Wednesday, April 09, 2008

A quick fix for subjurisdictional cases

As an anonymous poster and Nancy Truax point out here (and thank goodness for Nancy Truax -- without her I would believe that the blogosphere is populated entirely by people named "Anonymous" and dead Navy flag officers), it is legally possible for a subjurisdictional case to reach a CCA and, on rare occasions, one actually does. Both offer United States v. Datz, 61 M.J. 37 (C.A.A.F. 2005), as a case in point. (Anonymous also makes the Goldilocks "just right"/preserve the status quo argument that the only cases deserving referral are referred to the CCAs, but I can tell you from personal experience that isn't true. I once asked that a Navy case that went to the Judge Advocate General of the Navy for review under Article 69 be referred to NMCCA. That request was rejected and the reservists who handle Navy and Marine Corps Article 69 appeals got it affirmed in short order. The same issue (though in a different case) later went on to be reviewed by the Supreme Court. The bed is too small, Goldilocks.)

Judge Advocates General do, occasionally, exercise their power to refer subjurisdictional cases to the CCAs. In a search that certainly isn't exhaustive, I found five such cases over the previous decade -- three from the Coast Guard (Datz, Miller, Alexander), one from the Air Force (Swecker), and one from the Navy (Brown-Collins). (I had to go back to 1992 before finding a case -- actually two that year -- that the Judge Advocate General of the Army referred to the Army Court under Article 69 (Warnoch & Womack). Again, my search wasn't exhaustive, so there may be more recent examples. If anyone is aware of any, please share in a comment.)

But this sprinkling of cases hardly quenches the thirst for real appellate review of subjurisdictional GCM and SPCM convictions. Two Army cases actually sought extraordinary relief from the Army Court because the Judge Advocate General of the Army declined to refer them that that court. Dew v. United States, 48 M.J. 639 (A. Ct. Crim. App. 1998); Littleton v. Persons, 7 M.J. 582, 583 (A.C.M.R. 1979).

A thought does occur to me, though. Surely those CAAFlog readers who happen to sit on the Joint Services Committee have already been moved by the unfairness of subjecting servicemembers to federal convictions and yet depriving some of them of the right to a judicial appeal. And surely they are already working up an amendment to Article 66 to remedy that problem. But they will need to enlist Congress's help, so that might take a while. It occurs to me, though, that each service can adopt its own imperfect fix:

I move that the respective services amend the JAGMAN, AR 27-10, AFI 51-201, and COMDINST M5810D, to provide that whenever a case is received in the Office of the Judge Advocate General for review under Article 69, it will be referred to the appropriate CCA under Article 69(d)(1).

Note that this would actually be a good test case for a non-automatic appeal structure, since a servicemember convicted by a special court-martial who receives a subjurisdictional sentence would actually have to be fairly proactive to invoke that right to appeal. (Subjurisdictional GCMs, on the other hand, would automatically go to the Judge Advocate General under Article 69(a) and would therefore go to the CCA under the JAGMAN, etc., amendment unless the accused waived or withdrew from appeal. So for GCMs, the regime would be much like the current automatic Article 66 review, though with Article 69(e)'s less protective scope of review, as Nancy Truax pointed out.)

Do I hear a second?


No Man said...

Not sure I second the legal manual amendment. But, if the CCAs got it right and found that all servicemembers have a right under the All Writs Act to seek judicial review of their Art. 69 review, I think that would solve the problem. See Dew v. United States, 48 M.J. 639 (A. Ct. Crim. App. 1998). It puts the right level of scrutiny on these cases. However, maybe through regulation the services could develop a better standard of review might for such a collateral attack where no court has reviewed the Art. 69 review before. Just a thought.

Gene Fidell said...

The whole area of appellate review needs work. Not only do we have subjurisdictional courts that are subject to direct appellate review only if lightning strikes in the form of a referral (thanks, Nancy and CAAFlog, for the cites to Datz et al.), but at the other end of the process we have the further [scandalous] denial of access to the highest court in the land for cases that do qualify as jurisdictional for UCMJ direct appellate review, not to mention the fact that the Art. III courts often treat any UCMJ review, however slight, as "full and fair consideration" for collateral attack purposes. See also McKinney v. White (D.C. Cir.). Here's an interesting irony: the rara avis of a subjurisdictional case that is referred could be eligible for S. Ct. review if CAAF grants review along the way.

After many years of involvement with military justice, I still don't understand why we tolerate a system in which the sky's the limit in some respects (tolerating no issue cases that virtually/actually never produce any tangible benefit for the accused) but other litigants cannot get the judicial time of day because of indefensible jurisdictional hurdles.

I don't see how the truncation of review--in utter contrast to the availability of direct review all the way up for civilian criminal defendants--can be seriously defended at a time when GIs are putting their lives on the line (or, to be candid, at any other time as well). Never mind the JSC or the Code Committee: is there no member of the House or Senate who will take ownership of these issues? Any legislative lurkers out there?

John O'Connor said...

I think the suggestion that it is unpatriotic and anti-military to oppose expanded appellate process is a little difficult to take.

I'm just going to leave it at that.

Anonymous said...

Here's what makes sense: get rid of appellate review of unconditional guilty pleas, and allow appeals for contested subjurisdictional cases.

CAAFlog said...

I don't think eliminating appeals for uncontested guilty pleas is viable. That would mean that a servicemember who pleads guilty and receives a harsh sentence -- say, life without eligibility for parole -- couldn't challenge some unfair aspect of the sentencing hearing. Of course, in the federal civilian criminal system, appeals of sentences are common. Adopting a legal regime in which military judges could do anything they wanted during sentencing hearings following provident pleas of guilty with no fear of reversal would be a recipe for disaster. Of course -- and I mean this -- we could trust most military judges to exercise their unfettered discretion fairly. But -- and I also mean this -- we can't trust all of them to do so because some of them would make honest but highly prejudicial mistakes and some tiny subset would be biased in their rulings.

Additionally, despite the arguments of many, I believe that the providence inquiry and appellate review of providence inquiries provide enormous benefits to the military justice system. It may go further than necessary, but let's be serious -- the military justice system's reputation sometimes needs protection. The providence inquiry helps guard against any appearance that an enlisted servicemember was browbeaten by the officer convening authority, trial counsel, defense counsel, and military judge to plead out to something that the servicmember really didn't do. It's quite a good rejoinder to any such post hoc claims -- which are sometimes made by accused to their Members of Congress and others -- to point out that the accused swore to tell the truth and then laid out in great factual detail the basis of his or her guilt.

The military justice system is different in so many ways from civilian systems. In some cases that's good; in other cases it's bad. This is a case where the difference is good and helps to protect the military justice system from too much bad ink arising from the bad departures from civilian criminal justice system norms.

Anonymous said...

Let's mirror the federal system then -- waive appeal as to the findings in an unconditional guilty plea. The enormous benefits to the military system are probably not worth the enormous cost to the taxpayer.