Here’s some fascinating language from the Senate Armed Services Committee’s report on the National Defense Authorization Act for Fiscal Year 2010, S. 1390:

Inspector General review of post-trial processes for court-martial record preparation and appellate review within the Department of the Navy

The committee believes that action is long overdue to analyze and correct longstanding problems with the post-trial processes for preparation of records of courts-martial and for appellate review of court-martial convictions within the Department of the Navy. The United States Court of Appeals for the Armed Forces (C.A.A.F.) in the case of Toohey v. United States, 60 M.J. 100 (C.A.A.F. 2004), established standards for assessing whether convicted service members had been denied due process under the Fifth Amendment to the Constitution as a result of denial of reasonable appellate processing of their cases. Since then, a succession of Navy and Marine Corps cases, including, but not limited to, United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005); United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006); United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006); United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006); and, most recently, the unpublished case of United States v. Foster have addressed extremely lengthy delays in appellate review. In the Foster case, the conviction of a Marine was set aside because his conviction for rape “could not withstand the test for legal and factual sufficiency.” This Marine had been confined for more than 9 years awaiting appellate review of his case. These cases demonstrate that cognizant legal authorities in the Department of the Navy have not taken necessary and appropriate steps to ensure that the resources, command attention, and necessary supervision have been devoted to the task of ensuring that the Navy and Marine Corps post-trial military justice system functions properly in all cases.

The committee recognizes that a series of Navy Judge Advocates General have attempted to overcome the systemic challenges associated with preparing, authenticating, tracking, and forwarding records of trial from numerous commands entrusted with court-martial convening authority and ensuring that the appellate review process comports with all legal standards. The committee is convinced, however, that intervention is needed by departmental civilian and military leaders to definitively resolve these chronic administrative problems and that action should be taken immediately to resolve these issues.

The committee directs the Inspector General of the Department of Defense, in consultation with the Secretary of the Navy, to review the systems, policies, and procedures currently in use to ensure timely and legally sufficient post-trial reviews of courts-martial within the Department of the Navy. The review shall discuss and summarize the history of problems experienced by the Navy and Marine Corps since 1990 in ensuring appropriate appellate review of general and special courts-martial and curative measures.

The principal focus of the review shall be to determine whether the resources dedicated to post-trial processes, the information and tracking systems in use, the applicable procedures and policies, and the monitoring and supervision of actions of participants in the military justice system aimed at ensuring compliance with the procedural requirements of law are adequate to accomplish the requirements for due process of law under the Uniform Code of Military Justice and applicable case law. This review should be provided to the Secretary of the Navy no later than January 1, 2010.

The committee further directs the Secretary of the Navy, in consultation with the Chief of Naval Operations and the Commandant of the Marine Corps, no later than March 1, 2010, to submit to the Committees on Armed Services of the Senate and the House of Representatives a written report on the findings and recommendations of the Department of Defense Inspector General and actions taken or planned to address these findings and recommendations. The Secretary shall include in the report his assessment of the adequacy of (1) the Department of the Navy’s processes and resources dedicated to affording legally sufficient post-trial review of all Navy and Marine Corps cases, (2) the systems in place to track courts-martial cases, and (3) means to ensure accountability and compliance with the requirements of the Uniform Code of Military Justice and applicable case law.

S. Rep. No. 111-35 at 131-33 (2009).

14 Responses to “SASC wants to sic DOD IG on DON’s appellate delay problem”

  1. Norbert Basil MacLean III says:

    Good-on-ya SASC. This type of oversight is long overdue.

  2. Mike "No Man" Navarre says:

    Yikes! Reminds me of a line from General Screw, I said across her nose not up it!

  3. Mike "No Man" Navarre says:

    Sorry, that was Lord Dark Helmet. Mea. Culpa.

  4. Eugene R. Fidell says:

    It would be fascinating to know precisely how this came about. Did I miss a SASC hearing?

  5. Anonymous says:

    I believe it came from an IG complaint as a result of the Foster case. I also believe the investigators read 31b warnings.

  6. Norbert Basil MacLean III says:

    There were no hearings on the subject matter; however, it was proposed in a recent SASC markup as indicated here in a press release. (Refer to p. 10 of the press release.) I've discussed this previously on my blog here and here. My understanding is that heaps of complaints from the Foster case caused Senators Levin and McCain to finally address the issue.

  7. Anonymous says:

    "The committee recognizes that a series of Navy Judge Advocates General have attempted to overcome the systemic challenges…." Load of crap. The NAVY JAGs have been DERELICT in their duty to ensure proper tracking of cases. They have been on notice for decades and have done nothing. However, the JAGs probably received some nice end of tour awards "for their accomplishments."

  8. Anonymous says:

    Sounds like it has the potential to become the 21st century version of NMCMR v. Carlucci.

  9. Anonymous says:

    Once again, those of us in the sister services thank the Navy for taking the heat.

  10. Cully Stimson says:

    The answer to Gene's question is no, he did not miss a SASC hearing, or any other hearing for that matter. The Navy JAG himself reported the Foster case to the hill, and explained the corrective measures the Navy would be taking.

  11. Anonymous says:

    I hope it is noted for the IG that
    Foster wouldn't have happened if NMCCA judges didn't continue to believe that only one of them need concern themselves with reviewing the record, and can then back-brief the others.

    This is a dereliction of duty, and a recipe for cases to slip through the cracks as they are passed from one "lead" judge to another.

  12. Anonymous says:

    To the extent that the investigation will examine the delay in deciding cases once they have been docketed at NMCCA, I'm not sure that its effect will be wholly beneficial.

    If I were an appellate judge — even one who had enthusiastically joined in the Foster court's auto da fe –I know I would not be inclined to entertain questions from DoD IG as to what I did or failed to do in a case.

    I think this poses a greater threat to the independence and autonomy of the court than any lack of tenure or fixed term. And, ultimately, the target will be the appellate defense division, given the control it has over timing.

  13. Mike "No Man" Navarre says:

    Thank you Judge Anon fo your insightful post. I agree that there is a certain amount of with-huntness to the summary. But, I really think that this effort will be directed at the greatest source of appellate delay and the one least within the JAG's control–SJA's in the fleet sitting on records of trial. Just my two cents, and you never know where these things will end up.

    As for Cully's comment, that just re-affirms the over-arching theme of my naval career, 'tis better to as for forgiveness than permission.

  14. Anonymous says:

    So requiring NMCCA judges to actually do their jobs would be a threat to judicial independence?

    That's a rather convenient position.