Wednesday, August 22, 2007

Considering H.R. 3174

I remain an enthusiastic support of H.R. 3174, the aptly-named Equal Justice for Our Military Act of 2007. The equality point works in either of two directions: the bill would provide servicemembers with an ability to seek cert more equal to that of civilian criminal defendants and it would provide servicemembers with an ability to seek cert more equal to that of alleged unlawful enemy combatants tried by military commissions. Both of those classes can seek cert as the result of ANY criminal conviction. H.R. 3174 would broader servicemembers' ability to seek cert, though even under this legislation, servicemembers receiving sentences insufficient to trigger the CCAs' jurisdiction would be barred from seeking Supreme Court review unless the relevant Judge Advocate General happens to refer the case to the CCA.

The legislation would help to fix the grossly gerrymandered cert jurisdiction established by the Military Justice Act of 1983. That legislation guaranteed the prosecution a path to the Supremes (through the vehicle of a specified issue to CAAF followed by a cert petition) while denying such a path to servicemembers in the huge majority of military justice cases that CAAF doesn't review. That legislation also strongly favored the respondent (almost always the prosecution) in extraordinary writ cases, making it possible to seek cert in such cases only where CAAF has granted extraordinary relief. So this legislation would help to level the playing field. It's the right thing to do. And history teaches us that the additional burden on the various military appellate shops and on the Supreme Court would be minimal.

But what would the legislation's likely jurisprudential effect be? Interestingly, the two most likely answers are: (1) none; or (2) make the law more favorable to the prosecution.

As we have previously discussed, there have been only 8 cases under the Military Justice Act of 1983 in which the Supreme Court has heard oral argument on a cert petition to CMA/CAAF. So the odds are small that there would be a sudden tidal wave of cert grants even if H.R. 3174 were to become law. Most likely, either every cert petition in the expanded pool will be denied or there will be an occasional grant, vacate and remand (GVR), resulting in some individual servicemember obtaining a better outcome on the basis of some other newly announced Supreme Court opinion. See, e.g., O'Connor v. United States, 535 U.S. 1014 (2002) (GVRing for further consideration in light of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)); Goodson v. United States, 471 U.S. 1063 (1985) (GVRing for further consideration in light of Smith v. Ilinois, 469 U.S. 91 (1984)).

Now let's move to the less likely scenario: the Supreme Court grants cert in one or several cases that wouldn't have previously fallen within its cert jurisdiction. The likely jurisprudential effect would be a windfall for the prosecution. Since the Military Justice Act of 1983 took effect, the Supreme Court has been more prosecution-friendly than has CMA/CAAF. Consider, for example, Davis v. United States, 512 U.S. 452 (1994). Both CMA and the Supremes ruled against the accused. But the Supremes did so on terms far more beneficial to the prosecution. CMA had ruled that when a suspect undergoing custodial interrogation makes an ambiguous reference to counsel, the interrogator must stop and clarify whether the suspect wants a lawyer. The Supremes, on the other hand, said that there is no need to clarify; the interrogator can bull right ahead unless there is an unambiguous request for counsel. In United States v. Scheffer, 523 U.S. 303 (1998), CAAF had ruled that an accused has a Sixth Amendment right to attempt to lay a foundation to introduce an exculpatory polygraph result. That's a fairly modest holding, yet the Supremes stepped in to say no, the Constitution doesn't require an exception to the President's flat prohibition of polygraph results at courts-martial. And, of course, we all know what happened in Clinton v. Goldsmith, 526 U.S. 529 (1999). So unless you are the only person on the planet who is personally invested in the Appointments Clause and the de facto officer doctrine, see Ryder v. United States, 515 U.S. 177 (1995), the Supremes have been far more hospitable to the prosecution than has CMA/CAAF.

And while both the Supremes and CAAF have seen significant personnel shifts since Goldsmith (only one current CAAF judge was even on the court in 1999, and he didn't participate in that decision), there can be little doubt that the currently constituted Supreme Court is more friendly to the prosecution than the currently constituted CAAF.

So any case that reaches the Supremes under H.R. 3174's expanded jurisdiction carries the prospect of fixing the law in a more prosecution-friendly manner than would have resulted if CAAF were to decide the issue in a later case.

It probably isn't the objective of those supporting H.R. 3174 to move the law in a more prosecution-friendly direction (it certainly isn't mine), but that would be a not-improbable outcome were H.R. 3174 to become law.


John O'Connor said...

It's an ironic argument that giving accused's a chance to appeal more cases is likely to improve the law for the prosecution because the Supremes are likely to take cases the government won at CAAF and say that the CAAF didn't go far enough.

The merits of the bill aside, I don't buy your premise that the likely outcome would be more favorable law for the prosecution. The bill, if enacted, would be a durable change in the law, and the composition of the Supreme Court is a temporary thing. So basing a permanent change on the likely views of the current Justices seems an exceptionally unwise proposition.

Who knows, we might in the near future have a Supreme Court closer in philosophy to the Warren Court that issues O'Callahan v. Parker than to the Court that decided Clinton v. Goldsmith. Whether that would be a good thing or a bad thing, I don't think anyone would be well advised to make a decision on the Court's cert jurisdiction for time immemorial based on what they think the nine current Justices would do with cases.

Dwight Sullivan said...


I'm certainly not arguing that the bill should be supported on the basis that it may move the law in a pro-prosecution direction. (If anything, I would oppose the bill on that basis.) I support the bill as a matter of principle. But it is interesting to speculate about the probable outcome of the bill -- and the probable outcome (at least for the foreseeable future) is either zero or pro-prosecution.

John O'Connor said...

Understood. But your view of the probable outcome is an exceedingly short-term view, one entirely dependent on the identity of the current justices. As for the longer-term probable effect on the law from an increase in cert availability for accuseds, I say the answer is "who knows."

I do agree, though, that the overall likely effect would be "not much," unless a collection of justices decided to revolutionize military justice by taking a bunch of cases.

Oh, and Army DAD would have a field day filing all those cert petitions they've been prevented from filing by CAAF's failure to grant review.

Mike "No Man" Navarre said...

How is CAAFlog's view a short term view? The most likely candidates for retirement from the Supreme Court in the near future are all liberal appointees. Stevens is the oldest at 87, and Ginsburg is 74 (though when I found that fact I was surprised). Scalia and Kennedy are 71, but neither appears to be slowing down. At least for the next decade, or two, we can probably count on a relatively conservative court. Considering the sea changes we have seen in the first year of this new court I would expect more of the same next year. Stare decisis just doesn't get you 17 years of Pax Burger/Rehnquist anymore. It's more like 17 years of Justice Kennedy majority opinions (5-4 opinions).

John O'Connor said...

I guess it depends on your definition of "short term." My point is that, merits aside, an expansion of SCOTUS's cert jurisdiction would last FOREVER. Forever = Long Term. Viewed in that lens, I see the next twenty years as the short term effects of such an expansion on the path of military justice. Again, I'm expressing no view on the merits of the bill itself, just saying that the overall effect of such a bill on how prosecution-oriented or defense-oriented military justice becomes really can't be known.

I also wonder how the Court's view of military justice matters will change -- even if the Court remains fairly conservative -- with Chief Justice Rehnquist off the Court. To the outside observer, he certainly appears to be the moving force in the jurisprudential march from O'Callahan to Clinton v. Goldsmith.