Top 10 military justice stories of 2008 -- #6: A military judge rules that the new Article 120 is unconstitutional

As explained by Major Howard H. Hoege III's interesting but hideously flawed Army Lawyer article arguing that the new Article 120 is unconstitutional, the new Article 120 traces its roots to a congressional statute requiring DOD to report back to Congress with proposals to modernize the military's sexual assault laws. Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, § 571, 118 Stat. 1811, 1920-21 (2004). DOD responded by "strongly recommend[ing] no change to either the UCMJ or the MCM, arguing that case law had developed the UCMJ and the MCM to a point where any form of sexual assault could be prosecuted under the UCMJ." Major Howard H. Hoege III, "Overshift" The Unconstitutional Double Burden-Shift on Affirmative Defenses in the New Article 120, Army Law., May 2007, at 2, 3 n.16. But DOD also dutifully presented Congress with six options and recommended Option 5 if Congress were to change the existing statutory scheme. Id. "Congress ultimately drafted the new Article 120, basing substantial portions of the new statute -- including the new statute's burden-shifting scheme -- on Option 5 of the DOD report." Id. at 3.

Even before the new article went into force, Major Hoege argued that it was unconstitutional. But his argument was based on a fairly egregious misunderstanding of the law. He topped off many minor errors in his article with this whopper: "While Mathews v. Eldridge was a civil case, the Supreme Court has also used its three factors to examine procedural due process challenges in criminal cases." Id. at 13 (citing Hamdi v. Rumsfeld, 542 U.S. 507, 528-29 (2004) and adding the parenthetical: "applying Mathews v. Eldridge in a criminal case"). Which led to this double whopper (or double royale for you Pulp Fiction fans): "The sum of the analysis of treating the accused's initial burden as an interlocutory matter leaves little doubt that applying the Mathews v. Eldridge factors calls for a procedural due process challenge to the new Article 120's double burden-shift." Id. at 15. Of course, Hamdi was NOT a criminal case. On the contrary, the Supreme Court noted that the case was all about whether a U.S. citizen could "be detained outside the criminal process." Hamdi v. Rumsfeld, 542 U.S. 507, 524 (2004). No court would be tempted to apply Mathews v. Eldridge in a criminal context since 1992, when the Supremes held that "the Mathews balancing test does not provide the appropriate framework for assessing the validity of state procedural rules which, like the one at bar, are part of the criminal process." Medina v. California, 505 U.S. 437, 443 (1992). And certainly no court would be tempted to apply Mathews in a military justice context since 1994, when the Supremes expressly rejected Mathews and Medina as the proper due process test in a military justice case and instead adopted a standard even more deferential than Medina's. So Major Hoege's argument clearly doesn't survive even cursory scrutiny.

Notwithstanding arguments that it is unconstitutional, the new Article 120 duly took effect on 1 October 2007. And, in due course, servicemembers allegedly violated it. Which brings us to the court-martial of Petty Officer Fairley, whose alleged offenses led Judge Raymond E. Beal II (what is it about new Article 120 critics and Roman numerals?) to hold that it is unconstitutional, though on grounds far different than those advanced by Major Hoege. We posted his ruling here. He concluded: "Congress has affirmatively shifted the burden of proof to the defendant. The result, in a case such as this one where the defendant is required to prove a critical fact in dispute, is to increase further the likelihood of an erroneous conviction." And that, concluded Judge Beal, violates the Supremes' holding in Mullaney v. Wilbur, 421 U.S. 684 (1975), requiring the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged.

Following Judge Beal's ruling, the trial counsel borrowed a page from the appellate government playbook and moved for reconsideration. This led to a second ruling in the case, again holding the new Article 120 unconstitutional. We posted that ruling here.

The Government filed an Article 62 appeal in a different case that resulted in the same conclusion and that case (Crotchett) was orally argued en banc at the Navy-Marine Corps Court on 3 December, as we discussed here.

I honestly haven't studied the new Article 120 sufficiently closely to have an opinion as to whether it is or isn't constitutional. But obviously Judge Beal has studied it and carefully concluded that it isn't. Judge Beal deserves respect both for calling it like he sees it and for having the humility to decline to rewrite the statute in an attempt to fix the purported constitutional defect himself, as I've heard second-hand that some other military judges have tried to do. As Judge Beal wrote in his opinion denying reconsideration, "this court is not free to disregard any portion of the statute -- to do so would be to embark upon judicial legislation."

Of course, the system as a whole benefits from Judge Beal throwing a flag on the new Article 120 since this will result in military appellate courts definitively resolving these challenges more quickly than would have occurred if they were addressed only in the normal course of review after servicemembers were convicted under the new statute. That would have led to a number of convictions that could be endangered by a pro-defense ruling on appeal. The number of potentially affected cases will be far smaller because the case expeditiously went to NMCCA on an Article 62 appeal -- and will, in all likelihood, continue on to CAAF regardless of which side prevails at NMCCA.

So even though we don't yet know whether his ruling will ultimately stand or fall, Judge Beal's invalidation of the new Article 120 ranks as one of the top-10 military justice stories of 2008.