Wednesday, June 17, 2009

Cox Commission II hearing

The link to the Cox Commission II hearing webcast seems to have died. Perhaps NIMJ will be able to restore the link or post the video to a permanent site. In the meantime, here's a quick report about yesterday's proceedings.

Five of the commission members were present: Judge Cox, Judge Wilkins, Professor Saltzburg, RADM Guter, and MG Nash. Both of the commission's reporters -- Professors Beth Hillman and Vic Hansen -- were also there.

Judge Cox began the proceedings in the most appropriate way possible -- observing a moment of silence to remember Judge Everett and Kevin Barry. After Judge Cox's introductory remarks, Phil Cave -- speaking on behalf of the Bar Association of the District of Columbia -- made the first presentation to the commission. Phil recommended augmenting the resources available to the defense in court-martial cases and a more open rulemaking process for the military justice system.

The next presentation was by Tom Sullivan -- a partner at Jenner & Block and the former U.S. Attorney for the Northern District of Illinois. Mr. Sullivan is the nation's leading expert on recording stationhouse interrogations. He spoke in favor of adopting a requirement that federal law enforcement agencies -- including the military's -- record stationhouse interrogations in serious felony cases. I was pleased to hear that he doesn't recommend an exclusionary rule in the event that such a requirement is violated. Rather, he supports an instruction advising the jury/panel that the interrogation wasn't recorded and that such a recording would have been a more accurate way to present any resulting admissions. Phil Cave has posted links to a report and an article by Mr. Sullivan here. Mr. Sullivan's 2008 American Criminal Law Review article called Recording Federal Custodial Interviews is available here. For me, Mr. Sullivan's presentation was the highlight of the day.

My presentation followed Mr. Sullivan's. I used the Navy JAG's recent reversal of the United States v. House court-martial conviction as a vehicle for exploring needed reforms in the military justice system. I recommended greater equality in the parties' access to subpoenas and litigation resources. I also advocated allowing any servicemember convicted of a contested charge or specification by a general or special court-martial to appeal that conviction to the appropriate CCA. And I advocated adoption of the JO'Cian proposal to allow waiver of appellate review as a negotiated pretrial agreement provision, which JO'C advanced in this law review article. John F. O’Connor, Foolish Consistencies and the Appellate Review of Courts-Martial, 41 Akron L. Rev. 175 (2008). And here are links to my written proposals concerning: (1) equalization of access to subpoenas; (2) appellate review of contested subjurisdictional cases; (3) waiver of appellate review as a negotiated pretrial agreement term; and (4) allowing an accused in a military capital court-martial to plead guilty.

A representative of SLDN then spoke, followed by two spokespeople for a veterans' group. Judge Cox then invited Theodore Essex to address the commission. Mr. Essex was the lead author of an article quite critical of the first Cox Commission report. Lieutenant Colonel Theodore Essex and Major Leslea Pickle, A Reply to the Cox Commission on the 50th Anniversary of the Uniform Code of Military Justice, 52 A.F.L. Rev 233 (2002). In his presentation, Mr. Essex advocated farming general officer misconduct cases out to DOJ and raised concerns about the waiver-of-appellate-review-as-a-negotiated-pretrial-agreement-term proposal. CAAFlog contributor Cully Stimson of the Heritage Foundation then spoke, discussing innovations from state criminal justice systems that the military may want to emulate, such as a no drop policy for domestic abuse cases instituted by the San Diego D.A.'s office and a child homicide statute that omits any malice element, such as California Penal Code § 273ab, which provides: "Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life."

The hearing ended with reports from the commission's two reporters. Professor Vic Hansen spoke first. He cautioned that changes in one area of the military justice system could knock down dominoes that would affect other areas. He noted that some proposed reforms implicated larger philosophical issues about the role of the military judge and the role of the convening authority. He raised the issue of the extent to which staff judge advocates should supervise the prosecution function. And he questioned whether summary courts-martial should be retained or abolished.

Professor Beth Hillman closed out the hearing. Her elegant weaving of themes from the hearing and recent military justice developments would be the envy of even the Hunt of the Unicorn tapestries' creators. She noted recurring questions concerning the extent of the right of appeal within the military justice system and the powers of the system's courts. Themes of unnecessary or unwise diversions of appellate resources and equality influence whether reform is appropriate. She noted questions concerning whether military appellate courts should specify issues not raised by counsel. She also raised the issue of whether the DuBay hearing mechanism should be codified.

The entire hearing lasted only about 3-1/2 hours. For a military justice wonk, it was time well spent.

9 comments:

Eugene R. Fidell said...

The link was live only during the hearing. Once NIMJ has a DVD of the proceedings we hope to post it on our website, www.nimj.org.

Anonymous said...

So the commission writes a report. Then what?

Anonymous said...

Then the commission has done its work.

Anonymous said...

Could you provide any more detail on the state innovations discussed by Cully Stimson? He had a good post here about a year ago suggesting a number of prosecution-related improvements drawn from state practices, but I never saw any follow-up from him regarding defense-oriented improvements. I'm just curious if any were mentioned in his comments to the commission.

Peter Wright said...

JO’C
Great article! I read the whole thing and completely agree with it. I’ve commented a couple of times about some of the issues in the article. Last week I got into a debate with Socrates about whether the accused at least had a duty to keep in touch with his appellant counsel. I guess I can comment a lot less now and just refer my point to your article. (Did I miss it when it was posted on CAAFLOG before? I kind of feel stupid for bringing those issues up when your article already has done a pretty exhaustive review of it. I think I’ll go back to spending more of my time at work doing my real work—or just spend more time reading the ONION.)

1) Completely agree with your point about guilty plea appeals diverting judicial resources from contested cases. I got detailed to a few kicked back contested cases that were literally YEARS old. They were relatively simple issues that got them reversed and I couldn’t believe it took so long for them to be decided. I almost felt bad for the poor trial counsel who had to track down the witnesses. One case was a UA case and they had to bring two doctors back from retirement and spend a lot money flying in almost all the witnesses. And in the end, the members gave us a great sentence because they were upset that the legal office took so long for a simple UA case. (Actual juror’s note to the MJ after the court).

2) Great point about with the UCMJ not permitting any no-contest pleas or Alfred pleas, there is very little moral justification for spending so much time on those cases. The accused can’t even plausibility claim that they were really innocent and just got railroaded into pleading.

3) Your point of allowing the accused to waive appellant review is a great first step, and sometimes you’ve got to move slowly with these things, but what’s your general position on more comprehensive changes. Like no automatic appeals and/or allowing all convicted accused the right to appeal. In many ways, in today’s world, it’s the conviction itself that is the stain on the accused’s record; a BCD is more just like firing and employee and giving a bad reference. All employers ask if you have a conviction, but it’s much less common today, with less of the population serving in the military, to ask if you got an honorable discharge.
I had several cases where I strongly suspect the MJ gave a subjurisdictional sentence with the sole purpose of avoiding direct appellant review. In one case, we argued for a BCD and the MJ just gave confinement. Afterward I asked why no BCD? and it’s burned in my memory what he said –perhaps a little too candidly— “There was no way I was going to let that case go up on appeal.” (There was no PTA and we had a pretrial punishment motion that he denied.)

4) On page 218 you use the phrase “bareback special” I’ve certainty used those types of PTA’s, but I’ve never heard of it phrased that way. The only time I’ve heard the term “bareback” is to describe something slightly more tawdry.

John O'Connor said...

Peter Wright:

Thanks for the kind words. Dwight posted my article when it first appeared in (I think) late 2007.

You asked about my view of "more comprehensive" changes, such as making all cases appealable, or not making any appeals automatic. I find it completely unworkable from a practical standpoint to require a notice of appeal. First, I assume the result would be that everyone notices an appeal -- it would just be one more piece of paper that would be signed in the DC's office along with appellate rights statements, etc. The reason is that there is no cost to an accused for an appeal if he uses military counsel. So why wouldn't you noticve the appeal if it's free (and if the DC would risk an IAC claim if he didn't make you do it).

Second, because all court-martial appeals are geographically located in the greater D.C. area, it's impractical for trial counsel to stay with trhe case on appeal (and would probably be bad for accuseds anyway in terms of technical appellate competence). That means that the system more or less has to have new appellate counsel assigned who have had no prior contact with the accused. Given that geographic realities reduce attorney-client contact on appeal, I think any system that requires affirmative opt-in for an appeal is problematic.

As for making currently sub-jurisdictional issues subject to Article 66 review, that's Dwight's issue not mine. I see Dwight has recommended that mandatory Article 66 review (in the absence of a waiver) occur for "subjurisdictional" cases where there was an approved guilty finding for a spec to which the accused pleaded not guilty. If we allowed for PTAs with appellate review waivers, I'd take that modest subjurisdictional review because the overall package would be an improvement, but you won't see me lobbying for expanded review of "subjurisdictional" cases.

Peter Wright said...

Last Post:

JO’C
One issue that your article did discuss —but I still think it’s of a concern—is how to deal with cases where even if the accused has pled guilty they do need some type of relief. I’m thinking of real ineffective assistance of counsel cases, coerced pleas, an accused wanting to withdraw his plea, Denando type cases, incorrect or unlawful sentences, problems with convening authority action, and other post-trial problems. (Let’s assume, for example, that Denando discovered he was now getting deported relatively soon after he pled guilty at his court-martial). Of course, the convening authority could correct the problem, or not approve the court-martial and order a rehearing.

In the civilian world, with standing courts, these types of collateral attacks on a guilty plea can be just brought back before the original court and relief can be sought, but since courts-martial are such fleeting things the only way to get relief is on direct appeal. So if waiver of appellant review becomes standard in all PTA’s where would the accused go for relief? Federal courts? I guess Coram Nobis writs are now good to go, but would the CCA have jurisdiction or the original court-martial?

This is certainly not meant to be a criticism of any kind, but just a follow up question.

(If this has already been discussed before on the Blog just post the link.)

John O'Connor said...

Well, Denedo seems to find that the CCA would have jurisdiction for that writ. A week ago I would have said the answer was an Article III court.

But my larger point is that there's no law that makes an accused take sentencing relief in return for a waiver of appellate rights. I don't think it's overly harsh to say that if you don't want to live with the sentence you can negotiate, then either plead guilty without a deal or plead no guilty.

The idea is to reach a landing point where an accused says "look, if I can have THAT deal, I won't complain about any conviction or sentence within the range permitted by the PTA." I assume MJs would develop rather explicit instructions to be provided during the providence inquiry on that issue in terms of what the accused is giving up.

V'ERPA LLC said...

For the record, "two spokespeople for a veterans' group" was Ms. Leigh E. Wise (USAF (Ret.) and Jeffrey A. Trueman, Founder, V'ERPA LLC. (www.verpapublishing.us). As we presented, the UCMJ did not work in the Wise-Matter at great cost to the public and the member.

Our testimony will be cited on our web site ... and we feel our presentation was the most comprehensive of all - - with regard to the UCMJ and its failures. Once again, the "victims" of UCMJ injustices and even with the prevailing case status—without lawyers assistance are being left out of the public domain. It makes us wonder … what is truly going one here.

In short, for a non-profit organization who traveled from Georgia to Washington to speak on behalf of many, as we did a decade ago... we are sad that we could not be cited by name and legal title as the others.

We await the findings and conclusions of this panel... and will comment further when that happens.

The V'ERPA-TEAM