Now that we’re at the threshold of complete e-filing at CAAF, can we please drag the military justice system all the way into the 21st Century?

The 2008 edition of the MCM has been out-of-date for two years now.  A couple of our wise readers noted below that the out-of-date MCM appears to have led the Coast Guard Court to err in its published decision in United States v. Sanchez, __ M.J. ___, No. 1320 (C.G. Ct. Crim. App. July 29, 2010).  In a case tried in 2009, the Coast Guard Court held that the SJAR violated R.C.M. 1106(d)(3)’s requirement “to include length and character of service, awards and decorations received, and any records of non-judicial punishment and previous convictions.”  The problem is, as two of our readers noted, the President removed those requirements from R.C.M. 1106(d)(3) in 2008.  Exec. Order No. 13,468 (2008), reprinted at 73 Fed. Reg. 43,827, Annex Section 1 (h).  Those changes took effect 24 August 2008.  If a military appellate court doesn’t know what provisions in the 2008 MCM are no longer in effect, what hope is there for the rest of us?

As we previously noted, when the old three-ring binder version of the MCM was scrapped, DOD intended to issue a new paperback MCM every year.  But the annual Manual plan lasted precisely two years.  Not since 1996 has a new edition of the MCM come out the year following its predecessor.

I recognize that these budgetary times are tough and that printing a new edition of the MCM every year would be expensive.  But there is an alternative that would cost practically nothing.  This is what we suggested in February 2007:

Maybe the concept of publishing an entire new Manual and throwing away the old one is dated. Maybe it was a bad idea even in 1994 when it was originally hatched. But many years ago Al Gore invented this wonderful new device called the Internet. You know, that thing that allows me to post this rant and allows you to read it. Can’t DOD at least post an annual updated version of the MCM, even if it doesn’t want to devote the expense and cause the deforestation necessary to print it?

Sanchez demonstrates that the time for the annual e-Manual has arrived.  Presumably someone in DOD maintains a Microsoft Word copy of the MCM that is then turned into a hard copy.  Why doesn’t that person input the 2008 amendments to the MCM and plug all of the UCMJ amendments into Appendix 2 and then post that up-to-date version of the MCM online?  DOD could then continue to update it with each new MCM revision or UCMJ amendment until a new version is published.  We’d all have access to a current version of the MCM at no cost to DOD.

If anyone out there who is more tech savvy than am I (and if you’ve managed to navigate to this website, you’re almost certainly in that group) can figure out have to input the changes into this electronic copy of the 2008 MCM, let us know and I’ll try to post an updated version of the MCM myself.

11 Responses to “We need an updated e-MCM”

  1. Anonymous says:

    Each court-room should have at a minimum three laptops, connected to the network, for the judge, TC and DC.

    We should have the E-Benchbook (at least for the Army) and the E-MCM as two things standard on each of these computers. Access to Westlaw/internet would be helpful as well.

    I think this would help in several ways all parties concerned and would somewhat cut-down on errors at trial.

  2. Anonymous says:

    Being a .pdf doc, I don’t think you can easily edit one with special editing software either from a third party or from adobe acrobat.

  3. Gene Fidell says:

    I hope someone in a position to do something about maintaining an accessible official current e-MCM is reading CAAFlog. As for expanded e-filing, it’s certainly a step in the right direction. The next should be e-access to docket sheets and filed documents.

  4. Article16 says:

    Wow…
    I just can’t imagine two appellate offices and an appellate bench honed onto post-trial issues could miss such a change.
    I agree that a new MCM would have prevented the mistake.

    I learned of the change as a defense counsel, because I thought it was odd that the awards section was missing from an SJAR…I researched it, and found the new E.O.–it wasn’t too hard.

    So I’d say in addition to showing the need for updated and distributed MCMs this might also show the danger of relying on old motions and brief banks. When people use those, to the detriment of doing original research, errors like this can happen.

  5. Anonymous says:

    Someone must explain to this non-military justice wonk what plain error is . . . although it did not really occur in this case since the court and counsel got the law wrong. But let’s assume for the moment that the new EO never happened, the MCM still required the SJAR to summarize the awards, the SJAR fails to do so, and the defense counsel never says moo.

    If defense counsel does not raise something as an error even though there may be a legal basis to do so, isn’t that a decision for the defense counsel to make? How many times have appellate courts rejected appellate claims due to waiver?

    With plain error, though, it seems that an appellate court can overlook waiver, find the “error” and say the error was so plain and obvious and it prejudiced the accused that it must be corrected.

    Why isn’t that really ineffective assistance? Isn’t the appellate court really saying: 1) defense counsel really should have said something and blew it by not doing so? or 2) we don’t think the defense counsel even saw the error? Either way, it seems the defense counsel is the one who erred . . .

    Accused rely on defense counsel from making sure the trial counsel and military judges and convening authorities don’t violate the accused’s rights. If defense counsel let violations go without objection, the violation is waived. The defense counsel are entitled to decide what violations will make a difference and those that will not. But if the defense counsel makes a professional misjudgment and the error should have not gone by without objection, then it’s IAC.

    If defense counsel object, they’ve done their job and it’s up to the appellate courts to correct the errors that haven’t already.

  6. Snuffy says:

    Our system also requires that the SJA and the military judge do thier jobs correctly too. All the blame does not fall on the defense Counsel.
    But with plain error- it normally must be very obvious (“like getting hit in the face with a dead fish” obvious). Waiver is most often applied in the context of an affirmative waiver- that is- when the DC actaully knows of issue (usually via dialog with The MJ or otherwise on the record) and affirmatively waives the issue. Absent a knowing waiver, appellate courts can, however, fall back on forfiture.

    More or less confused now?

  7. Article16 says:

    I’m not sympathetic to this position. The law is fine as it is.
    Most arguments for plain error can be twisted into an argument for IAC…but the judge and the SJA have independent roles in preventing prejudicial errors and ensuring fairness, and the DC can’t always correct their incompetence.

    Take the example of a trial counsel making inappropriate comments in his sentencing argument–and the defense counsel “fails” to object. (or the judge commits plain error by not stepping in).

    If you argue try to argue that as IAC on appeal it’s 1) just harder to win based on stricter legal standard, so it won’t be raised , 2) inconsistent with the reality that defense counsel may not have objected for reasons other than failing to see a basis for objection.

    For example, if there’s a panel you may not want to make an objection on a borderline issue because you know you’ll be overruled and you’ll risk making your client look worse or draw further attention to something you believe is prejudicial.

    On this SJAR issue. The SJA made a bad decision including non-required negative info–and with or without the new EO, he or she created an apparent problem. SJA errors like this often happen after the clemency matters have already been submitted (e.g., SJAR fails to comment on legal errors raised by the clemency petition)…I believe the RCM provides that the basis for a DC response at that point is if the SJA raises new matters in the final memo to the CG–so the DC has no procedural basis to point out such a blunder. The DC isn’t always in a position to raise objections–especially if the CG action has already happened.

    I agree that DCs need to be competent in objecting and preserving errors, but to say they always need to correct (or are in a position to correct) the obvious incompetence of others goes to far.

  8. Socrates says:

    Plain error is that aspect of judicial accountability that corresponds with the judge’s discretion and the presumption he/she knows the law. To whom much is given, much is asked.

    A clever defense attorney may WANT error the record infected with error; a good judge does not permit this.

  9. Anonymous says:

    Why is it so hard to keep the MCM current? Perhaps we should stop self-publishing and go commercial. Or, only publish e-copy and let the commercial guys take over hard copy. At any rate, I know that with the 1995 manual, we went cheap in order to publish more frequently, and have only published (5?) updates in 15 years.

  10. Cloudesley Shovell says:

    Whatever the roadblocks to getting the Manual out annually, I would hope that cost is not one of them. Commercial printers offer limited-run printing services as low as $2 or $3 per book. Larger runs drive the per copy cost down to less than a buck. (Those hardcover bestsellers that Borders sells for $20 or more cost about 50 cents to print.) I’ll bet a self-publisher could print and sell copies of the MCM, using the online pdf file (it isn’t copyrighted) for a lot less than the $62 per copy (!) the GPO charges.

    Updating a pdf version of the Manual for online distribution annually shouldn’t be that hard, even with multiple layers of editing/proofing requirements.

  11. Captain Bart Slabbekorn says:

    Ladies and Gentlemen,

    Here is the recipe for keeping your own personal electronic copy of the MCM up to date. Ingredients: (1) PDF copy of the MCM; (1) electronic copy of the EO or whatever reference document you want to use to update your MCM; (1) Adobe Professional Software.

    Note: If you are practicing law without Adobe Professional software and a working knowledge thereof, you may be, as Col Jessep says, letting the best in life pass you by.

    Step 1: Open your PDF copy of the MCM using Adobe Professional.

    Step 2: Click on “Document” and select “Attach a File”

    Step 3: Select the file you want to add much as you would in attaching a file to an email.

    Result: A paperclip will appear in your MCM PDF. Double clicking on the paperclip will pull up the EO for your viewing pleasure. You can move the paperclip around to place it adjacent to whatever rule or section is relevant.

    You can attach case opinions, pages from Wigmore, or pictures of Smokey the Bluetick Hound (http://smokeys-trail.com/Smokey/50-years.html). Anything you want to tag into your PDF. Think of it like pocket parts.

    Finally, you can find a pretty solid reference point for the most recent updates to the MCM here: http://www.loc.gov/rr/frd/Military_Law/CM-manuals.html