Over at Jurist.org, retired Marine judge advocate Lieutenant Colonel Robert Bracknell presents a strongly-worded proposal for greater transparency in the military justice system:

Disappointingly, two simple reforms that could transform the landscape of military justice have been wholly overlooked. This is the first of a two-part series addressing each of these issues, advocating modest, affordable, easy to implement reforms that would improve transparency and public accountability for the military justice process. First, Congress must amend the Uniform Code of Military Justice (UCMJ) to mandate real-time, open access to paper and electronic court-martial records. The legislation should direct open access through PACER or some other electronic online system on the same basis and availability as the records of Article III courts—without a requirement to wield the Freedom of Information Act (FOIA) to gain access to military judicial records. Second, Congress should mandate unrestricted access to records of attorney and judicial misconduct on the same basis as the professional standard set by most state bars and judicial codes of conduct.

Noting that “the past few years have been simply dreadful for military justice,” Lieutenant Colonel Bracknell gives examples and finds that “the anecdotes and metrics at least suggest a problem in culture, legal and command competence and ethics and senior leadership.” Along these lines he believes that “the opaqueness of the military justice system itself is one very important aspect of the wider institutional failure.” He concludes:

Improving access to information can lead to greater political and supervisory accountability for military justice decisions and outcomes and can help shape the debate regarding military justice in terms of expanding or contracting the rights of the accused, refining offenses and changing judicial procedures for greater efficiency and effectiveness.

I wholeheartedly agree, and I’ve repeatedly written about the need for greater transparency when considering issues like the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force, and even the very existence of this blog.


16 Responses to “A powerful new call for greater transparency”

  1. The Silver Fox says:

    Totally agree with this.

  2. The Silver Fox says:

    And, by “this,” I mean the two reforms he proposes.  Not your argument with regard to TJAG certs, which is misguided.

  3. Dew_Process says:

    @Silver Fox – if you agree with the premise that greater transparency is called for in re military justice, that must, by definition include the many misguided attempts by the AF TJAG to abuse the cert process.  By “abuse” I am expressly referring to the fact that if one studies the legislative history of the UCMJ, it is rather obvious that the process was designed to bring “uniformity” to the process, i.e., the AF didn’t interpret things differently than the Army, or that whether or not a specific defense applied wasn’t limited to one Services’ CCA etc.  The AF GAD has used procedure this as a means to try and improve their “metrics” a/k/a statistics in affirming dubious convictions.  That was and is the whole point of the on-going debate about the AF’s certification history for the past few years.

  4. The Silver Fox says:

    Enough with the tinfoil hat conspiracy theories with respect to the Air Force government appellate division.  Did y’all ever consider the possibility that the government merely wants to appeal because (just like the defense often does) it has a reasonable disagreement with the CCA’s decision and believes the CAAF may be able to correct the error?  I guess the defense is the only side that should be able to appeal a decision of the CCA.  And, as an aside, I’m with Justice Scalia that legislative history is meaningless.

  5. stewie says:

    I’m fine with both reforms, but the former ain’t going to be doable without a significant increase in court reporters or a significant investment in new technology IMO.

  6. Zachary D Spilman says:

    I appreciate your take on the certification issue The Silver Fox. I certainly didn’t expect my opinion of the appearance of bias to go unchallenged. But let’s look back at the context of my April 29, 2014, post that raised this issue. In that post I wrote:

    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.

    I don’t believe that the Government should be without recourse from an adverse decision by the CCA. But in the Air Force (for example, as the other services are the same) the judges on the CCA are there because the Judge Advocate General of the Air Force put them there. See Art. 66(a), UCMJ. The fact that the Judge Advocate General may disagree with – and certify for CAAF review – decisions by the judges on the CCA is a healthy sign of the CCA’s independence. But if those certifications are dramatically one-sided, then it raises an unhealthy appearance of bias by the JAG. As I wrote back in April:

    The fact that none of these cases [where the CCA sided with the Government] 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.

  7. RKincaid3 (RK3PO) says:

    Amen!  Sunlight is the best disinfectant!! 
    As for additional court reporters, yes.  And while beefing up that specialty, the system should also switch to true CSRs–not this “speaking into a box voice recognition system” that is convoluted, inaccurate and takes longer to clean up and transcribe and use. 
    Additionally, summarized transcripts are a waste of paper and any testimony taken, say, at an Art 32 hearing, under oath that will lead to a trial must be fully transcribed.  This ridiculous practice of having the defense task a paralegal (or the defense counsel doing it themselves) to transcribe cassette tapes of Art 32 recordings (that sometimes the government makes the defense buy if the defense wants a copy)–if intelligible at all–in order to prepare for trial is not only time consuming, wasteful, ineffectient and insipid, it is simply unprofessional and works a true disservice to all service members.
    Justice is expensive.  Injustice, revenge and retaliation are not.  Which of those is the UCMJ supposed to effectuate?

  8. The Silver Fox says:

    But doesn’t CAAF basically still have a “grant” veto even on TJAG certs when they summarily affirm without oral argument?  That happened a few times recently, although not in Katso, Buford, Piolunek, or Huey this term (granted, some are cross-appeals). 

  9. Zachary D Spilman says:

    I see a substantive difference between a summary affirmation by CAAF (against the Government) and a denial of review (against an individual appellant). 

    But lets ignore that difference for a moment and look at some recent stats.

    Last term CAAF summarily affirmed the CCA in six certified Air Force cases (ArriagaLindgrenMcIntyreSetonBurns, and McDowell). It heard oral argument in two certified Air Force cases (McPherson and Wilson) and a third Air Force case with a cross-certification (Finch). It held over three more certified Air Force cases to this term (Morita, Katso, and Buford) and there are cross-certifications in two other Air Force cases still pending on the court’s docket (Piolunek and Huey). Of these five active cases, two already have scheduled oral argument dates (Piolunek on Oct 8 and Morita on Oct 20). 

    So, out of the last fourteen Air Force cases with certified issues (this number includes cross-certifications) there were just six summary dispositions. Six is 43% of fourteen.

    None of those summary dispositions were in cases with cross-certifications (i.e., the certification occurred after a grant of a petition by an individual appellant), so perhaps a better comparison excludes the three cross-certified cases. That leaves a total of eleven certified Air Force cases yielding six summary dispositions. Six is 55% of eleven.

    Put differently, assuming CAAF hears oral argument as scheduled in Morita, and it schedules and hears oral argument in Katso and Buford, that will mean that the court hears oral argument in five out of the last eleven certifications (excludes cross-certifications) by the Judge Advocate General of the Air Force. That’s a whopping 45%.

    I say a whopping 45% because the chance that an individual appellant’s issue gets to oral argument at CAAF is nowhere near this number.

    CAAF’s FY13 annual report (page 17 of the PDF) reveals these two data points from the September 2012 Term (September 1, 2012 to August 31, 2013) (Note: comment edited to reflect that these numbers are from the 2012 term, not from FY13):

    Petitions for grant of review denied . . . . . 635 

    Petitions for grant of review granted . . . . 103

    That’s a grant rate of just 14% (103 out of 738).

    The same report (page 21 of the PDF) shows that the court heard oral argument in only 36 cases. Of those 36 cases, we know that four were certified (Datavs (Air Force), Vazquez (Air Force), Medina (Coast Guard), and Schell (Army)). So individual appellants were granted oral argument in just 32 cases.

    32 oral arguments out of 738 petitions for review is just 4.3%. That’s more than an order of magnitude less than the Air Force number of 45% discussed above.

    And even where the court granted review on petition by an individual appellant (103 cases), it granted oral argument in just 31% of cases. That’s one-third less than the 45% rate enjoyed by the cases certified by the Judge Advocate General of the Air Force.

  10. The Silver Fox says:

    It was my understanding there would be no math.

  11. RKincaid3 (RK3PO) says:

    Math???  Really???  Folks, I am with The Silver Fox.  I became a lawyer for a reason–and it was because it didn’t involve generally math.  :)

  12. stewie says:

    Bit of a sample size apples to oranges. 738 v. 11. Makes cross percentage comparisons pretty meaningless.

  13. John O'Connor says:

    Actually, I don’t think better access to court records, so access is on par with the federal courts, would be all that expensive.  In federal court, transcripts generally aren’t available on line — you have to contact the court reporter and pay for transcription of the transcript.  What is available on line are filings.  So you could have the TC (or a clerk working for the judiciary) electronically file the charge sheet after referral and then any motions, rulings, and (ultimately) a results of trial form could be electronically filed by the TC or chambers.
    I think many would be surprised how few motions, etc., are filed in courts-martial.  In that sense, it’s not that different from federal court, so the chief value would be better access to charge sheets and results of trial. 
    I also am of the view that there’s really nothing to see re complaints about the JAG certification process.

  14. Butch Bracknell says:

    Teaser alert — look for Part 2 on Monday.  Part 2 is likely to strike a nerve within the JAG star chambers.

  15. stewie says:

    part 2 of what??

  16. Butch Bracknell says:

    Part 2 of the Jurist post.  They asked me to break the article in two pieces.  If you go to the original you’ll see the title says “Part 1.”