The United States Court of Appeals for the District of Columbia Circuit yesterday released an opinion rejecting a Due Process challenge to 4-member courts-martial. Sanford v. United States, No. 08-5402 (D.C. Cir. Nov. 13, 2009). The opinion is available here. Judge Rogers wrote for a unanimous panel.
The lion’s share of the opinion is devoted to discussing the standard of review for collateral challenges to court-martial convictions where the servicemember is no longer in custody. The case law governing this situation — as well as the case law governing the standard where the servicemember remains in custody — is muddled. But the D.C. Circuit ultimately concluded that even applying the least deferential standard, former Marine Corps Sergeant Sanford’s claim would fail. (That reminds me — in the opinion, the D.C. Circuit chose to refer to the Navy-Marine Corps Court of Criminal Appeals with the shorthand “Marine Corps Court.)
The court went on to reiterate Supreme Court precedent that the Sixth Amendment doesn’t apply to courts-martial and rejected a direct application of Ballew v. Georgia, 435 U.S. 223 (1978), to the military justice system. The court applied the Weiss due process standard instead. See Weiss v. United States, 510 U.S. 163 (1994). The court held that the challenge to 4-member special courts-martial failed the Weiss standard that the factors supporting the challenge must be “so extraordinarily weighty as to overcome the balance struck by Congress.” Id. at 177-78.
Our very own Kabul Klipper has written an article presenting a history-based challenge to allowing SPCMs with fewer than five members to impose more than six months of confinement. Marcus N. Fulton, Never Have So Many Been Punished So Much by So Few: Examining the Constitutionality of the New Special Court-Martial, Army Law., June 2003, at 28 (available here). The D.C. Circuit alluded to the historical analysis and observed that “[h]istory is ‘a factor that must be weighed’ in the due process analysis.’ Weiss, 510 U.S. at 179.” But, the court then concluded, “Sanford acknowledges that the absence of historical precedent is not enough for him to succeed.”
Former Sergeant Sanford is repersented by the same team of Gene Fidell and Matt Freedus who prevailed at the Supreme Court in Denedo v. United States. It will be interesting to see if they attempt to repeat their feat by seeking cert.