Saturday, August 09, 2008

ACCA Affirms 4th A. Exclusionary Rule . . . Ruling

Trying to do this all by BlackBerry, so bear with me. According to our growing horde of Army lurkers (there are now apparently 2), ACCA affirmed a military judge's exclusion of an accused's statements under the 4th Amendment exclusionary rule. See United States v. Martinez, Army Misc. 2008032 (A. Ct. Crim. App. Aug 5, 2008). I know I initially read the first 2 pages of the op. and thought that 4th Amendment was a typo, it is not. Holding is based on an illegal apprehension. In any event the Art. 62 appeal affirmed the MJ and returned the case for trial, which apparently is another of the Iraq based courts martial. See New York Times coverage here.


Anonymous said...

No value added here. Abolish them.

Dwight Sullivan said...

Actually ACCA didn't add much value here. It largely deferred to Judge Henley's rulings. That's not offered as a criticism -- in fact, that approach is consistent with an abuse of discretion review and ACCA didn't choose to publish its opinion. But in terms of whether Martinez supports or undermines my proposal to abolish the four CCAs and make CAAF the sole layer of sub-SCOTUS appeal -- mirroring the appellate structure for the federal civilian criminal justice system -- the question isn't whether ACCA's resolution of the issue "added value," but rather whether ACCA's resolution -- as modified if the Judge Advocate General of the Army were to certify the case to CAAF -- added more value than CAAF would have if it been the initial appellate forum. And I see no reason to believe that it did. Again, that's no criticism of ACCA's opinion, but ACCA's opinion provides no refutation of the hypothesis that a military justice system with one appellate court would be preferable to the status quo with five.

John O'Connor said...


You should just save that response on your hard drive as often as you have to type it.

Anonymous said...


I'm curious why it's important for the military justice system to "mirror" the federal civilian criminal justice system? After all, the circuit courts don't have the CCAs' 800 lb. gorilla-like power of de novo review, and I'd be a little leery of getting what you ask for, if you get my drift.

I also remember some suggestion that the state systems are more appropriate models for the military. There, two levels of sub-SCOTUS appeal are the norm.

Can you enlighten me?

Anonymous said...

Primary reason is we have a metric butt-load of 0-6s who don't want to retire nor leave the DC area. Luckily for us the judges have all tried a contested case or two 18 years ago.

Anonymous said... any Navy Detailer will tell you "you have to Leave DC" and then you watch the 0-6's shuffle to new DC billets every 2 years, and you wonder...

Anonymous said...

Anyone ever notice that it is the same aforementioned appellate judges--who have no military justice experience and enjoy the lack of oversight that comes with sitting on the bench--that continue to extend their tours on the bench?

And why not? You can spend a good deal of time at the gym, call yourself a federal judge, and have clerks do your work for you. And if you ever really screw a case up, you know that CAAF is there to take care of it...and if CAAF doesn't, then you must not have really screwed up!

I think what makes the situation truly tragic is that, on the flip side, the truly impressive appellate judges always PCS or retire.

Dwight Sullivan said...

1438 Anon,

In Article 36, Congress has established the federal district court as the general model for court-martial practice. When considering what effect an appellant's death should have on the original conviction, CAAF did analogize itself to a state supreme court with discretionary review rather than to one of the geographic circuits. My argument is that Congress should change that model to make CAAF just like a geographic circuit with guaranteed access to the Court of Appeals by anyone convicted in the system.

But my reason for this proposal is not to make the military appellate system more closely resemble the federal system -- though the fact that it would is a key indication that the revised system would be workable, since the federal court system does work. My central reason is that a system with one layer of sub-SCOTUS review is far more efficient than a system with two layers of sub-SCOTUS review. I believe that the increased efficiency of a one-layer system can be obtained without any decrease in quality compared to the current two-layer system and that CAAF has more than enough excess capacity to handle the change, particularly if CAAF were to sit in panels of three with en banc rehearing available, as do the geographic circuits. Then even a 40 percent increase in workload (as distinguished from caseload) would result in no net increase in workload for any one judge. And eliminating the double briefing and double consideration that results from separate supps and briefs on the merits would result in further efficiencies.

Think about an issues case in which CAAF denies review. Right now, there is an initial round of briefing at the CCA, then judicial consideration by the CCA, then another round of briefing at CAAF, then consideration at CAAF before denial of the petition. Under the one-layer system, there would be a single round of briefing at CAAF and one judicial consideration by CAAF.

Now consider a case in which CAAF grants review. Right now there is a round of briefing at the CCA, judicial consideration by the CCA, a round of briefing at the petition stage at CAAF, judicial consideration at the petition stage at CAAF, then a round of briefing on the merits stage at CAAF, then judicial consideration on the merits stage at CAAF. In a one-layer system, there would be one round of briefing rather than three and one judicial consideration rather than three.

Finally, I think that the original reason for the CCAs' factual sufficiency and sentence appropriateness powers is OBE in light of the military justice system we have now where lawyers always represent the accused and judges always preside over the trial at the court-martial level. Also, the CCAs almost never actually use those powers. The few times that they do don't justify a two-layer five-court appellate review structure for the military justice system where a one-layer, one-court system would ensure that the system operates justly and fairly.

Anonymous said...

So when NMCCA sets aside a death sentence, they add no value? So why should we even read your brief?

Dwight Sullivan said...

What a very curious use of "we" in 2144 Anon's post.

A judge on a CCA should read the defense brief because the system that I'm proposing isn't the law today; Article 66 is the law today. Article 66 creates responsibilities and implicates other judicial ethical responsibilities that would presumably include reading the parties' briefs.

And, again, the question isn't whether NMCCA adds value with its decisions. The question is whether NMCCA adds more value than CAAF would if it were the sole appellate authority and, if so, whether the incremental difference is sufficient to warrant the additional delay created by a second layer of sub-SCOTUS review and the expense and diversion of military personnel resources created by maintaining five military appellate courts instead of one.

Finally, it would be a mistake to equate setting aside a death sentence with adding value. That formulation seems to assume that any pro-defense ruling adds value. But there is no logical reason why that must be so and, indeed, in reality it isn't always so.

Anonymous said...

I thought your position was to abolish the service courts because they only grant relief 2% of the time, and therefore add no value in 98% of the cases, because value = relief for appellants.

Anonymous said...

At the risk of sounding glib, doesn't your argument also support doing away with appeals entirely? If it's truly just a statistical matter, then the numbers of appeals that actually result in "value added" is miniscule.

I had thought that the process of appellate review was an added value in and of itself. In a system where the trial court is evanescent, where judicial tenure is short, and where the trial bar is relatively inexperienced, an additional level of appeal with more searching scrutiny seems warranted.

Anonymous said...

Isn't there also value added when an appellate court examines the case and finds that the process was sound and legal? Doesn't the public benefit by honest scruitiny of the process even where no error is found?

Anonymous said...

1524 Anon: for my generation it was the case that when you had paid your dues in this organization and gone to a carrier, then you could comfortably promote and homestead if you wanted to. The problem is that the recent promotion pattern overwhelmingly shows that a carrier tour has become a career killer.

Dwight Sullivan said...

0925 Anon,

From the start, I offered the reform as a move toward efficiency and specifically rejected using relief for appellants as an evaluation criterion. Here's my original explanation of the proposal to eliminate the CCAs:

Look, the military appellate review system is grossly inefficient. There are FIVE SEPARATE APPELLATE COURTS. That requires a lot of infrastructure. And a lot of money. Based on the location of two of the CCAs, my guess is that the U.S. government is paying rent (and not even cheap rent) for their spaces. But most significantly, that's a lot of judge advocate bodies. ACCA, AFCCA, and NMCCA take up AT LEAST a total of 27 O-5 and O-6 judge advocate billets. And their clerks/commissioners eat up O-3 and O-4 billets. Surely there are some other productive assignments that could be given to all of these judge advocates if they weren't CCAing. And, if not, then the lawyers could give those billets back to "Big Army," "Big Air Force," "Big Navy," and the USMC ground monitors.

If the CCAs were providing an important service, then it would be worth such an expenditure of money and personnel. But, in truth, their function could be entirely civilianized while making the system hugely more efficient by eliminating the four CCAs and retaining just one military appellate court: CAAF.

CAAF currently has the final say in our system. And as any casual reader of the daily docket knows, CAAF carefully scrutinizes EVERY case that comes before it -- as demonstrated by occasional orders directing a correction to some minor mistake in a CMO.

What would be lost by giving CAAF not only the final say, but also the first say? We know what would be saved -- money, personnel, and time. Imagine how much quicker the entire system would be if we didn't have a CCA appeal, followed by a CAAF petition, followed by a CAAF supp, followed by CAAF's decision whether to grant review, followed by further briefing if it decides to grant review. The entire system would now be collapsed into the first level.

And saving time results in saving still more money and billets, because resolving servicemembers' cases more quickly resulting in servicemembers completing their appellate leave far sooner. That means reduced medical costs for the services, since the military continues to provide medical care and dental care for servicemembers on appellate leave. (In fact, the dental plan for dependants of servicemembers on appellate leave is far better than my family dental plan as a federal civilian employee.) AND this would reduce the number of servicemembers on appellate leave counting against the various services' end strengths.

While the CCAs do have some Article 66(c) powers that a normal appellate court doesn't have, the CCAs disprove Lord Acton's maxim: the CCAs seem singularly disinclined to wield their absolute power. Because CAAF has final say in our system already, the difference in final results between our current system and a CAAF-only system would be negligible. Whatever tiny difference exists at the margin simply isn't worth the cost of maintaining four additional military appellate courts.

The cost benefit analysis of retaining the CCAs versus collapsing the process by making CAAF the only military appellate court doesn't even appear close to me.

I also observed:

In calendar year 2007, ACCA issued 20 published opinions, AFCCA 17, NMCCA just 15, and CGCCA 11.

That total output -- 63 -- mirrors CAAF's recent annual output.

So we really wouldn't be losing a lot of guidance to the fleet if wee did away with the CCAs.

The Super Muppet of Appellate Advocacy -- who opposes the proposal to eliminate the CCAs -- objected that it would do away with an opportunity for servicemembers to win relief. I pointed out that that shouldn't be a motivating concern:

Statistics indicate that the CCAs rule against the accused about 96% of the time. I have no real fear that CAAF wouldn't grant relief in the great majority of the 4% of cases in which the CCAs grant relief.

Of course, if we added a fourth court to the system, it might grant some relief that a servicemember wouldn't receive from one of the three courts that could review his or her case today. Redundancy for the sake of possibly increasing reversals can't be a justification for a court (or, in the case of the CCAs, FOUR COURTS), because it would be a never-ending game. If four levels of review are good, five would be better; if five is good, then seven would be great, etc.

We know that CAAF provides gold standard review. If it continued its current practices, there would be little chance that an accused who deserves relief would obtain it from the CCAs, but not from CAAF.

I also expressly disclaimed any goal of trying to make the system more defense friendly: "[T]he point of this exercise wasn't to build a more defense friendly system. Rather, the point was to build a system that was fairer and more efficient. Eliminating the CCAs is a key portion of making the system more efficient."

So, no, my position isn't that we should "abolish the service courts because they only grant relief 2% of the time [actually surveys suggest about 4% of the time], and therefore add no value in 98% of the cases, because value = relief for appellants."

Dwight Sullivan said...

1251 Anon,

I agree with you that there is "value added when an appellate court examines the case and finds that the process was sound and legal." And that benefit would be realized under the proposed revised system because a convicted servicemember could reach CAAF as a matter of right, which could then provide that valuable service.

Dwight Sullivan said...


The proposed revision rests on a cost-benefit analysis. How one values the costs and benefits is necessarily subjective, so people will disagree. But if I were evaluating the costs vs. benefits of having at least one layer of sub-SCOTUS appellate review, I would certainly conclude that the benefit is worth the costs. This is true for many reasons. The appellate court will catch some errors, which is a good thing. As 1251 Anon suggests, a highly credible appellate court will also enhance the perception of legitimacy of the system. And the mere existence of an appellate court reviewing trial judges' work will encourage best practices. (Biff, I'm sure that you've had the same experience that I've had at the trial level where a military judge decided sometime during the sentencing case that he or she wouldn't adjudge a BCD and proceeded to expedite the proceedings at the expense of perceptions of justice. While most military judges would perform just as well if there were no appellate review, we know from experience that some would seek shortcuts if there were no appellate review because we've seen some take shortcuts when they decide that the particular case they are trying will be sub-jurisdictional.)

But the biggest reason why it's important to have at least one layer of sub-SCOTUS appellate review is because for common law lawyers like ourselves, courts develop the law. As I know very well from practicing in the military commissions system, it is extremely difficult to function when there is no binding body of precedent filling in the huge gaps left by the governing statutes and regs. So we need appellate review because we need to develop a body of precedent.

Then the question becomes whether the benefit of TWO layers of appellate review justifies the cost. My answer to that question is no. What does CCA-then-CAAF appellate review give us that CAAF-only appellate review wouldn't? Not much. The CCAs give us very little published case law -- just 63 cases combined in all of 2007. And CAAF is perfectly capable of performing the error-correction role of the CCAs. So I would resolve the cost-benefit ratio by saying that we should have one -- and only one -- layer of sub-SCOTUS review.

I reject relief-for-the-accused as an evaluative criterion, but even for those who would adopt it, I don't think the current system is really preferable. A survey of three of the four CCAs' handling of BCD specials found that the CCAs granted relief in only 4% of the cases in the study group. Is there any reason to think that CAAF wouldn't have granted relief in roughly the same 4% of the cases. If not, is there any reason to think that the CCAs' resolution of those 4% of the cases is more just than CAAF's resolution would be?

Finally, Biff, you refer to the short tenure of trial judges. But the same is true of CCA judges. So doesn't that concern actually suggest the desirability of having every case receive a review on the merits by CAAF, with its greater judicial experience and vastly more elaborate support network, than by the CCAs?

Anonymous said...


You've convinced me of the merits of your position, but I'm unwilling to abandon Article 66c review, if for no other reason than I actually had that rare client whose conviction was reversed for factual insufficiency. If CAAF were granted the same powers under Article 66c, then I'd wholeheartedly support your proposal.

p.s. My point about trial judge tenure was less about tenure than about experience. I assume, perhaps erroneously, that CCA judges have more trial experience than their trial level counterparts. It's really the same point Hamilton made in Fed. 78: judges who serve longer learn more law and render better decisions.

Dwight Sullivan said...

Biff, you are in very good company because Eugene Fidell the Sagacious also argued that we should transfer the enhanced Article 66(c) powers to CAAF. I disagree, but not strongly.

Anonymous said...

If the CCAs were abolished, I'd propose to transfer their Art. 66(c) powers to the trial court instead. If there's an error, why wait for CAAF to hear it?