Based on thoughts arising from our very helpful recent discussions, I propose the following statutory reform package for the military justice system’s appellate review process:
1. Make all SPCM and GCM convictions subject to judicial review (absent waiver or withdrawal) without regard to sentence. (I am indifferent to flipping the current practice to provide an affirmative right to appeal that the accused must invoke. For the reasons discussed by JO’C in his recent article, John F. O’Connor, Foolish Consistencies and the Appellate Review of Courts-Martial, 41 Akron L. Rev. 175 (2008), in operation such a system would be almost indistinguishable from out current system. So I would neither affirmatively support nor actively oppose such a change.)
2. Allow an accused to offer the waiver of appellate review as part of a pretrial agreement.
3. Eliminate the Courts of Criminal Appeals.
4. Provide for the right to appeal any court-martial conviction to CAAF in a one-step process. CAAF would exercise jurisdiction and rule on the merits of every case appealed to it. CAAF would also exercise the Article 62 jurisdiction currently exercised by the CCAs.
5. Authorize CAAF to sit in panels of 3 with further authority to grant initial review or rehearing en banc.
6. Legislate a formal post-conviction process for claims relying on extra-record evidence. Do so by amending Article 73 to allow the accused to file a petition for new trial based on any extra-record evidence with CAAF within two years of the court-martial conviction. CAAF would review the petition and the government opposition to determine if any disputed issues of material fact exist. If none exist, CAAF would resolve the petition on the basis of the filings. If such disputed issues of material fact did exist, it would remand the case for a factfinding hearing.
7. Legislate formal limits for CAAF’s extraordinary writ power. Declare that CAAF has writ jurisdiction over all cases for which an IO has been appointed under Article 32 or that have been referred to an SPCM or GCM, but not over summary courts-martial. Provide that CAAF’s writ jurisdiction terminates in all instances upon Article 76 finality.
Such an appellate review system would be more just, substantially faster, substantially less resource intensive, and more predictable than our current military appellate review system. I considered whether to transfer the Article 66(c) sentence appropriateness and factual sufficiency review provisions from the CCAs to CAAF. I wouldn’t. Those provisions are vestiges of an earlier military justice system substantially less fair and reliable than the one we have today. Court-martial panel verdicts should be disturbed only when a comparable civilian jury verdict would be disturbed. The question of sentence appropriateness is closer since in non-capital cases, a civilian jury would rarely impose a sentence. On balance, I wouldn’t give CAAF sentence appropriateness power, but I think this is a closer question than giving whether to give it factual sufficiency power.
Do I hear a second? Amendments are welcome.