Sunday, December 07, 2008

This week in military justice -- 7 December 2008 edition

This past week has seen stunning and/or important military justice developments from the trial level through Article III habeas review. The most noteworthy occurred at Fort Bragg, where Staff Sergeant Alberto Martinez was completely acquitted at his capital court-martial on two premeditated murder specs. NMCCA heard en banc oral argument on the constitutionality of the new Article 120. The federal district court judge presiding over Ronald Gray's case arising from his court-martial and approved execution rejected the United States' motion to reconsider the stay of execution he had previously ordered. And all of this overshadowed what would usually be the headline grabbers of two CAAF opinions, as well as four CAAF oral arguments.

Most weeks are far less exciting. And with no known oral arguments at any of the military justice system's five appellate courts, this coming week appears likely to be even duller than most.

This week at the Supreme Court: Two military cert petitions had been circulated for this past Friday's conference. Tomorrow's order list will likely reflect cert denials in both cases. We'll report on the order list tomorrow evening.

This week at CAAF: CAAF has no oral arguments this coming week, though it will hear five next week, including a recently added Article 62 appeal. CAAF could, of course, announce more opinions this coming week. And we are hopeful that CAAF will soon provide additional information concerning oral argument scheduling for its 13 January 2009 and 9, 10, and 11 February 2009 argument dates.

This week at the CCAs: We know of no cases being orally argued at any of the four CCAs this week. If we learn of any reported CCA decisions, we'll post links and synopses.

This week at the trial level: We understand that military commission proceedings will occur at Guantanamo this week in the case of United States v. Khalid Sheikh Mohammed, et al. We're unaware of any significant court-martial activity during this coming week.

As always, if you know of other significant military justice developments or upcoming events, please drop us a note at


egn said...

Two other items nominally related to military justice:

- Supreme Court granted cert on Friday in Al-Marri v. Pucciarelli. The petitioner is the only individual detained at Charleston Brig under the Authorization for Use of Military Force. The QP is:
"Whether the President has the authority under the Constitution and the Authorization for Use of Military Force, Pub. L. NO. 107-40, 115 Stat. 224, to order the military to detain Petitioner, an alien who (based on evidence that must be taken as true at this stage) is almost identially situated with the Al Qaeda agents who struck on the morning of September 11, 2001."

- In the military commission case of United States v. Khalid Sheikh Mohammed, et al, Brig Gen Hartmann is expected to testify on his role in the commission process. KSM is proceeding pro se in the case. That sets up the distinct possibility of KSM directly questioning Hartmann on his conduct, apparently already under investigation in two separate inquiries by USAF and DODIG.

Norbert Basil MacLean III said...

UPDATE on Equal Justice for Our Military Act of 2007, HR 3174. I have confirmed this morning that Senator Lindsey Graham (R-SC) has placed a hold on the House passed HR 3174 and will not allow the bill to be placed upon the unanimous consent calendar for a full vote on the Senate floor this week. Both HR 3174 and S 2052 will die in the 110th Congress. Lawmakers who have sponsored this measure in this Congress and past Congresses will reintroduce it early in the 111th Congress as an attachment to another piece of legislation moving through Congress.

Senator Graham was one of the primary authors of the Military Commissions Act of 2006 ("MCA"). (According to a press release from Sen. Graham entitled "Graham on the Hamdan verdict" dated 6 August 2008.) The MCA gave enemy combatants the right to direct review of their military commissions cases before the Supreme Court once their cases conclude review in the D.C. Circuit. See 10 USC § 950g(d).

How does a sitting United States Senator reconcile giving enemies of the United States the right to direct review in our high court while at the same time shutting out a majority of those American servicemembers who are court-martialed and have served to protect and defend us from those enemy combatants?

Anonymous said...

When the majority of those service members plead guilty, they already have more appellate rights then the entire civilian population. At least the enemy combatants professed their innocence.

Now start making some more sophisticated arguments in your self-serving crusade.

Norbert Basil MacLean III said...

Anon 1936: What about those servicemembers who do not plead guilty, contest the charges at trial, are convicted, appeal and CAAF acts as gatekeeper to SCOTUS by denying discretionary review which precludes the ability to petition for review in the high court? Are you suggesting that because the majority of convictions in the military courts are guilty pleas that the inequity in 28 USC 1259(3) and (4) should be ignored? Again, back to my original question: How does one reconcile affording direct appellate review to enemy combatants in SCOTUS whilst shutting out the majority of U.S. servicemembers?

Anonymous said...

And back to my point that the majority of service members are not shut out. First, only a small fraction of them are. You are better off leaving your argument at the disparity than making sweeping statements about the “majority” of service members.

According to the 2007 annual report 2,981 members were convicted by GCM and BCD special courts.

According to CAAF it denied 733 petitions in 2007. While I acknowledge that the 2007 convictions are probably not at CAAF yet, they are appropriate to use for this exercise. Thus, only 25% of CONVICTED service members were denied access to SCOTUS. But since you referenced all service members being denied, it is really only .0005% of all service members who are denied access (using the 1,329,200 end strength figure from H.R. 110-279). Of course I am assuming that most will continue to not commit crimes.

So why should I, the U.S. public, or the others throughout the world (as in the case of the detainees) care about this .0005%?

Also, as a conservative estimate, approximately 85% of the convictions are the result of guilty pleas and they receive more appellate review than the entire civilian population. That would leave about 447 cases in 2007 that were contested (that is probably a high estimate). That would leave only .0003% of service members denied access and that would only be that high if you assume that each of the 447’s petitions were denied (which we know will be lower as surely CAAF will grant many of the ones in contested cases).

Norbert Basil MacLean III said...

Anon 0951: You seem to have a very narrow minded view on the issue.

First, let’s do discuss statistics. For example in UCMJ Code Committee reporting years 2001-02 there were a total of 7876 courts-martial and only 957 petitions for review in the CAAF were filed, 746 (86.44%) were denied, 101 petitions for review were granted (.12% were dismissed, .23% were remanded and 1.51% were withdrawn). Now not every court-martial was eligible for military appellate review because there is a flaw in the system which precludes the CCA and CAAF from reviewing convictions where there is no punitive discharge and confinement is less than a year. In reporting years 2001-02 only 101 (11.70%) service members whose cases were eligible for review in CAAF could seek a writ of certiorari in the high court. (28 USC 1259(3)) Thus only 11.93% (including those cases remanded) of servicemembers who filed petitions for grant of review in CAAF actually had their cases reviewed upon the merits. Since reporting years 1983-84 the highest number of grants of review (cases reviewed upon the merits) in CAAF was 36.64% (962 petitions were denied for review whilst 580 were granted) in 1992-93 and the lowest was 4.95% (2196 petitions were denied for review whilst 117 were granted) in 1987-88. On average since 1983-84 through the most recent reporting in 2007 CAAF reviews less than 20% of cases upon the merits of those servicemembers who petition for grant of review.

With the above said, lets take a brief look at the geographical federal appellate courts and the number of criminal cases reviewed upon the merits in those appellate courts. Would you agree that the U.S. Court of Appeals for the Fourth Circuit is the most conservative geographical U.S. appellate court in the nation? If so, both USDOJ and the Administrative Office of the U.S. Court statistics show that in reporting year 2001 (ending on 30 Sept) the 4th Circuit reviewed 61.47% of criminal appeals on the merits as compared to CAAF’s 11.93%. Notwithstanding, according to statistics from the period of 1983-84 (period ending on 30 Sept) through the most current statistics available on average the 4th Circuit reviews over 60% of criminal cases upon the merits whereas CAAF in the same period on average only reviews less than 20% on the merits. In 2005 there were a total of 13,097 criminal appeals terminated in all combined geographical U.S. Circuit Courts of Appeal. Of those 71% were terminated upon the merits of the case. In reporting year 2004-05 CAAF had a total of 742 appeals terminated. Of those 19.54% were terminated upon the merits of the case. Thus a federal civilian criminal defendant has a far better chance at getting his or her conviction reviewed upon the merits in the geographical U.S. Courts of Appeal (and even in the most conservative 4th Circuit)compared to a military defendant in CAAF.

Second, you ask why should you care about the .0003% of servicemembers convicted by courts-martial and who are shut out of the Supreme Court. Every American citizen should care about how we treat our U.S. troops who we send off to war to protect, defend and promote our democratic way of life. To not afford servicemembers the same basic due process rights that American civilian citizens enjoy (as well as illegal aliens and enemy combatants) demeans their service and denigrates the ideals for which they risk their lives. Not to mention that we fall behind as a world-class leader in how a democratic nation treats its uniformed citizens. Many other countries, including our allies, afford greater due process protections for their uniformed citizens than does the United States in accessing the highest courts after courts-martial.

Third, continuing to shut out the majority of servicemembers from SCOTUS whose cases are eligible for review in CAAF denies the high court the opportunity to review serious constitutional issues affecting thousands of servicemembers not just the .0003% or .0005% you mention. (A couple of recent examples of issues which have evaded SCOTUS review due to the inequity in the law: constitutionality on increase of confinement a special court-martial may award from six months to one year; equal protections of servicemembers to be tried by judges with fixed terms of office -- Coast Guard and Army provide fixed terms of office whilst the Navy, Marine Corps and Air Force do not.)

Fourth, you make the statement that military servicemembers have greater appellate rights than that of civilians. Your statement is misleading. While servicemembers do have an automatic right to review in the CCAs (and only those servicemembers who are awarded a punitive discharge and/or confinement for a year or more – subjurisdictional cases have absolutely no right to military appellate review) the CAAF acts as a gatekeeper to SCOTUS unlike any other federal geographical appellate court in the nation. (28 USC 1259(3) and (4)) I also refer you to statistics above and the comparison to cases being terminated upon the merits in the geographical U.S. Courts of Appeal compared to that of CAAF. Given that convening authorities have far more power than any sitting U.S. attorney or local district attorney, that UCMJ article 32 findings are not binding, that the CA hand picks the members, the panels of members are for the most part smaller (as little as five) in a court-martial as opposed to a civilian jury (which have 12) and coupled with the fact that only two-thirds vote to convict (in a panel of five on three have to vote to convict) having automatic appeals to the CCAs provides some due process.

If a military conviction was solely for good order and discipline with no civil disabilities (loss of right to vote in certain states, right to bear arms, etc.) I would not be arguing to change the status quo. Because military convictions bear a lifetime of civil disabilities I believe that any servicemember convicted of a crime should have the basic procedural due process afforded to civilian citizens, illegal aliens and that the 109th Congress has seen fit to grant enemy combatants (passage of Military Commissions Act of 2006, § 950g(d)).

Anonymous said...

Whilst you are correct that the two "serious constitutional issues" you referenced COULD impact all service members, they only really affect those few who commit crimes and get caught.

I do like the new use of statistics, however when you start talking about the unavailability of appellate review for non-BCD specials, you are the one who misleading. They have right to petition review under Art. 69, UCMJ. You also contrast that to civilians implying the system is not fair to service members, however I have not found a robust appellate practice in the civilian sector for what amounts to misdemeanors. Now you do mention civil disabilities and I confess that I do not know if there are contrasts or similarities between military and civilian convictions in regards to rights forfeited. For instance, I do not what future rights, like not being able to practice law, may be lost if a civilian plead guilty to a misdemeanor or felony level theft. I do know he wouldn’t get any appellate review.

Your argument regarding federal district courts is also flawed. Remember, those are the result of cases where the appellant didn’t waive appellate review by pleading guilty, as in the majority of CAAF petitions. I would expect CAAF to have a much lower merit consideration rate based upon the mandatory review the appellant is entitled to, even for guilty pleas.

Tag, your it.

Anonymous said...

You forget to factor into the equation that the reason we have a military judicial system is that we are different and need to be different. The civilian system does not work for us. But, oh, believe me having been a military prosecutor (and DC) and an AUSA I would love to prosecute cases in the civilian system if that's what you want. We would have a judge that knows what they are doing, is not paternalistic and is not afraid to hand out a punishment that is stiff. Also we could have idiot jurors who aren't smart enough to get out of jury duty, supervised release, forfeiture of assets, no article 10, a grand jury that is little more than a rubber stamp, a plea agreement where the accused gets practically nothing in return, appellate judges that know and embrace waiver and a very cushy federal prison. Seems like the civilian system is great!