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?

23 Responses to “Sen. McCaskill’s bill to amend Article 60(c) (plus some thoughts on the current countretemps over CAs’ power to alter findings)”

  1. Phil Cave says:

    Time to brush off my standard motion about the number of members and the percentage to convict.  

  2. k fischer says:

    I liked your points regarding the panel vs. the jury.
    With all the posts regarding the Senate hearings last week, I think we all missed one of the Lackland convictions: US v. Soto.
    Soto plead guilty to adultery and fraternization charges, but plead not guilty to raping an Airman recruit.  He went judge alone, got convicted and was sentenced to four years confinement and a dd.  
    What I found interesting was that the victim flew from California to San Antonio to have consensual sex with her rapist twice after she was raped.  In order to explain that really, really, extremely counter-intuitive victim behavior, the Government called a cross-cultural expert to explain why the 21 year old Vietnamese airman would do something like that: she was trying to save face by establishing a relationship with her rapist.  
    Had this been a panel, I would have thought UCI made its way into the deliberations and that this case should be used for the point that Congress should leave Article 60 as is.  But, it was a military judge who made the call.    

  3. k fischer says:


  4. Ed says:

    I think it is obvious that neither McCaskill or Graham have any idea. A prime example of the  “flapping mouth empty head hypothesis”

  5. Michael Lowrey says:

    Except, of course, that Graham should have any idea. And if he doesn’t, then that not exactly an endorsement of the military justice system either…

  6. Dwight Sullivan says:

    I found Senator Graham’s comments to be generally very informed and well-reasoned.  It was only his statement about a servicemember’s right to take a case to the Supreme Court that missed the mark.

  7. Charlie Gittins says:

    Dwight:  I should think that is a pretty big miss — way off the mark — for a Colonel JA who served as an appellate military judge.  

  8. Dwight Sullivan says:

    Charlie, here’s what Senator Graham said at 45:40 in the afternoon panel, available as a link from this page:

    “You do have a robust appeals system, so if there’s a legal error in the case, the accused has the right to appeal all the way to the Supreme Court, if necessary, to correct legal errors.”  Of course, the vast majority of servicemembers convicted by courts-martial never have a right to appeal to the Supreme Court.  But as errors go, that doesn’t seem like a huge one.

  9. anon says:

    Obviously this bill was done out of political expediency and is not intended to be approved in this form.  However, Article 60 cannot be read in isolation, nor can the proposed added language be added without considering Article 60 in whole.  If the CA cannot disapprove a finding what are the effects of this on Article 69 review?  Consider the effects of this proposed language with the recent movement in LIO.  How many LIO issues were resolved by the CA prior to approval? 
    Mr. Gittens, as you are aware, I’m not sure we should be citing to Senator Graham’s experience as an appellate military judge . . . considering he was not statutorily authorized to act in that role :)

  10. Tami says:

    I’m not aware that Article 69 review is all that “robust.”  Seems more like a “rubber stamp.”
    I dislike the idea of requiring a unanimous verdict in every case.  Jurors (or panel members) can hold out for any number of reasons, some unrelated to the case, and our system accounts for that by allowing for something less than unanimous (except DP cases).  If we were to go to unanimous verdicts, are we going to start allowing hung juries then?  We don’t have time for that.

  11. Devin Winklosky says:

    I get a very eerie feeling that Article 60 is merely the first domino.  Compare the CA’s decision in Wilkerson to NMCCA’s decision in Lucas (remember the stir that case caused?  If not see the discussions at and  I wouldn’t be surprised if the “Eye of Sauron” soon falls on Article 66 as well.

  12. k fischer says:

    I agree and fear that each time certain members of Congress, SWAN, RAINN, etc. hear about a result in a court martial in a sexual assault, then they will try to change the statutory authority that permitted that result to occur.
    I read the post on Lucas again, but it didn’t get a lot of press, except for the blogs.  Have you read the articles regarding one of the Lackland MIT cases, US v. Soto? 

    Similar issues of purported rape myths exist in each case.  How do you think the CCA will decide Soto on the factual sufficiency issue?  One of the glaring differences in the facts is that the Government in Soto brought in an expert to explain why the vic would fly to Texas twice after being raped the first time.  Also, Soto opted to go judge alone, instead of a panel.  I think appellate defense counsel will have a good factual sufficiency argument, but the CCA could reach a different result because an expert explained away the “rape myth” that victims do not have consensual intercourse with their rapists after they are raped.

  13. Ray Beal says:

    Dwight, excellent analysis as always!  I have to agree with General Ary that the the UCMJ is an intricate peice of legislation carefully designed to establish a fair system of justice for the unique needs of the military and that reactionary peice-meal changes to the Code should be rejected until Congress conducts a balanced and comprehensive system-wide review.  
    Your point about members vs juries is well taken and I couldn’t agree more with Tami’s point that a unaminous-vote system does not serve the military’s need for reasonably speedy justicesystem given the fluidity of personnel assignments; it wouldn’t take long for the entire system to bog down, especially when the country is on a wartime footing.  Devin Winklosky, brilliant as always, also makes a bone-chilling prediction that if the contemporary calls for reform in Congress are successful in pulling the teeth out of the convening authority’s unfettered discretion under Art. 60, the next logical target will be to shift fire on the “awesome plenary powers” of the courts of criminal appeal under Art. 66.  This is scary stuff, because it goes to the heart of the military justice syste; an expedited system designed to prevent the railroading of an accused.
    In my opinion, the so-called “military justice reforms” of recent years have had nothing to do with correcting systematic defects, but have instead been politcally motivated efforts to advance the agenda of victim right advocates (a rather safe political agenda since opposition to such a cause is fraught with political peril).  In some ways I applaud the attention that has been paid to the subject because it encorages awareness of the issue and may help prevent instances of sexual misconduct.  But I utterly reject the notion this is a uniquely military problem and I think Dwight’s posting a few days ago about the Princeton study validates the notion that sexual misconduct is a societal problem, not just a military one.  I also reject the notion that the panacea for addressing the issue of sexual misconduct lies exclusively within the criminal justice system.  Prevention is as important as accountability; and accountability is not always synonomous with a criminal conviction of one of the involved parties.  
    From a sociological standpoint, I support the practice of accepting a person’s claim that they were sexually mistreated and providing them assistance in dealing with the consequences of suffering form this sort of mistreatment. But this treatment requires a presumption that this person is a victim, which also requires a presumption that the named assailant is guilty of a crime.  I would submit that is a presumption that cannot be allowed to exist from a jurisprudential standpoint.
    It seems to me that the goal of recent efforts to “reform” the military justice system seems to be aimed at upsetting the bedrock principle that an accused is presumed innocent until proven guilty beyond a reasonable doubt.  If a presumptin of guilt is allowed for sexual misconduct then it should also apply to any other crime, I can’t see how a sex-crime exemption to this fundamental rule can legitimately exist in any justice system.  If the vocal champions of “reform” have their way, I fear the military justice system may revert to the kind of system existing prior to the UCMJ which caused so many post WWII veterans serving in Congress to undertake the sweeping reforms adopted in 1950.  
    My apologies for the soap-boxy tone of this posting.  It’s nice to be able to finally engage in the discussion at this forum.  Semper Fi!

  14. nw says:

    Col S., great analysis as always.  As we’ve spoken about, instead of getting in a dither about Article 60 which is perfectly fine as is, I’d like to see Congress do away with Articles 64, 66, and 69 and establish CAAF as the sole military appellate authority w/ discretionary review to hear all cases that end with a conviction.  This serves several interests.  First, it maintains civilian control of the military justice system, which is an important way to protect the integrity of the military justice system.  Second, it gets rid of the subjurisdictional nonsense and mandatory appeals for guilty plea/judge alone convictions.  Third, it creates a judicial efficiency for the government.  So many appellants remain on appellate leave waiting for their appeal to wend its way through the system.  I’ve had clients get major surgeries through TriCare or continue to use their GI Bill while on appellate leave.  Good for them, bad for the system.  Having a one-tier/discretionary system will really focus on the cases that deserve review and dispose of the “merits” cases more efficiently.  A few tweaks will need to be considered such as whether CAAF should inherit the fact-finding powers of the CCAs (I would say yes due to the worldwide jurisdiction aspect and need to efficiently get facts before the Court) and each service would need to sort out how to allocate resources for appellants, but I don’t think it would be much different than it is now.  Right now, the CCAs are the speed bump on the way to CAAF and doing away with them helps appellants get to a Court more interested in granting relief and saves the government money by having less convicts on appellate leave using up government resources.  I am curious to see what others think of this proposal.

  15. Atticus says:

    NW.  I agree with most of what you propose, but I don’t like CAAF having fact-finding power.  I think they ought to operate just like any other federal circuit court. I also think the CCAs (especially NMCCA) has become less and less relevant in recent years because there are never any serious disagreements; you almost never see anyone take the time to write a dissent.  I don’t know whether we should read anything into that, but I read some of their product now and ask, “Really?  Is there any serious disagreement in the panels anymore on anything?”  Or is it just too much work to disagree with the one judge who takes the record and writes the memo recommending such and such resolution?  I liked the old days of Captain Clyde Villamez writing a dissent that ran twice as long as the majority opinion.  He may have been right or wrong, but he always made you think.  That was a robust CCA practice.  But your proposal will not be received well by those whose existence would be snuffed out – appellate judges and appellate counsel. (Well we would still need appellate counsel but their numbers would be vastly reduced.)  And if the CCAs remain, I for one think we need to pay some serious consideration to how we vet appellate judges.  I think you have no business being an appellate judge if you don’t have at least one tour as a trial judge.  We need to stop sending O-6s to be appellate judges just because they want to “kick it” for a while or do their “twilight tour” at the Navy Yard and they have never sat in a trial judge’s chair.

  16. Phil Cave says:

    1.  Create a standing trial judiciary so people can seek judicial relief for pretrial stuff so they don’t have to file writs or let the problem fester.
    2.  Do away with CCA’s.
    3.  Mandatory review for all cases in which the accused pleads not guilty, and is found guilty regardless of sentence.
    4.  Discretionary review for all other cases, but ensure appellant has the advice and assistance of an Appellate Defender – this shop can be Purple.  Do away with Service AG/AD, go purple, save money.  (And BRAC NJS, TJAGSAF.)
    5.  Allow for appeal to the Supremes in the same manner an appellant from a federal circuit can get there.  Although I believe, Skippy, that IAC is done through habeas not direct appeal, not how we do it?

  17. TC says:

    It seems to me that the days of an NMCCA job being a twilight tour are in the past. The not-so-distant past maybe, but almost every judge who has transferred to NMCCA in the last 6 years has been deserving of the job, and most have had tours on the trial bench.  It’s still not a perfect system, but your criticism is one that might have been fair 10 years ago, but is much less so now.

  18. Atticus says:

    Unless I am mistaken, there are 3 active duty Marine judges (all O-6s) and 2 active duty Navy judges at NMCCA who have never been on the trial bench.  And there are at least three reserve judges who have never been trial judges, including the one who authored the Lucas opinion referred to above by D. Winklosky. That would seem to rebut your comment that “MOST” of the NMCCA judges have been trial judges before. “Deserves” is different from having the requisite experience.

  19. Dwight Sullivan says:

    Being a trial judge isn’t “requisite experience” for being an appellate judge.  The vast majority of Supreme Court justices haven’t been trial judges.  The vast majority of CMA/CAAF judges haven’t been trial judges.

    Being a trial judge is a significant qualification.  But it’s also a qualification that might tend to orient the appellate judge in a certain direction.  Given that appellate judging is a group effort, it is likely conducive to sound decisionmaking to have appellate judges with a variety of backgrounds.  I don’t see any reason to suspect that an all-former-trial-judge appellate court would render better decisions overall than would a court with a mix of former trial judges and non-trial judges.

  20. TC says:

    I suppose I should have said “many”, as opposed to “most”, of the recent NMCCA judges have had trial tours.  And when I said they were deserving, I meant qualified, which I do believe means they have the requisite experience.  I’m not saying that’s necessarily universal, but it’s the norm.

  21. Atticus says:

    You both make good points.  But when Dwight says being a former trial judge “might tend to orient the appellate judge in a certain direction,” the only direction I think it would point to is a better understanding and proper application of the abuse of discretion standard.  Too many appellate judges trot out the abuse of discretion standard and then go and substitute what they would have done, etc. The same holds true for factual sufficiency review.  I think a former trial judge is in a better position to understand that portion of the standard that makes “allowances for not having personally observed the witnesses.”  Again, the courts will trot that out and then never apply it.  See Lucas above.

  22. Dwight Sullivan says:

    Might a trial judge also be more likely to sympathize with a military judge making rulings to control his/her courtroom that interfere with the counsel’s ability to try his/her case?  Throughout my career, I’ve found myself influenced by my previous assignment.  It’s just human nature that that affects our views and approaches.  Of course, a CCA judge can be a former trial judge without that having been his or her immediately prior experience.  In any event, I think it helps an appellate court with exclusively criminal jurisdiction, such as a CCA, to have the perspective of some members who have been long-time prosecutors, some members who have been long-time defense counsel, and some members who have been long-time trial judges.  I also believe it would be very helpful for CCAs to have the perspective of one or more judges who was a long-time civilian counsel.  Bill Cassara for CCA judge!

  23. Ray Beal says:

    Bill has my vote!