Military justice caseloads continue to shrink.  As we noted here, from FY 2004 to FY 2009, DOD experienced a 33% drop in the number of GCMs and SPCMs tried — from 4,384 to 2,919.  The Army saw a 12% reduction in the number of GCMs and SPCMs tried.  The Air Force had a 26.4% reduction.  The reduction in the Department of the Navy was 49%.  Meanwhile, our non-DOD sister service, the Coast Guard, experienced a 21% drop from 39 to 31. 

My guess is that in the long-run, the continued decline in court-martial caseload may be the most important military justice story of the year.  (Yes, at the contentious CAAFlog online confab, I voted for this to be the #1 story and was hooted down by my colleagues.  I think the No Man’s vote for #1 had to do with the Apprendi implications of the expansion of court-martial jurisdiction over civilians accompanying the military in contingency operations.)  As demonstrated by the .5% reduction in the planned 2011 military pay raise and the two-year freeze for most federal civil servants’ pay, we are entering a period of budget austerity.  How long will it be before the budgeteers notice the decline in military justice caseload and start asking hard questions about whether there’s been a commensurate decline in military justice expenditures? 

This strikes me as a good time for the military justice community to give some serious thought to how to perform its mission more efficiently and at lower cost.  The military justice community has been notoriously resistant to change.  But we may be entering an era where those who don’t streamline voluntarily will have a cleaver do the streamlining for them.  

Probably the main way to promote military justice efficiency is to increase jointness.  Here are just a few ideas, some of them proposed previously by CAAFlog readers, concerning how to operate the military justice system at less cost than we do today:

(1)  Make the military trial judiciary a joint command.  A court-martial of an Airman at Kadena Air Force Base should be presided over by the Marine Corps judge stationed at Camp Foster.  A court-martial of a Sailor at Naval Air Station Pensacola should by presided over the Air Force judge stationed at Eglin Air Force Base.

(2)  Create a single joint stovepipe trial defense service to provide a trial defense counsel for each court-martial held in any branch of the military.

(3)  Consolidate or eliminate the CCAs.  With the reduced number of courts-martial and commensurate reduction in military appellate caseloads, there is no need for five separate military appellate courts.  This is especially the case now, when construction is planned or underway for new courtrooms for at least two of the four CCAs.  At the very least, the four CCAs should be consolidated into a single court.  Better yet, they should be eliminated and CAAF should be revamped to function in the same manner as one of the geographic federal courts of appeals hearing criminal cases from within its circuit.

(4)  Consolidate the four appellate defense divisions into one and consolidate the four appellate government divisions into one.

I invite our readers to propose other measures to streamline the military justice system.

70 Responses to “Top 10 military justice stories of 2010–#5: The decline of court-martial dockets”

  1. Anon says:

    Another suggestion: consolidate all judge advocate and enlisted legal courses at TJAGLCS in Charlottesville, VA.

  2. Anon says:

    Are there any numbers out there on the percentage of the DOD budget used for military justice? It would seem that consolidating legal services is a band-aid on the budget problems (though I think joint appellate divisions and CCAs is a promising idea). Think how much money could be saved if the entire Air Force was collapsed back into the Army.

  3. Ciws70 says:

    Love the idea of consolidated trial judiciary, but think it’s a tough sell. The Marines already dislike the joint Navy-Marine Corps Trial Judiciary and they are the main reason we don’t wear robes like our sister trial MJs.

    A related issue that is disturbing in light of anticipated austerity: any thoughts on seeing PERSREP clients via VTC or DCO? I’m hearing this is something being seriously considered as a way to remove DC from isolated locations and consolidate support in main areas with less overhead…

  4. Anon says:

    Great ideas that will never happen. The defense bar will never go for cost saving measures since they are almost always viewed as pro-govt. Consolidation of appellate will never happen bc each service won’t cut out those O-6 billets from it’s manning plans. Get rid of appellate courts, why not be able to waive appellate review then. Or why not MJ alone sentencing like federal courts. The MJ community hates change and will fight it tooth and nail. As for marines wearing robes, they wear them at NMCCA during oral argument and nobody cares. Why is miljus declining? A whole bunch of reasons but I think the main reason is non miljus SJA’s who immediately go for the adsep or send cases out in town to avoid the work.

  5. Anonymous says:

    This is absurd…no one will tell Marines how to do their business except Marines. I bet a panel of Marines would love to hear from a AF Capt on why a GySgt with 15 years and two combat tours should be given a punitive discharge. And I’m sure that Gy would be pleased to be detailed a Navy 02 to represent him. It’s cultural…and it should be.

  6. RY says:

    I understand the “it’s cultural argument” but I wonder how true that is. A reasonable argument ought to be reasonable regardless of the audience’s uniform. Further, wouldn’t the experience of addressing members from different services improve our advocate’s skills overall? There’s always a difficult transition period in any change, but with a more purple environment and more joint operations, are we not better suited for joint trial functions now more than ever?

    That being said, I am doubtful joint prosecution/defense will be a reality any time soon. One consequence of declining courts is a corresponding diminished opportunity for experience, which leads to a problem in training new JAGs. Joint prosecution or defense could jeopardize training opportunities even more by shipping those precious few cases in some regions to sister services. I see leadership being very cautious about losing any opportunities to train young prosecutors and defenders.

  7. John O'Connor says:

    Well, since efficiency is best served by jointness, why do we have all of these different services? We could streamline them into one stovepipe service called the “military.” That way we don’t need for service secretaries, four chiefs of staff, etc.

    I’m with Anon 0723. When it comes to jointness, you can count me out.

    Now they could streamline appellate review by getting rid of all the appeals where the accused is more or less ambivalent about the appeal or at least values it sufficiently little that he would waive it as part of a PTA . . . .

  8. Gene Fidell says:

    Military justice needs could be further reduced by restoring the service-connection requirement either legislatively or by Manual change.

  9. Brian le Chien says:

    How about we try to alter the other side of the equation (ie increase caseloads back to their historical numbers).

    At least one of the reasons CM numbers have declined is the costs (both administrative and $$) of having court-martials. As costs have gone up, the system has sought out less costly ways of dealing with military justice issues (i.e. adseps).

    One of the reasons the “costs” of the system have risen, is that the courts have imposed increased standards of professionalism. This is a good thing. However, many of the procedural rules in the RCMs were built for a time when military justice was handled in a more slapdash fashion. As we have “professionalised” those “extra” protections have become less necessary. Streamlining our MJ system (when possible making the rules more similar to civillian courts) would reduce the costs of trying a CM, and thereby up our numbers.

    Of course, upping our numbers for their own sake is not a good (or moral) solution. But it does seem we are adseping people who would have been court-martialed a decade ago. Also, if we adsep all the minor cases, it means everyone in the system will get their experience in trying the few serious cases left. This is not a good solution.

  10. Presley O'Bannon says:

    The only people who should be prosecuting and defending in a Marine courtroom are Marines. Exceptions can be made for qualified swabbies and coasties.

  11. Gene Fidell says:

    I agree that jacking up the numbers for their own sake is neither good nor moral, but I would steer clear of arguing even incidentally that courts-martial are a means to the end of affording the trial bar more courtroom experience (as desirable as that is for the system to remain viable). Nor is there anything magical about the court-martial rate a decade ago ago, so that is neither here nor there. What ought to drive the analysis is the services’ obligation to provide justice as the Constitution, Congress and the appellate courts require, and satisfying that obligation comes at a price. If the costs of the administration of justice are borne by command (where trials compete for dollars with operational needs that one would expect to have priority), isn’t that an argument for looking elsewhere for both the prosecution decision and the resources needed to conduct trials?

  12. el cravat loco says:

    1. Fewer crimes? Zero tolerance finally having an effect? One bad episode and the person is gone so not around to reoffend or offend in a more serious way. Effects of a quality force due to better recruiting? Effects of Soldiers in combat and not in bars combating each other?
    2. Not so many spitting on the sidewalk cases referred to general court-martial?
    3. Agree with Gene.

  13. ksf says:

    If you wanted to cut costs, then how about if the Army cuts the SVP program and allows CID to once again raise an eyebrow and actually investigate when an alleged “victim” makes an allegation that is clearly not supported by the evidence?

    You could cut 30 specialized investigators whose sole existence and paycheck depends on investigating allegations of sexual assault…..poorly. You could cut the “highly qualified expert” positions who are government slap dummies who are owned by the prosecution. It’s funny, well, not really, how TDS does not get a team of “highly qualified experts” one of whom may be flown in on a moments notice to interview a recalcitrant “victim” who admits that she made the allegations up.

    Then, if you read some of the stuff that Roger Canaff has put on his blog that intimates that an innocent male who is punished due to a false allegation is collateral damage in the overall war against preventing sexual assault, because it “is an imperfect world.” He also states that a prosecutor is not required to be impartial. This guy works for TCAP, it makes you wonder who is looking out for Soldiers and why my tax dollars are being used to fund someone whose only concern appears to be gathering evidence to gain a conviction. Considering TCAP has a footprint over all of big Army’s Trial Counsel, this guy has the potential to influence the prosecutorial discretion of the entire Army. And, my experience with SVP’s is that they all have a similar agenda.

    But, I guess I should want the military to hire many more SVP’s and HQE’s because a rise in courts martial are good for a civilian attorney’s business, particularly when the court martial is clearly a false rape allegation that CID fails to thoroughly investigate out of fear of “victimizing the victim.” Those cases are a civilian attorney’s bread and butter and further go to substantiate the legal prowess of those who obtain full acquittals or a dismissal after the 32. Unfortunately, like all of my esteemed civilian attorney brethren, I actually care about Servicemembers and would rather be forced to focus my attentions elsewhere if the courts martial well dries up.

  14. Anon says:

    So if “only Marines can defend and prosecute Marines,” can Marines also prosecute and defend sailors, coasties, Army and AF? Perhaps if they pass a certain rifle range score and PFA score? No 20 pull ups, no prosecuting that AF guy for you Marine.

    Give me a break. They did such a great job with Foster.

  15. Anonymous says:

    Strange that so many are claiming the Marines would be the bump in the road to joint military justice. The Air Force seems to be the service most institutionally opposed to joint MJ.

  16. RY says:

    IMHO, I am far less concerned with cross-service judges or counsel than I am with cross-service court members. We have civilian counsel who regularly argue, with equal effectiveness, across service lines, so I don’t really buy that there is a meaningful difference in counsel. I think it’s pure speculation. As for MJs, I rarely believed in going MJ alone so I wasn’t very concerned about sentencing. As for rulings, I don’t see how having MJs from other services would really change. We all have the same UCMJ and are bound by the same case CAAF cases and RCMs. With members, however, that’s where cultural differences will come to light. I would fully expect different sentences for similar crimes based on cultural differences between the services.

  17. John Harwood says:

    A couple logistical issues:
    1. Assume our trial bench goes purple, but the CCAs don’t: If an army judge is trying an Airman, will the Army military judge be up to speed on the Air Force’s CCA precedent on an issue?
    2. Is the stovepipe defense service going to deal only with C-Ms, or with all defense issues? As a former AF defense counsel, my day-to-day grind as an ADC was taken up in large part with NJPs, discharges, etc. I’m pretty familiar with AFI 36-3208: is a Marine defense counsel? I know how the discharge process in the AF works, but I have no idea how the “chapter” process works in the Army. By stovepiping the defense bar, you’d be requiring ADCs, TDS, etc. to lear four different discharge regs, NJP procedures, etc. It’s hard enough to master one reg: four just isn’t going to happen.

  18. Anonymous says:

    I think the time for consolidating the CCAs (at least logistically) has long since passed. I would love to hear if there was any thought to having one building housing a single courtroom, library, appellate divisions, etc… Bet the Army would approve of that scenario now considering they’ll be busing their counsel up to CAAF from Belvoir apparently.

  19. Connelly, Francis, JR says:

    My two cents, how do you overcome the requirement that one should be tried by a panel of his/her peers? While, I like the idea of cost saving as I also believe the system is too bloated and it contributes to its dysfunction there are more than a few structural and indeed cultural issues that will need to be ironed out.

    With that said, I like it, I could see the benefits in my mind’s eye, less claims of command influence, less backlog at pro government CCA’s etc. I don’t believe the CCA’S are necessary or functional anyway, I am not sure what the stats say but its my belieF that they customarily “rubber stamp” the government’s case anyway. It simply a farce that the appellants can reasonably expect an objective hearing of their case at the CCAs and hence expect a reasonable chance of relief. The CCAs would be the first monstrosity I put a cleaver to, simply keep their fact finding power but give to CAAF!

  20. Anonymous says:

    I don’t like any of the joint recommendations at all, and fail to see how they would really save money to the extent that cancels out all of the apparent negatives that come from consolidating everything together.

    I certainly don’t see how taking the hundreds of cases per month that get reviewed at the CCAs and sending them all straight to CAAF is going to in any way be cost-cutting or efficient.

    I think as Gene said, the goal is providing a fair and accurate judicial system. To that end, those services who don’t allow crim law specialization should do so. Furthermore, those services that treat judge billets like rewards for long service instead of as competitive billets for crim law experts should stop doing so.

    Competency solves a lot of problems. Stop treating crim law like something you dip your toe in as you move on to other areas in preparation for being a BJA or SJA jack of all trades.

    My admittedly narrow experience is that there are more than enough people who seem to want to be BJAs or future SJAs that if you allowed a limited number of people to track as crim law/judges/RDCs that you’d still have plenty of jack of all trades to advise commanders effectively while increasing crim law expertise.

    Again, competency solves a lot of problems.

  21. Cynic says:

    Eliminate ACCA at least please. Non-decisions on important cases that get CAAF grants don’t deserve six-figure salaries. Or any salaries.

  22. Dwight Sullivan says:

    Anon 1401 — going from five military appellate courts to one (or even two — CAAF and a joint CCA) would save or reallocate literally millions of dollars a year. If there were no CCAs, all of the civilian positions on the CCAs would be eliminated, thereby saving the government more than a million dollars a year. If there were no CCAs, there would be no need to build a new ACCA courthouse when ACCA moves from its current location. And there would be no need to rent space for the CGCCA. If there were no CCAs, a number of O-6 billets could be eliminated or — more realistically — reallocated from the tip of the tail to somewhere closer to the teeth. And CAAF could take on the mission with no increase in spending or space, resulting in very real monetary savings from the elimination of the CCAs. But just consolidating the CCAs would save at least hundreds of thousands — and probably at least a million dollars — a year by reducing the overall number of civilians currently employed by the four CCAs and by reducing expenditures for construction, rent, utilities, computers, etc.

    Now a few million dollars a year won’t make a dent in the federal budget deficit. But my point is that we are entering an era when DOD is going to be put on a forced diet. So if DOD can reallocate a few million dollars a year from the tip of the tail to something more closely involved with accomplishing its mission, DOD itself may force cuts on the military justice community. And if the military justice community wants to support the war fighters — and I know that we all do — then we should offer to achieve such efficiencies when we can.

    But there would be other savings resulting from eliminating the CCAs as well. In our current system, a case first goes to the CCA. Then the accused can ask CAAF to hear the case. If CAAF agrees, there’s generally yet another round of briefing. It’s a monstrously inefficient system, with cases that CAAF actually hears generally briefed three times before a decision. If every case went to CAAF as a matter of right, there would be one and only one round of briefing. Cases would thus move through the system far more rapidly. (One-stop-CAAF-shopping would also make every military justice case eligible for SCOTUS review, which would slow down the system a bit, but by less than eliminating CCA review would speed things up, resulting in a net diminution in time on appeal, which produces direct savings to the military, particularly in terms of having to pay less for medical coverage for those on appellate leave. But if there were one-stop-CAAF-shopping, I would tinker with 28 U.S.C. 1259 to promote efficiencies in the military Supreme Court cert process, such as by eliminating the requirement that military cert petitions be printed, thus saving about $600 to $800 per cert petition.)

  23. whose your daddy says:

    1. At the trial level, service cultural familiarization is of paramount importance and not just for Marines. Some efficiencies can and are gained while still respecting cultural sensitivities (e.g. MOU for cross-detailing trial judges on case-by-case basis).
    2. Cultural familiarization is important, but far less so at the appellate level. Thus, the consolodation of CCAs makes complete sense. Each panel could have representation from three services. Alternatively, eliminate CCAs – free-up the 06s – and expand CAAF to 7-9 judges to hear all appeals (maybe eliminate prohibition that retired JAs can’t be appointed to CAAF).
    3. Appellate waiver (negotiable as w/ Article III courts) for guilty pleas would contribute far more towards efficiency than jointness ever could.
    4. “Service connection” is not the answer. Most especially, in the age where PTSD and combat stress will loom large in all stages of military justice. Besides, the sausage being made on the civilian side doesn’t taste any better despite its’ prettier packaging. That goes for federal court as well as state court, but most especially the latter.
    5. Courts-martial levels will rise again in a few years time when the forces are far less forward-deployed and Commanders far less patient. Admittedly, a standing prediction for more than a year, but maybe starting in 2015.
    6. The Navy has WAY too many trial and defense counsel given court-martial levels. Every TC/DC is managing only a handful of cases. CUT CUT CUT (but then who would do all the silly pet projects that the 0-6s create for the sake of justifying their existence)(sorry).
    7. Greater use of reservists to inject experience into the trial ranks should be explored. To include getting past our strategic reserve compensation and employment regulations. First tour JAs should never be lead counsel on GCMs (at least on defense side).

  24. Dwight Sullivan says:

    When I read comments about the ability of a defense counsel from one branch to represent an accused from another branch, I think of the case tried at Andrews Air Force Base earlier this year in which the accused IMCed a Marine defense counsel from Quantico. The case resulted in a total acquittal.

    It has been the case for decades that Marine and Coast Guard judge advocates would regularly appear as trial-level counsel in Navy courts-martial and Navy judge advocates would regularly appear as trial-level counsel in Marine courts-martial. If they can figure out how to do it — and they have — there’s no reason to think that there’s some institutional barrier to Army and Air Force judge advocates being able to do so as well.

  25. Anonymous says:

    COL Sullivan, my respectful responses:

    1. How could CAAF handle a significantly increased caseload without additional expense? Wouldn’t consolidating things in CAAF necessitate by itself that CAAF take on fact-finding powers, and I would think such a review would involve more judges, support staff, etc.
    I also don’t see how any time would be saved because the increased docket would mean increased decision times.

    2. I don’t think the numbers you are talking about are enough to make a dent nor do I think the various services are going to be looking to squeeze a million dollars out of the various JAG Corps that can only be found in getting rid of the service courts or doing the total consolidation suggested in other areas.

    3. I don’t think those handful of O-6 billets are all that crucial but if they are, then the answer is simply staff ACCA with senior O-5s, preferably those with criminal law experience. That would free up the O-6 billets right away.

    4. I think we support war fighters better with an effective and efficient appellate system that maximizes due process far more than by moving a few folks around or saving a million dollars.

    5. The current appellate system could be modified by CAAF and the service courts simply streamlining the process. No more writing two whole new briefs for CAAF, a petition and then a brief…just write one brief for ACCA and then maybe a second petition for CAAF (in case the losing side wants to address the lower court’s decision)…and that’s it.

    6. I’d agree that going completely electronic is a cost-saving move that can be done painlessly and is long overdue.

    Bottomline, I don’t think getting rid of the service courts will lead to more efficiency, nor do I think consolidating them will lead to more efficiency. I also don’t think the cost-savings are worth the trouble. I do think there are all sorts of little things that can be done without eliminating or consolidating entities that will result in freeing up dollars or personnel.

  26. John O'Connor says:

    I swear I’m not whose [sic] your daddy, but I could be.

  27. Gene Fidell says:

    WYDS, I’m afraid I don’t follow your item 4. I wasn’t talking about service-connection for purposes of VA benefits, but for purposes of court-martial jurisdiction. What do O’Callahan, Relford and Solorio have to do with PTSD and combat stress?

  28. Dwight Sullivan says:

    Anon 1454, I think we’re moving into a budgetary environment in which DOD will no longer take the position that a few million dollars a year doesn’t matter. If it’s the case that one combined CCA could do the job just as well as four separate CCAs are doing it now, I think we should save a million bucks a year or so — plus military construction money — and consolidate the four CCAs. But my strong preference would be to eliminate them entirely.

    Having had the advantage of working at CAAF for about a year and a half, I have absolutely no doubt that CAAF could take on the entire workload of the CCAs with no increase in staffing. Remember that CAAF used to receive more petitions each year than we have courts-martial today — when it had only three judges. In FY 1984, for example, CMA acted on 3,528 petitions. And from having worked there, I know that the level of care that a petition receives is comparable to what would be necessary to produce a summary disposition on the merits. We could easily achieve more efficiency by having CAAF sit in panels of three, just like the geographic circuit courts do. No increase in staffing would be needed. Also, I would simply kill off the enhanced powers of the CCAs under Article 66(c). There are more than enough other opportunities for clemency in our system that we don’t need judges performing sentence appropriate review. And there’s no reason to think that in this era, there’s a greater need for appellate fact-finding in a military context than there is in a civilian context.

    If we were designing the military justice system from scratch, I can’t believe that anyone would come up with the appellate system that we have now. Let’s pretend for a second that we are designing a system from scratch. Why not follow the Article III model and provide for one level of sub-SCOTUS appeals?

  29. who's your daddy says:

    Gene,
    My perception is that your proposal would shift an enormous amount of current courts-marial to civilian courts. My response is that those institutions (jury and judge especially) are less understanding of how to give weight to combat experiences either as they relate to a defense (intent elements) or sentencing. Comparatively, a military panel (and judge) will have walked in the same shoes and be living day-to-day amidst the culture that bears these wounds. The appropriate weight will sometimes benefit the accused and occassionally limit the exaggeration of defense claims. Moreover, having witnessed civilian courts on a daily basis for several years, I come away with the impression that military justice is equal to if not superior to most. There are terrific attorneys and judges in each system not to mention a proportionate share of marginal and below average professionals across the board.

    Dwight,
    Your example is 100% anectodal and you know it. I can think of a Navy Lt. that who defended a Marine at Quantico that was convicted. How much weight do we accord this example? Frankly, I’d take a quality attorney of any service (or civilian) over an average attorney, but that doesn’t negate the preference for service cultural sensitivity. Also, regarding efficiency, when you start factoring in life support/pay/admin I suspect the efficiencies of jointness will be lost. Not to mention the ramifications of having fitness reportes reviewed by RS/ROs from different services.
    Respectfully,
    JO

  30. Anonymous says:

    Well respectfully, why not just follow the Article III model and get rid of military courts entirely? We could just pass laws criminalizing certain conduct committed while on active duty, and farm it all out to Federal District Courts. That would save a lot of money and probably not add a lot to their plates.

    Obviously I’m being bit facetious, but if we are talking about how things would be if we were designing a system from scratch how do we even know we’d even decide to come up with a system at all.

    I don’t think the system is broken beyond repair that we need radical fixes. I also don’t think I agree that the budgetary environment will end as you see it. The only reason we are building a new ACCA courtroom is because of a cost-cutting move to relocate all of the Army assets to Belvoir, so it isn’t as if the new courtroom is a costly boondoggle, it is actually a long-term cost-cutting move to stop paying rent on Arlington office space.

    I disagree with the idea that there are enough meaningful opportunities for clemency in our current system sans Service Court sentence appropriateness review.

    Finally, I’d say it isn’t that the military system does too much IMO, but that the civilian system does too little. I’d argue the military system is closer to a gold standard than the civilian system in many ways.

  31. Anonymous says:

    Your example is 100% anectodal and you know it. I can think of a Navy Lt. that who defended a Marine at Quantico that was convicted. How much weight do we accord this example?

    I agree. I’d love to have a Marine defense attorney because the conceit may be that if this tough Marine is defending this guy, maybe there’s something there.

    A conceit for sure, but culturally not wholly inaccurate, at least perceptually. I wonder if that same conceit would hold in reverse, or if other conceits would form.

    We see right now the whole Manning brouhaha. Do folks think he would be treated the same in an Army facility? I don’t. I don’t think he’s being “tortured” but I do think he’s being treated differently than he would be in a different service’s facility because of cultural differences.

  32. Anon says:

    Col. Sullivan, I think your anecdote of the Marine defending the Airman is a bit of an outlier — that particular Marine is one of their prime-time defense counsel. I’m sure Gwen Beitz could successfully defend a Marine — but we’re not all Gwen.

  33. Dwight Sullivan says:

    Anon 1537, my understanding is that the main reason ACCA is moving is because it isn’t compliant with force protection requirements in its current location, though I may be mistaken about that. The more important point is that if ACCA didn’t exist or if ACCA was rolled into one joint CCA, there wouldn’t be a need to build ANY office space for it at Fort Belvoir, thereby saving the entire expense that will be devoted to building its court space.

  34. Anonymous says:

    Anon 1537, my understanding is that the main reason ACCA is moving is because it isn’t compliant with force protection requirements in its current location, though I may be mistaken about that.The more important point is that if ACCA didn’t exist or if ACCA was rolled into one joint CCA, there wouldn’t be a need to build ANY office space for it at Fort Belvoir, thereby saving the entire expense that will be devoted to building its court space.

    No, instead we’d have to build office space for a new joint facility, plus office space for a new joint appellate division.

    And again, saving money is not the sole consideration here. I concede if we simply got rid of stuff we’d no longer be spending money on those particular thing. I do not concede that would necessarily mean in the long run we would save money. We might, we might not.

    At the end of the day, I prefer making the CCAs better and the entire process more streamlined, it’s not radical, and it saves plenty of money.

    digitize the entire court-martial process from start to finish, create crim law specialists thereby increasing the number of operational/LOW “experts” who can advise combatant commanders, streamline the briefing process for the service courts/CAAF, continue to streamline the confinement facilities (there is a perfect place for one large joint facility for all confinees which would save millions of dollars).

    Creating a crim law track might even allow you to eventually get rid of or reduce DCAP/TCAP programs because you wouldn’t need them any more or as much.

  35. Dwight Sullivan says:

    In my first tour as a Marine judge advocate, Navy LT Cathy Knowles was a highly successful litigator assigned to LSST Camp Kinser (back when we had LSSTs). We routinely see civilian counsel who served in one branch representing service members in other branches. We all know great lawyers like Maj Gwen Beitz who could provide stellar representation for a service member from any branch. And we’ve all seen lawyers from within our own branch do a crummy job of defending clients from their own branch.

    I’ve actually been in the position of running a joint defense office. And for years I read records of trial of Marines prosecuting and defending Navy cases and Squids prosecuting and defending Marine cases. Based on everything I’ve seen, I see no reason to believe that a joint defense command couldn’t do as good a job for substantially less money than we currently pay for the Army’s and Air Forces’ separate stovepipe defense commands plus the defense counsel from the Navy, Marine Corps, and Coast Guard.

  36. Dwight Sullivan says:

    Anon 1641 — we wouldn’t have to pay anything for any CCA court space if we eliminated the CCAs. Nor would we have to pay any more if we had one combined CCA. There is one almost-new CCA facility at the Washington Navy Yard and there’s soon to be another brand-new CCA facility at Andrews Air Force base. Locate the joint CCA in one of those two facilities and, voila, we can save all the money we would otherwise spend to build a new ACCA facility plus the money we spend to rent space for CGCCA.

  37. Dwight Sullivan says:

    I should add that historically, I’ve been allergic to jointness. But jointness will generally be more cost effective. And in the current fiscal environment, we simply can’t afford to continue to pay for three or four or five of something when we could make do with just one. I’m completely serious when I say that the military lawyers I know from all branches of the service are overwhelmingly smart, ingenious people. We would make a joint system work.

    Also, let’s be serious, the military’s appellate system is about as far away from the teeth as you can get. We’re at the very tip of the tail. There is no real danger that consolidation of military justice appellate functions could adversely affect mission accomplishment or good order and discipline. We could certainly dispense the same level of justice with CAAF one-stop-shopping or with a combined CCA. And we could certainly save more than $1 million dollars a year while doing so. CAAF one-stop-shopping would also speed up appellate review, resulting in collateral but tangible benefits, particularly in reduced military health care demands. What’s the countervailing danger?

  38. Anonymous says:

    Anon 1641 — we wouldn’t have to pay anything for any CCA court space if we eliminated the CCAs.Nor would we have to pay any more if we had one combined CCA.There is one almost-new CCA facility at the Washington Navy Yard and there’s soon to be another brand-new CCA facility at Andrews Air Force base.Locate the joint CCA in one of those two facilities and, voila, we can save all the money we would otherwise spend to build a new ACCA facility plus the money we spend to rent space for CGCCA.

    I doubt those facilities are ready as is to take on the larger sized entity or the additional appellate attorneys needed unless you are also effectively saying we can do it all for the size of one Service court and it’s associated appellate divisions, but then again you are saying we can do it all with one CAAF with no change to its size so perhaps that is your argument.

    I remain unconvinced that will be true.

    So the costs savings I remain unconvinced on. Furthermore, I think there is validity in the cross pollination of the different service courts coming up with different interpretations of case law and different theories/rulings on new issues. I think it is a healthy thing that would be lost with a singular one stop shopping result.

    I certainly don’t think unity equals efficiency ipso facto. One large unwieldy organization can be just as inefficient as several smaller orgs.
    So, no I don’t think things would speed up with CAAF one stop shopping, I think at the end of the day, things would be about the same at best.

  39. Dwight Sullivan says:

    Anon 1744, do you really think that a CCA review plus a CAAF petition in cases where the accused desires CAAF review plus a CAAF brief in cases where CAAF grants take no more time than would a single layer of CAAF review? As someone who has had to write those three levels of briefs, I can assure you that the current system adds months to the review of granted cases and even cases in which the accused petitions CAAF but doesn’t get review. Filing a single brief takes far less time than filing a brief, then a supp, then possibly another brief. Deciding a case two to three times also takes far longer than deciding a case once.

    CAAF has become enormously efficient in moving its docket, as you can see from the very short turn-around time between filing of the petition and grant or denial of the petition. CAAF could become even more efficient if its judges sat in three-judge panels like the judges on the Article III courts of appeals who review thousands of criminal convictions from their circuits each year. And, as I’ve noted, we don’t need to speculate whether CAAF can move the current military justice case load by itself — we know it can, since historically, the number of cases CMA moved each year exceeded the entire case load of the military justice system today.

  40. Gene Fidell says:

    WYD, thanks for taking time to comment. Here are my reactions (in brackets following your comments):

    “My perception is that your proposal would shift an enormous amount of current courts-martial to civilian courts.” [I haven’t done a case-by-case study so I’m not sure I agree about how much reverting to a service-connection environment would affect the caseload, but if (relying on anecdotal evidence?) you are right, that’s all the more reason to send into civilian court cases that cannot meet the rather relaxed test of Relford and lie outside the overseas and minor offense exceptions to O’Callahan.]

    “My response is that those institutions (jury and judge especially) are less understanding of how to give weight to combat experiences either as they relate to a defense (intent elements) or sentencing.” [How likely is this to be a concern in cases that would not be service-connected under the Relford factors? Why is a GI on active duty entitled to a more empathetic (sorry, Justice Sotomayor) forum than a bankrobbing co-actor who is a veteran rather than on active duty? Isn’t this the kind of thing defense counsel can argue or present evidence on, for whatever it’s worth, in civilian court?]

    “Comparatively, a military panel (and judge) will have walked in the same shoes and be living day-to-day amidst the culture that bears these wounds.” [See comment immediately above. BTW, wasn’t a recently-discharged Marine acquitted last year in a “fog of war” MEJA case in San Diego?]

    “The appropriate weight will sometimes benefit the accused and occasionally limit the exaggeration of defense claims.” [And therefore what?]

    “Moreover, having witnessed civilian courts on a daily basis for several years, I come away with the impression that military justice is equal to if not superior to most.” [In what respect? Judicial independence? Jury selection? UCI? Command initial control of access to percipient and expert witnesses?]

    “There are terrific attorneys and judges in each system not to mention a proportionate share of marginal and below average professionals across the board.” [Agreed as to attorneys (but so what?) but, without forgetting the numerous fine MJs, Art III judges (1) are subject to far more exacting vetting in the nomination and confirmation process and (2) have the advantage of gaining more experience than MJs if for no reason other than the life tenure the Constitution affords.]

    Two final observations. First, I don’t see why WYD needed to be pseudonymous in his/her post. “Come out, come out, whoever you are.” At the risk of CAAFlogging a dead horse, how about a New Year’s resolution to eschew anonymity absent some really compelling concern about reprisal. I haven’t seen it in any of the posts in this string.

    Second, BZ to Dwight, with whom I agree, for opening up these issues for discussion. For my money, the CCAs’ wild-card power to reduce sentences is exercised so rarely that the game is not worth the candle. I’d personally be happy to recite Kaddish and help tip the plank as it slides into the briny.

    The above comments reflect only my own views, but let me nonetheless wish you all a Happy New Year from the glass-enclosed nerve center high above NIMJ Plaza.

  41. Dew_Process says:

    Once upon a time…. before “jointness” became a buzzword, there used to be “liberal” IMC rules, which MJ’s put teeth to. While an active-duty AF ADC, I probably defended @ 10 Army GCM’s and one field grade officer discharge Board. I had Army and Navy IMC’s as well and the only problem was that the Navy JAGs’ “whites” and rank on the sleeves confused AF members.

    I agree that the current CCA’s could be abolished with little impact on the overall quality of military justice. They have evolved to SJA “rubber stamps” – or, they should be staffed by judges with tenure [as Service Academy Professors are], or converted to civilian billets like CAAF. At a minimum, one joint CCA sitting in panels could easily suffice.

    Another option is to go “Canadian” where the prosecution function has been removed from Commanders and given to the Director of Military Prosecutions.

    http://www.forces.gc.ca/jag/justice/prosecutions-poursuites-eng.asp

    Finally, military judges should have standing authority as judges. CF Army Reg 27-10, Chap. 8, which assigns “additional duties” to Army Judges. They could rule on pre-referral discovery/witness issues (to include depositions), Petitions for New Trials, etc., which would eliminate the cumbersome and time-consuming DuBay proceedings.

    I agree with Col Sullivan – the budget crunchers are coming and will force change. Hopefully for the better.

  42. Connelly, Francis, JR says:

    Ladies and Gentlemen, I must say this is a very fruitful discussion I haven’t enjoyed one of such as this in a long time. This is an example when this blog can be what it is intended to be, opinions with an opportunity to nibble on food for thought and yes maybe learn something!

    Thank you Col Sullivan, let’s continue!

  43. Relford steps to nowhere says:

    Mr. Fidell, the Relford steps ignore the reality that service members are service members 24 hours a day. A service member should not be immune from the disciplinary authority of his chain of command just because he chose to rob a bank in his free time. Moreover, your comments about the advantages of civilian courts reveal a disdain for a system that many of us are quite proud of and which, in my experience, is almost entirely run by people of integrity on all sides of the bar. I would prefer to be tried at a court-martial than a state court comprised by political appointees, over-worked public defenders, and jurors who rather be anywhere else. Your remarks confirm my impression that NIMJ operates several stratospheres above reality.

  44. Gene Fidell says:

    RSTN, why the anonymity? Two comments on your post. First, our legal tradition assumes integrity from all participants, but it does not treat personal integrity as a substitute for structural soundness. See, e.g., Tumey v. Ohio, 273 U.S. 510 (1927). As President Reagan said of the Soviet Union, “Trust, but verify.” Second, you have every right to say (as others have done) that you would rather be tried by a court-martial than a state court (how about a federal district court?), but I don’t think that kind of theoretical (since I’m confident you are not currently facing charges and really don’t expect to be in the future) preference should be imposed on others who are/do and may not share your view of the systems’ relative strengths and weaknesses.

  45. Gene Fidell says:

    RSTN, on re-reading your post a third comment comes to mind: do you consider the CAAF judges (who serve on a court with an indefensible statutory political balance requirement) something other than political appointees?

  46. Anonymous says:

    And, as I’ve noted, we don’t need to speculate whether CAAF can move the current military justice case load by itself — we know it can, since historically, the number of cases CMA moved each year exceeded the entire case load of the military justice system today.

    Just because something worked before does not necessarily mean it will work again. CMA may have accomplished more volume but it was still only doing the things that CMA/CAAF do, it was not doing what CCAs do which is more extensive.

    I think it’s a bad idea bottom line. I don’t think the advantages will bear out as your assert. I think there a ton of fixes both economically and efficiency related that can be applied to the current system without blowing it up.

    So I hope jointness doesn’t extend itself to military appellate practice.

  47. Dwight Sullivan says:

    Anon 2104, I’d be interested in the ton of fixes you mention above. What do you have in mind?

  48. Andy Gillman says:

    Agree this is the #1 story of the year. But the cart seems before the horse in this thread. Why the decline? I’ve read, heard or experienced several purported causes (examples in parenthesis):

    -Increased “cost” of trial (lengthy, cumbersome)
    -Inexperienced trial personnel (rookie TCs, SJAs)
    -Fewer/rookie investigators (rerouted to the-mission-formerly-known-as-GWOT, aka better paying fund cites)
    -Non-MJ mission creep (legal assist, AdLaw, TF 134/435)
    -Desensitization to historically criminal acts (drugs, some types of sexual acts)
    -Volunteer/professional force (less social experients, more folks motivated by more than the lash)
    -Declining end strength (down from Cold War #’s)
    -Deployment/Ops tempo (focused elsewhere right now)
    -Easier alternatives (AdSep, NJP, Admin Demote)

    My bet is a lot’s interrelated and not easily untangled. But before we debate “fixes”, seems wise to understand where the cases are going and why, if the decline is temporary or permanent, and if the client’s needs have changed in ways our practice must adjust to accomodate.

    Change just because feels a lot like new-and-improved PT uniforms … didn’t know I needed that, but sure am glad to pay $120 vs. $10 for my old shorts and t-shirt that actually fit.

  49. Weirick says:

    My usual screed: use PACER and CM/ECF.

    http://www.pacer.gov/psc/efaq.html#CMECF

    From the inception of a court-martial the entire case is available to counsel, parties, the Military Judge, and the general public.

    Reduced costs. Eliminate the need to photocopy and ship records of trial to the various CCA’s. This also eliminates the cost of couriering the ROT and filings to the CAAF.

    Cost of CM/ECF:
    “There is no additional fee associated with the filing aspect of the CM/ECF system.

    The Judicial Conference of the United States approved an Internet access fee of $0.08 per page. This access fee applies to information retrieved through the system for all users. Attorneys of record and parties in a case (including pro se litigants) receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. Effective April 2010, no fee is owed until an account holder accrues charges of more than $10.00 in a quarter.”

    Additional savings. PACER CM/ECF eliminates the need for FOIA requests to access filings in a court-martial. Thus, no FOIA officer reviewing and responding to requests. The answer is simple: get the requested documents from PACER.

    Furthermore, the military justice system would be freed from the idiosyncratic decisions by Military Judges regarding access to filings before authentication of the record of trial. See, CAAFLog Comment by Peter E. Brownback III, dtd 14APR10 (“Many MJs differ in their approaches to releasing information.”) In Federal District Court it is not necessary to access the individual proclivities of a judge when requesting filings. No matter the judge, the filings are available, in real time, on PACER.

    Additional benefits. If the military justice system had adopted CM/ECF NMCCA and Code 46 could have seen that Foster’s court-martial was completed and had not been docketed for 725 days.

    Just some thoughts. What are the drawbacks of adopting PACER and CM/ECF?

  50. RSTN says:

    Mr. Fidell, I choose anonymity because because it allows for free discourse without the worry of leaving digital artifacts that could be found, exhumed, and subject to scrutiny greater than their meaning years in the future. If I were a smarter guy with something worth writing about, I’d put my name on a law review article but in the freewheeling world of CAAFLOG blog comments the muse is best served behind silly anonymous handles. As to the substance of your comments, I think the MilJus system works because it is a command driven process (which is essential to preserving G.O.D.), with sufficient safequards (serving your “trust but verify” philosophy) to preserve individual rights. I guess I lost enough cases as a TC to disabuse me of any impression that commanders are ramming convictions down the throats of the innocent. In those few cases I have seen where UCI did raise its ugly head, DC aggressively litigated the issue and MJ’s weren’t afraid to hold the G’s feet to the fire. As for CAAF appointees, I concur they are political appointees and the political party balance is hinky to say the least. The only thing worse is judges who run for public election . . . .

  51. Anonymous says:

    Anon 2104, I’d be interested in the ton of fixes you mention above.What do you have in mind?

    Well not to be repetitive but:

    1. digitize the entire court-martial process completely from trial through the service courts through to CAAF. Quit printing multiple volumes of a record of trial, heck no need to print one. It’s 2011 almost.

    2. streamline the briefing process on appeal. No need for a petition AND a brief, in fact, make petitions a one pager and use a single electronic database so that CAAF can see the service court briefs and decision with no need for additional briefing unless the situation calls for it.

    3. create a limited crim justice track. Fill the crim justice slots with dedicated and experienced crim law experts. Use experienced crim law O-5s to fill the trial and appellate judge roles, saving the O-6s for SJA slots. This would allow more JAGs to do oplaw/LOW and get away from the everyone does TC for 12 months model we seem to have now. You could get more people back to the combat commanders if you fill the crim law billets with experienced folks.

    4. You certainly could reduce the number of judges at the service courts. ACCA has something like 9-11 judges IIRC. Cut it down to two panels instead of three. Have two commissioners instead of three.

    5. cut down on the size of GAD. There is no reason why they should have more people than DAD does (at least in the army).

    There are all sorts of little moves like this where you could free up bodies, free up senior folks, reduce the footprint of the service courts, save printing and storage costs of reams of paper records, and organize a more efficient corps that don’t involve smushing everything together into one joint entity. I’m sure folks can think up others besides what I’ve listed.

  52. Dwight Sullivan says:

    Weirick, you had me at “PACER and CM/ECF.”

    Does anyone have any ideas about how to make that happen?

  53. Christopher Mathews says:

    Fifty-two posts so far and not a single mention of Terry Lakin.

    I think I must be reading the wrong blog.

  54. Gene Fidell says:

    RSTN wrote (in part): “I choose anonymity because it allows for free discourse without the worry of leaving digital artifacts that could be found, exhumed, and subject to scrutiny greater than their meaning years in the future. If I were a smarter guy with something worth writing about, I’d put my name on a law review article but in the freewheeling world of CAAFLOG blog comments the muse is best served behind silly anonymous handles.” Sorry, my friend, but this doesn’t wash. On the one hand, surely you believe in accountability. On the other, it would be a shame if lawyers and others concerned with matters of public policy, as you obviously are, decided to wear masks because of the outrageous treatment of such brilliant members of our profession as Dawn Johnsen. Come on in; the water’s fine. Indeed, I bet CAAFlog would be happy to add you and Anon 2228 as official bloggers. Dwight?

  55. Charles Gittins says:

    I agree with Gene. If you have something to say, say it with your name attached to it.

  56. publius says:

    Alexander Hamilton, among others, would disagree.

  57. Dwight Sullivan says:

    Publius,

    Now THAT was funny. :-)

    Happy New Year, whoever you are.

  58. el cravat loco says:

    Charlie and Gene,
    I think the problem is that an active duty person is reluctant to go public because they are worried about how the head-shed would react. I’m somewhat receptive to that concern. I do however agree that those who comment anonymously with invective and ad hominems don’t contribute to the conversation; but for those I just blow by. I do agree that knowing who said something gives or takes from the credibility of the comment at times, or at least puts the comment in perspective.

  59. Weirick says:

    That is a great line.

    Alexander Hamilton, among others, would disagree.

  60. Gene Fidell says:

    Loco, tant pis for the head-shed if younger lawyers they should be mentoring and encouraging come away instead being professionally tongue-tied/chilled.

    Esoterica alert: according to the Wikipedia entry on The Federalist Papers:

    “At the time of publication, the authorship of the articles was a closely-guarded secret, though astute observers guessed that Hamilton, Madison, and Jay were the likely authors. Following Hamilton’s death in 1804, a list that he drew up became public; it claimed fully two-thirds of the essays for Hamilton, including some that seemed more likely the work of Madison (Nos. 49-58, 62, and 63). The scholarly detective work of Douglass Adair in 1944 postulated the following assignments of authorship, corroborated in 1964 by a computer analysis of the text:

    * Alexander Hamilton (51 articles: nos. 1, 6–9, 11–13, 15–17, 21–36, 59–61, and 65–85)
    * James Madison (26 articles: nos. 10, 14, 37–58 and 62–63)
    * John Jay (5 articles: 2–5 and 64)
    * Nos. 18–20 were the result of a collaboration between Madison and Hamilton”

  61. Anonymous says:

    Indeed, I bet CAAFlog would be happy to add you and Anon 2228 as official bloggers. Dwight?

    CAAFlog may or may not be happy but this mid-level officer would not. I doubt my identity would add any veneer of credibility to my posts. I’m just a guy talking on a message board.

  62. Anonymous says:

    I’ve been a JA long enough to know that the bureaucracy destroys those who go against its all-knowing policy decisions – this is the military, after all. So it’s easy for civilians to attack the decisions of O-6s and flag officers, and not so easy for us still wearing the uniform to speak out and not expect to suffer some type of retribution. It’s not fair for the CDCs out there to expect that uniformed officers to identify themselves.

    As for going joint, I’ve been detailed counsel of IMC to 3 of 4 DoD services + DHS (formerly DOT). What we call “cultural differences” come more into play in the investigative/pretrial stage (following proper protocol to locate, interview witnesses – playing on strengths/weaknesses to CAs – trying to figure out if your clients record of service is worth a damn). However, once you step in that courtroom in front of members, so long as you can speak their language, it’s the same game.

    A better idea would be to have a joint TDS and Trial Shop in every area staffed with officers from every branch. For example, in San Antonio, TX, you could have one defense and one prosecution office with a USA, AF, and USN counsel. This would give the counsel the type of back-up desired while reducing resources.

    The answer is not to bring all counsel to one spot and fly them to where the case is – this does an injustice to our profession and obligation to represent servicemembers.

  63. Anonymous says:

    If the Navy JAGC wants to save itself and its ONLY statutory mission, it better figure out a way to convince its commanders that courts-martial are worth the time and cost. The Army and Marine Corps – even the Air Force – seem to get it and do it better than the Navy.

    The Navy’s proposed plan to move defense counsel to a few locations (I think TJAG has said this plan is to go into effect in FY2012) and fly them where they need to be will only serve to further decrease the caseload. How can the Navy expect to convince commander’s to court-martial Sailors while increasing the costs, time, and effort associated with a court-martial. If the Navy wants to save its court-martial practice, it has to make it more convenience, less expensive, and faster for commanders to see results. The current plan does the opposite.

    I agree with Col Sullivan that it will only be a short time before the line community and politician number crunchers start asking questions. And from the stats quoted, it looks like the Navy has the most explaining to do.

  64. Anonymous says:

    Anon 1619-

    That is actually one of the best plans I’ve heard of; a joint office for DCs in major military concentration areas. Does anyone know if they respective TJAGs have looked at something like that? It maintains the “culture” perspective.

  65. Anonymous says:

    A corollary question, why is that the air force has so many more attorneys than the navy when the navy is actually larger? Why does the air force have almost as many attorneys as the army?

    Is the air force JAG corps the right size and the other two too small or is the air force too big?

  66. Christopher Mathews says:

    For what it’s worth, I prosecuted an Army NCO in a general court-martial at the request of the local Army SJA a while back.

    The local trial counsel was relatively inexperienced, it was a serious case involving offenses against an AF dependent that took place on an AF installation, and the Air Force SJA endorsed the request. I recall that I had some learning-curve issues getting up to speed on day-to-day Army procedure, but once we got into court things went pretty much as expected.

  67. Gene Fidell says:

    Esoterica alert II:

    For a list of pseudonyms used in the debates over the Constitution see http://en.wikipedia.org/wiki/List_of_pseudonyms_used_in_the_American_constitutional_debates.

  68. Anonymous says:

    AF and USA JAGs still do contract work and other specialized areas of the law; DoN has hired civilians (OGC) to handle most of these matters. Navy JAGs serve in legal assistance, military justice, SJA, operational, and some environmental capacities.

    If you combined the OGC attorneys with the Navy JAGs, I bet DoN has more lawyers than DoAF.

  69. Anonymous says:

    I agree with Gene.If you have something to say, say it with your name attached to it.

    says yet another not on active duty person.

  70. Anonymous says:

    Rumor has it that the proposed plan by Navy JAG will pull all defense counsel from locations like Newport, Groton, Pensacola, Kings Bay, Great Lakes, Millington, Gulfport, Corpus Christi, Bangor, Everett, New Orleans… Look forward to lower numbers from the Navy. This isn’t really cost-saving, its cost-shifting. Making the CAs pay to fly DCs out (see JAGMAN) won’t instill confidence and willingness to pursue courts-martial.