Number Nine in our annual countdown is a double-play by the U.S. Air Force Court of Criminal Appeals. Proving again that the military-justice system can be one that generates self-inflicted wounds, AFCCA has managed to create two different systemic challenges.

We begin with Judge Soybel. His name is attached to the issue of the proper appointment of civilians to a service CCA under Article 66(a). Apparently, Judge Soybel retired from the U.S. Air Force a number of years ago. Post-retirement, he went to work for the Air Force as a civilian. Along the way, he was put on the appellate bench. But how was he “put” on the bench? Was he appointed? Was it a valid appointment?

Defense counsel challenged his appointment and moved to vacate decisions where he was on the AFCCA panel. Our very own liege, Phil Cave, was among the defense counsel raising this issue. (Here and here). CAAF cares and began to remand Soybel cases. SECDEF wrote a letter. He appointed Judge Soybel to AFCCA under 5 U.S.C. § 3101. In one case, United States v. Janssen, on 11 September 2013, AFCCA denied the defense motion to vacate on the appointment grounds. CAAF, on the other hand, was busy in September 2013, issuing over ten of these sorts of orders:

In light of Ryder v. United States, 515 U.S. 177 (1995) and United States v. Carpenter, 37 M.J. 291 (C.M.A. 1993), vacated, 515 U.S. 1138 (1995), the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for further review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2006), by a properly appointed Court of Criminal Appeals. Thereafter, Article 67(a), UCMJ, 10 U.S.C. § 867(a) (2006) will apply. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

(Daily Journal for September 2013).

Just on Christmas Eve, Zack noted that CAAF has taken the Janssen case and set it for expedited briefing. (Here). More on that concept in a minute, but CAAF’s order included the great, preemptive line: “Requests for enlargements of time to file pleadings will not be favorably received.” (Here). Code 45 alum of the Diaz era may recall a classic enlargement in the Ashby case taken by one of the Marine majors. It was one of the best pieces of legal writing ever to grace NMCCA’s steps, but I digress.

Here is what absolute befuddles me. In the tort context, one measures negligence by weighing the risk of problems and the consequences of those problems against the costs of avoidance. Here we have an appointment procedure that is unclear at best. The potential consequences include dozens and dozens of cases being remanded and the possibility of having to conduct new Article 66 reviews. The costs of avoidance are relatively small – get those civilian judges properly appointed in the first place.

The comparison to tort law raises the related concept of notice. What sort of notice did the Air Force JAG, the Secretary of the Air Force, and SECDEF have that some defense counsel might spot and attack this issue?

As one anon commentator and Cap’t Crunch, pointed out, the issue of appointments to AFCCA came up in United States v. Lane. In fact, one of CAAFlog’s first discussions was about Lane. I argued with Col Sullivan that Lane wasn’t that important as it was a “one-of-a-kind” situation. (Here).

But appointments of CCA judges has a longer history as an issue. My very first CAAF argument was in Walker v. United States on a panel composition issue. (On a petition for extraordinary relief written by No Man). There just about the entire bench had been conflicted off the Walker case because almost all the NMCCA judges had worked on Walker and Parker or one of the companion cases.

But, you say, Lane and Walker were really about conflicts of sitting CCA judges. How could the Air Force have known appointments per se were a big deal? Well, not one, not two, but three of the twenty of so military justice cases to make it to the Supreme Court since 1983 have related to the appointment of CCA judges. Edmond v. United States, 520 U.S. 651 (1997); Ryder v. United States, 515 U.S. 177 (1995); Weiss v. United States, 510 U.S. 163 (1994).

How could the appointment of a civilian to AFCCA not been carefully managed to avoid this red-button issue for CAAF?

A rhetorical question that brings us to the second act of this play: Appellate Delay. While CAAF might be expediting the briefing of Janssen, apparently the Air Force has been having trouble with its docket. (Discussion here and here). Subject to two McClatchy articles over the last two years (here and here), the AFCCA has been missing the Moreno clock in a shocking number of cases. According to McClatchy, some of the problem appears to be staffing. Haven’t we heard this tune before? Was there any doubt post-Diaz, Toohey, and Moreno, that the government has the responsibility to properly staff its offices to ensure timely post-trial review? This is, as No Man called it, certifiably guano crazy.

Has anybody in the Air Force defense bar bothered to compare the AFCCA’s decisions with the government’s briefs? Seems like it would not be beyond the realm of possibility that AFCCA went for a triple-play and started copying the government briefs Jenkins style.

In honor of ESPN’s Mike and Mike morning show, I have to give AFCCA the Chris Carter, “C’Mon Man!” shout-out. AFCCA’s woes make it this year’s Number Nine Military Justice Story.

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