Cox Commission hearing web cast available

NIMJ has posted links to the web cast of the Cox Commission's 16 June public hearing here.

Another Cox Commission preview

This article from Tuesday's Stars and Stripes reports on more possible recommendations by the Cox Commission.

Cox Commission sneak peek

According to this report in Wednesday's Stars and Stripes, the Cox Commission will recommend a UCMJ amendment to criminalize animal cruelty. Kent Harris, Panel suggests adding animal cruelty to UCMJ, Stars & Stripes, June 24, 2009. (Obviously the article gets some things wrong, like appearing to confuse the Cox Commission with NIMJ. The article also muddles the distinction between the UCMJ and presidentially enumerated Article 134 offenses, meaning that its suggestion that the Cox Commission will recommend a UCMJ amendment as the vehicle for prohibiting animal cruelty may be inaccurate.)

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.

Gene Fidell's analysis of H.R. 569

Here's a link to Gene Fidell's testimony for the House Judiciary Committee's Subcommittee on Courts and Competition Policy on H.R. 569, the Equal Justice for Our Military Act.

H.R. 569 hearing highlights

Yesterday's hearing on H.R. 569, the Equal Justice for Our Military Act, was what civics books teach us the legislative process should be like. We were in the House Judiciary Committee's hearing room, a majestic forum with a soaring ceiling, an enormous depiction of an eagle dominating one wall, and an imposing dais separating the subcommittee's members and counsel from the witnesses. But despite the very formal surroundings and the different roles of the various participants, the hearing had the feel of a small group of lawyers reasoning together in search of a just result. The experience called to mind Isaiah 1:18.

During his opening remarks, Chairman Hank Johnson (D-Ga.) noted that no witness for the Administration would appear at the hearing, though a DOD witness had been scheduled to testify before the hearing date was rescheduled. Chairman Johnson observed, "[W]hile I was initially disappointed that the Administration was not able to send a witness, I take it as a sign that the Obama Administration is taking a hard look at the legislation and will ultimately take a different position regarding the legislation than the previous Administration." (DOD had opposed an identical bill during the last Congress.)

During his opening remarks, Ranking Member Howard Coble (R-N.C.) followed up on Chairman Johnson's comments about the absence of any witness to provide the Administration's views: "[I]t's regrettable . . . that while today's hearing marks the first real legislative review of this legislation, the Administration has refused to send a witness to testify, and I think this is a mistake." He then added, in a humorous manner, that "it appears to me that the Administration has chosen to go AWOL on this matter today." Then, not so humorously, Rep. Coble added, "This marks the second time in 90 days that the Administration has been missing in action before this subcommittee, in a hearing where members are reviewing proposals that relate directly to our servicemembers." (I assume that the previous occasion he was referring to was a hearing on H.R. 1478, the Carmelo Rodriguez Military Medical Accountability Act of 2009.) Resuming his jocular tone, he continued that General Altenburg and I "can probably tell us the range of penalties the UCMJ prescribes for failure to report for duty, if you'll pardon my inserting a little humor in this. But unfortunately, the civilian employees of the Office of Management and Budget and the Department of Justice are not subject to the UCMJ's disciplinary provisions." Then again becoming serious, he concluded, "[W]e need to insist that the Administration does, in fact, take seriously its obligation to respond to our requests for information. This is particularly true when matters before this subcommittee and the full committee, for that matter, directly impact the rights of servicemembers, their resources and requirements of our armed services, and the administration of our judicial system."

One of the key issues at the hearing was what the bill was likely to cost. Responding to a question from Chairman Johnson, I expressed the view that under the bill, there wouldn't be a large increase in the number of cert petitions filed by counsel as opposed to those filed pro se. I noted that even if the number of cert petitions filed by counsel doubled under the bill, the increased printing costs would likely be only around $15,000. General Altenburg expressed concern that Congress should scrutinize how the bill would affect the various services' JAG Corps, which are already "stretched quite a bit based on the contingencies that we address around the world, both combat and otherwise."

Responding to another question from the Chairman, General Altenburg and I agreed that, in General Altenburg's words, "a collateral attack is not a substitute for a direct petition to the Supreme Court." But, General Altenburg added, the percentage of cert petitions that actually result in a grant on direct appeal is extremely small.

In response to a question from Ranking Member Coble, General Altenburg emphasized that he didn't think the bill's passage would harm good order and discipline: "I dissociate myself with anyone who has stated that to give this right to soldiers, to military people would, in some way, undermine discipline or undermine authority or lower discipline or harm the military. I don't believe any of those things. . . . It would in no way harm the military. My sole concern is the lawyer resource issue. That's my sole concern, and the fact that we don't really know what it's going to take and how many people are going to take advantage of this."

An interesting exchange between Ranking Member Coble and General Altenburg followed. Rep. Coble asked General Altenburg to respond to what Rep. Coble characterized as the "powerful equitable argument" that "it is inappropriate to deprive members of the U.S. military of the same right to Supreme Court access that their civilian counterparts and even alien unlawful enemy combatants enjoy." General Altenburg, who previously served as the Appointing Authority for the Military Commissions system, responded that it was necessary to provide Supreme Court review of commission cases because the commission system "wasn't done very well in terms of the way it was conceived" and the commission system remains "immature." Supreme Court review in the regular military justice system, on the other hand, was less important becuase "our appellate system in the military is very well developed and has matured over the years."

Ranking Member Coble ended his questions by asking General Altenburg what suggestions he would offer to make a system like that proposed by H.R. 569 work. General Altenburg replied by emphasizing that Congress should "make sure that the services have the resources to do this." He added, "If that issue was addressed, if we were able to discern rather than guess, but to discern this is what the likely costs are in terms of resources, and the Congress were to approve those resources, I don't have an objection. I think it would work."

Chairman Johnson then recognized Rep. Charlie Gonzalez (D-Tex.). Rep. Gonzalez emphasized that under current law, the two parties to a court-martial have disparate access to the Supreme Court. The United States can open the door to the Supreme Court through a certificate of review filed by a Judge Advocate General at CAAF. But in a non-capital case, the accused generally must convince CAAF to exercise its discretionary review authority for the case to become eligible for Supreme Court review. Rep. Gonzalez observed that one of the two parties has "an inferior right . . . as far as seeking Supreme Court review." He continued, "[W}hen it's all said and done, what is available to one party is not available to the other, and I think that's what causes us the discomfort and . . . that's what this act would balance and bring a more just result to the whole process."

And with that, the hearing ended, followed by cordial exchanges between the witnesses and the subcommittee's members and staff.

We probably all feel cynical about our system of government at times. This hearing was a cure for such cynicism. Regardless of whether H.R. 569 or some amended version of the bill ultimately becomes law, the bill's sponsor and a congressional subcommittee devoted a substantial amount of time before during and after the hearing to try to promote justice in a prudent manner. They devoted this time to make sure that our nation's servicemembers are treated fairly. The hearing didn't attract crowds; the expansive seating area was almost empty. But these Members of Congress and their staff members weren't there to showboat; they were there to see whether the law could be improved. Chief Justice Marshall famously wrote that the United States has "a government of laws, and not of men." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). It was uplifting to see honorable men and women at work drafting those laws.

The mystery of the hearing

The most intriguing question to arise during the House hearing on H.R. 569, the Equal Justice for Our Military Act, was never answered: what is the Administration's position on the bill? Chairman Hank Johnson (D-Ga. 4) observed that when the hearing was originally scheduled, DOD was sending a witness to testify. But when the hearing was moved to 11 June, no DOD witness was provided. Chairman Johnson expressed his hope that this signaled that the Administration would not oppose the bill, as the Bush Administration did last year. Ranking Member Howard Coble (R-N.C. 6) castigated the Administration for failing to send a witness. He humorously accused the Administration of being AWOL and rhetorically inquired about the penalty for failure to go to one's appointed place of duty. He also mentioned another recent incident in which the Administration had declined to send a witness to take a position on a bill.

A transcript of the hearing should be available on Friday. If so, I'll post the excerpts that deal with this still unsolved mystery.

Cox Commission public hearing details

The Cox Commission will hold its public hearing next Tuesday, 16 June, starting at 0900. The location is the GWU Law moot courtroom. I understand that the hearing will be webcast here.

Second Cox Commission Public Hearing and Topics Announced

Here is a link to the notice of the Second Cox Commission's public meeting on June 16, 2009 at George Washington University Law School, Moot Court Room, L101, 2000 H Street, N.W., Washington, DC 20052.

Here is a link to the proposed agenda for the Commission. The notice also directs members of the public to submit written comments to coxcommission@wcl.american.edu or by mail to National Institute of Military Justice, 4801 Massachusetts Ave., NW, Washington, DC 20016.

Exciting news: Cox Commission II schedules public hearing

NIMJ has issued this announcement that the second Cox Commission will hold a public hearing on 16 June 2009 at the George Washington University Law School in D.C. Comments for the Cox Commission's consideration can be sent to coxcommission@wcl.american.edu. A fascinating non-exhaustive list of topics that the Cox Commission will be considering is available here.

Still ranting: Revisiting the proposal to eliminate or consolidate the CCAs

I don't have much time tonight, but I wanted to add a short addendum to last night's rant calling for the elimination or consolidation of the CCAs.

Several people in the comment section wrote about whether CAAF could take up the slack if the four CCAs were eliminated. The answer is: Yes, easily.

During FY 2008, the four CCAs decided 2,515 cases. In FY 2007, they decided 3,423 cases.

Back in FY 1987, when CMA was still a three-member court, it had 3,336 docket terminations. See 26 M.J. CXVI. And in FY 1984, it terminated 4,036 cases. See 20 M.J. CXXXI. So it's apparent that CAAF could handle the current combined workload because in the past it has handled that case load.

Let's also do a bit of comparison shopping. In 2002 -- the most recent year for which I could quickly find statistics (have I mentioned I'm under the gun tonight?) -- the Fourth Circuit decided 5,356 cases. For most of that year, it had eleven judges. So CAAF has 45 percent of the judicial staffing that the 4th Circuit had. Guess what 45% of the Fourth Circuit's 2002 docket would be -- 2,435 cases, which is close to the cumulative number of cases decided by the four CCAs last year. So a five-member court could handle that level of cases, assuming it sat in three judge panels.

But in reality, the workload would be far less for CAAF than it was for the 4th Circuit. Here's something that every 4th Circuit case decided in 2002 had in common -- they all raised issues. There's no such thing as a merits submission to the 4th Circuit. Compare that to the military. Last year, 43.8% of all the cases decided by the Air Force Court were submitted on the merits. I'll bet the percentage is even higher for the Navy-Marine Corps Court. Even using that number across the four CCAs, CAAF would actually be called upon to decide only 1102 cases raising issues. It could summarily deny the rest without even cracking the ROT's cover.

But wait, there's more. No doubt some not insubstantial subset of the 56.2% of the CCA appeals with issues raised only a sentence inappropriateness claim. But CAAF doesn't have sentence appropriateness powers. If the CCAs were eliminated, sentence appropriateness would no longer be a judicial decision, but would instead be confined to CAs, discharge review and clemency and parole boards, and the President's exercise of his pardon power. So whatever percent of cases that now raise only a sentence appropriateness issue would now be no issue cases, further reducing CAAF's workload. And, of course, CAAF would no longer have to review petitions first and then rereview those cases in which it grants the petition. Rather, there would be one streamlined process that would no doubt result in summary affirmance for the great majority of cases and more searching analysis of more difficult cases, just as is now the case with the Article III courts of appeals. (Of course the factual sufficiency function would also disappear with the CCAs, but it's very rare to see a factual insufficiency claim raised that isn't accompanied by a legal sufficiency claim, so that's unlikely to change the percentage of briefed cases.)

While the legislative history of the bill that expanded CAAF's size to five judges indicated that Congress contemplated the court would sit en banc in every case, CAAF doesn't appear to actually be compelled to do so. In other words, even without a statutory change, CAAF could start sitting in panels while allowing for en banc review when appropriate -- such as to resolve splits between or among panels. If the CCAs were eliminated, CAAF should move to such a system.

So CAAF could manage its own workload simply by no longer reviewing no issue cases on its own and by moving to sit in panels.

CAAF is a highly professional court with superb resources, including an outstanding library staff, a court executive, an efficient clerk's office, a central legal staff, and a couple of in-chambers clerks and a couple of in-chambers secretaries for each judge. The court has the spare capacity to take on all of the CCAs' cases with no increase in funding.

What if, several years down the line, military justice caseloads drastically increase? That seems unlikely to happen. But if it were to happen, then we could throw money at the problem then. But the possibility of having to increase CAAF's size later (which, again, strikes me as a low-probability contingency) shouldn't lead us to waste millions of dollars annually now to preserve excess capacity. The federal government simply doesn't have the resources to do that anymore.

Finally, the issue of waivers of appellate review as a PTA term came up in the comments. As I demonstrate above, we could eliminate the CCAs and have CAAF provide appellate review for every case now reviewed by the CCAs without increasing CAAF's staffing. So it isn't necessary to allow for waiver of appellate review as a PTA term to accommodate the CCAs' elimination. That said, I favor allowing waiver of appellate review as a PTA term regardless of whether the CCAs are eliminated. And I favor eliminating the CCAs regardless of whether waiver of appellate review is allowed as a PTA term. Obviously my first choice would be a system in which waiver of appellate review is allowed as a PTA term and in which the CCAs are eliminated and all court-martial convictions can be appealed to the Court of Appeals for the Armed Forces.

Rant: How can we justify retaining five military appellate courts in these budgetary times?

Secretary of the Air Force Michael Donley and Air Force Chief of Staff General Norton Schwartz published a remarkable op-ed in today's Washington Post. They extol the virtues of the F-22, which "is, unquestionably, the most capable fighter in our military inventory." They suggest that having more is better, but forthrightly indicate that we can't afford to buy as many as we probably want to have. (For more on the value of the F-22 and why we can't afford it, see this article by Mark Bowden from the March 2009 Atlantic.)

In these budgetary times -- when we are painfully sacrificing our military's teeth -- how can we justify the expense of maintaining five appellate courts that cling to the tip of the military's tail? Consider that at the moment, three of the five military appellate courts (ACCA, AFCCA, and CGCCA) are preparing to move . How many millions of dollars will be devoted to building new facilities for those three courts? How many millions of dollars are spent each year on the four CCAs' operating budgets? Could we find better uses for those millions of defense and homeland security dollars? Of course we can.

This is no time to maintain military entities simply because the wire diagram has included them for decades. I firmly believe that the Court of Appeals for the Armed Forces is capable of providing a one-level review of all military convictions -- just as the United States Court of Appeals for the Fourth Circuit is capable of providing a one-level review for every federal conviction in Maryland, Virginia, West Virginia, North Carolina, and South Carolina, as well as hearing appeals from federal civil cases in those states. Why should a servicemember get two levels of sub-SCOTUS appeals when a civilian gets only one? Is maintaining that two-layer review worth the millions of dollars in operating expenses and the many millions more in capital outlays that DOD and Homeland Security will have to pay in the next few years to move three of the CCAs? Also, a one-stop-shopping system -- in which CAAF would no longer itself hear cases in two stages -- would be far faster than the current system, thus saving still more money by reducing the time period servicemembers spend on appellate leave, with the resulting costs to the government (particularly for health care).

Finally, let's say I'm wrong. Let's say we really do need a two-layer appellate system. Then can't we at least consolidate the four CCAs into one CCA, thereby saving not only about two-thirds of the combined CCAs' operating costs, but also forgoing the need to build facilities for two of the three CCAs that are currently planning moves?

All of the money we would save by eliminating or combining the CCAs probably wouldn't buy one F-22 -- even if we added together all of the savings over 10 years. But I'll bet it would be enough to save some other valuable military program that contributes to DOD's war fighting capabilities.

If we are willing to sacrifice 60 of the "most capable fighter[s] in our military inventory" because they cost too much, it's time to give serious consideration to sacrificing a layer of redundancy in the military appellate process because, in these budgetary times, we can no longer afford such an extravagance.

Judge Cox solicits attributed input for Cox Commission II

I know not everyone reads the comments, so I wanted to call your attention to this comment that was posted under our entry about the Cox Commission:

The UCMJ Commission for 2009 welcomes suggestions and ideas for improving the military justice system from all sources. If you have an idea or suggestion, it adds credibility for the person making the suggestion to take responsibility for having made it and to submit any documents, articles, or research that supports the basis for the suggestion or idea. Please submit your comments, ideas or suggestions to us at: coxcommission@wcl.american.edu.

Walter T. Cox III
Chairman

Exciting news: NIMJ announces Cox Commission II

NIMJ announced here that Senior Judge Walter T. Cox III of the Court of Appeals for the Armed Forces is convening a second commission to examine the military justice system. The first Cox Commission's report is available here. The second Cox Commission is co-sponsored by NIMJ and the ABA Criminal Justice Section's Military Justice Committee.

The announcement sets out the commission's purpose and plan:

The purpose of the Commission will be to examine the current operation of the military justice system and consider whether the Uniform Code of Military Justice is meeting the needs of the military services to provide an efficient and fair way to insure good order and discipline while also serving the criminal justice goals of a democratic society. The Commission will submit its report to the President, Congress, the Department of Defense, and its sponsoring organizations. . . .

The Commission will solicit ideas and suggestions from civilian and military attorneys, military commanders and non-commissioned officers, bar associations, law schools and groups with special interest in military matters and from the general public. Every effort will be made to facilitate public participation, including a website or blog and at least one public hearing.

The lineup for the second Cox Commission is star-studded. In addition to Judge Cox himself, the commissioner members are former 4th Circuit Chief Judge Billy Wilkins, Professor Steve Saltzburg of GWU, Professor Scott Silliman of Duke Law, former Judge Advocate General of the Navy RADM Donald J. Guter, former military commissions Chief Defense Counsel Will Gunn, GWU Law Professor and D.C. City Council Member Mary Cheh, retired Army Major General William L. Nash, and retired Army JAG Colonel Joyce Peters. The vital position of commission reporter is filled by two luminaries -- Professor Beth Hillman of UC Hastings Law (who was the first Cox Commission's reporter) and Professor Vic Hansen of New England Law.

We will follow the commission's work and will post a notice when the commission's public hearing is scheduled.

Revised military justice appellate reform proposal

Here's the revised version of the proposed military justice appellate reform statutory package, including an additional change that Eugene Fidell the Sagacious and I discussed off-line: eliminating the very unjudicial CAAF party balance requirement. I gave the sentence appropriateness issue still more consideration. I'm still inclined to leave it out, and I'll propose yet another reason: workload. If CAAF suddenly found itself in the sentence appropriateness business, then presumably every appellate defense counsel would raise the issue in every case, since no one would know the range of what CAAF considers appropriate. Almost all or, more likely, all of these sentence appropriateness challenges would be unsuccessful, but a zealous defense counsel would feel compelled to brief the issue. That would seem to be a huge waste of the system's resources.

So here's the current proposal, as revised:

1. Make all SPCM and GCM convictions subject to judicial review (absent waiver or withdrawal) without regard to sentence.

2. Allow the waiver of appellate review as part of a pretrial agreement (i.e., the JO'Cian waiver of appellate review provision). Provide that in cases being tried by military judge alone, the military judge will not be informed of the waiver until after sentencing.

3. Eliminate the Courts of Criminal Appeals.

4. Provide for the right to appeal any court-martial conviction to CAAF in a one-step process. CAAF would exercise jurisdiction over and rule on the merits of every case appealed to it. CAAF would also exercise the Article 62 jurisdiction currently exercised by the CCAs. CAAF would be statutorily empowered to substitute a finding of guilty to an LIO if it finds the evidence legally insufficient to support a finding of guilty but legally sufficient to support a finding of guilty to the LIO.

5. Authorize CAAF to sit in panels of 3 with further authority to grant initial review or rehearing en banc.

6. Legislate a formal post-conviction process for claims relying on extra-record evidence. Do so by amending Article 73 to allow the accused to file a petition for new trial based on any extra-record evidence with CAAF within two years of the court-martial conviction. CAAF would review the petition and the government opposition to determine if any disputed issues of material fact exist. If none exist, CAAF would resolve the petition on the basis of the filings. If such disputed issues of material fact did exist, it would remand the case to a standing court-martial for the appropriate service for a factfinding hearing. [Note that JO'C's proposal for a standing court-martial would have numerous collateral benefits. To avoid purpleness, there should be one standing court-martial for the Army, one for the Air Force, one for the Navy-Marine Corps Trial Judiciary, and one for the Coast Guard.]

7. Legislate formal limits for CAAF's extraordinary writ power. Declare that CAAF has writ jurisdiction over all cases for which an IO has been appointed under Article 32 or that have been referred to an SPCM or GCM, but not over summary courts-martial. Provide that CAAF's writ jurisdiction terminates in all instances upon Article 76 finality.

8. Repeal the portion of Article 142(b)(3) providing that "[n]ot more than three of the judges of the court may be appointed from the same political party."

9. Amend Article 74 to expressly authorize the service secretaries to commute a death sentence to confinement for life without eligibility for parole.

A proposal to reform the military appellate process

Based on thoughts arising from our very helpful recent discussions, I propose the following statutory reform package for the military justice system's appellate review process:

1. Make all SPCM and GCM convictions subject to judicial review (absent waiver or withdrawal) without regard to sentence. (I am indifferent to flipping the current practice to provide an affirmative right to appeal that the accused must invoke. For the reasons discussed by JO'C in his recent article, John F. O'Connor, Foolish Consistencies and the Appellate Review of Courts-Martial, 41 Akron L. Rev. 175 (2008), in operation such a system would be almost indistinguishable from out current system. So I would neither affirmatively support nor actively oppose such a change.)

2. Allow an accused to offer the waiver of appellate review as part of a pretrial agreement.

3. Eliminate the Courts of Criminal Appeals.

4. Provide for the right to appeal any court-martial conviction to CAAF in a one-step process. CAAF would exercise jurisdiction and rule on the merits of every case appealed to it. CAAF would also exercise the Article 62 jurisdiction currently exercised by the CCAs.

5. Authorize CAAF to sit in panels of 3 with further authority to grant initial review or rehearing en banc.

6. Legislate a formal post-conviction process for claims relying on extra-record evidence. Do so by amending Article 73 to allow the accused to file a petition for new trial based on any extra-record evidence with CAAF within two years of the court-martial conviction. CAAF would review the petition and the government opposition to determine if any disputed issues of material fact exist. If none exist, CAAF would resolve the petition on the basis of the filings. If such disputed issues of material fact did exist, it would remand the case for a factfinding hearing.

7. Legislate formal limits for CAAF's extraordinary writ power. Declare that CAAF has writ jurisdiction over all cases for which an IO has been appointed under Article 32 or that have been referred to an SPCM or GCM, but not over summary courts-martial. Provide that CAAF's writ jurisdiction terminates in all instances upon Article 76 finality.

Such an appellate review system would be more just, substantially faster, substantially less resource intensive, and more predictable than our current military appellate review system. I considered whether to transfer the Article 66(c) sentence appropriateness and factual sufficiency review provisions from the CCAs to CAAF. I wouldn't. Those provisions are vestiges of an earlier military justice system substantially less fair and reliable than the one we have today. Court-martial panel verdicts should be disturbed only when a comparable civilian jury verdict would be disturbed. The question of sentence appropriateness is closer since in non-capital cases, a civilian jury would rarely impose a sentence. On balance, I wouldn't give CAAF sentence appropriateness power, but I think this is a closer question than giving whether to give it factual sufficiency power.

Do I hear a second? Amendments are welcome.

Some numbers

During Fiscal Years 2005, 2006, and 2007, 11,072 servicemembers were convicted by general and special courts-martial. During those same combined three years, 8,648 cases were received by the Judge Advocates General for appellate review, leaving a difference of 2,424.

Now, that doesn't mean there were exactly 2,424 subjurisdictional cases, because the two figures in the paragraph above refer to slightly different populations of cases. We know precisely how many trials were held during each fiscal year and the number of resulting convictions. But we don't know precisely how many of each year's annual total went on to appellate review. Rather, we know the number of cases actually received for appellate review in those years. But a record of trial received for appellate review in November 2007 was tried in Fiscal Year 2006, not Fiscal Year 2007. This slight disconnect is demonstrated by the fact that in FY 06, the Judge Advocate General of the Navy actually received 46 more cases for appellate review than total of Navy and Marine Corps GCM and SPCM convictions during that fiscal year. (That probably means that some review shop found a couple of seabags full of ROTs from 1985 and shipped them all to NAMARA.)

But the effects of this slight population difference should be minimized by looking at a three-year time span. So while we can't absolutely conclude that 22% of all GCM and SPCM convictions over the last three fiscal years resulted in subjurisdictional sentences, that's probably pretty close.

With all that as prelude, WHY IS IT OKAY THAT SOMEWHERE IN THE NEIGHBORHOOD OF 800 SERVICEMEMBERS PER YEAR ARE CONVICTED BUT HAVE NO RIGHT TO APPEAL THEIR CASES IN A JUDICIAL SYSTEM?

I don't think of myself as a cheerleader for the military justice system, but I often opine that on average, it does a better job of handling the run-of-the-mill criminal case than does the typical state court system. And one important reason for that is that unlike in state systems -- where criminal defendants often go unrepresented because they earn too much money to qualify for a public defender but have insufficient discretionary income to afford to hire a lawyer -- almost every defendant in the military justice system is represented by counsel. (On the other hand, for a lot of reasons, I think the military justice system does a poorer job of handling extremely serious or complex cases than does the typical state court system.)

But it seems a serious deficiency that unlike in state or federal criminal justice systems, there are a substantial number of GCM and SPCM convictions -- which carry the lifetime stigma of a federal conviction -- that can never receive judicial appellate review.

We can do better and we should do better. Congress should amend the UCMJ to provide that every general court-martial or special court-martial resulting in an approved finding of guilty is eligible for review by the Court of Criminal Appeals. That would be a much more important reform than broadening military appellants' right to file an unsuccessful cert petition with the Supremes.

NCIS reportedly considering policy requiring taping of interrogations

NIMJ has posted an important news article about NCIS's consideration of a policy to require the taping of interrogations. Here is a link.

Interestingly, an NCIS spokesperson says, "Our current policy is the same as other federal law enforcement agencies -- recording of interviews is neither required nor prohibited." If it is true that NCIS has no policy against recording interrogations, that is in itself a step in the right direction. In 1996, the NCIS Special Agent who interrogated a suspect in a homicide case understood that his agency prohibited recording interrogations. In the case of United States v. Quintanilla, Special Agent Bolden testified that he had not taped his interrogation of Sergeant Quintanilla, but NCIS had videotaped a walk-through of the crime scene. Record at 187-88. The defense counsel then asked, "So although NCIS can go through and videotape the crime scene, it couldn’t videotape the interrogation?" Id. SA Bolden replied:

That's a totally different situation, sir. I don't know the rules and regulations on it. I would have to check with Headquarters to be sure. We have – over my 17 years of law enforcement I have never been given permission to do that by our legal people at Headquarters nor have we conducted any type of interviews on videotape, with the exception of child abuse cases, sir.

Id.

Several states and localities have adopted the eminently reasonable requirement that stationhouse interrogations in serious felony cases be recorded. Illinois, for example, has a statute that treats stationhouse confessions as presumptively inadmissible for certain offenses unless they were recorded. 725 ILCS 5/103-2.1. The sponsor of Senate Bill 15 that led to this statute? State Senator Obama.

Can anyone fill us in on OSI, CID, and CGIS policy on recording interrogations?