So, all in all, I would be quite surprised if a five-member CAAF were inadequate to accomplish its mission under the statutory reform package that I proposed.

Sir Cloudesley, please take another look at #6 of my proposal. This was designed to provide some statutory framework for the current Ginn/DuBay framework that has arisen to deal with collateral issues such as IAC. I don't think the proposal would augment judicial power; rather, it would formalize it through congressional action, which is a good thing since it puts development of the system in the constitutionally-authorized body's hands. (Article 73 is the current petition for new trial provision. This would change it to eliminate certain restrictive aspects to the kinds of new evidence that can be raised, thus formalizing the process of making post-trial claims based on extra-record evidence.)

Finally, under this proposal, there would be no petition to CAAF. Rather, CAAF would review every case that came to it on the merits, though the result of the vast majority of these cases would be a summary affirmance.

Gene Fidell said...

I'd be inclined to permit appeals of sentences even if the CCAs were abolished. Other common law countries permit this in appellate review of courts-martial, and it seems appropriate given the Code's standardless sentencing (other than in capital cases). The foreign cases admittedly don't yield very much by way of hard doctrine on what's a sufficient sentence, but they are at least a start. In any event, I am uncomfortable with there being no judicial review of what the members/MJ and CA decide on sentencing.

CAAFlog said...

I am persuaded by JO'C's argument that either side should be permitted to propose the waiver of appellate review as a PTA term. I think either way the rule is written, the end results will be the same. The TC would come up with a permissible way to "suggest" to the DC that the deal would be accepted if only it contained the desired waiver. And, as a general matter, the law ought not encourage practitioners to operate by winks and nudges.

Tweak number 2 is to require that if the JO'Cian waiver-of-appellate-review-as-bargaining-chip rule is adopted, the waiver appear in the maximum sentence appendix to the PTA rather than in the terms portion. The problem with having such a waiver in the deal itself is that the military judge will know that the case is unreviewable up front. Again, while I would trust the great majority of judges to operate the same way they would knowing that the case won't be appealed, I don't trust all of them with that knowledge. Indeed, we've all probably seen military judges who start to run their sentencing proceedings differently as soon as they determine that they aren't going to adjudge a BCD. To avoid such temptation, the waiver should be in the maximum sentence appendix.

Of course, this is an imperfect fix. In a members sentencing case, the military judge would know up front that the case is a freebie. But better to limit such knowledge to that minority of cases rather than giving the military judge such knowledge and temptation in every case with the waiver provision.

(Of course, there is another danger. Waiver terms could become so ubiquitous that military judges come to assume that every guilty plea case with a PTA contains such a term and will never be appealed. It would be interesting to see whether, in practice, the average military judge's behavior is different in such a world.)

Finally, Gene raises a good point about sentence appropriateness power. Again, I think there's a better argument for giving CAAF that power than for giving it factual sufficiency review power. On balance I would still probably have CAAF review findings and sentences based on the same legal principles that the 12 geographic circuit courts of appeal apply (or that they applied pre-sentencing guidelines), but it is a close call. I certainly wouldn't think it calamitous -- or even misguided -- if Congress decided to transfer sentence appropriateness power to CAAF.

Anonymous said...

Sounds good to me, but if we're talking about a comprehensive reform of the military appellate process shouldn't we also address the convening authority's post-trial review and action?

Personally, I'd eliminate it -- at least as far as legal review; I'd keep a pure clemency function for the CA -- and transfer those duties to the trial judge, who'd retain jurisdiction at least long enough to do what the CCAs are doing now. I'd apply a "raise or waive" rule, that would flush out errors and any additional fact-finding that might be needed as soon as possible, and would further reduce the cases going to the newly constituted CAAF.

I'd also keep Art. 66's fact-finding authority (but without the "factual sufficiency" element, at least as it's currently construed, i.e. the power to set aside findings if the court is not personally convinced of the accused's guilty BARD) to address the issue of LIOs in the event findings to the charged offense are set aside.

Given the current sentencing regime, I'd also keep review for sentence appropriateness. Perhaps that concern, though, would be best addressed by sentencing guidelines, mandatory minimums, or other mechanisms to more closely cabin the sentencing authority's discretion? Maybe even eliminate member sentencing?

Finally, I'd give the Supreme Court the authority to review any court-martial, not just those reviewed by CAAF.


CAAFlog said...

Sierra Delta,

Note that if the proposal were adopted, there would be no further need to tinker with SCOTUS jurisdiction. Since every SPCM and GCM conviction would be appealable to CAAF on the case's merits, every SPCM and GCM conviction could then reach SCOTUS.

It hadn't occurred to me before, but this would also eliminate the current disparity between the government's ability to reach CAAF through certification and the defense's ability to reach CAAF via petition (acknowledging the small number of cases--including United States v. Tempia--where the government won at the CCA/CMR level and the Judge Advocate General nevertheless certified the case to CAAF).

Regarding CA actions, retaining the CA's clemency power (which I couldn't endorse more strongly) gives the CA de facto power to reduce findings or sentences on legal grounds. So the only real question is whether we would still allow a CA to send the case back to the trial judge for some specific purpose. It would seem efficient to do so. So I don't think I'd tinker with the CA's post-trial powers. It's a unique military process, but I believe it appropriately addresses unique military needs.

CAAFlog said...

Oh, and regardless of whether giving CAAF Article III status would or wouldn't be a good idea, I don't think it's politically viable. There seems to be considerable senatorial sentiment that life tenure for judges is a bad thing. I don't see Congress moving to establish more life tenured judicial positions. On the contrary, I think there will be a tendency to address future needs for new tribunals by establishing Article I courts with judges whose tenure in office is fixed.

Of course, that reaction begs the question of whether the statutory package set out in the original post and as amended in the comments is politically viable. My knee-jerk reaction is that if JO'C and I can both agree that it's better than the current system, it might not have any poison pills in it. :-)

ossian said...

The service Secretaries should be given unconditional power to commute death sentences to a term of imprisonment.

CAAFlog said...

Ossian offers another friendly amendment that I'll adopt.

Gene Fidell said...

CAAFlog, I recommend you start a fresh string with a new post incorporating the various friendly amendments, and keep doing that as further refinements emerge.

I wonder if Anonymous might clarify the raise-or-waive point. If the CA's posttrial function is restricted to clemency, is it wise/fair to invoke waiver as to points not raised with the CA. If the raise-or-waive point was intended more broadly, I'd apply whatever waiver doctrine governs normal circuit court review of district court convictions. Cf. Art 36(a). If I have misunderstood Anonymous's point, I'll welcome a clarification.

Cloudesley Shovell said...

More thoughts . . .

CAAFlog, I'm still not sure I agree with your proposed Art. 73 amendment. Who has the burden of proof? What is the threshold? Is merely creating a disputed issue of fact enough? That's a lot different from presenting evidence that, if available at the original trial, would have had some reasonable probability of altering the outcome. What evidence is required to create a disputed issue of fact? Is an affidavit from the petitioner enough? What happens if at the new trial the petitioner fails to present the new evidence that he claims he had? Does the gov't still have to reprove its entire case?

With regard to the standing factfinding court, where does it sit? Who funds it? Does the court travel around, or do cases come to the court? (A traveling court seems almost a necessity).

I would also reintroduce some very strict time limits on CAs and appellate courts for post-trial processing and review. If something is important enough that it warrants a court-martial, it warrants the full attention of the SJA and CA and the courts. The utter incompetence in this arena is appalling. In this day and age, there is no excuse for not having a complete record of trial within 3 working days of the completion of trial, action within 30 days, and submitted, with briefs, for appellate review within 3-6 months. The needlessly complicated post-trial process could also be cleaned up.

Gene Fidell said...

I agree with Sir Cloudesley about cleaning up the posttrial process, although I'm not so sure about rigid deadlines. Given the technological advances in recording testimony since 1951, do we still need TC, DC and MJ to function in the authentication process. In civilian courts, it's just the court reporter. Why not here?

Speaking of ROTs, is there a consensus about ways to achieve more timely public access to court documents such as nonsealed/UNCLAS trial exhibits, motions, MJ rulings?

Publius said...

Many of the ideas suggested here have considerable merit and should be debated more.

However, I can just imagine the howls of protest from the CAAF judges with the suggestion that they become more like a circuit court of appeals and, as a court of first appeal, loose the right to decide on their own docket.

If you all are truly interested in fixing the military justice system, you would start not with the requirement for the convening authority to act on the case, but with sentencing. Much appellate work is related to why did X get this sentence when Y got a lot less. Much of sentence disparity is caused by the fact that the accused gets to choose the sentencing authority and sometimes doesn't choose wisely. Then the appellant cries that his sentence must be reduced. The answer is judge alone sentencing. That would not eliminate all of the disparities, but it would go a long way in making the sentences more equitable.

Cloudesley Shovell said...

I must disagree with you, Publius. One of the most wonderful aspects of the military justice system is sentencing by members, together with the option to go judge alone. The lack of mandatory minimum sentences for nearly every offense and the requirement to start deliberations at no punishment are important protections for the accused. Sentencing by members also serves as an important feedback mechanism on good order and discipline. A "no punishment" sentence will speak volumes to a CA (just ask the former USNA Superintendent about that). Alternatively, a SpCM jury that comes back with 12 months and a BCD for a drug pop will certainly send a message about the command's tolerance for drug abuse.

It has been my experience that members are, with rare exception, going to be the far more lenient sentencing authority. Members also tend to be more defense-friendly on findings.

TC said...

Just a few thoughts, let me throw my two cents in.

1. I agree with Mr. O’Connor, you would definitely need more judges to handle the case load. The alternative, which may work best, is to civilianize the CCA's.

2. I would throw in a provision not to be able to sentence anyone to a punitive discharge unless they were sentenced to over a year. In this system if one is sentenced to a year or over, that would make them eligible for the big-chicken-dinner, or a DD.

The reason being is an Other Than Honorable is almost as bad as a BCD anyways. I do not understand giving someone a Punitive and under a year, then let that person languish on appellate review like an expired can of tomatoes when a discharge board is quicker, less costly, and achieves the same results.

Of course, if one is sentenced to two or more years they being on appellant review have little effect in the big scheme of things as opposed to one that was just given a BCD and told to sit home for 2-4 years on excess leave.

3. A bigger question is how we are going to address the lack of uniformity in the UCMJ. Every branch seems to do things different (no-bcd specials, different procedures, sitting juries, etc).

A quick look in the back of the annual reports will show you the difference in uniformity. How can the Air Force have 240 GCMs-472 SPC-148 Summary, the Army 800 GCMs-650 SPC-1,223 Summary, and Navy-Marines 300 GCMs-1,000 SPC-1,500 Summary. (The Air Force just recently brought their GCM’s down 30%, usually they are higher than the Navy-Marines).

The numbers make no sense. That is if you have an ill-begot perceived notion that the UCMJ is truly uniformed.

These BCD’s and DD’s translates to years of useless legal review when an OTH would suffice in most cases (i.e. drug offenses). Such a waste.

Marcus Fulton said...

I suspect that requiring a year of confinement as a prerequisite to a punitive discharge would do as much to increase confinement times as it would to reduce punitive discharges.

CAAFlog said...

Sir Cloudesley,

Note that in the reform proposal, a disputed issue of MATERIAL fact triggers the fact-finding hearing. The materiality of a disputed issue of fact is a question of law -- the appellate court itself decides whether the question of fact is potentially dispositive of a legal claim. This is the standard that civilian courts routinely apply in ruling on motions for summary judgment.

CAAFlog said...

Regarding the reaction of CAAF judges, I'm not so sure that they would be opposed to the proposal, Publius. With the vast majority of cases that go to CAAF, there may be a duck in the water issue. The public sees the one-sentence denial orders come out and may conclude that the duck is just floating serenely on the surface.

But beneath the surface, those webbed feet are churning. I would be shocked if most of the geographic circuits devoted as much attention to cases they summarily affirm as CAAF devotes to unsuccessful petitions for grant of review before denying them. The amount of extra work that would be required to move from "petition denied" to "summarily affirmed" is little. It isn't zero, because CAAF case law holds that a denial of a petition has no precedential value. So there may be some extremely limited number of cases that CAAF passes on to allow the issue to percolate rather than because it thinks the lower court's disposition is clearly correct. So in a summary affirmance world, CAAF would likely give plenary consideration to some extremely small subset of the cases that it would deny under the current system. But encouraging CAAF to provide plenary review in more cases is, in my view, a good thing. Even if CAAF were to affirm at the end of the day when the ducks come home to roost, the law would be clarified.

CAAFlog said...

I will follow Gene's suggestion that I post a new "as amended" version of the statutory reform package, but I probably won't be able to do it tonight.

So now you have something to look forward to on Monday. :-)

Norbert Basil MacLean III said...

I do see CAAFlog’s point concerning increasing the number of judges because the current CAAF courthouse couldn’t accommodate more judges. However, if the system is going to be changed like the one outlined above more judges will be needed so I agree with Mr. O’Connor and TC. And if you have more judges, you might as well make them article III judges for the below reasons.

First and foremost, servicemembers would receive true procedural due process protections in an Article III court. If you are going to convict a sericemember who has served their nation with two thirds of a jury (except death penalty cases which require a unanimous verdict) and then stigmatize them for life with a federal conviction together with civil disabilities at minimum they should receive full procedural due process protections in appellate review by an article III court. While military justice was meant for good order and discipline the modern system provides for the stigma of a federal conviction and that service members loses: (1) right to vote (in certain states); (2) right to apply for professional licenses; (3) right to bear arms; (4) job and school opportunities; (5) veteran’s benefits; etc.

Second, the long term cost benefits to the United States would be enormous and well worth elevating CAAF to an article III court. CAAF judges wouldn’t retire with senior status at 15 years and would remain judges for life only taking senior status at age 65 just as all other geographical circuit court judges. Under the current system CAAF judges take senior status and retire with only 15 years of service and before age 65 (that is if their term expires prior to age 65). 10 U.S.C. § 942(e). According to CAAF’s website there are six judges who receive retirement pay in senior status. When’s the last time any one of those judges heard cases as “senior” CAAF judges? (Even when CAAF was down to three judges prior to the Senate confirmations of Judges Stucky and Ryan; I believe CAAF was hearing cases with three judges.) Also senior status as an article III judge would still permit the judge to serve on panels and alleviate case loads of the court. The four service Court of Criminal Appeals would be eliminated. Thus an Armed Forces Circuit would be more cost effective and have greater judicial efficiency because of the uniformity in the application of military law and avoidance of CCA splits requiring litigation before CAAF.

Third, the new Armed Forces Circuit could have appellate jurisdiction of the Military Commissions thereby freeing up the D.C. Circuit case load. Civilians prosecuted under the UCMJ would also be able to have their appeals heard by an article III court.

Lastly, servicemembers would have the chance to file a petition for certiorari to the Supreme Court after review by the new Armed Forces Circuit. Thereby abolishing the long standing inequity in American law with respect to Supreme Court review as outlined by the American Bar Association in 2006. Review by an Armed Forces Circuit, an article III court, of courts-martial could also potentially decrease the number of collateral attacks in other article III courts.

John O'Connor said...

I tentatively support mandating judge sentencing for non-capital courts-martial. My thinking is that one of the things that causes cases not to plead that should is the possibility of a lottery ticket result, an outlier sentence from members who have no sense of what a particular offense or offenses is "worth."

Now some would say (and it's not a crazy notion by any means) that the "going rate" is niot what should be strived for, but rather individualized justice. But does it really make sense to have wildly divergent sentences for comparable cases based on the pure randomness of panel composition? And is this randomness feed into the complaints about CAs picking the panel (a complaint that I have always found overblown, particularly on the SpCM level, as panels I saw as an adjutant and TC tended to be stacked with officers who shared one thing in common: insufficient ability to create an excuse not to be named to the panel). I think it's probably pretty clear that the delta between high sentence/low sentence for a particular case is likely smaller in the judge sentencing world than when members make the call.

Cloudesley Shovell said...

CAAFlog--I think our disagreement centers mostly around your proposed standard of review for a new trial. You have equated it to a summary judgment motion. The two standards are in fact vastly different. From RCM 1210, the standard for a new trial is:
(A) The evidence was discovered after the trial;
(B) The evidence is not such that it would have been discovered by the petitioner at the time of trial in the exercise of due diligence; and
(C) The newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused.

Per CAAF: Petitions for new trials are disfavored in the law; relief is granted only to avoid a “manifest injustice.” United States v. Williams, 37 M.J. 352, 356 (C.M.A. 1993).

Gene Fidell said...

The proposed reforms would not require more CAAF judges--which Congress is unlikely to authorize in any event. Nor is Art. III status critical. Indeed, you could argue that it is not even desirable as it tends to reduce the fresh perspective that can come with turnover.

If the proposal is to go beyond reform of the appellate process (a number of the posts certainly do), it ought to include a uniform rule on MJ terms of office.

Anonymous said...

CAAFlog, you are the Pied Piper who has launched a voyage into "Imaginationland," (South Park reference) with so many eager followers. And the ideas are good.

Suprisingly, there has been little comment on abolishing the Service Courts of Appeal. Why abolish them?

I am concerned about losing the practical experience and military grounding of those judges. These courts also serve a filtering function. I also don't like the unintended consequence of creating a disconnect between the law and its practitioners. So much for the military justice least a long one.

Anonymous said...

Dear Senior Judge 8:44 am Anonymous:

The rice bowl argument always comes up, and I think plenty of service JAGs will have plenty to say on the point, should such a proposal make its way to a congressional committee. Fear not.

Anonymous said...

Perhaps while we're at it, we could also eliminate the appellate government and defense divisions, leaving trial and defense counsel to handle the appeals. I know, for example, that the Navy appellate divisions have reserve units. I can't see why the NLSOs/TSOs couldn't serve the same function.


Jason Grover said...

I will speak out on defending the service courts. I think a uniformed court is well-placed as a first level appeals court in a uniformed justice system. Why not let the service fix problems before passing on the civilian court? If we ditch the CCAs we might not be that far away from just using U.S. attorneys and federal defenders.

SD, I am shocked. Shocked I say! I exaggerate of course, but appellate practice is a learned skill and to leave it as a collateral duty in a NLSO seems risky. Not to mention, these days, it is tough to keep a judge advocate in a NLSO or RLSO for more than 2 years.

Anonymous said...

I cannot see abolishing the CCA's. As the Navy attempts to sharpen the miljus practice, reaching the CCA is "theoretically" to be the final aspect, an incentive for those below to continue on the miljus track. Plus CAAF is all civilian, CCA's are uniformed, addressing each services unique aspects of culture that civilians dont have.

As for abolishing the appellate codes, NLSO's and TSO's would HATE to fund LT's to go to DC to argue in front of CAAF and you can imagine trying to get funding for that. Keep the appellate codes. Plus young counsel with little trial skill have even less appellate skill and experience.

I would support abolishing post-trial authentication, SJAR and CA's action. After the gavel hits, let the court reporter authenticate it and send it to the CCA's. If the CA wanted to grant clemency, he can, if he wants a SJAR he can ask for it and if the accused wants to put in clemency he can, but in most cases all those functions add nothing and are just grist for the appellate mill and are, in my opinion, a huge wast of time.

John O'Connor said...

Well, let me say that I think it would be a big mistake to get rid of the appellate government and defense divisions. As one commentator noted, there are practical and funding issues with having trial counsel continue on appeal. Also, I agree with Jasobn Grover that the quality of appellate representation likely is enhanced by having counsel who are mostly (if not solely) dealing with appeals.

I also oppose getting rid of the CA action at least as it relates to a pure clemency function. It could be streamlined, perhaps by getting rid of the SJAR or making it more simple. But I think clemency packages plus a CA clemency power are essential elements of the military justice system.

Anonymous said...

BZ, on giving the trial judges more authority. Standing trial courts with actual clerks and dockets, consistent rules would be good. Having the reporter or a similar person deal with the authentication of the record would be good. If the trial judges had more authority it would take some of the burden from the CCA's.

A truly independent judiciary in which the judges get treated like "real" judges is on the wish list as well. Having judges as "temps" who then move on, just at the point they have gained experience has never made sense.

Anonymous said...

Last anonymous,

That would be my vision too. Post-trial, the convening authority would simply review for clemency. Then, if any findings or sentence remained, they would go back to the trial judge for review. The defense would have a chance to allege errors, but would waive any not raised. The judge would rule, subject to review by CAAF. If there were no errors raised, the trial judge would approve the findings and sentence and order them executed, subject to the terms of any PTA.



Christopher Mathews said...

Who is "Senior Judge 8:44 am Anonymous?"

CAAFlog said...

So we should retain the CCAs as a Navy JAG Corps career management tool?

Look, the military appellate review system is grossly inefficient. There are FIVE SEPARATE APPELLATE COURTS. That requires a lot of infrastructure. And a lot of money. Based on the location of two of the CCAs, my guess is that the U.S. government is paying rent (and not even cheap rent) for their spaces. But most significantly, that's a lot of judge advocate bodies. ACCA, AFCCA, and NMCCA take up AT LEAST a total of 27 O-5 and O-6 judge advocate billets. And their clerks/commissioners eat up O-3 and O-4 billets. Surely there are some other productive assignments that could be given to all of these judge advocates if they weren't CCAing. And, if not, then the lawyers could give those billets back to "Big Army," "Big Air Force," "Big Navy," and the USMC ground monitors.

If the CCAs were providing an important service, then it would be worth such an expenditure of money and personnel. But, in truth, their function could be entirely civilianized while making the system hugely more efficient by eliminating the four CCAs and retaining just one military appellate court: CAAF.

CAAF currently has the final say in our system. And as any casual reader of the daily docket knows, CAAF carefully scrutinizes EVERY case that comes before it -- as demonstrated by occasional orders directing a correction to some minor mistake in a CMO.

What would be lost by giving CAAF not only the final say, but also the first say? We know what would be saved -- money, personnel, and time. Imagine how much quicker the entire system would be if we didn't have a CCA appeal, followed by a CAAF petition, followed by a CAAF supp, followed by CAAF's decision whether to grant review, followed by further briefing if it decides to grant review. The entire system would now be collapsed into the first level.

And saving time results in saving still more money and billets, because resolving servicemembers' cases more quickly resulting in servicemembers completing their appellate leave far sooner. That means reduced medical costs for the services, since the military continues to provide medical care and dental care for servicemembers on appellate leave. (In fact, the dental plan for dependants of servicemembers on appellate leave is far better than my family dental plan as a federal civilian employee.) AND this would reduce the number of servicemembers on appellate leave counting against the various services' end strengths.

While the CCAs do have some Article 66(c) powers that a normal appellate court doesn't have, the CCAs disprove Lord Acton's maxim: the CCAs seem singularly disinclined to wield their absolute power. Because CAAF has final say in our system already, the difference in final results between our current system and a CAAF-only system would be negligible. Whatever tiny difference exists at the margin simply isn't worth the cost of maintaining four additional military appellate courts.

The cost benefit analysis of retaining the CCAs versus collapsing the process by making CAAF the only military appellate court doesn't even appear close to me.

And, like Eugene Fidell the Sagacious, I am confident that CAAF could handle this mission with no additional resources if the JO'Cian proposal to allow waiver of appellate review as a PTA term were to be adopted. My back-of-the-envelope calculation suggests that the proposal would reduce the current military appellate caseload by more than 60%. Even with the addition of subjurisdictional cases (most of which would also include the JO'Cian waiver), the current combined CCA caseload would likely be halved. That should be manageable for CAAF -- particularly if its judges sat in three-judge panels (meaning each judge would handle only 3/5 of the total caseload) and it was freed from the inefficiency of the current two-stage briefing and decision process.

CAAFlog said...

Sir Cloudesley,

The "disputed issue of material fact" isn't a standard of review. That's just the standard that says when an evidentiary hearing must be held rather than having the court resolve the issue itself. There's nothing incompatible with that test and the current petition for new trial regime.

The problem with the current petition for new trial system is that it's too narrow. For example, it can't be used to argue that some new fact requires a new SJAR or CA's action. And it doesn't fit well with that common source of state and federal post-conviction claims: IAC. In our current system, you have to demonstrate that facts weren't available at the time of trial. But what if the IAC claim is based on the argument that the trial defense counsel failed to discover a fact that was readily available? That can't really be addressed under Article 73.

Because of the petition for new trial's limitations, CAAF has had to invent its own elaborate Ginn/DuBay work-around. This was in instance where necessity was the mother of invention. Congress should eliminate that necessity by codifying a post-conviction process like that in place in every state and in the federal system under 28 U.S.C. § 2255. But a direct analogy to 2255 isn't available because of the recurring problem that the court-martial no longer exists after the CA acts (a problem that EFTS has poetically termed the "Brigadoon" quandary).

John O'Connor said...

On the CCA issue, I do not consider myself a proponent per se of gettign rid of them. On balance, I would take that as part of CAAFlog's proposal because I think the package as a whole (with several of the amendments in the comments) is better than the system that currently exists.

All that said, I can't exactly say I am against getting rid of the CCAs either. It's just not my personal axe to grind. But I am a big believer in thwe virtue of finality and expedition, and dumping one of the two levels of review would further that interest considerably (or at least I think so).

Saying that the CCAs must exist to give Colonels and Captains something to do is the wrong argument for keeping those courts. Ordinarily, I would say that the chief argument for keeping the CCAs is that more courts means more opinions that can guide the fleet, but I have my doubts about what percentage of the fleet really follows appellate case law as it develops (or at least that was my perception from a decade ago).

Given CAAFlog's repeated invocation of the term, and despite my initial dislike of it, I do now insist that the waiver of appellate review provisions in any statutory amendment be called "JO'Cian waiver of appellate review."

CAAFlog said...

In calendar year 2007, ACCA issued 20 published opinions, AFCCA 17, NMCCA just 15, and CGCCA 11.

That total output -- 63 -- mirrors CAAF's recent annual output.

So we really wouldn't be losing a lot of guidance to the fleet if wee did away with the CCAs.

Another interesting question that I won't have time to examine tonight but will try to get to tomorrow is how what percentage of published CCA opinions are reviewed by CAAF -- meaning that we end up with two layers of gouge for the fleet -- and what percentage of published CCA opinions are reversed -- meaning that for some amount of time, the CCAs provided bad gouge to the fleet.

John O'Connor said...

Right, which means dumping the CCAs would eliminate half of the puyblished opinions (without increasing the size of the CAAF, I wouldn't expect the proposed changes to CAAF's juisdiction to increase the number of published substantive opinions). Of course, as you note, eliminating half of the published opinions does not quite cut in half the number of cases presenting published opinions. Anyway, as I said above, the reduced number of published opinions probably isn't a very good reason to leave another layer of appellate review intact because there is a tree falling in the woods element to appellate court decisions.

CAAFlog said...

When CMA had three judges, the court could issue more than twice the number of opinions it does today. In FY 87, CAAF issued 134 opinions. In FY 88, it issued 130.

Immediately after growing to five judges in 1991, it could still pump out almost twice the number of opinions it does today. For example, in both FY 92 and FY 93, CMA issued 129 opinions, while in FY 94, CAAF issued 144 opinions.

My point isn't that CAAF should be deciding more cases than it does today (though I do believe it should). Rather, my point is limited to demonstrating that CAAF COULD decide many more cases than it does today with no increase in size.

With CAAF issuing only about 60 opinions a year, that means each CAAF judge writes on average one opinion of the court each month. The CAAF judges are all brilliant and accomplished people. They could triple their current output without breaking a sweat.

So even if there really were 126 cases a year that required published opinions, CAAF would be perfectly capable of producing them. (In fact, not so long ago, it did.)

CAAFlog said...

Sierra Delta,

Like the Super Muppet, I oppose eliminating the appellate defense divisions. (DISCLAIMER: since I work at one, I obviously have some interest in maintaining the status quo. I don't think that's what drives my position, but anyone is free to think it might influence me.)

Let me offer two thoughts. First, it is interesting that civilian public defender and prosecutor offices evolve into separate trial and appellate shops. I think this reflects basic Darwinism -- separate shops are better adapted to the legal environment in which appellate advocacy skills are quite different than trial advocacy skills. Lawyers on the right end of the bell curve possess both sets of skills, those on the left end possess neither set of skills and never will, and the vast body of lawyers in the middle possess one set but not the other.

Here's a second reason why I oppose eliminating the appellate divisions. In a world without Article 70(1), it would be very easy for the government to replicate the current set up and very hard for the defense to do so. The government would obviously be free to designate some group of counsel in D.C. to handle cases at CAAF on behalf of the government. For example, in the Army organization, if GAD didn't exist, TCAP could do it. In fact, the Air Force already has a stovepipe TC organization that controls both trial-level and appellate government counsel. So even without Article 70(a) the government would retain a specialized bar that would have a leg up on geographically isolated defense counsel who only occasionally engage in appellate practice. On the other side of the scales of justice, if Article 70 were eliminated, it would likely be difficult to either find a large enough body of defense counsel in the D.C. area who could take on the function or to sail through the termination and creation of counsel relationships that would be required.

But even if it were possible, that would simply mean we recreated the current system using different labels. And what would be the sense in that?

Anonymous said...


I don't disagree strongly in principle. But, as I understand it, in many jurisdictions counsel are double tasked as trial and appellate counsel, both in criminal and civil cases. Given the effect of your proposals and the current docket, it's probably inevitable that appellate practice will shrink to the point that the maintenance of separate appelllate litigation divisions will become all but unsupportable (apart, perhaps, from some skeleton crew kept on to oversee certain administrative tasks). Then, it will be appellate counsel who are increasingly isolated from real world military justice.

I think the inevitable cross-training and assignment will be a positive benefit to prosecution and defense counsel, informing the practices of trial and appellate counsel. I don't think the new system would simply be a recreation of the old, with a different name. Ideally, it would be a cradle-to-grave system in which trial and defense counsel were each confronted with their litigation choices and forced to live or die by them.

I'm not advocating the abolition of Art. 70. I'm just advocating that the counsel at trial be assigned to perform that function. If they're assigned the duty, they'll develop the skills necessary to perform it well.


Gene Fidell said...

Thinking aloud: how about a pilot program of having TC and DC handle their own cases on appeal? This would permit us to road-test the idea of zeroing-out the appellate divisions or turning them into backup centers with skeleton crews.