Cox Part Deux Like Many Sequels
The one thing I must say before I get to the substance of this post, is that I am grateful for the service of the Cox Commission members who volunteered their time in this worthy pursuit. They fielded numerous submissions and took time to engage in a thoughtful process. Whether anyone likes, dislikes, agrees or disagrees with the product of that effort, the effort was worthy of all the accolades that I could heap upon the Commission. Thank you.
That being said, with all the hype (admittedly much of it by us here at CAAFlog) and the intriguing topics that Cox Commission II was to address, the sequel to Judge Cox’s oft quoted first Commission Report was a very ordinary sequel. I don’t know if it was the sophomore jinx or the problem with trying to top your first stellar effort, but whatever it was this report elicited few groans or exclamations. While our comments are discussing the recommendation concerning government attacking its own expert (provided to the defense), even that recommendation is relatively tame compared to Cox I’s recommendations regarding CA reform and member selection.
And what about the issue of appellate reform? Cox II only scratches the surface, basically reiterating CAAFlog commenter JO’C's recommendation for appellate review waiver (in fact citing JO’C), urging review of all contested courts-martial, and urging passage of the Equal Justice Act, see CAAFLog Cox II presentation here and JO’C article link here. As the Cox Commission even admits, these changes are unlikely to cause many changes in actual workload or the system, save the waiver of appellate review. What about eliminating the CCAs? Ex writs and collateral review? See other topics in CAAFlog’s post here (as revised here).
Aside from appellate issues, what about larger issues such as panel composition? Independence of trial defense commands? The role of military judges? Capital case procedures? Codifying command responsibility as a punishment in cases of war crimes? As for jurisdiction over civilians in times of contingency operations the report, well to continue the football metaphors, punts on the issue–devoting more time to abuse of non-public animals than any substantive issue with civilian court-martial jurisdiction based on the 2006 UCMJ Amendment. Admittedly, civilian UCMJ jurisdiction has not been frequently used, but other philosophical issues in the Cox II topics list just didn’t make the cut.
In the end, IMHO, Cox II seems more like an effort to put the Commission’s weight behind some previous proposals, rather than blazing new ground–which is just not what I expected. If that was the Commission’s goal, the Commission could have a lasting impact on the court-martial appellate review process. And, also, maybe like a standout wide receiver coming into NFL form we’ll have a third installment that is a breakout year.
Maybe the military justice system is so close to perfection that there’s nothing more to be done?
I mean, if we’re focusing on the admittedly-worthy issue of pet abandonment, doesn’t that prove that our present system for sentencing servicemembers to death must be beyond reproach?
Interesting article on CNN today talks about how states cannot afford the death penalty anymore.