Friday, March 06, 2009

Five new co-sponsors for H.R. 569, the Equal Justice for Our Military Act of 2009

Yesterday, five more co-sponsors were added for H.R. 569, the Equal Justice for Our Military Act of 2009, bringing the total number of co-sponsors to 18. The new co-sponsors are Bob Brady (D-Pa); Eric Massa (D-N.Y.); Solomon Ortiz (D-Tex.); Joe Sestak (D-Pa.); and Ellen Tausher (D-Cal.). The bill would allow servicemembers whose petitions to CAAF are denied to seek certiorari from the Supreme Court -- just as, apparently, every civilian convicted of a criminal offense is able to do (with the exception, of course, of civilians convicted pursuant to Article 2(a)(10) of the UCMJ).

21 comments:

Shelton Smalls said...

I can't disagree that military members should be able to take their case to the Supreme Court. But, if they are going to reform the military appeals process they should go all the way: No wasteful and pointless merits reviews, no automatic appeals, but allow appeals in all cases even if there is no punitive discharge, and finally and most importantly, no appeals in guilty plea cases (except for big issues like lack of jurisdiction, etc,)

If they did that then a lot of judges and lawyers would be out of work. Maybe even justifying doing away with the military courts of appeal. CAAF could be the intermediate court military members could have their one-in-a-million shot at getting heard by the Supremes....Automatic appeals of guilty cases don't add much to the justice process, especially where when "No Contest" pleas are prohibited.

Mike "No Man" Navarre said...

JO'C: Another pseudonym? C'mon, first it was Anon, nor Shelton Smalls?

Who is Shelton Smalls?

Shelton Smalls said...

Consider, is there any real justification for the procedure of the court to do a review on the merits? --Defense counsel doesn't see any issues, the client doesn't have any issues, not even a Grostefon issue, so why spend the judicial resources reviewing the case?

In my opinion, the extensive review that guilty plea cases get also do not further justice. The accused admitted under oath they were guilty. Getting a case overturned on Care inquiry issues or other overly technical issues doesn't further justice. Guilty plea appeals should be as limited as they are in the civilian world. Finally, guilty plea appeals should not be automatic. These changes I think would greatly reduce the cases on appeal without any reduction in the fairness of the system.

NBM3 said...

Due to the current rules of both the House and Senate the issue of Supreme Court access needs to be bifurcated from the military appeals process under the UCMJ. Because the issue of Supreme Court access falls under Title 28 of the U.S. Code (and not Title 10 of the U.S. Code) jurisdiction of high court access rests with the Judiciary Committee and not the Armed Services Committee. Thus it is not practical to update the entire military appellate system under the current bills even with an amendment. What needs (and should) occur is that legislation on military appellate courts and procedure be introduced and then it would be referred to the Armed Services Committee for a mark-up or hearing. The current bills, under the rules, will proceed as a stand alone or after a mark-up or hearing in committee be placed into other legislation moving through Congress.

I believe the legislation will be passed in this 111th Congress but not necessarily as a standalone issue. It will most likely receive hearings and mark-ups in Congress and then be tacked onto another piece of legislation moving through Congress. The reason for this is due to the rules. It is much easier to place a standalone issue on to the suspension calendar of the House than placing an item on the unanimous consent calendar of the Senate. Under House rules in order to be placed on the suspension calendar you need a super majority of two-thirds. But under the Senate rules, just one Senator can object to an item being placed upon the unanimous consent calendar. This was the case in the last Congress. Senator Lindsey Graham (R-SC) blocked S.2052 (110th Congress) from being placed upon the unanimous consent calendar. It is highly unlikely that the Senate leadership would permit something like the Equal Justice for Our Military Act or the Senate version to be placed upon the normal calendar. To do so would subject the bill to heaps of amendments (unrelated to the subject matter) and 30 hours of general debate (after cloture is invoked) on the floor of the Senate. The most likely scenario is either placing it on the unanimous consent calendar or as an amendment to another piece of legislation moving through Congress.

(Note: You can’t just slip language into an NDAA bill under the rules on issues outside of Title 10. For example, a change in law to permit Supreme Court access for servicemembers would require a waiver or jurisdiction of the responsible committee for HASC to consider it. In this case, the Judiciary Committees would have to waive jurisdiction over to the Armed Services Committee. And this is just not going to happen. It is standard practice for committees (whichever party may have control) to not waive their own jurisdiction over to other committees. When Congress passed the Military Justice Act of 1983 the rules were a bit different than they are today. The Armed Services Committees had hearings on the MJA of 1983. Under the rules today, that cannot occur with respect to Supreme Court access unless a waiver existed. Alternatively, if the language to amend 28 USC § 1259 was placed into an NDAA bill, it would still have to go back to Judiciary and conferees from that committee would be involved when it went to conference. Likewise, if a bill was introduced that encompassed the suggestions of commenter Shelton Smalls above as well as Supreme Court access the issues would still be bifurcated. Title 10 issues would be with Armed Services whilst the high court access under Title 28 would go to Judiciary.)

Shelton Smalls said...

As hard as it is to be against a act titled "Equal Justice for our Military," I do not like it. (But I still strongly support Motherhood, baseball, and apple pie)

As you can see from my prior posts I believe the miltary justice system provides more than enough protection of a miltary members rights. Especially when compared to the civillian criminal justice system. If I was ever accused of crime, whether I was innocent or guilty, I would much rather be prosecuted under UCMJ

Adding another layer of review will just further drag out the appeals process without much benefit...Considering the significant benefits an Accused gets while the case is on appeal (medical care being the biggest benefit) the government and justice have an interest in a fair and speedy finality to a case.

Shelton Smalls said...

Just a thought; but, I wonder if the bill would get as much support in Congress if it was titled: "The Act to Expand of a Criminal's Rights"

Anonymous said...

SS,

Couldn't agree with you more on your last thought. Of course if we really wanted our military members to receive equal justice I would recommend (as did you) to remove all appeals for guilty plea convictions, allow Alford pleas, and do away with review of contested cases submitted on the merits. Then military members be treated equally. Could you ever imagine a bill passing entitled "Justice for Civilians Equal to the Military" which would allow for an appeal process like the current one the military has? Never in a million years would it pass. Our system would come to a grinding halt if it did.

Norbert,
Thanks for the legislative process lesson, but what is your point?

MJW1

Anonymous said...

While we're at it, why not "equal justice" for our military that also includes advisement of rights only during custodial, interrogation, government-provided counsel only for the indigent, no sentencing by members(and with sentences subject to mandatory minimums/sentencing guidelines), etc.

John O'Connor said...

I am neither Anonymous nor Shelton Smalls, though we are in some ways singing from similar hymnals.

John O'Connor said...

And I'll point out that Shelton Smalls' second post came while the Syracuse game was still in progress, which definitively eliminates me as a potential author.

MJW1 said...

Anon 2052,

Damn straight.

Dwight Sullivan said...

While it is often said that civilians can't appeal in guilty plea cases, it's simply not true. In fact, appeals of sentences are common in the federal system.

John O'Connor said...

Dwight:

While it's true that appeal happen in guilty plea cases in federal court, it's also true that many guilty pleas end up with a waiver of appellate rights (so there is no appeal), and the appeals generally don't go to factual or legal sufficiency, which are generally waived by the guilty plea.

Dwight Sullivan said...

JO'C,

We're in agreement. (And, as you know, I also agree with you that a military accused SHOULD be able to bargain away appellate rights as part of a PTA.) My point is that simply that the comment frequently seen here that a civilian can't appeal in a guilty plea case is wrong. Federal criminal defendants in guilty plea cases often appeal their sentence and sometimes even file appeals challenging their convictions. Federal criminal defendants can, and sometimes do, challenge their convictions due to the district court's alleged error in accepting a plea under Fed. R. Crim. P. 11(b)(3), which provides, "Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea." I strongly suspect that the success rate of such appeals is lower in the federal system than in the military system, but it's simply wrong so suggest -- as Military Justice Wonk 1 did and as many others have -- that civilians have no right to appeal convictions based on guilty pleas. On the contrary, the federal courts of appeals can and do hear appeals of such cases under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. An appellate court will consider such an appeal under a plain error standard, but it will consider it. See, e.g., United States v. Mastrapa, 509 F.3d 652, 655 (4th Cir. 2007).

Federal criminal defendants sometimes even file appeals challenging their waiver of their right to appeal -- and in such cases the government bears the burden of establishing a valid waiver.

So can we please banish the spurious argument that a military accused shouldn't have the right to appeal a conviction based on a guilty plea because a civilian defendant wouldn't be able to do so when, in fact, civilian defendants are allowed to do so and, in fact, regularly file such appeals?

Shelton Smalls said...

Of course, in state criminal courts there are grounds to appeal, correct a sentencing error, or withdraw a guilty plea. But, compared to the UCMJ, in most state courts the grounds are very limited and the time limits are short.

A common post-trial motion is for a reduction of the sentence (i.e. the defendant gets to prison and realizes how much it sucks). The miltary equivalent that covers this issue would be the clemency submission to the convening authority.

Motions to correct sentencing errors (i.e. credit time served errors, score sheet errors) or a plea agreement that violates statutory sentencing rules are heard by the standing trial level court. The SJAR and the convening authority's action are similliar procedures for correcting errors that a court-martial makes.

There may not be an equivalent under the UCMJ for the court-martial to correct a error in a convening authority's action. (I'm pretty sure a court-martial does not currently have jurisdiction to do that.) Just from my casual reading of the Air Force Court's opinions it seems that a lot of relief they grant is when the legal office screws up the action order.

As for the military bread-and-butter guilty plea appeal: Was the Care inquiry sufficient? Is their a factual basis for the plea? In most state courts that's handled in 5 seconds when judge takes the plea: JUDGE "Does the defense stipulate to a factual basis and that venue is proper" DEFENSE ATTY: "Yes." --That usually takes care of that issue.

My basic point is that in most state courts the grounds to appeal, withdraw a guilty or no contest plea are limited and have short deadlines. But, there are grounds to review a guilty plea. Why the percentage of civillian appeals is extremely low compared to the military is that in the civillian world they are not automatic. A defendant has a real issue that concerns them. State appellate judges and public defenders don't have time review every case on the merits.

To sum it up: Automatic appellate review isn't worth the resources that are put into it.

RECOMENDATION: After a court-martial instead of giving the Accused a form to sign requesting appellate defense, just give him form stating that he has X numbers of days to appeal on Y grounds and the phone number to call appellate defense.

John O'Connor said...

Shelton Smalls:

I have my doubts your recommendation would work in practice. If an accused is told he can a[ppeal, has a free appeal, with free counsel, and that the appeal can only help him or leave him where he already is, who wouldn't call appellate defense? Maybe they could make that phone number a 900 number and raise some money to reduce the deficit.

Shelton Smalls said...

You're probably right...But,I like the idea of the 900 number, combine that with requiring the accused to send the ROT to DC and underfund Appellate Defense like the public defenders are so they never answer the phone or return calls and I think we could get a heathly reduction in appeals...

SS said...

Any Appellate Defense (AD) counsel out there who can give a rough estimate of the percentage of accused who never contact AD or can't be tracked down to be consulted. (I know atty-client privilege)...I'm thinking that a good percentage of enlisted busted for drugs who plead guilty and get a couple months confinement and a BCD don't bother to call AD even though their case is automatically appealed....But, I could be wrong....

NBM3 said...

Anon, Sat 2042: My point was: that any reform of the military appeals process would be two fold and would require bifurcation because of Titles 10 and 28. I refer to SS comment on Sat at 1234: “if [Congress is] going to reform the military appeals process they should go all the way.”

SS, Sat 1933: FYI I’m the one who suggested the “Equal Justice for Our Military Act” title back in 2005 when the original bill was first introduced on 17 March 2005 in the 109th Congress (HR 1364, 109th Cong.) to Rep. Davis. Apparently, Members of Congress like it as it’s now been used in three different Congresses (109th – 111th) to introduce (or reintroduce) the proposed legislation.

Question: (this is off the topic) Is the U.S. military required to comply with Article 36, Vienna Convention on Consular Relations (“VCCR”) in the notification to a servicemember who is a non-U.S. citizen “the right to consular notification and access” upon arrest, detention or having charges preferred under the UCMJ? I note that in the case of Denedo (now pending before SCOTUS) that he was not a U.S. citizen and as such I’m curious as to whether Article 36 of the VCCR applied to him.

Anonymous said...

I believe it is a DoD instruction that requires notification to the accused of their rights to contact consular representation. i do not know if Denedo was notified but even if he was not the consultation requirements does not create error.

Anonymous said...

SS bings up an interesting issue regarding AD attys. How do you actually rep a client when you have never spoken to that client? How do you know that the client wants his/her conviction/sentence challeneged. Maybe siging the standard forms many months ago they would have wanted an appeal, but they could have changed their minds. What are the ethical implication of proceeding on a case without any actual consultation?