Tuesday, April 08, 2008

Some numbers

During Fiscal Years 2005, 2006, and 2007, 11,072 servicemembers were convicted by general and special courts-martial. During those same combined three years, 8,648 cases were received by the Judge Advocates General for appellate review, leaving a difference of 2,424.

Now, that doesn't mean there were exactly 2,424 subjurisdictional cases, because the two figures in the paragraph above refer to slightly different populations of cases. We know precisely how many trials were held during each fiscal year and the number of resulting convictions. But we don't know precisely how many of each year's annual total went on to appellate review. Rather, we know the number of cases actually received for appellate review in those years. But a record of trial received for appellate review in November 2007 was tried in Fiscal Year 2006, not Fiscal Year 2007. This slight disconnect is demonstrated by the fact that in FY 06, the Judge Advocate General of the Navy actually received 46 more cases for appellate review than total of Navy and Marine Corps GCM and SPCM convictions during that fiscal year. (That probably means that some review shop found a couple of seabags full of ROTs from 1985 and shipped them all to NAMARA.)

But the effects of this slight population difference should be minimized by looking at a three-year time span. So while we can't absolutely conclude that 22% of all GCM and SPCM convictions over the last three fiscal years resulted in subjurisdictional sentences, that's probably pretty close.


I don't think of myself as a cheerleader for the military justice system, but I often opine that on average, it does a better job of handling the run-of-the-mill criminal case than does the typical state court system. And one important reason for that is that unlike in state systems -- where criminal defendants often go unrepresented because they earn too much money to qualify for a public defender but have insufficient discretionary income to afford to hire a lawyer -- almost every defendant in the military justice system is represented by counsel. (On the other hand, for a lot of reasons, I think the military justice system does a poorer job of handling extremely serious or complex cases than does the typical state court system.)

But it seems a serious deficiency that unlike in state or federal criminal justice systems, there are a substantial number of GCM and SPCM convictions -- which carry the lifetime stigma of a federal conviction -- that can never receive judicial appellate review.

We can do better and we should do better. Congress should amend the UCMJ to provide that every general court-martial or special court-martial resulting in an approved finding of guilty is eligible for review by the Court of Criminal Appeals. That would be a much more important reform than broadening military appellants' right to file an unsuccessful cert petition with the Supremes.


John O'Connor said...

I can only assume CAAFlog had a calendar malfunction and thought it was April Fool's Day. Seriously, while you were writing that post, you had to know it was going to make my head explode.

What a singularly bad idea, to create an opportunity for an Article 66 appeal for each and every court-martial, when we know that (1) none of the courts-martial that would have this new appeal opportunity do not have the stigma of a punitive discharge, and (2) these accuseds likely would be released from any adjudged confinement before appellate review could take place.

The military justice system needs fewer appeals, not more. As the Supreme Court observed in Middendorf v. Henry, the process for summary courts-martial is intentionally truncated as a nod to the military's interest in avoiding complex and time-consuming procedures for cases with relatively minor punishments. The same applies to sub-jurisdictional special and general courts-martial which, unlike SCMs, are viewed as a conviction but lack the punishment warranting Article 66 review.

Would you require verbatim transcripts and all the rest for a currently sub-jurisdictional court-martial? If not, the exercise of an Article 66 appeal is fairly hollow. And if this opportunity to appeal is not a right to appeal, are we now going to shift appellate defense counsel from their typical Article 66 cases so they can file cert petitions or take appeals of right for the accused who gets retained and 60 days in the brig for a UA?

Besides, the accuseds in sub-jurisdictional courts-martial have full-fledged writ rights, don't they? I mean, heck, the JAG theoretically could send such a case over to the CCA, so those cases are right in the bullseye of the CCAs' potential jurisdiction, or at least a panel of the NMCCA thinks so. And with Denedo, accuseds in sub-jurisdictional courts-martial can file a writ twenty years down the line. Heck, I think anyone incarcerated in the United States now can file a writ at CAAF if they can prove they've seen Kelly's Heroes. I should add the disclaimer I give my six-year-old" "if you can't tell, I'm being sarcastic."

I'm still waiting for Corporal Young to writ me at CAAF for making him bust tires for showing up with booze on his breath one day in 1990.

CAAFlog said...

Surely no one would dispute that the fact of a federal conviction is extremely stigmatizing, regardless of whether accompanied by a punitive discharge.

Many, many individuals convicted in state circuit courts and federal district courts walk out with no confinement (and certainly no punitive discharge). Every one of them has the right to appeal that conviction to an appellate court. Why would we uniquely disadvantage servicemembers and provide hundreds of them with no effective means to even challenge their federal convictions?

A writ is no substitute for a direct appeal. The standards of review are so vastly different that no further support for that proposition should be necessary.

I've dealt with summarized records of trial before. The incremental difference in time to prepare a summarized record and a verbatim record is small. Plus, improvements in transcription technology are making record preparation less challenging. It would be surprising if we didn't see something like a 22% increase in record production efficiency over the next couple of years. The court reporters can handle it.

And putting these roughly 22% of military justice cases into the appellate pipeline would not require anything near 22% extra resources. These cases will on average be far, far smaller (and far, far less time consuming) than the average case that currently qualifies for review.

But even if it did demand a 22% increase in resources, I would still support the reform because providing every servicemember with a meaningful opportunity to seek judicial appellate review is the right thing to do.

There are all sorts of reforms we can make to enhance efficiency in the military review system. I support JO'C's proposal to let an accused bargain away appellate rights -- a reform that would certainly decrease the military appellate courts' workload to a greater extent than my proposal would increase it.

We could save far more than 22% of our appellate resources by abolishing the CCAs and having CAAF review all military justice convictions, just as the 4th Circuit has appellate jurisdiction over all federal criminal convictions in Maryland, Virginia, West Virginia, North Carolina, and South Carolina.

But with or without further reforms, the military justice system is capable of handling the increased workload that would arise from making every conviction eligible for appellate review. It's the right thing to do.

CAAFlog said...

In fact, I would guess that the federal conviction aspect of a GCM or SPCM conviction is actually more stigmatizing than a punitive discharge. I am asked far more often whether I have ever been convicted of a criminal offense (I sure hope that I'm not the only one who has the experience of being asked that :-)) on official forms and the like than I am asked for the characterization of my discharge.

John O'Connor said...

They ask you because you look shifty.

CAAFlog said...

Okay, maybe I am the only one who's had that experience. :-)

John O'Connor said...

Oh, and on the merits, here you go giving away the "peace dividend." If court reporters become 22% more efficient, let's give them more work to fill up that gap instead of letting them plow through their backlog quicker or (gasp) having fewer court reporters and more infantrymen or (a subject near and dear to my heart) more motor transport operators. That's like inviting the court reporters to a pie eating contest where the prize is more pie (or maybe the hollowed razor award).

Same comment on the notion that the appellate system could handle 22% more cases. If that's so, then let's do a better and more efficient job with the cases we have, or divert resources to other endeavors.

My comment on the availability of writ jurisdiction was meant as a joke. My six-year-old understands that when I say "if you can't tell, I'm being sarcastic," I don't really mean it. But then, she's also mature enough to hate the Terps.

An important distinction between federal and state civilian systems and the military justice system is that the government funds the defense apparatus. It's one thing to say that an accused can lob in his own pro se appeal of a sub-jurisdictional case or hire his own lawyer to file one for him (or maybe it's not different because I'd probably be against that too on efficiency grounds), but it's another to say we ought to divert resources from the current caseload to furnish appellate counsel in sub-jurisdictional cases. And is it true that state misdemeanor convictions are uniformly appealable? I don't know if that's true or not, though I know there's no constitutional right to appeal. I'm also skeptical of the life-altering stigma of a court-martial conviction. Don't some states prohibit discrimination on that basis, which in turn means that employers and the like won't even ask about it?

Marcus Fulton said...

Lately the collateral consequences of some convictions have come to far outstrip the stigma of a punitive discharge. I'd rather have to tell people I received a dismissal (sounds like that might even be a good thing) at a general court-martial than escape a punitive discharge but still have to register as a sex offender. Even a special court-martial for domestic abuse now comes with a firearms disability. What about linking a right to appeal with specific punitive articles? UA, Disrespect to a non-com, and other non-stigmatizing (mostly military) offenses, no. Cases involving assault, larceny and sex offenses would be automatically appealable.

CAAFlog said...

JO'C, can you please ask your six-year-old to let me know if you were joking when you mentioned that some states might prohibit discrimination on the basis of conviction? Most states and the federal government often REQUIRE discrimination on the basis of criminal convictions. I'm not aware of any state that would prohibit such discrimination. It would seem politically untenable for any state legislature to even think about enacting such a suspect classifiction.

My point about logistics is that we wouldn't overwhelm the system by adopting the reform. But I don't suggest the reform because it CAN be done. Rather, I argue that it SHOULD be done -- and the fact that it almost certainly can be done within the current logistical footprint is a bonus.

The Kabul Klipper just made a point that I was working on. The sergeant major who receives a bust down to lance corporal that will have an enormous consequences on his retirement benefits should have a right to try to challenge his conviction. A Marine convicted of a particularly minor sexual offense for which he receives no punishment should have the right to challenge his conviction that will forever affect his life under Megan's laws. A non-citizen Airman convicted of a drug pop who beats the discharge should be allowed to challenge the conviction that might result in her deportation. The contexts in which a factually or legally erroneous court-martial conviction might have lifetime effects despite the lack of a discharge or a year's confinement are legion. We should be sufficiently concerned wtih the well-being of American servicemembers -- and sufficiently protective of the military justice system's fairness -- to provide every servicemember convicted by a GCM or SPCM with an opportunity to appeal that conviction to a court.

Cloudesley Shovell said...

The military justice system exists for one purpose, and one purpose only--the maintenance of good order and discipline in the armed forces.

To that end, it should not be treated as another general federal criminal justice system. It is a tool for military good order and discipline only. I agree with CAAFlog that the military justice system does not always do a good job with serious cases. This is most often true in those cases that would probably flunk the old "service connection" test. I'm not calling for a return to that mess, but rather suggesting that those cases involving serious crimes and lots of civilian witnesses should be prosecuted by the local US attorney or state authorities, as appropriate.

For serious crimes within the military, involving military witnesses, I think that generally the military justice system does a good job and should continue to prosecute those offenses. If I were defending someone accused of crimes in time of war, such as Haditha, and other time-of-war prosecutions, I would much rather be in front of a military jury. Even if they convict, they are far more likely to sentence appropriately, considering all the factors. Consider the cases tried in Lejeune within the last year that resulted in some very defense-friendly sentences.

I strongly disagree with CAAFlog on the idea that all courts-martial should have the right to appeal. The system gets tied in enough knots as it is. A good defense attorney can tie up even the simplest special court-martial case for more than a year with various writs and motions. To drag cases out even longer on appeal, with all the attendant appellate leave issues, does not further the cause of good order and discipline.

My view on court-martial convictions is that the only court-martial that should equate to a "conviction" equivalent to a federal or state conviction, is a general court-martial where a dishonorable discharge was part of the approved and executed sentence. Nothing else should count. There is some support for that idea. When you buy a gun, for example, the form you fill out asks if you have any criminal convictions, or a dishonorable discharge. It makes no sense to distinguish a DD from other convictions, unless the only military conviction that "counts" is a DD. Congress should make that clear. Doing so I think would ameliorate many of CAAFlog's concerns about the negative consequences of a court-martial conviction.

Yes, that means I also think that there should be no collateral consequences of a court-martial conviction unless there was a DD at a GCM. If sex offender registration or deportation or what not is so damn important, go for the DD or try it out in town, period, because those things have nothing to do with military good order and discipline.

CAAFlog said...

The view that the military justice system exists for ONLY the purpose of good order and discipline in the military does not seem to be credible.

If that were so, then the only sentencing concerns should be general deterrence and removal from the military community. Retribution, rehabilitiation of a servicemember sentenced to a discharge, and specific deterrence would be irrelevant.

In truth, the American society (and its elected representatives) demand that the military justice system do more than promote good order and discipline. It also counts on the system to protect society at large from criminals -- just as every other criminal justice system does. On both domestic bases and overseas bases, the military justice system serves as a stand-in for a state justice system -- often handling actual state offenses under Article 134(3) and FACA -- for the purpose of protecting others aboard the base, in the surrounding community, and in society at large.

Also, returning to the classic discipline versus justice debate, General Westmoreland famously argued, "A military trial should not have a dual function as an instrument of discipline and as an instrument of justice. It should be an instrument of justice and fulfilling this function, it will promote discipline." William C. Westmoreland, Military Justice--A Commander's Viewpoint, 10 AM. CRIM. L. REV. 18, 22 (1971).

General Westmoreland is no doubt correct because -- as the military justice system has unfortunately proven during some previous eras -- a justice system that American servicemembers do not perceive as fair will not be effective in promoting morale, unit cohesion, or good order and discipline.

Hopley Yeaton said...

I appreciate CAAFlog's desire to see that every service member receives appropriate review of their convictions, but I'm not sure that I accept the premise of this post. Do we really all believe that one out of every five courts-martial result in no punitive discharge or confinement sufficient for appellate review? Even if that's true, what kind of cases are we talking about? Are these really cases involving a felony conviction for a sex offense or are we more likely dealing with a Marine Corps non-BCD special for a UA or orders violation that probably has no stigma for the average civilian? Was it a contested case or a guilty plea with several hours of explaining the accused's rights and developing a factual basis for the plea as opposed to a 15 minute civilian guilty plea case? Suppose a civilian wants to appeal his minimal punishment conviction, how likely is he to get meaningful representation for that appeal? I agree that not only must justice be done, but it must be perceived to have been achieved. Do we think that these goals are better achieved at a court-martial or in the civilian justice system? Congress has adequately balanced the needs of justice and the need for discipline.

CAAFlog said...

Go to the annual reports and crunch the numbers and you will see that over the last three fiscal years, more than 1/5 did not qualify for appellate review -- which means the did not result in a punitive discharge or confinement for a year or more.

You will also see that the Navy and Marine Corps combined account for an extremely small number of subjurisdictional cases. You will also see that the Air Force tries a huge number of special courts-martial that don't result in a BCD.

CAAFlog said...

And in answer to the argument, "Do we think that these goals are better achieved at a court-martial or in the civilian justice system?," the military justice system can better achieve its goals -- including fair and just treatment of servicemembers -- by affording every servicemember convicted by a GCM or SPCM the opportunity to appeal that conviction to a court.

Does anyone seriously doubt that there are servicemembers who are convicted by GCMs or SPCMs and who receive subjurisdictional sentences who would receive meaningful relief if their cases were reviewed by an appellate court? If we can provide a fairer and more just system for our servicemembers, shouldn't we? Or are we not serious when we profess concern for the well-being of our troops and their families -- second in importance only to mission accomplishment? Not every court-martial accused is a dirtbag -- and some are actually innocent.

Gene Fidell said...

It's always fascinating to see what kicks off the liveliest discussions on this blog--and what doesn't. And delightful to see both Sir Cloudesley's and Capt. Yeaton's names here; next I expect to see a post from Admiral Byng.

On the caseload impact of subjecting subjurisdictional courts-martial to appellate review, aside from the principle of the thing (which I consider dispositive), I would not be concerned about overloading the appellate process. All you have to do is move to a system in which appeals are dismissed upon filing if the accused asserts no issues.

I hope that the issues CAAFlog's post has lanced open can be further examined when the Cox Commission reconvenes.

John O'Connor said...

"JO'C, can you please ask your six-year-old to let me know if you were joking when you mentioned that some states might prohibit discrimination on the basis of conviction?"

CAAFlog, I would tell you my six-year-old's response but it was profane. She's funny like that.

Anyhoo, you'll note that, to quote Alex Trebek, I framed my response in the form of a question, and punctuated it as such. I think I had heard that somewhere but know next to nothing about collateral consequences beyond drawing inferences from what my HR people tell us we should never ask an applicant.

Anonymous said...

It is inaccurate to state, ipse dixit, that "there are a substantial number of GCM and SPCM convictions -- which carry the lifetime stigma of a federal conviction -- that can never receive judicial appellate review." Although most don't, (because they don't warrant it) each case can get a 69 appeal, and cases with meritorious issues subsequently be referred under Article 69(d) to the court of criminal appeals, which can resulting in judicial appellate review. See United States v. Datz, 61 M.J. 37.

Nancy Truax said...

It's interesting that the previous post mentions Datz -- as I was reading CAAFLog's post and all the comments, I was thinking about the Datz case (I represented Datz at CAAF). Datz (an E-5) was convicted of 9 specs in all, including rape, striking a petty officer, orders violations, and unlawful entry. He was sentenced by members to reduction to E-3 and three months confinement.

The Judge Advocate General of the Coast Guard referred the case to the CGCCA under Article 69(d). But Datz didn't get any relief at the CCA, because since the case was referred under Article 69(d), the CCA was constrained by Article 69(e) to consider only questions of law, and the Court found (among other things) that the rape conviction was legally sufficient. The Court said in a footnote that if it were reviewing the rape conviction for factual sufficiency, it may well have set it aside. The rape conviction and some of the other convictions were ultimately set aside by CAAF.

So, while it is true that a case “can get a 69 appeal,” as the previous anonymous poster says, the kind of review the case would receive at the CCA is not the same. But how do you explain to your client that the kind of relief he gets on appeal to the CCA might depend, at least in part, on the quality of representation he received at sentencing?

Fortunately for Datz, factual sufficiency was not the only issue in the case.

Anonymous said...

I'm troubled by the comment "Surely no one would dispute that the fact of a federal conviction is extremely stigmatizing." What is stigmatizing is the conduct for which the criminals -- particularly the ones who plead guilty -- are held accountable.

Cloudesley Shovell said...

I maintain that the military justice system has strayed a long way from its essential role in the maintenance of good order and discipline.

Absent cases that come to the attention of the major media, the typical court-martial case proceeds without the knowledge of even many members of the accused's command.

This naval officer remembers when he was an ensign, and many bases still had a brig right in the middle of the base. One saw the brig, and those confined there, every day.

Many bases and commands still run excellent restricted barracks, often flagging restrictees with unique uniform items. Other members of the command and those on base see the restrictoids every day, and understand the consequences of misbehavior. My navy experience is that Article 15, in the hands of a good commander, is a wonderful and extremely effective discipline tool, much more effective than a court-martial.

Courts-martial, at least in my experience, are not an effective discipline tool. Cases take too long, and they disappear down the rabbit hole faster than you can say boo. That's a shame, from a good order and discipline standpoint. If SN Schmuckatelli deserves six months of confinement, he should serve that term in the base brig. That way the command master chief can take some wayward sailor aside for some counseling, point at the brig, and remind the young sailor that if he doesn't straighten up, he might end up there with Schmuckatelli.

Military justice exists for good order and discipline. After all, the constitutional mandate is to regulate the land and naval forces, not establish another general criminal court.

Many commanders (and SJAs) simply don't know how to effectively use the tools available in the UCMJ to further good order and discipline. When's the last time you heard of someone with a SpCM conviction returning to serve out their enlistment? Used to happen a lot. Many CM convictions disappeared when people cleaned up their acts under suspended (and eventually remitted or disapproved) sentences. Others returned to the brig after committing additional misconduct, and had their suspensions vacated. Many smart commanders use suspension and remission effectively in the Article 15 context, but not in the CM context, which is too bad. It just reinforces the idea that a court-martial is another federal criminal court, rather than a bigger tool in the discipline toolbox.

I think CAAFlog and I agree that only the most serious cases (perhaps those GCMs resulting in a DD?) should "count" as a conviction in the civilian world, and carry collateral consequences. No SpCM, and a fair number of GCMs, should ever count as a "conviction" or carry collateral consequences, in my view.