A perennial newspaper feature near the end of each December is the Top-10 retrospective on the year. Since this is a year ending in “9,” we’ve also seen quite a few retrospectives of the decade, like yesterday’s NYT piece by Scott Turow on the “Trials of the Decade.” CAAFlog has only existed for a bit more than three years, so we don’t yet have a decade’s worth of perspective. But for the second year in a row, we’re rolling out a list of the top 10 military justice stories of the year, this year as agreed to by the No Man and me. (The No Man expressed great consternation that we were actually able to agree to the list.)
In the Air Force court-martial case of United States v. Payton, the military judge described the new Article 120 as “a prime example of what happens when legislation is influenced by what you see on Oprah and what advocacy groups propose as opposed to what is really necessary and unfortunately it makes all of our lives difficult.” He continued, “[A]nybody who reads it would realize that Article 120 on its face is almost incomprehensible and is probably the most poorly drafted and poorly enacted Article in the UCMJ, probably in the history of the UCMJ. If you had a hundred monkeys with a typewriter they would probably come up with something like this.” Yet, for all its faults, Article 120 has proved remarkably resilient.
Last year, #6 on our top-1o list was, “A military judge rules that the new Article 120 is unconstitutional.” We noted that in the Navy court-martial case of United States v. Fairley, Judge Raymond E. Beal II held that the new Article 120 unconstitutionally shifted the burden of proof on consent to the defense. But in May 2009, NMCCA reversed Judge Beal’s Fairley ruling in a one-line opinion, as the No Man discussed here. And NMCCA upheld Article 120’s constitutionality in three en banc published opinions: United States v. Neal, 67 M.J. 675 (N-M. Ct. Crim. App. 2009) (en banc); United States v. Crotchett, 67 M.J. 713 (N-M. Ct. Crim. App. 2009) (en banc); and United States v. Medina, __ M.J. ___, 2009 WL 4857364 (N-M. Ct. Crim. App. Dec. 17, 2009) (en banc).
No doubt in an effort to definitively settle the question of the new Article 120’s constitutionality, the Judge Advocate General of the Navy certified the Neal case to CAAF. United States v. Neal, 68 M.J. 76 (C.A.A.F. 2009). CAAF heard oral argument, which is available here, on 21 September. Shortly thereafter, CAAF denied review in Crotchett without prejudice. United States v. Crotchett, __ M.J. ___, No. 09-6006/MC (C.A.A.F. Oct. 6, 2009).
Medina was particularly interesting because by the time of that decision, Judge Beal had joined NMCCA and wrote a dissent concluding that the new Article 120 is facially unconstitutional under the Due Process Clause.
So 2009 ends with the Government having beaten back challenges to the new Article 120’s constitutionality, but with one major battle still to be resolved. Which means that next year, the by-then not-so-new Article 120 will probably make our top-10 list for a third year in a row. Stay tuned.