Wednesday, January 21, 2009

Winter 2008 Military Law Review now online

The Winter issue of the Military Law Review is now online with two articles of interest to military justice practitioners:

Major William J. Nelson, A Right Way and a Wrong Way: Remedying Excessive Post-Trial Delay in Light of Tardif, Moreno, and Toohey, 198 Mil. L. Rev. 1 (2008). Major Nelson, a former appellate government counsel, blasts CAAF's post-trial delay cases as "unlawful" for authorizing relief without a showing of prejudice in violation of Article 59. He proposes regulatory changes to promote prompt post-trial review and to reduce any adverse effect of lengthy appellate leave on a servicemember, such as authorizing the issuance of an interim DD-214 and authorizing pre-CA's action clemency and parole consideration.

Major Tyesha E. Lowery, One "Get Out of Jail Free" Card: Should Probation Be an Authorized Courts-Martial Punishment?, 198 Mil. L. Rev. 165 (2008). Here is a former DAD counsel's argument for allowing military judges and court-martial panels to impose probation as a court-martial punishment. MAJ Lowery observes that while probation isn't an authorized court-martial punishment, it "is the most common criminal sentence adjudged in U.S. federal and state courts today." She weighs the pros and cons of such a system and offers two possible proposals to implement a probation system or its rough equivalent in the military.


Cloudesley Shovell said...

Two good articles. I like Major Nelson's recommendation that post-trial processing timelines should be built into the RCM by the President. Obviously, even without such regulatory guidelines, the JAGs could enforce some discipline amongst their SJAs, but I've never heard of an SJA being called to the carpet for hosing up a case post-trial, despite a surfeit of eligible people. Too bad the JAGs can't or won't police their respective lawyers a bit better.

Major Lowery's article is also interesting. My initial reaction was that we already have such a system in place, via Art. 71(d) and 72 and the associated RCMs, but then Maj Lowery got around to that toward the end of the article. I don't think I've ever seen a case where a convening authority suspends all or part of a sentence and returns someone to duty with the suspension hanging overhead to ensure good behavior, which is too bad, but I also think there's a good bit of truth to the theory that if someone deserves "probation" they normally get Art. 15 instead of a court-martial. It's been my experience that in the Art. 15 context, CO's use their suspension power very effectively.

Not sure I agree with saddling the military with a probation system, but I do agree that the court-martial suspension power is woefully underutilized these days.

Dew_Process said...

Nelson's article is good, with what appears from a quick-read, scholarship. But, as a long-time, "government" lawyer, it's a little amazing that he overlooked the "remedy" already built into the UCMJ, but one historically that even rabid prosecutors and SJA's overlook (or deliberately run away from), the remedy in Art. 98(2), for post-trial delays.

One Article 32, Investigation of a Chief of Military Justice for an Art. 98(2), offense would probably "cure" the problem very quickly.

Anonymous said...

I'm not aware of any reported decision involving a violation of Art. 98. On the topic of most- often-violated/never prosecuted UCMJ articles, what about Art. 31 -- think a violation could be prosecuted in turn under Art. 92/98?