The Coast Guard issued a published Melendez-Diaz decision last week (link here).  United States v. Byrne,  __ M.J. __ (C.G. Ct. Crim. App. Nov. 10, 2011).

The case was decided by the alliterative panel of Chief Judge McClelland, Judge McGuire, and Judge McTague.  Judge McGuire wrote for a unanimous panel.

While I disagree with parts of the court’s Melendez-Diaz analysis — suprise, surprise — what struck me the most forcefully about the opinion was the following line: “In his sentencing argument, Trial Defense Counsel requested a bad-conduct discharge to ensure appellate review of the case.”  The military has an irrational appellate review system.  It lavishes attention on the propriety of many convictions that were the result of a guilty pleas while providing no judicial review for many contested convictions that may have enormous consequences to the accused — including being the basis for administrative separation from the military or a lifetime of sex offender registration.  The statement above, which was not further remarked upon, highlights the system’s irrationality.  Any justice system in which the defense counsel is arguing for a harsh punishment in order to be allowed to challenge the trial judge’s rulings before a higher court is a bad system.

13 Responses to “Published Melendez-Diaz decision by McCoast Guard Court of McCriminal Appeals”

  1. Cloudesley Shovell says:

    There is still the opportunity for Art. 69 review. Now and then one of the JAGs breathes life into 10 USC 869 by modifying or setting aside a conviction, even if the poor statute stays mostly dead most of the time.

    That aside, I agree in principle with your observations. I wouldn’t call the system irrational. It makes a lot more sense where the military justice system is treated (as it should be) solely as a tool for the maintenance of good order and discipline in the armed forces. Except that’s not how it currently works. I doubt the drafters of the UCMJ envisioned the military justice system becoming just another federal criminal court, laden with the full panoply of procedural issues as well as collateral consequences outside the military environment.

    Rather than messing with the structure of appellate review under the UCMJ (other than reducing the lavish attention on guilty pleas), perhaps it’s time to limit the collateral consequences of a UCMJ conviction to the stigma of the conviction itself and, if applicable, the stigma of a BCD, DD, or dismissal. If the gov’t wants something beyond military good order and discipline (sex offender, loss of voting rights, loss of 2nd A rights, etc.) they can prosecute the case in an Art. III court.

  2. Zachary Spilman says:

    I’ve looked at the opinion just enough to see that the appellant was tried by Special Court-Martial. Accordingly, his case, if sub-jurisdictional, would have been reviewed by a judge advocate under Article 64, UCMJ, with an opportunity for appeal to the JAG under Article 69.

    I conduct Article 64 reviews as part of my routine duties, and I take that responsibility very seriously. I thoroughly review records and am not the slightest bit afraid of returning one for corrective action. However, while I often review records with skepticism, my hands are tied when potential issues are not litigated at the trial stage (a surprisingly common situation), and I can only guess if something that looks fishy was actually a problem. I also see very few allegations of legal error post-trial.

    Maybe Review Officers in the Coast Guard are afraid to get their hands dirty (unlikely) or worry about political backlash (possible, I suppose), but I see plenty of other, better ways to get appropriate relief than asking for the severe penalty of a punitive discharge.

    One more look back at the opinion and I see that the findings and sentence, including the BCD, were affirmed.

  3. Cheap Seats says:

    Capt Spilman – Not all Article 64 reviews are thorough like yours. I note that you are a CAAFLog “Contributor.” Many I have seen are rubber stamps, even after allegation of error is made, the review does not comment on the errors alleged. The fact that CGCCA affirmed is not necessarily where this case concludes. I guess we will have to wait for CAAF to see if asking for a BCD was the right answer. I saw a Navy case where counsel did the same thing and got the reversal from NMCCA. Time will tell.

  4. italldepends says:

    Even if, for argument’s sake, a 64 review is not a rubber stamp, I’m not convinced the typical AF reviewer is up to the task. But that shouldn’t be a problem at the 69 level. I’d love to know the numbers on the 69s–assuming there is a large enough sample.

  5. Charlie Gittins says:

    With recent experience with Zach, I am confident he does the job that is anticipated by Article 64. But in 25 years of practice, I will also tell you that he is the exception rather than the Rule.

    Here is an example: MJ makes an ethics complaint against civilian defense counsel shortly before trial. On the first day of trial, the MJ calls for forum selection and the officer accused selects MJ alone. The MJ does not disclose that he has made an ethics complaint against CDC and sits as fact-finder. Once accused and CDC go through FOIA and FOIA appeal (which demonstrated no rational grounds for the original withholding), the accused makes an Article 69 appeal claim . . as of Feb this year. No answer yet.

    My suggestion as to why? Well, if they find error, which is clear, then they have a sitting Judge that they need to discipline for lack or candor. All of his decisions are then in question . . .

    Notwithstanding Cak Spilman, the Article 64 and the Article 69 processes are a freaking joke. Staffed by personnel that are not considered ready for prime time.


  6. Charlie Gittins says:

    Oh, and by the way, both the JAG and the state bar conclude no ethics violation, without any investigation required.

  7. Cap'n Crunch says:

    I will tell you that I have RARELY asked for a punitive discharge to guarantee review. But I have done it. When I have done so, it has been in the circumstance when I feel pretty strongly about the possibility of reversal. But, yes, the system is problematic when you have to ask for a higher penalty to ensure review. How about we also provide automatic review for any contested general court martial?

  8. John Baker says:

    For those of you pushing for more automatic review of subjurisdictional cases — would you allow the accused to bargain away this right in a post-trial deal in exchange for approval of a lower punishment? I’ve long been a proponent of letting an accused sell what he can waive and wrote my JAG School thesis on this topic too many years ago. I forwarded the paper up the chain as a formal proposal to amend the UCMJ and RCMs to allow an accused to negotiate at arm’s length for a lower sentence in exchange for no automatic appeal to the service CCA (the accused would get an Art 64 appeal instead). Unfortunately, the proposal died in the joint service committee a few years ago, despite the support of the naval services.

  9. italldepends says:

    It depends on the case, but as DC, I probably wouldn’t, JB. With a “subjurisdictional” sentence, I’m probably not looking for sentence relief, especially since by the time that negotiation takes place, there probably isn’t much left to serve/pay. I wouldn’t complain about having the option, though, and what a good tool for the gov.

  10. Bill C says:

    The operative term being “post-trial.” The problem I see is that TC don’t always have a long term view of things, so they would likely not go for it.
    I currently have two clients with sub-jurisdictional sentences, both of which require SOR, and both of whom plead guilty. Seems to me their property interests are a lot higher than someone with a BCD who plead guilty.

  11. Nancy Truax says:

    The Datz case highlights the irrationality in the system. Convicted of one spec of rape and a whole bunch of other stuff (striking a petty officer; treating a petty officer with contempt; dereliction; violation of lawfel general regulation; and unlawful entry). He was sentenced to reduction from E-5 to E-3 and confinement for three months. The Chief Counsel (as he was then called) referred the case for Art. 69 review. One issue for the CGCCA was legal sufficiency of the evidence wrt the rape charge. The CGCCA found the evidence to be legally sufficient, but in a footnote stated, “If we were evaluating the evidence for factual sufficiency under the terms of Article 66, UCMJ, we would have to weigh the evidence and it would have to convince us of Appellant’s guilt beyond a reasonable doubt. . . . Upon Application of that standard of review, the Court might very well have set aside the finding of guilty.” Imagine explaining to your client how his trial defense counsel did such a good job on sentencing that they effectively but unintentionally ensured his conviction. Fortunately for Datz, CAAF reversed on an evidentiary issue.

  12. Zachary Spilman says:

    “Normally, under Article 66, UCMJ, we would be able to make an independent assessment of the facts supporting the judge’s determination as part of a de novo review of his evidentiary ruling. However, since this record of trial was referred to the Court pursuant to Article 69, UCMJ, not Article 66, UCMJ, we may take action only with respect to matters of law under the terms of Article 69(e). Accordingly, we are limited to reviewing the judge’s ruling for abuse of discretion rather than exercising the broad review power granted this Court by Article 66, UCMJ.” United States v. Datz, 59 M.J. 510 (C. G. Ct. Crim. App., 2003) (citations omitted), rev’d on other grounds, 61 M.J. 37 (C.A.A.F., 2005).

    “[T]he scope of review by the Courts of Criminal Appeals differs in significant respect from direct review in the civilian federal appellate courts. In addition to reviewing the case for legal error in a manner similar to other appellate courts, Congress has provided [under Article 66, UCMJ] the Courts of Criminal Appeals with plenary, de novo power of review and the ability to determine, on the basis of the entire record which findings and sentence should be approved.” United States v. Roach, 66 M.J. 410 (C.A.A.F., 2008) (citations omitted).

    The Datz case highlights the irrationality in the system.

    Considering that the CGCCA in Datz acted like a typical federal appellate court, I assume the irrationality is in a sentence of just 3 months confinement for rape.

  13. Charlie Gittins says:

    The argument to be made under Article 66 where you have a sentence of 3 months for a rape is “residual doubt.” I had some traction with AFCCA on a petitioner for new trial in a child abuse case where the allegation was frank child sex abuse of two very young girls over a multiple year period. There were a hundred reasons to believe the allegations were false, including the two affidavits from the two girls that their mother put them up to it and the later DuBay hearing, but 1 year for rape of a couple of babies is, frankly, a firm indication that the members were conflicted and did not believe the allegations beyond a reasonable doubt.