For the latest installment in our What Would Bill James Do? series, we’ll look at the actual experience with the Supreme Court’s cert jurisdiction over CAAF decisions since it was established 25 years ago. This look will demonstrate that Biff is correct in arguing that expansion of cert jurisdiction to all cases that qualify for Article 66(c) review is extremely unlikely to help any given servicemember. That said, I still support legislation to open up a channel to the Supremes for every accused whose case is affirmed by a CCA since servicemembers should have the same infinitesimal chance to obtain relief from the Supremes that civilian defendants have.

Here are the numbers. Since passage of the Military Justice Act of 1983, the Supremes have granted plenary consideration to eight court-martial cases, resulting in a huge movement in the law in the prosecution’s favor. The government won seven of the eight cases. This included two reversals of CAAF decisions favorable to a service member. In practice, even more significantly, the Supremes have thrice affirmed CAAF decisions favoring the government on grounds far more advantageous to the prosecution than those relied upon by CAAF. In the only court-martial case in which the Supremes heard oral argument and then ruled for the defense, the accused received no meaningful relief as a result.

As we’ll discuss later, these eight cases don’t exhaust the effects of the Military Justice Act of 1983, since several additional CAAF cases were summarily reversed and remanded, at least one of which actually resulted in sentence relief for the service member. I’ll look at those below. But for now, let’s look a little more closely at the eight plenary review cases.

The first case to receive plenary consideration from the Supremes under the Military Justice Act of 1983 was Solorio v. United States, 483 U.S. 435 (1987), which was the biggest victory for the government in a military justice case over the last quarter century. No doubt the same issue eventually would have reached the Rehnquist Court in a habeas challenge to a court-martial conviction, but the Military Justice Act almost certainly at least hastened the service connection requirement’s demise. The next case was Weiss v. United States, 510 U.S. 163 (19994), which was probably a small net gain for the government compared to CMA’s decision in the case as a result of the Supremes’ adoption of a due process test for the military justice system less searching than that advocated by either Weiss’s counsel or government counsel. See id. at 173-77. The third case was Davis v. United States, 512 U.S. 452 (1994), in which the Supremes upheld CAAF’s rejection of a Miranda/Edwards challenge, but on grounds far more favorable to the prosecution than those upon which CMA had relied. The fourth case, Ryder v. United States, 515 U.S. 177 (1995), is the only Military Justice Act of 1983 case in which the Supremes have held oral argument in which they ruled for the defense. This is the case that invalidated the grounds on which Chief Judge Baum originally served on the Coast Guard Court, leading to his reappointment under different authority. But on remand, neither Petty Officer Ryder nor any of his fellow Coastguardsman whose cases were GVRed under Ryder received more favorable treatment during their second bite at the CGCCA apple. The next case, Loving v. United States, 517 U.S. 748 (1996), affirmed CAAF’s affirmance of a military death sentence. The sixth, Edmond v. United States, 520 U.S. 651 (1997), affirmed CAAF’s affirmance of the basis for Chief Judge Baum’s reappointment to the Coast Guard Court. In the final two cases, the defense won at CAAF but the Supremes reversed and ruled for the government. In United States v. Scheffer, 523 U.S. 303 (1998), the Supremes reversed a CAAF decision holding that despite Military Rule of Evidence 707, an accused had a Sixth Amendment constitutional right to at least attempt to lay a foundation for an exculpatory polygraph’s admissibility. And in Clinton v. Goldsmith, 526 U.S. 529 (1999), the Supremes smacked CAAF’s hand for reaching into a forbidden jurisdictional cookie jar, reversing a favorable ruling for an Air Force major.

Whatever one thinks of the individual merits of these decisions — and I agree with some and strongly disagree with others — it’s a record of incredible futility for the military defense bar. Note that in the only eight cases to receive plenary consideration under the Military Justice Act, not a single service member received any meaningful relief.

There is only one person of whom I am aware who actually received sentence relief as the result of a proceeding under authority of the Military Justice Act of 1983. In 1984, CMA affirmed the findings and sentence, which included a BCD and three months’ confinement, of Spec4 Johnnie K. Goodson. United States v. Goodson, 18 M.J. 243 (C.M.A. 1984). The Supremes GVRed the case for further consideration in light of Smith v. Illinois, 469 U.S. 91 (1984). Goodson v. United States, 471 U.S. 1063 (1985). On remand, ACMR set aside the findings of guilty to four specs, affirmed the findings of guilty to other specs, and upon reassessment got rid of the BCD. United States v. Goodson, 22 M.J. 947 (A.C.M.R. 1986). Eighteen years after the Goodson GVR, the Supremes GVRed another court-martial case, this time for further consideration in light of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). O’Connor v. United States, 535 U.S. 1014 (2002). On remand, AFCCA knocked out the findings of guilty to two of the many, many specs of which SrA O’Connor had been convicted and upheld the original sentence. United States v. O’Connor, No. ACM 33671, 2003 CCA LEXIS 251 (A.F. Ct. Crim. App. Oct. 29, 2003), aff’d, 60 M.J. 118 (C.A.A.F. 2004).

To the best of my knowledge, that’s it. In a quarter of a century under the Military Justice Act of 1983, the defense bar has collectively wiped out the findings of guilty to six specs and gotten rid of one BCD. The Government, on the other hand, has reinstated one conviction, reinstated a BCD, dropped an officer from the rolls, and made the overall legal terrain considerably more friendly to the prosecution.

Given this history, a Jamesian analysis would suggest that expanding cert jurisdiction to reach more military justice cases would be more likely to produce a net gain for the government or have a neutral effect than to result in a net gain for the defense.

That said, I still support expanding cert jurisdiction so that servicemembers have comparable rights to civilian accused where, as with access to the Supreme Court, there is absolutely no military-specific rationale for a departure from the civilian norm. And I support this reform not because I think it will help the prosecution or because I hope against all available evidence that it will help the defense, but because I support the principle of equality. But it certainly wouldn’t be irrational for someone to look at the actual experience under the Military Justice Act of 1983 and conclude that the game isn’t worth the candle.

Finally, I think that a far more important reform would be the elimination of the subjurisdictional court-martial. Every individual — military or civilian — who is convicted by a special or general court-martial should have the right of access to an appellate court. (It doesn’t have to be automatic, it could be by petition, but it should be a right.) It makes little sense that we give an unauthorized absentee who pleads guilty and who asks for a BCD an automatic right of appeal, but don’t provide a guaranteed avenue of appeal to a sergeant major who fully contests a court-martial, is convicted against his pleas, and gets knocked down to an E-1. Eliminating the subjurisdictional court-martial conviction is a reform that I would also support in principle — but also one that might actually help more than one servicemember per quarter century.

One Response to “WWBJD IV: The Supremes’ cert jurisdiction”

  1. John O'Connor says:

    Two points where I disagree with CAAFlog’s analysis. First, I think Weiss was a bigger win for the government than CAAFlog suggests, as the test adopted for due process challenges is a metaphorical battering ram (and, in my mind, appropriately so) for due process challenges to court-martial procedures.Other than Solorio, Weiss is the only post-1983 military case that I think has a far-reaching practical effect on the military justice system.

    I also disagree with eliminating sub-jurisdictional courts-martial, at least as a stand-alone reform. As I have stated elsewhere, I think one of the major flaws in the military justice system is that there are too many appeals that take up too many resources and deny courts-martial the finality they should have. I think CAAFlog’s omnibus proposal for reforming the military justice system, which he posted here several months ago, eliminated the concept of a sub-jurisdictional court-martial. All things considered, I said I would support the package of reforms suggested by CAAFlog, but only because it would have allowed for appellate waivers in PTAs, which likely would eliminate appeals in the vast majority of guilty plea cases. While I continue to disagree with the idea of allowing Article 66 appeals (even by petition) of all special and general courts-martial regardless of sentence, a package that allowed this but created a likely SOP that guilty plea cases would involve appeal waivers would be a net positive in my book.