Thursday, November 27, 2008

NYT article on military appellate system

Here's a link to a New York Times article on efforts to legislatively expand SCOTUS jurisdiction to military justice cases where CAAF denies a petition for grant of review.

One of the most interesting portions of the article is the juxtaposition of former CAAF Chief Judge Cox speaking about the potential for military justice reform -- and a second Cox Commission -- with Bob Reed (the Pentagon's military justice honcho) offering a rather dismissive opinion of would-be military justice reformers:

Mr. Cox and other supporters hope Congress will consider other modifications to the system, like changing the appeals process, examining whether lawyers in the system are adequately trained and studying whether military judges should have more continuity in their jurisdiction. He hopes to convene a second commission that would look at some of those issues in the next few months.

For his part, Mr. Reed said many of the criticisms of the military justice systems themselves were dated.

"It's the same old people with the same old arguments and the same propositions," he said. "If they do have some new ideas that they think could be beneficial, I hope they forward them to the department."


Anonymous said...

Appellate defense lawyers are not all that well trained. Some are even first tour officers, with no trial experience at all. And some of those first tour officers with no trial experience are assigned capital cases. So, yes, there is a problem with the lawyer training.

Anonymous said...

Which services? And when was this?

Presley O'Bannon said...

Anon 1:19, you appear to have little grounding in reality... Now, if you were to adjust fire and focus on the minimal experience required to be an appellate judge, you might be on to something.

Anonymous said...

Bob Reed is "dated!" He retired as an AF JAG and got the DoD/GC gig for a reason.

I have defended GCM's in all Branches with Detailed Military Counsel as CDC for 25+ years - Reed's got his head in the sand if he thinks Defense Counsel [both trial and appellate] are adequately trained these days. It's a policy of "don't provide" the training or make it available to those starting out in defense - ignorance produces more pleas.

I suspect Cox, like former CJ Everett, looks at some of the IAC issues that came before him, which were pure and simple, inexperience issues.

Take your pick - some of the Appellate Judges are either on the SJA Rubber Stamp Court, or the Court of Criminal Affirmances - especially when then deliberately misrepresent "facts" in their opinions.

Now, that's not to say that there's not a number of diligent, and intelligent Appellate Judges out there, but they're is one on about 1 out of every 3 panels.

Back "in the day" when then Captain [AF] Reed and I were on AD, non-volunteers were not made Defense Counsel, and you couldn't get certified until 2 or 3 Judge's "recommended" you. It was not that uncommon for some JAGs to do a 4 year tour and never get certified - back then.

The issue goes back to all of the UCI issues - as long as the system is "discipline" oriented versus "justice" oriented, you are going to have the on-going conflicts.

For those of you who have actually read the Legislative History of the UCMJ, not much has changed from 1949 and 2008 - we have a "system" that does not function properly in too many cases.

DB Cooper said...

I support equal access to SCOTUS, but how many military accused give a rat's 4th-point-of-contact whether they can appeal to SCOTUS when weighing whether or not to accept a PTA? Does anyone really think that would make or break a PTA, especially in a bad checks case? Anyone other than this bozo NYT reporter?

Norbert Basil MacLean III said...

DB Cooper: Let me shed some light on what occured to me in relation to the bad check case and PTA. I was going to contest the charges especially after my UCMJ article 32 hearing which held "in general the evidence is weak or nonexistent" and the IO further checked no where it inquired whether reasonable grounds exist to believe I committed the offenses alleged. Who would plead guilty with a UCMJ article 32 report like that? Right? In the civilian world if a judge does not find sufficient evidence at the preliminary hearing stage the accused won't be standing trial. Likewise if a grand jury does not bring an indictment the prosecutor cannot go ahead and bring the case regardless. Yet in our military the UCMJ article 32 is not binding upon the convening authority.

First, I was set to go to trial in December 1992 after my defense counsel was due to return from medical leave from having his jaw wired shut. My defense counsel at the time was the Senior Defense Counsel for the NLSO at NDW and had previously held senior trial counsel. In my opinion a very qualified judge advocate. The day after his oral surgery his XO, who was acting CO (we won't name names here) ordered him back from medical leave with jaw wired shut and scheduled my court-martial on Saturday, 31 Oct 1992. I was then detailed a defense counsel that was very junior and had never defended a general court-martial case let alone a bad check case.

Second, I was given a choice plead guilty now with time served or go directly to a contested trial with my counsel's jaw wired shut and this new Navy judge advocate who had never before appeared at a general court-martial. As a young 21 year old scared gay man - that knew the Navy wanted me out at all costs what were my options?

Not to mention that the same person who appointed the IO and also made the recommendation for general court-martial over the contrary IO report I had months prior to any charges against me filed a meritorious UCMJ article 138 complaint against him for harassment and an illegal demotion in rank.

I see many problems with the system. Back then, in 1992 (and I recognized it has changed since then) the defense and prosecution reported to the same CO. But the system for the most part is incestous with very little oversight.

If my first defense attorney's jaw wasn't wired shut or if his XO (which again I will not name here - ironically this XO later showed up as a judge on the panel that considered one of my appeals) would not have moved up the date of my trial I would have still contested the charges. Likewise if I had been assigned the second defense attorney who had actually defended (or prosecuted) at least one or two general court-martial cases or handled a bad check special or summary court-martial case I would have contested the charges. Instead I was left with a highly qualified judge advocate defense attorney who's jaw was wired shut and was on pain killers with a co-counsel of a junior lieutenant who had never before handled a general court-martial case let alone a bad check case. Lost faith, yes I lost complete faith in the system.

SCOTUS access, binding UCMJ article 32 decisions, proper training for attorneys, fixed terms of offices for military judges, permitting experienced judge advocates to remain as trial and defense attorneys with promotion opportunities, taking away the vast amount of authority given to the convening authorities and placing discretion with the military prosecutors, unanimous verdicts as opposed to two-thirds, covening authorities that do not pick the members are just some of the issues that Congress should look at.

The United States is running a 20th Century military justice system in the 21st Century. The system needs a major overhaul. Congress should appoint a commission comprised of retired admirals, generals, military law scholars, retired CAAF judges and a few civilian federal judges with subpoena power and the ability to take sworn testimony. Then make a formal report to the Armed Services Committees along with recommendations for serious reforms. The United States has fallen far behind many of our allied nations (including my other home country of Australia) with respect to military justice systems. Congess has taken a hands-off approach which in the end does a disservice to our nation and to the men and women who serve us in uniform.

What's wrong with a up-and-down review, report and recommendation to a system that hasn't been looked at or changed in 25 years?

DB Cooper said...

Norman, your lengthy critique of the MJ system, while well placed in some respects, fails to answer my original query, to wit: would it really have mattered to you back when you took your deal whether or not you could appeal to SCOTUS? The NYT article clearly implies that the Navy cryptologist would have "changed his mind" about this PTA if he knew he could only reach SCOTUS if CAAF granted his petition for review and subsequently ruled against him. That is just plain ridiculous. That is the last thing on an accused’s mind. How many state or federal civilian defendants, who theoretically have the potential for SCOTUS review, factor that in before they accept a PTA?
This brings me to me next point. If the MJ system worked more like the civilian criminal justice system (as you claim it should), you could not appeal your guilty plea to an appellate court anyway, let alone SCOTUS. That is because the civilian system generally requires defendants to waive appellate review as part of a PTA. Only the military mandates appellate review for all cases, to include GPs. (I agree with many other posters on this blog that the RCMs should be revised to permit an accused to waive appellate review as part of a PTA.)
Of all the “critiques” the NYT could muster, the lack of potential SCOTUS review in all cases is the least problematic. The bigger problem is CCA judges who, for lack of a better term, suck. Most lack MJ experience and are simply terminal O-6s put out to pasture in DC. Further, they are usually more interested in preserving “good order and discipline” than they are in keeping the system fair. They spend way too much time on dorked up SJARs, and not enough to time on substantive legal issues.

Anonymous said...

Sounds like sour grapes Norbert. I know you want to Monday-morning quarterback your decision to plead guilty to charges where the evidence was weak or nonexistent in an effort to explain why you made such a poor decision, one which has left you with unpalatable ramifications. But to suggest that SCOTUS access would have altered your decision-making paradigm back then is beyond belief and lowers your credibility.

DB, are you really going to say the NYT should have focused on CCA judges as the main problem with the system? First to lump all CCA judges into one category is "CCA judgist" (new term I want to coin for stereotyping CCA judges). I think the judges merely reflect the spectrum of lawyers in the service (as well as the civilian community). Some good, some bad, a few great, and a few terrible. Just like Trial and Defense counsel, just like Appellate counsel from both sides.

I would agree that the quality of appellate judges could be more of an issue if, in fact, a higher percentage of cases were actually contested. As you so correctly note, in a civilian system, guilty plea cases wouldn't even have a right to an appeal. I have no current data, but I believe the service-wide guilty plea rate is somewhere in the neighborhood of 85%-90%. It is strange to say the biggest problem are CCA judges who only really look at about 15% of the cases where the accused maintained his innocence at trial and continues to do so on appeal. So why are the courts spending "way too much time" on SJARs and the like. Well maybe that is all that is left when the accused pleads guilty.

From reading many CAAF cases it seems like the service courts and CAAF spend the majority of the time on defective post-trial processing issues; post-trial delay; whether the military judge did an effective guilty plea inquiry; and whether the sentence was too severe. It also should be noted that you will never see these issues (save the possible post-trial delay) in the civilian system. They are unique to the military justice system.

There are clearly bigger fish to fry in the military justice world than CCA judges. My humble suggestion is you have to look at the autonomy of command of the trial defense service commands as well as the actual persons who are placed in those billets. They have a profound impact on the actual defense provided by the junior attorneys. It would be better if someone could figure how to make it more like the service IGs. Give the persons (O-5s) a choice to assume that command with a promotion to O-6 and then retire out of it or stay an O-5. You would never have to worry about your future, and allow your attorneys a free hand to represent clients as they should.

Anonymous said...

I am new to military justice but impressed by this blog. Dwight Sullivan, Norbert Basil Maclean III, and Eugene Fidell, all post here.

Anonymous said...

Was Mr. Reed involved in pushing the new Art 120 through the joint military committee and on to Congress?

Anonymous said...

If you look at the spartan legislative history of the two NDAAs involved you will see that the new 120 was not the military's brain-child. Instead it was first introduced on the Hill by Representative Sanchez of California. I believe the Army Major's law review article explains much of it. In the article it was mentioned that the joint committe was tasked with studying it after the Representative introduced the legislation. Congress did not initially pass Representative Sanchez's legislation while the joint committe studied it. I think I have also read that the joint committee's ultimate recommendation was that the old Art. 120 needed no change.

Anonymous said...

So Norbert, you would not have pled guilty had you known you did not have access to appeal to the Supreme Court?

Norbert Basil MacLean III said...

Anon 1548: No, my guilty plea was because I lost complete faith in the military justice system itself. It was only in 2002/03 when missing evidence became available that I filed extraordinary writs in NMCCA. Indeed NMCCA re-opened my case in 2003 and issued and OSC as well as granted a motion to compel other missing documents. In end NMCAA denied relief as well as CAAF but under the current law, 28 USC 1259(4), I was precluded from seeking review in the Supreme Court. Had CAAF granted relief the Government could have appealed. I never told the NY Times or the reporter that I pled guilty thinking that I could appeal to the Supreme Court.

Anonymous said...

That is surprising the press got it wrong.

Anonymous said...

Anon 3:48 posed a question that you dodged, no doubt your post-discharge law school education has paid off. But, just answer the question. Would you have plead guilty or not guilty if you knew in 1992 that you would not have access to SCOTUS if you plead guilty?

By the way I find it intriguing that you would throw yourself at the mercy of the military justice system in which you had lost faith by pleading guilty.

One more question. Because we all know that the military justice system requires only those who are truly guilty to be allowed to plead guilty (as you have to, under oath, under go the plea inquiry with the military judge), are you claiming now that you lied under oath to him and were not, in fact, guilty?

I cannot recall you professing your innocence in this blog and while I believe that even the guiltiest deserve the best defense that can be marshaled, you plead guilty at trial. How much credence should I put into you obviously biased comments about the military justice system? BTW, I never represented a defendant who was innocent of bad checks but was willing to plead guilty because he feared harsh punishment. Your story is a little far-fetched.

Norbert Basil MacLean III said...

I didn’t want to use this forum or blog to air out my grievances with the military justice system. I don’t believe that CAAFlog is intended for that purpose at all. But there appears to be many anonymous posters who have inquiries directly related to my case. (I really wish bloggers here would not post anonymously). I have been told by a national newspaper reporter that a retired Brigadier Marine Corps general judge advocate has reviewed my case and said that my case could be used as a case study in the military justice schools on what prosecutors and convening authorities should not do when prosecuting a case. (I don’t want to disclose the name of that one star general.) I have written a book that will be published in 2009 called “Access Denied: America’s second class citizens”

Let’s get the facts straight here. On 31 October 1992 I changed my plea on the three counts of UCMJ article 123a to guilty and maintained my not guilty plea on the unauthorized absence. There was sufficient evidence available for me to put on a proper defense regarding the unauthorized absence and I was acquitted of that charge. I was found guilty of the 123a offenses pursuant to my plea of guilt. I did not write checks with any intent to defraud. I wrote the checks believing there was money in the account to cover it. The reasons for my plea on the 123a offenses were because I lost complete faith in the military justice system and believed it to be unfair.

With respect to the 123a charges: evidence was missing for me to put on a proper defense. My pay records held by DFAS Cleveland and the local PSD were missing and copies did not exist. Nor did any computer pay records exist. Apparently NIS had secured my pay records and there was no record of chain-of-custody and NIS claimed they didn’t have them anymore and sent them back. The trial judge granted a motion to compel concerning missing documentary evidence, including illegal general court-martial subpoenas that pre-dated some of the charge sheets as well as all predated the appointment of the IO. Despite the granted motion to compel for pay records and copies of at least 12 illegal general court-martial subpoenas. The government went on the record and stated it could not locate the missing evidence. The trial judge did not sanction the government in any way for its failure to produce the missing documents. My Navy LES were showing that direct deposits were in fact being deposited into my accounts but in actuality for some reason the account or routing numbers were off by one or two numbers and over $5000.00 in pay was returned to DFAS and never credited to my accounts (I had both direct deposit as well as allotments). This was during the exact time period of the UCMJ article 123a charges. Bank notices sent to me were being signed by someone other than me and I was not receiving them. Both a special agent of NIS and another individual testified to this fact under cross-examination at the UCMJ 32. Remember back in 1991 and 1992 we didn’t have home computers with internet log-in options to check accounts. Also ATM cards only permitted one to take out cash and not check on your balances, etc. In January 1992 (months before any charges against me) I also made a formal complaint to the U.S. Postal Inspector and to Senator Bill Bradley that I believed my mail was being tampered with at the Naval Security Station. I believed I was not receiving certain mail that was being addressed to me. This included bank statements and apparently later I learned bank notices which were being signed by someone other than me.

My guilty plea was based upon a pre-trial agreement which secured with time served. Upon being charged I was placed in solitary confinement at the Marine Corps brig in Quantico, Virginia for 118 days even though the SJA recommended to the convening authority my immediate release after the IO held that in general the evidence was weak or nonexistent. I was only released from pre-trial confinement because the government could not bring me trial within 120 days of my confinement. Subsequently I was placed in restriction for three months at the Anacostia Naval Annex awaiting trial.
Here are just some examples of why I lost faith in the military justice system: (1) pretrial confinement in solitary for 118 days even though the SJA recommended my immediate release (2) general court-martial subpoenas issued in my case before a court-martial was actually convened and before the appointment of the IO (to me that demonstrated that the military was going to send me to a general court-martial anyway – putting the cart before the horse) (3) documentary evidence missing (i.e. pay records, copies of the illegal subpoenas, etc.) (4) the special court-martial convening authority was able to participate in the court-martial process even though I had previously filed a meritorious UCMJ article 138 complaint against him (U.S. v. Nix, 40 MJ 6 (CMA 1994)) and (5) my trial date was moved to an earlier date after my defense counsel had oral surgery and his jaw was wired shut and I was given a choice plead guilty now with time served or contest the charges with a new defense attorney that had never before defended or prosecuted a court-martial or handled a bad check charge case.

When I made my plea of guilt I was in fact under duress from the culmination of events that occurred. I did not believe I would get a fair trial with respect to the 123a offenses because of the missing evidence and my defense attorney who knew the case and the facts had his jaw wired shut. I also requested an IMC who originally assisted me with the UCMJ 138 complaint of wrongs against the special court-martial convening authority but my request was denied. Thus my factors for pleading guilty were a loss of faith in the system and not with the thinking that I can just take the case to the Supreme Court. Let me make this perfectly clear I did not write the checks with intent to defraud – that is an element of the crime. But missing evidence would have been crucial in putting on a proper defense. My thinking was that if evidence did turn up in later years perhaps I could go back with the missing evidence. A decade later missing evidence started to surface. My pay records were found in 2005 in Air Force pay records in Denver, Colorado. Apparently NIS had returned my pay records but not to the Navy instead they sent the records to the Air Force where it was buried. Also after my court-martial copies of the illegal general court-martial subpoenas surfaced. In 2005 my attorneys were able to obtain redacted documents under FOIA showing that Navy officials were “sitting on it so it will go away!!!” Sitting on what I don’t know because the documents are redacted and FOIA litigation was unsuccessful to uncover the redacted portions.

My case is over. But as an American citizen I don’t want any Sailor, Soldier, Marine, Airman or Guardsman to be subjected to what I was to or feel the way I felt when I realized that the Supreme Court did not exist for me. In the future if the Supreme Court’s door is actually open to all servicemembers who knows what cases may reach it and be considered. While the Supreme Court has not reviewed many cases over our history I believe that is a result that direct review was only granted to the high court in 1984 as a result of the Military Justice Act of 1983. Since that time only a very small percentage of military cases are even eligible for review. Thus if the high courts doors are open to all cases eligible for review by CAAF and a broader range of cases, the high court might just accept more military justice cases.

Anonymous said...

So you are saying that you lied under oath regarding the intent to defraud element, but did so under duress.

Brother; I would have still plead not guilty.