The number five story on our list is really a combination of two issues that received a lot of discussion on the blog. The first story is related to a our number nine story from last year, and that was the issue  of the appointment of Appellate Military Judge Lawrence Soybel to the AFCCA. This time last year, CAAF had just taken a little case known as United States v. Janssen and set it for expedited briefing, with the sole granted issue being:

Whether the civilian judge on Appellant’s Air Force Court of Criminal Appeals panel was properly appointed. See U.S. Const. Article II, Section 2, Clause 2; 10 U.S.C. § 113 (2012); 5 U.S.C. § 3101 (2012).

In April, CAAF answered that question in the negative. As a refresher, Judge Soybel is a civilian litigator for the Air Force and a retired Air Force Judge Advocate. He was initially appointed to the AFCCA by Air Force TJAG to help with the growing backlog of cases at the court. Several months later, sensing there might be an issue with his appointment to the court, the AFCCA recalled the cases he had worked on and Judge Soybel was reappointed to the same position by the Secretary of Defense. He then promptly went back to work on his cases, including the Janssen case. Judge Soybel had been on the panel that decided Janssen previously, while he was serving under TJAG appointment, and was back before the AFCCA for reconsideration following Judge Soybel’s reappointment.

Following the reconsideration, Janssen raised the issue of whether a properly constituted panel had decided his case. CAAF granted the above-cited issue. The Government got off to a rocky start in Janssen, when CAAF essentially rejected the first Government brief on the granted issue as non-responsive (see here and here). Things continued to go downhill for the Government, when CAAF held that the Secretary of Defense did not have statutory authority to appoint inferior officers generally or specifically to appoint appellate military judges. Thus, absent Congressional action, the only person who could have appointed Judge Soybel to the AFCCA was the President, with the advice and consent of the Senate. Since that did not happen, his appointment was invalid. CAAF remanded Janssen to the AFCCA, and in effect over 30 other trailers as well, for consideration by a properly constituted panel.

As many have observed, it’s hard to imagine that this appointment would have been made without dotting every “i” and crossing every “t.” As a retiree, Judge Soybel could have been recalled to active duty and then TJAG would have had authority to appoint him. This certainly seems like it would have been the most expeditious route. Instead, the appointment of Judge Soybel, which was meant to alleviate the backlog issue, seems to have created even more work for the AFCCA as it had to reconsider the cases he sat on multiple times.

The second major issue this year involving Air Force appellate practice was an appearance of bias in Air Force TJAG certifications. This issue was first raised by Zack in this post from April and was discussed further here. In these posts, Zack analyzed the cases TJAG had certified to CAAF thus far in the year pursuant to TJAG’s authority in Art. 67, UCMJ. Looking at those cases, there appeared to be a strong bias in favor of certifying cases where the AFCCA decided cases adversely to the Government. Further, a number of these cases did not seem to really warrant certification in the first place. This notion seems to be supported by CAAF’s summary affirmance of them.

Additionally, Zack discussed several cases that had not been certified by TJAG, but which he believed presented important legal questions. However, all these cases had been decided adversely to the appellant/accused by the AFCCA. Chief among the non-certified cases was Janssen, which certainly warranted certification if for no other reason than to try to get the go ahead from CAAF and not dig a deeper hole for AFCCA.

This topic frequently generated some interesting discussion, with a particular emphasis on whether a “pro-prosecution” certification pattern by TJAG was really inappropriate. After all, in some cases there may be compelling legal and/or policy reason why TJAG does not want certain rulings that are adverse to the prosecution function to stand. The mechanism to challenge them is to certify them to CAAF. However, where cases start to get certified that don’t present important legal questions and cases that do present important legal questions, like Janssen, seem to get passed, one might argue things are getting unbalanced.   We will certainly be watching to see how these trends continue to develop in 2015.

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