Wednesday, May 08, 2013

How “Robust” is Appellate Review of Courts-Martial?

Eugene R. Fidell


Eugene R. Fidell, Elizabeth L. Hillman, Dwight H. Sullivan,
Stephen A. Saltzburg, Kate Stith and Judith Resnik*

   Secretary of Defense Hagel’s March 7, 2013 letter to Senator Boxer advised that he had ordered a review to determine whether the requirements of the Uniform Code of Military Justice were followed in connection with the widely-noted Convening Authority (CA) action under Article 60 in United States v. Wilkerson and whether that case suggests a need for changes in either the UCMJ or the services’ implementation of it. He noted that “this case does raise a significant question whether it is necessary or appropriate to place the convening authority in the position of having the responsibility to review the findings and sentence of a court-martial, particularly prior to the robust appellate process made available by the UCMJ” (emphasis added). On April 8, 2013 he recommended that Congress modify Article 60.

Congress will decide whether the CA’s powers should be reduced or reallocated, but it should do so only with a correct understanding of the appellate process, since changes are needed there as well. The critical point is that the current process is not “robust.”

First, for a court-martial to qualify for review by a service Court of Criminal Appeals (CCA) under Article 66, the sentence as approved by the CA must include the death penalty, confinement for a year or more, or a punitive discharge (i.e., dismissal for officers and service academy cadets and midshipmen, bad-conduct or dishonorable discharge for enlisted personnel). Because of the jurisdictional threshold, many special and general courts-martial are not subject to review by the military appellate courts. Instead, the only available direct review is within the office of the Judge Advocate General under Article 69. That review is conducted without judges, appellate counsel, full briefing or oral argument.

A few numbers demonstrate the limits. In Fiscal Year 2012, 368 (21.3%) of the 1727 special and general courts-martial received by the TJAGs were eligible only for the internal administrative review. A handful of these Article 69 cases may have been referred to the CCAs as a matter of JAG discretion but, once there, they are subject to narrower review than Article 66 cases. Compare Article 66(c) (power to weigh evidence, judge credibility of witnesses, and determine controverted questions of fact) with Article 69(e) (CCA may take action “only with respect to matters of law”).

Do not suppose that courts-martial that don’t meet the jurisdictional threshold for CCA review are unimportant. Many can have significant effects on the accused, including lifelong stigmatization as a federal offender and, in some cases, sex offender registration, loss of the right to possess firearms, deportation, and other collateral consequences.

Second, neither the Constitution nor the UCMJ affords CCA judges the protection of fixed terms of office (much less the life tenure enjoyed by Article III judges). See Weiss v. United States, 510 U.S. 163 (1994). By regulation, Army and Coast Guard CCA judges have three-year terms; those on the Navy-Marine Corps and Air Force CCAs remain without fixed terms of any duration. At-will appellate judges such as these are unheard of in any other part of the American legal system.

Third, cases that come within CCA jurisdiction often meet with significant, and in some instances, extreme delays. A recent case took the Air Force CCA 1024 days from docketing to decision.

Fourth, CCA decisions are in turn reviewable by the United States Court of Appeals for the Armed Forces (CAAF). Under Article 67(c), CAAF may “take action only with respect to matters of law” and does not review sentences for reasonableness. It automatically reviews the few military capital cases, and in noncapital cases grants discretionary review “on good cause shown.” The JAGs, however, need not show good cause to obtain CAAF review: Article 67(a)(2) gives them the power simply to refer (or certify) a case to CAAF. In Fiscal Year 2012 eight cases were certified. Since the JAGs rarely certify cases for the benefit of the accused, this aspect of the UCMJ appellate process is asymmetric.

Fifth, only a limited subset of the cases that reach CAAF ever become eligible for review by the Supreme Court of the United States. Under 28 U.S.C. § 1259, certiorari is available to review CAAF’s capital cases, those certified by a JAG, those in which CAAF grants discretionary review, and others – brought by extraordinary writ -- in which it grants relief. Article 67a(a) adds that the Supreme Court “may not review by writ of certiorari under this section any action of [CAAF] in refusing to grant a petition for review.” Thus, except for the rare capital cases and the handful certified by the TJAGs, a party can petition for certiorari only if CAAF has in its discretion granted review or an extraordinary writ. In Fiscal Year 2012, CAAF granted 202 petitions for review and two petitions for extraordinary writ or writ-appeal petitions and denied 616 petitions and 27 writs, rendering 76% of the total statutorily ineligible for Supreme Court review.

Sixth, the cumulative result of the jurisdictional threshold for CCA review and CAAF’s ability to bar the door to Supreme Court review is that roughly 90% of special and general courts-martial never become eligible for Supreme Court review. In contrast, all federal and state defendants and even persons convicted by military commission have a right to petition the Supreme Court for review of their cases.

Seventh, in the minority of CAAF cases that are eligible for Supreme Court review, the Solicitor General takes the position (despite contrary legislative history) that the Supreme Court may only decide “issues” as to which CAAF has granted review. On this view, an ungranted issue in a granted case remains outside the Supreme Court’s jurisdiction. The Supreme Court has repeatedly declined to address this question, having never granted certiorari on an ungranted issue.

Finally, the military judicial process does not include a statutory post-conviction fact-finding mechanism like that provided for civilian federal criminal cases in 28 U.S.C. § 2255. Instead, it relies on the so-called DuBay hearing, a judicially-manufactured substitute that seeks to compensate for process failures in the existing system, which lacks a standing trial court. These limited evidentiary hearings are ordered when, for example, a claim of ineffective assistance of counsel arises. Although they avoid “the unsatisfactory alternative of settling [an] issue on the basis of ex parte affidavits, amidst a barrage of claims and counterclaims,” United States v. DuBay, 37 C.M.R. 411, 413 (1967), they remain a makeshift appendage to the military appellate process.

Appellate review under the UCMJ is not “robust.”

* Eugene R. Fidell, Judith Resnik, and Kate Stith teach at Yale Law School. Elizabeth L. Hillman teaches at Hastings College of the Law. Stephen A. Saltzburg teaches at George Washington University Law School. Dwight H. Sullivan is a civilian counsel at the Air Force Appellate Defense Division. The views expressed here are his personal opinions and do not reflect those of the Department of Defense or any of its components.

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