Tuesday, November 27, 2007

A civilian analog to Article 66 review

Military justice practitioners are fond of saying that the Courts of Criminal Appeals' Article 66 review is unique. I, myself, made this mistake in a recent publication. Colonel Dwight H. Sullivan, Killing Time: Two Decades of Military Capital Litigation, 189 Mil. L. Rev. 1, 22 (2006) ("the intermediate military appellate courts' factual sufficiency review is probably unique") (citing United States v. McAllister, 55 M.J. 270, 277 (2001) ("The Courts of Criminal Appeals are unique in that they are charged with 'the duty of determining not only the legal sufficiency of the evidence but also its factual sufficiency.' United States v. Turner, 25 M.J. 324 (C.M.A. 1987).")). But to quote Harry S Truman, "There is nothing new in the world except the history you do not know" -- or, in my case, case law and a statute that I didn't know.

Watson v. State, 204 S.W.3d 404 (Tex. Ct. Crim. App. 2006), is an unusually fascinating opinion concerning factual sufficiency review by Texas appellate courts. The majority tells us that "criminal appellate courts in Texas have always had factual review jurisdiction, conferred by both the Texas Constitution and by Article 44.25 and its predecessors." Id. at 409. The majority goes on, however, to adopt a quite limited scope for such factual sufficiency review that is marginally more searching than Jackson v. Virginia, 443 U.S. 307 (1979), but far less muscular than Article 66 review.

In her dissent, Judge Cochran tells us:

I am aware of only two other jurisdictions, New York and the United States military courts, that currently employ a factual-sufficiency review. In each of those jurisdictions, a statute explicitly authorizes such a review.[n.161] There is no such statute in Texas.

[n.161] NY CLS CPL § 470.15(5); see People v. Bleakley, 69 N.Y.2d 490, 492 N.E.2d 672, 673, 515 N.Y.S. 2d 761 (Ct. App. 1987) (court of appeals erred in failing to conduct statutorily required factual-sufficiency review when defendant claimed evidence was insufficient); 10 U.S.C.S. § 866 (c) ("the [Military] Court of Criminal Appeals may act only with respect to the findings and sentence as approved by the convening authority. . .as it finds correct in law and facts . . . . In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses").

Watson, 204 S.W.2d at 426 (Cochran, J., dissenting).

The New York statute that Judge Cochran cited sets out the scope of review for New York's intermediate appellate courts. It provides: "The kinds of determinations of reversal or modification deemed to be on the facts include, but are not limited to, a determination that a verdict of conviction resulting in a judgment was, in whole or in part, against the weight of the evidence." NY CLS CPL 470.15[5]. Interestingly, the same statute also gives New York's intermediate appellate courts the authority to reverse or modify a sentence that "though legal, was unduly harsh or severe." Id. at § 470.15[6].

These citations suggest that there is an entire body of state case law construing a civilian counterpart to Article 66 that can be mined by military appellate practitioners. Yet I can find only one military appellate decision that turns to New York case law discussing § 470.15, and it does so in a sentence appropriateness context. United States v. Silvernail, 1 M.J. 945, 957 (N.C.M.R. 1976). Given that the Silvernail decision endorsed the use of New York case law in interpreting Article 66, I wonder why that approach hasn't caught on. Here's what the Navy Court said in Silvernail:

In People v. Zuckerman, 5 N.Y. 2d 401, 185 N.Y.S. 2d 8, 157 N.E. 2d 862 (1959), the New York Court of Appeals construed § 543 of the New York Code of Criminal Procedure, which provided in part that an appellate court might "reduce the sentence imposed." The Court of Appeals held that "[u]nder the broad powers of the Appellate Division to reduce sentences is included the power to hold, in a proper case, that sentence or the execution of sentence should be suspended." 5 N.Y. 2d at 403-404, 185 N.Y.S. 2d at 10, 157 N.E. 2d at 863. The present New York statute, § 470.15 of the Criminal Procedure Law, which permits the appellate court to "modify the criminal court judgment, sentence or order", has also been interpreted as implying a power to suspend the sentence. See, e.g., People v. Telech, 47 A.D. 2d 997, 366 N.Y.S. 2d 750 (4th Dept. 1975); People v. Bonomo, 47 A.D. 2d 862, 366 N.Y.S. 2d 42 (2nd Dept. 1975). The New York court's interpretations of statutes similar to Article 66(c) of the Code seem both apposite and persuasive.



John O'Connor said...

I still think it's fair to say that Article 66 review is unique. Mandatory appellate review of the record, even when nho error is assigned, combined with a requirement to make a factual finding, renders military appellate review, to use your phrase, significantly more "muscular" than any civilian counterpart. For good and bad.

Anonymous said...

Concur. Whenever I've looked at these states' cases in the past, I've never found anything close to "an awesome, plenary de novo power of review [that] grants unto [the court] . . . authority to, indeed, 'substitute its judgment' for that of the [judge]. . . . [and] for that of the court members", or which requires the court itself to be personally convinced of the appellant's guilt beyond a reasonable doubt.


Anonymous said...

Anybody ever reviewed the number of cases reversed on factual sufficiency grounds? Seems like this awesome power is rarely invoked.

Anonymous said...

I recall that CAAF recognized this in a footnote of the Walters opinion (58 MJ 391).

Dwight Sullivan said...


Right you are -- and kudos to Judge Erdmann for noting both the Texas appellate courts' factual sufficiency review and the distinction between that review and the CCAs' Article 66(c) factual sufficiency review. United States v. Walters, 58 M.J. 391, 395 n.4 (C.A.A.F. 2003). This isn't a criticism, but Walters didn't expressly note the New York intermediate appellate courts' factual sufficiency practice which, at least according to Judge Cochran, is more similar to the military CCAs' review. I think that New York jurisprudential vein is still largely unmined.