Here’s the revised version of the proposed military justice appellate reform statutory package, including an additional change that Eugene Fidell the Sagacious and I discussed off-line: eliminating the very unjudicial CAAF party balance requirement. I gave the sentence appropriateness issue still more consideration. I’m still inclined to leave it out, and I’ll propose yet another reason: workload. If CAAF suddenly found itself in the sentence appropriateness business, then presumably every appellate defense counsel would raise the issue in every case, since no one would know the range of what CAAF considers appropriate. Almost all or, more likely, all of these sentence appropriateness challenges would be unsuccessful, but a zealous defense counsel would feel compelled to brief the issue. That would seem to be a huge waste of the system’s resources.
So here’s the current proposal, as revised:
1. Make all SPCM and GCM convictions subject to judicial review (absent waiver or withdrawal) without regard to sentence.
2. Allow the waiver of appellate review as part of a pretrial agreement (i.e., the JO’Cian waiver of appellate review provision). Provide that in cases being tried by military judge alone, the military judge will not be informed of the waiver until after sentencing.
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 over and rule on the merits of every case appealed to it. CAAF would also exercise the Article 62 jurisdiction currently exercised by the CCAs. CAAF would be statutorily empowered to substitute a finding of guilty to an LIO if it finds the evidence legally insufficient to support a finding of guilty but legally sufficient to support a finding of guilty to the LIO.
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 to a standing court-martial for the appropriate service for a factfinding hearing. [Note that JO’C’s proposal for a standing court-martial would have numerous collateral benefits. To avoid purpleness, there should be one standing court-martial for the Army, one for the Air Force, one for the Navy-Marine Corps Trial Judiciary, and one for the Coast Guard.]
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.
8. Repeal the portion of Article 142(b)(3) providing that “[n]ot more than three of the judges of the court may be appointed from the same political party.”
9. Amend Article 74 to expressly authorize the service secretaries to commute a death sentence to confinement for life without eligibility for parole.