Article 67 of the UCMJ establishes CAAF’s jurisdiction. It begins:

(a) The Court of Appeals for the Armed Forces shall review the record in—

(1) all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death;

(2) all cases reviewed by a Court of Criminal Appeals which the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces for review; and

(3) all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review.

As quoted above, Article 67(a)(2) permits a JAG to order CAAF to review a case. Pursuant to CAAF’s Rule 18(a)(2), this is accomplished by filing a “certificate for review,” and such cases are considered “certified cases” (now tracked on this blog in this category). The JAGs have had this statutory power since the beginning: The text of Article 67(a) (2014) is substantially identical to the text of Article 67(b) (1951) (the original UCMJ) (available here).

And when it comes to this statutory power, the Judge Advocate General (TJAG) of the Air Force isn’t afraid to use it. Over just the past few months TJAG certified issues in eight cases:

  1. Jan 31: (United States v. McPherson, No. 14-5002/AF (CAAFlog case page) (Article 12 issue)
  2. Feb 28: United States v. Wilson, No. 14-5003/AF (discussed here) (Article 12 issue).
  3. Mar 13: United States v. Burns, No. 14-5001/AF (discussed here) (factual sufficiency issue).
  4. Mar 18: United States v. McIntyre, No. 14-6005/AF (discussed here) (corroboration issue).
  5. Apr 2: United States v. Seton, No. 14-6008/AF (discussed here) (lost evidence issue).
  6. Apr 11: United States v. McDowell & DeMario, No. 14-5005/AF (discussed here) (gov’t writ pet.).
  7. Apr 18: United States v. Piolunek, No.s 14-5006 & 14-0283/AF (CAAFlog case page) (cross-certification).
  8. Apr 22: United States v. Morita, No. 14-5007/AF (discussed here) (subject matter jurisdiction).

This is a huge volume of certification activity in a short period of time from a single service. For comparison, CAAF’s annual reports reveal that over the past five years the court received an average total of just 7 certificates per term (11 in the 2012 term; 8 in 2011; 4 in 2010; 6 in 2009; and 6 in 2008). That’s for all the services combined.

In addition to these eight cases, three Air Force certifications from last term were on CAAF’s docket this term: a cross-certified issue in United States v. Finch, 73 M.J. 144 (C.A.A.F. Mar. 6, 2014) (CAAFlog case page), and the plain error issue in Arriaga and LindgrenThis brings the running total of Air Force cases with certified issues on CAAF’s docket this term to a whopping eleven.

But these eleven Air Force cases have something in common (besides the fact that TJAG felt it necessary to seek civilian review at CAAF of the decisions of his own hand-selected subordinates at the CCA). The certifications are almost exclusively to the benefit of the prosecution. Subtracting the two cases with cross-certifications (where TJAG certified issues only after CAAF granted review of the service members’ petitions), seven of the remaining nine cases involve CCA decisions that favored the service member. The other two are Wilson and McPherson, with practically-identical Article 12 issues certified to CAAF. But in Wilson, the appellant asserted an 8th Amendment violation for 23-hour/day administrative segregation (and specifically rejected the argument that Article 12 was violated), and in McPherson the appellant raised the Article 12 issue in the context of a claim of ineffective assistance of counsel (along with other issues). The certifications in these two cases might benefit the service member in the long run, but they’re not the main issues that were pursued on automatic appeal at the CCA. And none of the certifications is a clear effort in support of the service member and against the prosecution (though the opposite is certainly true).

Certification is the primary way for the Government to appeal a CCA’s decision to CAAF, so it makes sense that many certifications will involve CCA decisions adverse to the Government’s position. But there’s no reason that TJAG couldn’t, or shouldn’t, certify an issue favorable to a service member. Certification isn’t a guarantee of relief – CAAF need not grant oral argument, it might find a certified issue moot, or it might resolve the case summarily – but certification is a greater guarantee than the petition process and it does not require a showing of good cause. But none of the recent Air Force certifications involves an issue adverse to the Government’s position (the Article 12 certifications are neutral at best). Rather, TJAG’s certification record over the past year is suspiciously one-sided.

And that suspicion really grows when considering recent decisions of the Air Force CCA that weren’t certified. A number of notable decisions by the CCA in the past year attracted this blog’s attention (meaning that we found the issues interesting), were decided in favor of the Government, and were not certified to CAAF. These uncertified cases, when juxtaposed with the cases that were certified, are evidence of a pro-prosecution bias in the certification process employed by the Judge Advocate General of the Air Force.

Below I’ll review ten such uncertified cases, starting with the case that I consider to be the most significant example (but otherwise in no particular order):

  • United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page)
    Colonel Laurence M. Soybel, USAF, was an appellate military judge assigned to the Air Force CCA from July 2006 to May 2008. He subsequently retired from active duty and was hired by the DoD as a civilian attorney. Facing a massive backlog of cases, TJAG appointed Mr. Soybel to the CCA in his civilian capacity on January 25, 2013. Judge Soybel promptly got to work, participating in numerous cases, including Janssen. But defense counsel began to question the validity of the appointment, and in May the CCA recalled all of the cases that involved Judge Soybel. Subsequently, in June, the Secretary of Defense re-appointed Mr. Soybel, and Judge Soybel again participated in numerous cases, also again including Janssen. Defense counsel continued to question the validity of the appointment, but TJAG did not certify the issue to CAAF for final resolution. Rather, numerous appellants petitioned CAAF for relief, and review was granted in Janssen in December. CAAF ordered expedited briefing, heard oral argument, and then ruled that the appointment by the Secretary of Defense is “invalid and of no effect.” Janssen, 73 M.J. at __, slip op. at 13. Notably, before CAAF issued its ruling, the court rejected a brief filed by the Air Force Government Appellate Division because it “insufficiently address[ed] the assigned issue and Appellant’s argument.” To make matters worse, numerous trailer cases awaited CAAF’s decision in Janssen (at CAAF and at the CCA). Certification would have reduced the delay in these cases by many months (and reducing such delay was presumably the reason for Mr. Soybel’s appointment in the first place). But there was no certification.
  • United States v. Yarber, Misc. Dkt. No. 2013-25 (A.F.Ct.Crim.App. Feb. 20, 2014) (discussed here) (link to order), pet. filed, __ M.J. __ (C.A.A.F. April 1, 2014) (case #14-6007/AF)
    The Air Force CCA issued two orders within days of each other in February, addressing Government interlocutory appeals of rulings by military judges. Both cases involved sexual assault allegations, both appeals were over remedies imposed by the judges, both sets of remedies were because the Government lost evidence, and both orders of the CCA were authored by the same appellate military judge: Lieutenant Colonel Weber. I discussed the orders in this post, reviewing the CCA’s reasoning for granting one Government appeal (Yarber) and denying the other (Seton). TJAG could have certified both of the cases, as they share many similarities. But TJAG didn’t do that. Rather, TJAG certified only Seton, the case where the Government lost at the CCA. CAAF is still considering whether to review the CCA’s decision in Yarber (where the service member lost at the CCA).
  • United States v. Jagassar, No. 38228 (A.F.Ct.Crim.App. Feb. 4, 2014) (discussed here) (link to unpub. op.), pet. filed, __ M.J. __ (C.A.A.F. April 14, 2014) (case #14-0512/AF)
    About Jagassar I wrote: How strange can private sexual activity be before it’s an “indecent act”? The case involved a difficult as-applied constitutional challenge to a conviction of indecent acts in violation of Article 120(k) (2006), and it raises a significant issue of sexual privacy in our rapidly-changing cultural environment. The appellant engaged in private and consensual, but odd, sexual conduct with another enlisted member of the Air Force, for which he pleaded guilty to committing an indecent act. Affirming the conviction, the CCA recognized that “sexual acts some individuals might find offensive and repugnant are still protected in the privacy of one’s bedroom,” and it recognized that “there are limits to that protection,” but without defining such limits it proclaimed that “wherever that line might fall, the insertion of living animals into the female sex organ clearly falls outside of that protection.” Slip op. at 5. Whether or not the CCA’s reasoning is sound (and I think it not), this issue deserves appellate review by civilians and a consistent application across the services; perfect reasons for certification. Yet there was no certification. Rather, the appellant’s petition for review is pending at CAAF.
  • United States v. Timsuren, __ M.J. __ (A.F.Ct.Crim.App. Oct. 2, 2013) (discussed here) (link to slip op.), rev. denied, __ M.J. __ (C.A.A.F. Jan. 16, 2014) (case #14-0126/AF)
    Like Jagassar, a guilty plea to ostensibly private (and presumably constitutionally-protected) sexual activity was at issue in Timsuren. The appellant – a lieutenant who had separate sexual encounters with enlisted members and a superior officer’s wife – wasn’t questioned by the military judge about his understanding of the constitutional protection afforded private consensual sexual activity between adults, or about the factors that would deprive his conduct of that protection. Such an inquiry is required to ensure that the service member admits that the presumably-protected activity wasn’t actually protected (for any of numerous reasons). Affirming the plea, the CCA made the broad pronouncement that “[f]raternizing through sexual conduct does not qualify for constitutional protection in the military context.” Slip op. at 6. The issue in Timsuren, like that in Jagassar, is worthy of review by civilians and of a consistent application across the services. Yet there was no certification, and the appellant’s efforts to obtain further review were denied.
  • United States v. Riley, No. S32097 (A.F.Ct.Crim.App. Nov 19, 2013) (discussed here) (link to unpub. op.), rev. denied, __ M.J. __ (C.A.A.F. Mar. 20, 2014) (case #14-0347/AF)
    A simple one-day guilty plea shouldn’t require 147 post-trial days for the convening authority to take action, but that’s what happened in Riley. “In the absence of evidence of legitimate reasons to explain the lengthy delay, we find that the Government acted indifferently in meeting well-established and clearly defined time standards,” ruled the CCA. Slip op. at 6. But it seems that the Government gets to be indifferent when the service member is a bad person “who was convicted of serious offenses.” Slip op. at 6. The CCA gave no relief to the appellant, a free pass to the indifferent Government actors, and sent the message that in the Air Force, people who commit serious offenses don’t get enforcement of their constitutional rights. The case wasn’t certified, and CAAF denied review.
  • United States v. Mobley, Misc. Dkt. No. 2013-21 (A.F.Ct.Crim.App. Dec. 20, 2013) (en banc) (discussed here) (link to order), rev. denied, __ M.J. __ (C.A.A.F. Jan. 7, 2014) (case #14-6002/AF)
    “[T]he military judge found that certain statements of the Air Force Chief of Staff and the President – in the context of the current political climate surrounding sexual assault in the military – presented some evidence of UCI.” Order at 2. Unlawful Command Influence (UCI) is a due process issue, and when the defense presents some evidence of UCI at trial, then the Government must disprove the UCI or its prejudicial effect beyond a reasonable doubt. But the prosecutor in Mobley didn’t offer much evidence to meet this burden, and the judge dismissed the charges without prejudice (allowing the Government an opportunity to resurrect the charges in a cleansed environment). The prosecutor then decided that he’d like another chance to present evidence, and moved for reconsideration. But the judge denied the motion, noting that the prosecutor already had a chance. The Government appealed and the CCA reversed the judge’s ruling, finding that the judge should give the prosecutor another chance. TJAG didn’t certify, CAAF refused to review the case, and the prosecutor (presumably) got his second chance.
  • United States v. Carr, No. ACM 38025 (A.F.Ct.Crim.App. Aug. 15, 2013) (discussed here) (link to unpub. op.)
    Speaking of second chances, last October I asked, “How many licks does it take to approve a punitive discharge?” In Carr, the convening authority didn’t approve the adjudged punitive discharge. Months passed before anyone thought to try to change this (perhaps because the convening authority’s action was unambiguous). Yet the CCA granted a Government motion to give the convening authority an opportunity to approve the discharge. But ten more months passed before the CCA issued an order reminding the Government of its opportunity to have the discharge approved. A successor convening authority got the message, and approved the punitive discharge more than two years after the sentence was adjudged. Reviewing this timeline, the CCA noted its concern “that the processing of the appellant’s case broke down at some point along the way.” Slip op. at 4. “Broke down” is a charitable interpretation, I think. TJAG didn’t certify, and it seems that the appellant just gave up at that point (CAAF’s daily journal shows no record of a petition for review).
  • United States v. Sousa, No. 37889, __ M.J. __ (A.F.Ct.Crim.App. May 30, 2013) (discussed here) (link to slip op.), rev. denied, __ M.J. __ (C.A.A.F. Oct. 17, 2013) (case #13-0607/AF)
    Ever since CAAF’s decisions in United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011) (link to slip op.), and United States v. Gaddis, 70 M.J. 248(C.A.A.F. 2011) (link to slip op.), there has been confusion over the process to enforce Military Rule of Evidence 412 (the “rape shield” rule). In Sousa, the Air Force CCA rejected a challenge to the Appellant’s conviction of forcible sodomy of his wife, based on an asserted error in the trial judge’s ruling under M.R.E. 412 that excluded a video recording of other sexual activity between the unhappy couple. Certification of this case would have added badly-needed clarity to this area of the law, even if the facts presented something of a softball for the Government. But TJAG didn’t certify, and CAAF denied the appellant’s petition for review.
  • United States v. McFadden, No. 37438 (A.F.Ct.Crim.App. Sep. 26, 2013) (discussed here) (link to unpub. op.), pet. filed, __ M.J. __ (C.A.A.F. Nov. 26, 2013) (case #12-0501/AF)
    Update: rev. granted, __ M.J. __ (C.A.A.F. Apr. 24, 2014)

    CAAF remanded McFadden to the CCA to consider “[w]hether the military judge abused his discretion by failing to excuse for cause a court member who accused appellant of lying by omission by exercising her right to remain silent.” 71 M.J. 403 (C.A.A.F. Sep. 19, 2012). This issue was not raised during the CCA’s first review. But on review after remand, the CCA found no error, prompting me to write a post titled: Remaining silent isn’t a “lie of omission,” but it’s ok if a member thinks it is. Considering the appellate history of McFadden, one can’t help but assume that TJAG would have certified the case had the CCA found error and reversed. But with no error and the conviction affirmed, TJAG did not not certify. The appellant’s petition for review by CAAF is still pending Update: CAAF’s daily journal was updated after this post was published, revealing that the court granted review of the issue of the member’s disqualification.
  • United States v. McPherson, 72 M.J. 862 (A.F.Ct.Crim.App. Nov. 19, 2013) (discussed here) (link to slip op.), pet. filed, __ M.J. __ (C.A.A.F. Jan. 22, 2014) (case #14-0348/AF), cert. for rev. filed, __ M.J. __ (C.A.A.F. Jan. 31, 2014) (case #14-5002/AF) (CAAFlog case page)
    While TJAG did certify an issue in McPherson, it’s an issue that involves a potential violation of Article 12 (that prohibits confining service members with enemy prisoners or foreign nationals not part of the armed forces). Even if there was an Article 12 violation in McPherson, it’s a minor one, as the service member was allegedly confined with a foreign national for all of eight days. The CCA considered the issue and granted no relief, but TJAG certified anyway. Yet while that’s the only certified issue, it’s hardly the only issue in the case. As Sam wrote, the AFCCA Goes Back to the Future to Find Corroboration for Confession in McPherson. Whether a confession to drug possession may be corroborated by physical evidence that did not exist until years after the confessed possession is a serious legal question worthy of further review. And Senior Airman Mcpherson petitioned CAAF for review of this issue (and others, including the Article 12 issue). But eleven days after that petition was filed, TJAG certified only the Article 12 issue. Whether the corroboration issue gets reviewed remains to be seen.

The fact that none of these cases was certified by TJAG doesn’t prove the existence of bias in favor of the prosecution. But when compared with the relatively-massive number of Air Force certifications on CAAF’s docket this term, these uncertified cases create a growing appearance of bias. It’s unlikely that TJAG is truly only interested in appealing Government losses, but it’s certainly starting to look that way.

Such an appearance of bias is a threat to the entire military justice system. Just as “[t]he validity of this system depends on the impartiality of military judges in fact and in appearance,” Hasan v. Gross, 71 M.J., 416, 419 (C.A.A.F. 2012) (CAAFlog case page), so too does the validity of this system depend on the impartiality of the Judge Advocates General in fact and in appearance. Each TJAG (and the SJA to the CMC) is the leader of their respective judge advocate communities, and they wield substantial power and influence over their subordinates. And when it comes to that power and influence, “what matters is not the reality of bias or prejudice but its appearance.” Liteky v. United States, 510 U.S. 540, 548 (1994) (discussing the standard for judicial disqualification).

Unfortunately, there’s no easy answer to the growing appearance of bias in the Air Force certification process. A rush of anti-prosecution certifications would just invoke cynicism. So too would the failure to certify pro-prosecution issues strongly deserving of further review (such as the AFCCA’s recent opinion reversing the convictions on confrontation grounds in United States v. Katso, __ M.J. __, No. 38005 (A.F.Ct.Crim.App. Apr. 11, 2014) (discussed here) (link to slip op.)).

The better answer is transparency, sunlight being the best disinfectant. Undoubtedly, there’s a process to obtain TJAG certification in the Air Force. That process needs to be more public and – if it isn’t already – it needs to be adversarial.

But sticking with the status quo isn’t a good option as the appearance of pro-prosecution bias in certifications by TJAG will just continue to grow, threatening the integrity of the military justice system and inviting further intervention by Congress.

5 Responses to “The appearance of bias in the certification of cases by the Judge Advocate General of the Air Force”

  1. Nathan A. White says:

    Zach, here is an additional fact.  Of the 8 certified cases, all of them occurred on the date of the last permanent USAF JAG’s last day in office (31 January 2014) or afterwards.  The USAF JAG completed his term 31 January 2014 and retired effective 28 February 2014.  See http://en.wikipedia.org/wiki/Richard_C._Harding.   In other words, at least 7 of 8 certifications have occurred during an interm caretaker period.
    Presumably, the certificate in McPherson was signed before 31 January by the previous permanent USAF JAG.  As for the rest, they were probably certified by one of the two general officers who have performed the duties of the USAF TJAG since.  The first GO was the retiring USAF DJAG who was brought off terminal leave to perform the duties of the USAF JAG for approximately a month.  Since then, the Reserve Mobilization Assistant to the TJAG has performed the duties of the USAF JAG.  As of today, no published guidance has stated when a new permanent USAF JAG will be begin performing duties as the USAF JAG. 
    Just an interesting fact tossed out there for general consumption on the issue of TJAG certification.
     

  2. John O'Connor says:

    I’m not sure this shows much.  As you note, the accused has a petition for review and a means of seeking CAAF review.  I understand that certification automatically provides some level of CAAF review and that review via petition is discretionary.  But in the cases you cite where review was denied, CAAF seems to have agreed with TJAG that CAAF review was not appropriate.
    For the instances where CAAF granted review, I can’t tell from your post how many of those cases involved a request for TJAG certification that was denied.  In any event, I don’t necessarily think that a TJAG should view Government and Defense requests for certification through the same lens.  For the defense, the TJAG might reasonably conclude in many cases that CAAF ought to decide whether review is a good use of court resources.  For the Government, TJAG is forced to be the final arbiter of that question.

  3. phil cave says:

    This is not a new “problem” or concern.
    I forget whether it was 92 or 93.  As deputy at NAD I had the pleasure of working with a group of outstanding people.  That included then Captain Dwight “My Liege’ Sullivan and then LCDR Nan “Nanbo” DeRenzi.  Of the many issues on our radar were the practice of certifications and also specified issues.
    Like today, we had the perception, and we believed “evidence” of a bias in certifications and there was a lack of transparency.  We’d hear about the certification when it was filed with the court.
    So, we tried to advocate with the then 02 and NAG and  . . . for a different approach.  We did get some transparency through a requirement to have the request served on us and an opportunity to counter argue.  We also started to submit requests for cert.
    So here we are again.
    Gene Fidell has a post on the certification issue at “Gambling in Casablanca?”
    His provocative question is, should the Congress repeal the power, or in some way make it more equal.  That would leave the government without recourse to “appeal” on an issue of significant importance.  Which Zach argues ought to be heard without regard to who the potential beneficiary would be, rather than the system.
    If the power is taken away, a suitable replacement idea is to give AG the power to petition for review themselves.  Certainly more balanced and transparent.  It also removes the appearance of partiality of the TJAG.  Unfortunately the AFTJAG appears more of an advocate than an administrator.  In a system where the TJAG is also the proponent of defense counsel services and resources, you cannot escape the appearance of an imbalance in many ways.
    So, put removal of the certification power and a right to petition on the we are looking at MJ panel for consideration.
    The addition of 11 additional petitions for review will not stress CAAF’s docket.
    (Oh, on the specified issues.  We had a judge who liked to specific issues and then shoot them down.  I think it was over 100 specified issues  – we did a retrospective study, none of which ultimately were resolved in the appellant’s favor.)

  4. Zachary D Spilman says:

    Three points in response to John O’Connor:

    1. You say that where CAAF denied review, the court seems to have agreed that certification was unwarranted. I think this is a leap, because CAAF can’t deny a certification. It can (as I wrote) dodge the certification, but it also can (and does) dodge granted issues. Either way, that dodge occurs only after the review that Article 67 says the court “shall” conduct. To get that review, a service member must show good cause, while TJAG need only file the certificate. It’s the difference between the journey to the courthouse and what happens when you finally get there.

    2. You write that of the granted cases, you can’t tell “how many of those cases involved a request for TJAG certification that was denied.” Bingo. That’s why I suggest greater transparency. At the outset, is there even a process for a service member to request certification in the Air Force? Though, if there is such a process, it begs the question of why it never seems to result in certification on behalf of the service member…

    3. You say that TJAG should view certification through a Government-friendly lens. I tend to agree, and I acknowledged in my post that certification is the Government’s way to appeal to CAAF. So it makes sense that certifications skew towards the Government. But the trend at issue is far more than a skew. It is – as I wrote – “suspiciously one-sided.”

    Here’s a hypothetical. Imagine an appellate defense counsel calls his client with good news of a favorable decision by the CCA. But he warns the client that it’s not over yet, as the JAG has 60 days to certify the case. The client says, “gee Sir, that doesn’t seem fair. After all, didn’t the JAG appoint the guys who just decided the case in my favor?” The attorney responds by noting that if the CCA had decided the case in favor of the prosecution, then they would have asked CAAF to review the case. “Sure,” says the client, “but had the CCA decided in favor of the prosecution, would the JAG still send the case to CAAF?”

  5. Another AF JAG says:

    There is an area where TJAG certification of a “defense” issue makes a lot of sense … cases where the punishment does not result in appellate review.  Many of those cases have significant legal issues that are often better developed than the cases where there is appellate review.
    Back when the legality of the order for anthrax was the big issue … as well as the scope and application of US v. Grill, I represented a doctor that refused the anthrax vaccination.  Before making that decision, he reviewed not only the medical literature – but also the discussions in Congress and elsewhere regarding whether the use of the anthrax vaccination in that form was “experimental.”
    He was convicted but did not result in a sentence that provided him appellate review.  Unfortunately, that was one of the main reasons that the client demanded trial by court-martial … because he felt like he was in a better position to raise the issue and he wanted to raise awareness to the real concerns.
    We requested TJAG certification of numerous issues … issues that cried out for resolution.  Unfortunately, TJAG elected not to certify any of the issues … so neither AFCCA nor CAAF had authority to review the case.
    Is anyone aware of a case/situation where TJAG actually certified an issue at the request of defense counsel?  I am unaware of any in the Air Force.