tag:blogger.com,1999:blog-34853720.post7400611288624360852..comments2023-08-24T10:39:23.460-04:00Comments on CAAFlog: Interesting (and weird) 10th Circuit opinion on collateral review of court-martial convictionsDwight Sullivanhttp://www.blogger.com/profile/11657981110237418710noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-34853720.post-89931782890268109732007-07-30T20:47:00.000-04:002007-07-30T20:47:00.000-04:00But all of that just begs the question. It might ...But all of that just begs the question. It might be true that a lot of these cases began as death-specific holdings but were later extended to cover non-death cases too (as with the personal jurisdiction cases of the 1950s). But my point is that it strikes me as highly unlikely that even the death-specific changes to the system would have had much traction in (as the case may be) Congress or the Supreme Court but for a popular sentiment that the military justice system as constructed was unfair, and that public sentiment almost certainly arose out of civilians getting drafted and subjected to courts-martial.<BR/><BR/>I would assume that the Supreme Court grants cert in more death penalty cases than non-death cases, as well it probably should. Just as the court probably grants in more non-capital murder cases than larcenies or jaywalking cases. While their obviously are exceptions (think sodomy statutes) but I dare say that in the macro sense the issues get meatier (and better litigated below) the higher the stakes.John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-82343815289407091072007-07-30T20:33:00.000-04:002007-07-30T20:33:00.000-04:00As Warner Wolf would say, let's go to the videotap...As Warner Wolf would say, let's go to the videotape. Remember that the Ansell-Crowder dispute arose from Brigadier General Samuel T. Ansell's frustration over a death penalty case -- in fact, 13 death penalty cases. Thirteen African-American soldiers were executed in 1917 as the result of offenses allegedly committed during a riot in Houston, Texas. They were executed a mere twelve days after their court-martial ended. General Ansell objected that this rendered it impossible for the Judge Advocate General to exercise his statutory power to "review" and "revise" court-martial results. There is a wonderful but hard to find book about this incident and its aftermath: John M. Lindley, "A Soldier Is Also a Citizen": The Controversy over Military Justice, 1917-1920 (1990). To get a copy, I had to track down the author and buy it from him -- but it was well worth the effort.<BR/><BR/>I also have little doubt that the Supreme Court would not have felt compelled to address the habeas standard for court-martial convictions in 1953 but for the fact that Burns v. Wilson, 346 U.S. 137 (1953). (In fact, Burns arose from two Air Force death penalty cases and both petitioners were ultimately executed. See Airmen Hanged in Guam, N.Y. TIMES, Jan. 28, 1954, at 7.)<BR/><BR/>But JO'C is right about Reid v. Covert. The widow Covert (she killed her husband) and the widow Smith (she killed her husband) were both doing life. BUT, but Justice Frankfurter (to whom Frederick Bernays Wiener dedicated his book Civilians Under Military Justice) and Justice Harlan emphasized that they were limiting their concurrence in the Court's holding to the trial of dependents for capital offenses. See Reid v. Covert, 354 U.S. 1, 45 (1957) (Frankfurter, J., concurring) ("In making this adjudication, I must emphasize that it is only the trial of civilian dependents in a capital case in time of peace that is in question."); id. at 65 (Harlan, J., concurring) ("I concur in the result, on the narrow ground that where the offense is capital, Article 2 (11) cannot constitutionally be applied to the trial of civilian dependents of members of the armed forces overseas in times of peace."). <BR/><BR/>The Supreme Court has often first announced criminal procedural rules in capital cases and then later considered whether they extended to non-capital cases as well. Gideon v. Wainwright, 372 U.S. 335 (1963), may be the most prominent example -- extending the established right to counsel for an indigent defendant in a capital case to all indigent felony defendants.<BR/><BR/>It is also instructive that of the eight military justice cases to receive plenary consideration by the Supremes since the Military Justice Act of 1983, one of them was a death penalty case. Loving v. United States, 517 U.S. 748 (1996).<BR/><BR/>I would be shocked if the empirical data didn't support the proposition that the Supreme Court grants cert in capital cases at a far higher rate than it does in non-capital criminal cases. I tried to do a couple of quick electronic searches to see if I could verify or refute that assumption, but I didn't find anything. If a more exhaustive search still whiffs, this would be an OUTSTANDING topic for a law review article or note for some under-employed academician or law review editor in search of a note topic.Dwight Sullivanhttps://www.blogger.com/profile/11657981110237418710noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-43350316635921999172007-07-30T13:25:00.000-04:002007-07-30T13:25:00.000-04:00Interesting list of reforms that you attribute, in...Interesting list of reforms that you attribute, in part, to death penalty cases. My sense is that it's not the death penalty that have led to these changes in military law, for the most part, but the effect of a large number of civilians drafted into wartime service, and then coming back after the war with complaints about the military justice system. I think No Man has posted statistics before about the huge number of soldiers court-martialed during World War II, for example, and I suspect that this experience from drafted personnel was the impetus behind what became the UCMJ. The Ansell reforms similarly followed WWI as I recall.<BR/><BR/>You might see more of the same with the large number of reservists mobilized and sent to war in Iraq and Afghanistan, though I suspect the effect of war on changes to the military justice system will be less pronounced now that we have an all-volunteer army.<BR/><BR/>Your reference to the Ansell-Crowder debates and Reid v. Covert in the same sentence also made me think. One of the military justice commentators I have enjoyed reading the most was Colonel Frederic Bernays Wiener. If you read his take on the Ansell-Crowder debate, he seems to think Ansell as little better than a Communist sympathizer, while Wiener actually represented the petitioner in Reid v. Covert, successfully invalidating court-martial jurisdiction over dependents.John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.com