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.

15 Responses to “D.C. Circuit rejects challenge to 4-member SPCMs”

  1. John O'Connor says:

    Sometimes easy cases make good law.

  2. Anonymous says:

    So I assume that 3, 2 or 1 member SCM panels are A-OK too then?

  3. MJW1 says:

    Anon 1228,

    Yes, summary courts-martial (SCM) are 1-member courts.

  4. Anonymous says:

    I’m going to guess that SCM was supposed to be SPCM so probably not talking about Summary Courts-Martial but Specials.

  5. Late Bloomer says:

    @Anon 1228:

    Well, since it is mathematically impossible to have an integer-based majority with fewer than 3, the “slippery slope” isn’t so slippery after all.

  6. Anonymous says:

    1? Isn’t that a majority one way or the other? As well as 3.

    You can have a majority of 2-0 or a tie or 1-1 just as with 4 you can have a majority of 3-1 or 4-0 and a tie of 2-2.

    But apparently no one thinks it’s worthy of any discussion at all so I’ll digress. Not sure why only having 4 seems ok to everyone but me but fine.

  7. Late Bloomer says:

    I should have clarified. With 2 or fewer members, you must be unanimous to convict. I suppose that doesn’t actually present any constitutional concerns now that I think about it. I actually agree that 4 seems like an unsual number. That is one huge swing vote for sure.

  8. Anonymous says:

    ok so my last post was downgraded why exactly? Even if I am completely wrong, there was nothing unprofessional or rude and the post was off-topic.

    I’m not sure you are supposed to down-rate a post merely because you think it’s wrong or even if you think it was idiotic.

  9. John O'Connor says:

    I sort of agree with Anon 2021. I don’t give a “thumbs down” to a post even if I think it’s stupid. Knowing that the “thumbs down” votes can lead to a post being hidden, I basically set the bar at giving a “thumbs down” to posts that are either offensive, off-topic, or something more than being a post I just disagree with or think is dumb.

    With the “thumbs ups,” I’m like Willie Stargell handing out stars to the 1979 Pittsburgh Pirates.

  10. Article16 says:

    Congress (UCMJ, Art. 16) and the President (RCM 501) have it set so there will always be 3 or more members at a SPCM. I was unclear as to whether you were tracking on that or whether you were seriously suggesting, as a thought experiment, that those rules would ever be changed so we’d have a judge giving instructions to just one or two people. Either way, your post, which I down-rated, didn’t make sense to me. Added to this, I didn’t understand your comment that you were “not sure why only having 4 seems ok to everyone,” when the answer would be that the 6th amendment doesn’t apply and the Court found that having 4 members passed a due process test. Finally, I didn’t think you used the word “digress” correctly.
    In review of your question and John’s comment, I agree that your comment was not rude or unprofessional, so I apologize for the down-rate. At least now you may down-rate this and have your revenge.

  11. Anonymous says:

    no I wasnt tracking that, I am sure I am not the first person to miss something, and I am sure I won’t be the last. Late Bloomer obviously wasn’t either. If we are going to down-rate every post we disagree with or that doesn’t make sense then there are going to be a lot of hidden posts.

    As for your second point, I understand the Court found it passed a due process test, but since when does a Court making a decision mean you can’t think the decision is wrong? I think it’s problematic to have 4 people on a panel. You don’t.

    Apparently you or someone else thought my follow-on post merely asking why the post was down-rated also deserved a down-rate.

    Why I do not know, but seems to me this down-rate is going to be abused pretty quickly.

  12. Article16 says:

    I recused myself from down-rating you…but don’t take it personally. Look how many up-rates you got, and yet you didn’t know the abbreviations and quorums for the different courts-martial.

  13. MJW1 says:

    J O’C et al,

    Excessive down-rates only hide the post from those who are too apathetic to click the “click here to see” link. Not too much a problem for me. In fact I obsessively click on the hidden posts and read those more closely then those which are not hidden. I’d consider it a badge of honor to have my posts hidden. Really, those who complain of the new system seem a little soft for me and should probably forgo posting at all if their sensitivities are so fragile. Maybe we could schedule a group hug at the Pentagon for those who feel slighted.

    It is a blog and I’ve posted some fairly stupid stuff before and been lambasted. I deserved it.

  14. Article16 says:

    Program it to hide a comment when there are at least 5 votes, 2/3 thumbs down.
    If you have at least five votes, greater than 1/3 thumbs up, you have been acquitted and your comment will never be hidden.

    Never have so few been judged by so few.

    “I accept the fact that I have been convicted, but I believe I can Soldier back and be an asset to this thread.”

  15. Marcus Fulton says:

    Art. 16: Well played.