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.

33 Responses to “Revised military justice appellate reform proposal”

  1. John O'Connor says:

    All in.

  2. Anonymous says:

    More depth is needed to justify elimination of the Service Courts of Criminal Appeals. Bean-counting of published cases is not enough. Why were these courts created in the first place? What deficiencies justify their elimination? A feature of military law is public perception of fairness in the military justice system. Does removing experienced military officers from an inherently military function undermine that public perception of fairness? Does eliminating these courts upset the unique balance of law AND military custom in place of mostly law? Does eliminating the service courts have the unintended consequence of creating a barrier between the law and its practitioners?

    (I confess I like JO’C’s quip about giving Colonels and Captains ‘something to do,’ and giving today’s LTs and LCDRs something to hope for, is not a good justification to keep them)

  3. Jason Grover says:

    Currently, a convicted service member, in theory, gets three appellate courts to try to convince something went off track: CCA, CAAF, and the Supreme Court. If we eliminate one of those chances, however small it is, have we placed convicted service members in a worse position? Even if you believe CCA will rule against the service member 99% of the time (not suggesting they do, but for sake of argument), wouldn’t the convicted service member still like to take his shot at the 1% shot?

    I think if we are serious about getting rid of CCAs because it will be more efficient, we should just go all the way and hand over the whole system to the feds. Wouldn’t be more efficient to have U.S. attorneys try cases? Or more efficient to ditch the UCMJ altogether and change the existing federal law to reach the service members. A separate military justice system is by definition inefficient. But we (as a society) apparently think it is worth it (or at least we have not forced our elected officials to change it).

  4. CAAFlog says:


    A couple of people have suggested that eliminating the CCAs might “creat[e] a barrier between the law and its practitioners.” I honestly don’t understand what that means. Could you please explain?

    Tonight I’ll go into some more detail about why we could realize the great benefits of eliminating the CCAs without adverse effect to the system.

  5. CAAFlog says:

    Super G,

    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.

    Historically, there have been proposals to fold military justice appeals into some other court’s jurisprudence — the Fourth Circuit has been a suggested recipient. I think that would be awful. For a variety of reasons, doing so would likely result in almost no relief and a lack of real oversight. CAAF provides such oversight by judges who are immersed in military law. It is a specialized court in an area of the law where a specialized court is needed. But A specialized court is needed, no five specialized courts.

  6. Anonymous says:

    Now, an accused actually has 5 chances to convince someone that something went off track, if we include the CA and the MJ in a post-trial session (just this term think of Lopez de Victoria and Webb).

    As far as I can tell, the proposal would retain these experienced military officers to perform an inherently military function and thus retain the “unique balance of military law and custom” that anonymous is concerned about.

    If the CCAs were eliminated though, what would become of their authority to review for “factual sufficiency”, i.e. their authority to set aside findings just because the court wasn’t personally convinced beyond a reasonable doubt of the accused’s guilt?

    Would you transfer it to the trial judge or CAAF or would you simply eliminate it?


  7. John O'Connor says:

    If the purpose of this exercise is to create a system the goal of which is simply to maximize an accused’s chance of getting a conviction or sentence thrown out, then it would be viewed (correctly) as simply a one-sided proposal from the defense bar, one that would be DOA (even more so than this theoretical exercise, which tries to create a more efficient system with a little bit for both sides of the argument).

  8. Christopher Mathews says:

    Hmmm … well if this isn’t merely an exercise in maximizing an accused’s chance at post-trial relief …

    Let me offer a suggestion: get rid of the convening authority action.

    It’s always struck me as odd that the one player in the court-martial process with the most discretion is the one chosen without any regard for legal acumen or judicial temperament. In fact, a convening authority need not even be legally in command.

    I recognize that the CA is considered an accused’s best hope for clemency, but it’s clemency that’s unevenly applied, subject to the whims and personality quirks of whoever happens to occupy the position at the time the clemency package makes its way to the CA’s desk, magnified by the CA’s likely lack of experience in dealing with such matters. Better to strengthen the clemency and parole boards (and perhaps, in the spirit of CAAFlog’s original proposal, which tends toward monolithy, to combine them) so that each clemency package is evaluated on an equal footing with every other, by a player with an institutional memory that can promote even-handedness not merely across the service(s) but over time.

    It’s not inconceivable that such a system might even produce more relief than the one in place now.

  9. Anonymous says:

    I agree that the post trial paperwork needs revision and is the thing most often done incorrectly. I am not sure the exact fix but it seems like an archain process. Something that allows for clemency submissions or dare I say do away with that all together? There is no clemency in the federal system. If not, the SJAR and CA Action need a rework…whatever that may be. And finally, can I put a plug in for some terminating point within military courts that is respected by CAAF?

  10. Anonymous says:

    N/MC App Gov Div job,15514,15515,15669,15523,15512,15516,45575&tm=7d&rad=25&zip=22314

  11. Gene Fidell says:

    In response to Anonymous #1, one really has to go back to a time before the UCMJ for the background. The earliest board of review was created under the Articles of War when, I believe, some soldiers were executed before their cases had been reviewed. Given the advent of CMA/CAAF, there is simply less need to retain the board of review function, under whatever title. Having that extra step in the process adds materially to the time it takes to achieve finality, and this runs counter to the often-stated purpose of military justice of achieving speedy justice. Based on my review of the cases, published and unpublished, the CCAs do not frequently exercise their power to disapprove findings they do not personally find guilt proved beyond a reasonable doubt. To the extent that they from time to time reduce a sentence, I have always found it difficult to distinguish the sentence-appropriateness function from the clemency function, and the clemency function is performed by the clemency and parole apparatus. Why have two bodies doing essentially the same thing? I do not believe public confidence in the administration of military justice would be affected by abolition of the CCAs. As for the “unique balance of law and military custom,” I’m unsure what that refers to. Certainly there is a role for custom–indeed, the Code and Manual repeatedly refer to it–but they do so as a source of law, rather than as something that must be balanced against the law.

  12. Anonymous says:

    CAAFlog, my suggestion that eliminating the Service CCAs might “create a barrier between the law and its practitioners” is not a formalistic concern. Rather, I see it as a subtle and unintended byproduct of removing about 10% of the JAGworld from the top echelon of military justice (including all those who cycle through these positions). If there is no involvement at the top, I foresee eventual corrosion at the bottom. To use a current day analogy, you are going to hollow-out the military justice priesthood when you eliminate their authority to participate in the Mass.

    The “unique balance of law and military custom” goes to the difference in having a JAG officer who has deployed, served with servicemembers, and knows something beyond precise legal rules. I don’t think you get that outside of senior military officers, even at CAAF.

    Finally, CAAFlog, you assert that CAAF is the “gold standard” of appellate review. I guess I believe you. But how can we test this hypothesis? (How is it falsifiable?)

  13. Christopher Mathews says:

    Gene Fidell wrote: To the extent that [the CCAs] from time to time reduce a sentence, I have always found it difficult to distinguish the sentence-appropriateness function from the clemency function, and the clemency function is performed by the clemency and parole apparatus. Why have two bodies doing essentially the same thing?

    I’m not sure they do perform the same function.

    In instances where two individuals commit the same offenses but receive grossly disparate sentences, without any distinguishing factual basis for the disparity, a sentence appropriateness analysis might be called for. I have in mind a case in which the government conceded two airmen were coactors, but one received a punitive discharge and many months of confinement whereas the other received only two months’ confinement and no kick. I’m sure you have run across similar examples. Reducing the excessive sentence isn’t a matter of clemency, but a determination that it’s unjust for one person to be punished excessively in comparison to another similarly-situated and identically-culpable person.

    On the other hand, there are instances where some distinguishing fact might justify clemency: for example, the death of the imprisoned servicemember’s spouse when there is a child who would without the offender’s release otherwise become a ward of the state.

    You can agree or disagree with the merits of granting relief in each scenario, of course, but I think they’re distinguishable and call for a different kind of analysis.

  14. Gene Fidell says:

    Chris, I don’t see why a clemency and parole board could not take care of grossly-disparate-sentence situations. Also, if all that can be said for retaining the CCAs is that they can address such situations (of which there are very few that qualify for relief under prevailing case law), that would not persuade me that the game was worth the candle.

  15. Christopher Mathews says:

    Gene, I’m not arguing that the clemency and parole boards can’t perform the function, just that it’s different from the one they currently perform. I apologize for not making my meaning more clear. In fact, as I noted upthread a little bit, I see no reason why the clemency function couldn’t be expanded considerably.

    As for keeping the CCAs versus eliminating them in favor of a super-CAAF, I’m probably biased by virtue of my background. I will note anecdotally, however, that the CCAs on occasion tee issues up for CAAF that might otherwise be overlooked. There’s even a term for the practice: “CAAF baiting.”

    I’m not suggesting CAAF couldn’t bait it’s own hook, but I wonder if it necessarily would.

  16. TC says:

    “More depth is needed to justify elimination of the Service Courts of Criminal Appeals.”

    Not really, the CCA’s are 1.) Inefficient 2.) Superfluous, 3.) A waste of time, 4.) useless 5.) Primarily there for the Government’s benefit.

    Take a look at the cases that were decided early in the CCA’s history, the amount of relief granted. I once read of a punitive discharge being over turned because the person’s conduct wasn’t that serious although court-martialed twice before.

    Now compare it to the mentality of today’s courts….

    “Why were these courts created in the first place? What deficiencies justify their elimination? A feature of military law is public perception of fairness in the military justice system.”

    If such a thing existed. Do you think the public view this, or any criminal justice system as fair?

    “Does removing experienced military officers from an inherently military function undermine that public perception of fairness?”

    There would not be a “removal”, these finely trained officers will be put to good use somewhere else.

    “Does eliminating these courts upset the unique balance of law AND military custom in place of mostly law? Does eliminating the service courts have the unintended consequence of creating a barrier between the law and its practitioners?”

    I think we are over looking the multitudes of countries that use the civilian system, or quasi-military like Britain and Canada, etc.

    Sofar as I can tell their system does not create a public distrust. Remeber that our Supreme Court was modified after looking at Britian’s effeciancy dealing with high case loads. It’s not like changes in military justice haven’t been tried before.

  17. CAAFlog says:

    CCAs cont’

    “Does removing experienced military officers from an inherently military function undermine that public perception of fairness?” No. I’m sure that if the public were given the two choices of: (1) having a panel of military officers appointed by the service’s Judge Advocate General review a court-martial conviction or; (2) a panel of civilian judges appointed by the President of the United States and confirmed by the Senate do so, the public would overwhelmingly pick curtain number 2 as the fairer system.

    PLUS, if the public understood that the final say belongs to the civilians anyway, I don’t think there would be any sentiment for the view that, gee, the system really isn’t fair if it doesn’t have an intervening level of military appellate review following the original conviction and sentence by a military judge or panel of military members followed by review by a uniformed staff judge advocate followed by review by a uniformed convening authority.

    And removing the CCAs can’t upset any unique balance because, as previously noted, the civilians have the final say anyway. So the CCAs are free to write all they want about service custom, but the civilian judges are free to disregard it. Now, there could be a good argument that the CCAs could help inform the CAAF judges about service custom, but where it is appropriate to consider service custom, that should already be included in the record of trial anyway. If the TC representing the United States didn’t get it into the record, then tough; it’s waived.

    Now for the possible creation of a barrier between the law and its practitioners. First point: without doing Bill Jamesian numbers crunching, my perception is that most judges leave the CCAs via retirement. So whatever knowledge they gained on the CCA isn’t being reinvested in the fleet; it’s walking down the gangplank. Could others educate me on whether that perception is accurate? Point number 2, which is related, is that I doubt much of the experience gained on CCAs is then actually used to mentor and fertilize young judge advocates. Certainly there are exceptional cases where that does happen, such as Chief Judge Wagner’s move to command a NLSO as his CCA follow-on tour — a personnel move that I see as highly laudatory. (I miss those days when Chief Judge Wagner used to occasionally shock me by entering one of our comment threads.)

    But none of my mentors when I was a young TC had been a CMR judge and none of my mentors when I was a young appellate defense counsel had been a CMR judge.

    There is probably only one instance in which being a CCA judge yields real returns based on knowledge accrued during the CCA tour, and that is when a CCA judge transfers to the trial bench. A trial judge who has been a CCA judge is probably a better judge because of the appellate experience. And in the federal system, U.S. district court judges are often designated to sit on Circuit Court panels — particularly in the 4th Circuit, where just about every panel seemed to include either a Senior Judge or District Judge. So abolishing the CCAs would carry that cost, since there’s no way Congress would authorize a military trial judge to sit with CAAF by designation. (Nor should Congress do so, since that would strip CAAF of its invaluable civilian status permitting it to carry out its invaluable civilian oversight function.) I just don’t think the cost in money, personnel, and time justifies that benefit.

  18. Christopher Mathews says:

    As a CCA judge who retired from the bench (well, to be fair, I already had my papers in when TJAG asked me to hold off a couple of years and serve on the court), I may not be the best person to answer CAAFlog’s question about whether appellate judges return to the fleet.

    However, to the extent the court has had a reputation as a place to go to retire, I think that may be changing — at least on the Air Force side. Of my colleagues when I joined the Court, one went on to become a MAJCOM SJA and another became a MAJCOM deputy; one became the SAF/GC’s military assistant, another became a GCMCA’s SJA, and another went to become SJA at a large overseas base. Only one retired prior to my departure. I would also note that The Judge Advocate General of the Air Force, Maj Gen Rives, is himself a former appellate judge.

  19. CAAFlog says:

    An anonymous commentator asks the fair question how we can test whether I’m right in stating that “CAAF provides gold standard review.”

    Select any metric you want to assess the quality of the judges and you will see that CAAF’s five judges are extraordinary. One was a state supreme court justice and a judge in Boznia-Herzegovina. Two served as General Counsel to the Senate Armed Services Committee. One served as the Legal Adviser to the National Security Council. The final judge was a partner at one of Washington’s absolutely top-drawer law firms and had previously been a Supreme Court clerk.

    3/5 of them graduated from Harvard Law School or Yale Law School.

    At least two of them engaged in the private practice of law, which gives them a broad legal perspective.

    The five judges have sat on CAAF on average about 5-1/2 years and at least two of them have previously experience as appellate judges.

    And, for God’s sake, 3/5 of them are Marines.

    I think the judges’ qualifications compare favorably with those of just about any court in the country.

    Then look at their support staff and, if anything, CAAF compares even more favorably. Most courts in this country would be lucky to have judges of the caliber of the men and women who play supporting roles at CAAF. At least four of CAAF’s staff were highly respected CCA judges, two of whom were CCA chief judges.

    Plus, CAAF enjoys a highly favorable ratio of support-staff-per-judge. My guess is it is one of the highest in the country.

    So metrics that can be applied include judicial experience, staff-to-judge ratio, and experience level of staff. If you apply those metrics, I think they will support the “gold standard” characterization.

  20. Anonymous says:

    CAAFlog, great points. You are open and fair in your deliberation of the CCA issue.

    Your statement that CAAF provides the “gold standard of review” is convincing, especially for those cases that are obviously reviewed. My question went to the concern that many cases and issues are passed over. We know that the Service CCAs have reviewed many of these issues, but don’t know for sure what CAAF does with all of them. It seems like a logical conclusion from your position is that CAAF addresses all pertinent legal issues. But that is not true.

  21. CAAFlog says:


    That goes back to my “duck in the water” analogy. Having worked at CAAF, I’ve seen the webbed feet churning, so I know the really impressive level of scrutiny that every case receives within the building. But I also understand that those webbed feet are below the surface and aren’t visible outside the building. Perhaps if CAAF were to become the only appellate court in the system, it would show a bit more of that paddling to the general public.

  22. Anonymous says:

    Instead of eliminating the CCAs, how about eliminating CAAF, and having cases appealed to the Federal or DC Circuit?

  23. Interested says:

    Harvard and Yale. Overrated.

  24. Anonymous says:

    So…um…who are we making this proposal to, and why would they listen to us? Aren’t we just whining?

  25. Anonymous says:

    Hey, whining is what made America great! Please read the Declaration of Independence…after a great intro…nothing but bitching and moaning.

    The final draft here, after all comments, will be sent to Senator Lindsay Graham. When McCain is elected president, Graham will help make these changes happen. It is ironic that a McCain presidency is the most likely scenario for significant military justice reform.

    The “hook” needs to be giving servicemembers better review. A few sympathetic stories, a la Walter Reed, about servicemembers suffering from PTSD, after returning home from Iraq, should do the trick. Believe it or not, the angle for reform is most likely to come from the mental health / sentence appropriateness sector. This tail should wag the dog.

  26. Anonymous says:

    Why the push to get rid of the CCA? I think I read a case a few years ago where the Navy court set aside the findings and sentence in a capital case — then CAAF reinstated the findings. So it would seem that that murderer’s best chance at relief actually was at the CCA — do I have that right?

  27. John O'Connor says:

    Why is the test an accused’s “best chance at relief” as opposed to a system that best serves the interests of fairness and efficiency?

    It occurs to me that the last anonymous post could be a tad sarcastic (and if so you can disregard this post) but I coudn’t tell.

  28. CAAFlog says:

    Last Anon,

    As JO’C has pointed out, the 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. And this efficiency boost is necessary to help offset the additional work that will be required by one of the key reforms to make the system fairer: allowing every servicemember and civilian convicted by a special or general court-martial to appeal to CAAF, regardless of sentence.

    Eliminating the CCAs will make the system substantially more efficient, but it won’t make it fairer. The key question is whether it would make the system less fair. My analysis suggests that eliminating the CCAs would not reduce the system’s fairness. The Quintanilla case, to which you allude, helps to demonstrate why.

    In United States v. Quintanilla, 60 M.J. 852 (N-M. Ct. Crim. App. 2005), the Navy-Marine Corps Court issued a true masterpiece of an opinion reversing the findings and sentence in a Marine Corps death penalty case. [DISCLAIMER: I was one of Sgt Quintanilla’s appellate defense counsel.]

    The Judge Advocate General of the Navy then certified the case to CAAF, which agreed with NMCCA that the military judge had erroneously granted a government challenge for cause, but which held that the correct remedy was to set aside only the sentence and not the findings. On this one point of difference, NMCCA was clearly right and CAAF was clearly wrong. In fact, this is one of those rare cases where it is possible to mathematically demonstrate prejudice at the findings stage.

    CAAF noted that when the Supreme Court reversed civilian convictions based on an erroneous ruling granting a prosecution challenge for cause against a juror in a death penalty case, the remedy is to set aside the sentence but not the findings. CAAF held that departure from that Supreme Court precedent “is not warranted by our precedent or by the unique aspects of the military justice system.” United States v. Quintanilla, 63 M.J. 29, 37 (C.A.A.F. 2006).

    But there are two such unique aspects that should have compelled relief at the findings stage. The military justice system has the only death penalty procedures in the country in which the number of jurors — or juror equivalents — is variable. So the erroneous grant of the challenge for cause against the master sergeant reduced the panel size from 13 to 12. AND the military has the only death penalty system in the country where a non-unanimous vote for guilt on a death-eligible offense precludes imposition of the death penalty. Remember, the first of the four death penalty gates is entered during the findings deliberations.

    So the military judge’s erroneous ruling literally reduced the mathematical opportunity to obtain one vote for not guilty on premed by 7.69%. That is obvious prejudice at the findings stage. Additionally, premed murder was no slam dunk in this case. There was both a very real factual question as to whether Sgt Quintanilla intended to kill when the fatal round was discharged (passive voice intentional because the precise actor is not known with certainty) and a very real question as to whether Sgt Quintanilla’s undeniable mental illness prevented him from premeditating. It isn’t at all farfetched to think that at least one member might have voted to find him guilty of unpremeditated murder due to a reasonable doubt arising from either or both of these factors. That one vote for unpremeditated murder at the findings stage would have precluded a death sentence. And the military judge’s erroneous ruling reduced the mathematical opportunity to find one such vote by 7.69%. Those are unique aspects, and that’s prejudice.

    But it isn’t, because CAAF said it isn’t. See Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring (“We are not final because we are infallible, but we are infallible only because we are final.”). So it doesn’t matter that the CCA’s ruling was, in my opinion, fairer and more just. CAAF’s opinion prevails and the system would have produced exactly the same level of fairness with or without NMCCA’s fine opinion.

    And CAAF almost always either has the last word or would surely have reached the same conclusion as the CCA had it had the initial word. The only time when the outcome MIGHT be different is where a CCA overturns a finding on factual sufficiency grounds that it otherwise would have affirmed or reduces a sentence on sentence appropriateness grounds that it otherwise would have affirmed. But how often does that happen? Almost never. And for that almost never, I’ll take the efficiency of one-stop appellate shopping.

  29. Anonymous says:

    JO’C and CAAFLog,
    While I was indeed being a tad sarcastic in my post about writing a letter about these collective musings to Lindsay Graham, I had a serious point about how politicians develop support for legislation in the real world. Don’t be naive. System “efficiency” will generate nothing but yawns. You both know that even landmark Supreme Court legistlation, from Brown, Griswald, Roe, Bakke, Romer, Lawrence, etc., results from “client-shopping,” looking for sympathetic real world people. I am quite serious that the only way military justice reform will happen is via the fairness angle. Sorry CAAFlog, you are a legal genius, but a political amateur.

  30. John O'Connor says:

    Not to get sidetracked from the topic at hand, CAAFlog, but you said it first. Re Quintanilla, you state without qualification that “[t]here was both a very real factual question as to whether Sgt Quintanilla intended to kill when the fatal round was discharged (passive voice intentional because the precise actor is not known with certainty).” From my limited involvement (extremely limited) with that case, I don’t think the identity of the actor is or was “unknown” to anyone but the most fervent advocate.

  31. CAAFlog says:


    I didn’t mean to imply that Sgt Quintanilla wasn’t wielding the weapon when the fatal round was fired. That is beyond question. But there was expert defense testimony suggesting that the fatal discharge did not result from a volitional act by Sgt Quintanilla. That isn’t the basis for my intent-not-proved-beyond-a-reasonable-doubt argument. The parenthetical was simply meant to explain why I didn’t write — as I would have but for that expert testimony — when Sgt Quintanilla fired the fatal round. (The issue about the discharge of the round was whether the weapon fired as the result of contact between the victim and Sgt Quintanilla rather than as a volitional act by Sgt Quintanilla. But, again, that’s not what I think makes the proof-beyond-a-reasonable-doubt issue close. Rather, that’s whether Sgt Quintanilla had the intent to kill rather than some other intent assuming that the fatal discharge was volitional.)

  32. Anonymous says:

    The bottom line in a capital case is that more appellate review is better because the convicted person get more chances at relief and the appellate process takes longer. Eventually, our country will abolish the death penalty, which is what we all want! Go CAAFLOG!

  33. CAAFlog says:


    More appellate review isn’t necessarily better for the accused in a capital case. More appellate review would be better only if the right to appeal were unilateral — but it usually isn’t. With the exception of a ruling that a sentence is inappropriately severe, a ruling of the CCA may be appealed to CAAF by either side.

    So Sergeant Quintanilla would have been better off if the only level of appeal were to the CCA, just as Major Goldsmith would have been better off if the Supremes couldn’t review CAAF decisions.

    (An example of a system that can only be invoked unilaterally — and thus is automatically better for the convicted servicemember — is Article III habeas review. While it almost never results in reversal of the military justice system’s outcome, it can only benefit the accused and not the government.)

    Interestingly, by eliminating the CCAs and providing for only one level of sub-SCOTUS review in capital cases, the military justice system would be aligning itself more closely with the federal civilian system and with most state court systems. After New Jersey’s repeal and New York’s judicial invalidation of that state’s death penalty system, 36 states have capital punishment. Of those, 34 states provide for direct appellate review of death sentences in their state courts of last resort for criminal cases. The only two exceptions are Alabama — where a capital case is heard as of right in the Alabama Court of Criminal Appeals and discretionary review is available from the Alabama Supreme Court — and Tennessee — where, as in the current military justice system, there are two levels of sub-SCOTUS mandatory review (Tennessee Court of Criminal Appeals and Tennessee Supreme Court).

    The only military capital case that would likely have had a different result in the revised system than the current system was United States v. Curtis. In that case, following CAAF’s ruling that LCpl Curtis had received ineffective assistance of counsel, CAAF would have had to remand the case to the trial level for resentencing in lieu of NMCCA’s decision to set aside the death sentence as a matter of sentence appropriateness following the IAC ruling. See generally United States v. Curtis, 52 M.J. 166 (C.A.A.F. 1999) (per curiam). [Familiar disclaimer: I was one of LCpl Curtis’s appellate defense counsel.] Other than that, the same ultimate result would almost certainly have been reached in every military death penalty case, only more quickly.

    And, as always, the purpose of the proposed revision is not to create a more defense-friendly military review system but rather a fairer and more efficient review system. Under the revised system, the review system for capital cases would be no less fair, would be substantially more efficient, and would more closely resemble civilian practice.