Sen. McCaskill’s bill to amend Article 60(c) (plus some thoughts on the current countretemps over CAs’ power to alter findings)
The text of Senator McCaskill’s bill to amend Article 60(c) is now available here. Something like this is probably the least disruptive change that’s likely to result from the aftermath of Lieutenant General Franklin’s exercise of his discretion to set aside the findings of guilty in Lieutenant Colonel Wilkerson’s case. It would take away the CA’s power to set aside a finding of guilty or knock it down to an LIO while preserving the CA’s power to change the sentence if accompanied by a written justification.
I don’t expect any standalone bill like Senator McCaskill’s or Representative Speier’s to pass. Rather, I expect any change to Article 60(c) to be adopted as part of the National Defense Authorization Act for Fiscal Year 2014. But as Congress considers changes to the UCMJ arising from the current focus on sexual assault cases, it should keep in mind the sage advice offered by Major General Vaughn Ary, the Staff Judge Advocate to the Commandant of the Marine Corps.
During his testimony to the U.S .Commission on Civil Rights in January, Major General Ary observed that some part of the military justice system that might, at first blush, seem overly protective of an accused is often there to compensate for some deficiency in another area. We shouldn’t change the one area without being mindful of how such a change might ripple through the system.
One of the frustrating arguments at the SASC military personnel subcommittee hearing about the issue was that the CA’s power to set aside the findings of guilty is no longer necessary because the military justice system how has a “robust” appellate review. Of course, that’s not really true. While Chairman Levin spoke of the right to appeal a conviction to a higher military court, some servicemembers appear to be the only criminal defendants in the United States who can be convicted of a criminal offense without any right to appeal to a higher court. A servicemember can be convicted at a contested court-martial resulting in lifelong sex offense registration, residence restrictions, prohibition against owning firearms or ammunitions, disenfranchisement, and other collateral consequences without any right to appeal to a higher military court if the servicemember doesn’t happen to also receive a punitive discharge and/or a year or more of confinement. Servicemembers also appear to be the only criminal defendants in the United States who don’t have a guaranteed right to Supreme Court review of their case. During the hearing, Senator Graham spoke imprecisely by saying that a military accused did have such a right. While Supreme Court review in a military justice case is possible, the vast majority of servicemembers convicted at court-martial, even in contested cases, will never have the right to seek Supreme Court review of their conviction.
Let’s consider Lt Col Wilkerson’s conviction. A number of SASC members referred to his conviction by a jury. Of course, Lt Col Wilkerson didn’t have a jury — he had a court-martial panel. Noting that distinction isn’t some tyranny of labels. There is no such thing as a five-member criminal jury. In fact, the Supreme Court has held that it’s unconstitutional for a criminal jury to have fewer than six members. Ballew v. Georgia, 435 U.S. 223 (1978). The Supreme Court has also held that it’s unconstitutional to have a six-member jury convict a criminal defendant upon a non-unanimous vote. Burch v. Louisiana, 441 U.S. 130 (1979). Yet Lt Col Wilkerson was convicted by a five-member panel with only four votes being necessary to convict. Had he been tried by a “jury,” we have no idea whether he would have been convicted. So if we’re going to reform Article 60(c), are we also going to give a servicemember a right to be tried by a six-member court-martial panel that must be unanimous in its result? (SCOTUS, of course, has at 10-2 or 9-3 vote to convict in a criminal case is constitutionally permissible. Johnson v. Louisiana, 406 U.S. 356 (1972); Apodaca v. Oregon, 406 U.S. 404 (1972)).
The CA’s power to set aside findings has traditionally been offered as part of the justification for not giving servicemembers other appellate rights, such as the a guaranteed right to appeal upon a criminal conviction. If Senator McCaskill’s bill is adopted – either as standalone legislation or as part of the NDAA — will Congress also extend the right to judicial appellate review to all servicemembers convicted by courts-martial? Are the members of SASC and HASC who are considering amending Article 60(c) even aware that some servicemembers have no right to judicial appellate review, much less a right to a “robust” appeal?