This is the second post in what I hope will be a weekly series about scholarly articles of interest to military justice practitioners. Please send any tips or suggested topics to zack@caaflog.com

In an article published in the Air Force publication The Reporter (available here), retired Colonel James Young (who is currently the Senior Legal Advisor to CAAF’s Judge Stucky) offers ten recommendations to reform court-martial procedure. They are:

  1. Remove authority from the convening authority to select court members, approve the findings and sentence, grant clemency, and preside over vacation proceedings.
  2. Eliminate summary courts-martial and grant field grade officers authority to impose confinement for 30 days as a nonjudicial punishment under Article 15.
  3. Establish standing courts.
  4. Modify special courts-martial to judge alone trials.
  5. Except in capital cases, require sentencing by the military judge. The military judge should be required to impose any sentence agreed to by both the convening authority and the accused.
  6. Require the service Secretaries to establish a system for randomly selecting court members.
  7. Require all counsel to be qualified and certified under Article 27(b).
  8. Modify the military appellate court system by: (1) granting all accused convicted of an offense at a general or special court-martial the right to appeal to an appellate court; (2) eliminating the service Courts of Criminal Appeals; (3) changing the Court of Appeals for the Armed Forces from a discretionary appellate court sitting en banc to a court comprised of panels of three judges, operating in a manner similar to the U.S. circuit courts of appeals; and (4) removing restrictions from appeals to the Supreme Court.
  9. Require a verbatim record for every court-martial conviction.
  10. Consolidate the government appellate divisions so that when counsel purports to speak for the United States, it does so with one voice.

Each suggestion is accompanied by a brief discussion.

14 Responses to “Scholarship Saturday: A proposal to reform court-martial procedure”

  1. stewie says:

    My thoughts:
     
    1. I’m ok with this so long as the appellate courts gain a clemency function (or at least the Service Courts).
    2. No.
    3. Eh. How’s this going to work with folks coming and going every 1-3 years?
    4. No. I don’t see the point of taking this option away from the accused, particularly when many serious charges can go to a Special, including SOR offenses. Besides most SPCMs are judge alone, so I don’t think there would be all that much streamlining.
    5. No. What problem is here that needs solving? Panel members are amateurs? OK, many judges are too, particularly in today’s no specialization paradigm. Leave it at the discretion of the accused.
    6. This goes with 1 so ok.
    7. Sure, although in practice this happens how often?
    8. 1) OK. 2) What? No. 3) No. 4) Yes.  What’s the point of 2-3? CAAF would be overwhelmed in that setup.
    9. I suppose if you are doing 8-1 then you have to do this too.
    10. No. I don’t think we need government to speak with one voice. Do we have one Federal Circuit Court of Appeals that speaks with one voice? No.  That diversity lets things percolate until it gets to the Supremes.

  2. Transition O says:

    The narrative over the past few years has centered on court-martial and convening authorities (mostly GCM). I don’t understand why equal attention is not paid to administrative issues (ad sep, LOR, etc) that suffer from many ailments and are also tied to convening authorities as they generally have the ability to send things admin or send them to trial. Also, it’s the convening authorities highest in the chain and are responsible for the administration of their units, the discipline, the mission, and the justice. The common theme no one wants to confront is poor leadership. 
     
    As for the list above:
    1. Assume that’s reasonable. And, I’m inclined to strip away a lot of power from convening authorities. In short – they have failed. CA powers are not the only things that should be stripped from many of them. Career should be removed as well. We have serious problems at the top of the pay chart.
    2. If #1 is reasonable, i.e. that curtailing CA action makes sense, how in the wide wide world of sports can COL Young believe a field grade officer with half the time in service and half the rank of most CAs, is qualified to send people to jail for 30 days as a part of NJP? Such an idea deserves no decorum or politeness. It’s stupid and he should be confronted with that.
    3. I think he meant ‘court rooms’ instead of courts. I echo the concern of stewie above. 
    4. No. Further, I would say to eliminate special and summary. Every trial should be GCM. People complain about bogging down the system and so forth. I say make it painful for the chain of command. GCM suffers from enough problems and every time we take it down a notch to a lower-ordered proceeding, the problems increase. GCM is the only court-martial that should exist. Beef up the system to accommodate that change, don’t continue compromising justice for the sake of a system. 
    5. I’m not sure I see what problem is being addressed, or the benefit of the proposed remedy here. Maybe this issue deserves further research or clarity.
    6. No. Let the ABA come up with a system and force the service secretaries to comply; and, no the secretaries get no input. Congress gives ABA a blank check on that one and everyone gets out of the way and let’s them come up with a proper system. 
    7. Why is this not already 100% uniform? Shameful that such a requirement is not met. 27b2 is critical and should be used to bring the service JAG on the yellow footprints and held to answer, and be accountable for, those under his or her leadership. Further, these requirements should apply for Chief of Justice positions, TDS, and so forth, to include those going to sep boards etc. Why are we ok with the notion that service members can receive anything less? 
    8. …. 1) Yes, and expand to allow anyone facing separation from an admin procedure based on UCMJ punitive articles be allowed the same, in other words, if you go to a sep board instead of trial, and say, Art107 is the issue at hand, then you get to appeal. Why let CAs cook the books at admin proceedings simply to avoid a trial? Further each of these appeals needs to be reflected on a CA’s evaluation, yes I propose a military justice addendum to evaluations for CA’s. We need to track what they’re doing, how many frivolous cases they send to trial or admin, how many are overturned etc, how much damage they do to justice and service members. A failed tactical commander has such items documented and considered in an evaluation because of the compromise to mission and life, why is it not done when it comes to justice matters? It’s part of the mission and affects service member lives and the service overall.  2) Last transmission unreadable, say again, OVER 3) Negative, continue mission, OUT 4) RGR
    9. Why is this not done already? We can’t afford a box of AA batteries at every proceeding? 
    10. Such a statement must come with the caveat that there are no longer any certifications by service JAGs. Sure, go ahead.

  3. Zeke says:

    1.  Concur, kind of.  Members should be blind-selected by a DoD-level authority using the services’ personnel roles, and members selected to serve in a members’ pool should be placed on temporary duty to travel to the location of whatever standing court they’ve been detailed to for a period of 30 days; military judges should be appointed by SECDEF and should make the decision in vacation proceedings with the accused having the right to petition a joint CCA for discretionary review.  The CCAs should be abolished and a Joint CCA created.  That Joint CCA should continue doing factual sufficiency reviews of findings and should be given the additional power to grant clemency – rather than only having the power to correct an inappropriately severe sentence.
    2.  Nonconcur.  I don’t see what this gains.
    3.  Concur.  SECDEF should appoint joint military judges to preside over standing courts at our larger bases to try GCMs and SPCMs.  Services should be required to refer any GCM or SPCM to one of these joint standing courts.  I’d recommend these locations for joint standing courts:  NS Kitsap WA, JB Lewis-Mcchord WA, Travis AFB CA, Camp Pendleton CA, Ft Irwin CA, Nellis AFB NV, Davis-Monthan AFB AZ, Kirtland AFB NM, Peterson AFB CO, Ft Bliss TX, Lackland AFB TX, Ft Hood TX, Sheppard AFB TX, Ft Riley KS, Tinker AFB OK, Ft Polk LA, Ft Leonard Wood MO, NAS Great Lakes IL, Ft Knox KY, Ft Campbell KY, Ft McClellan AL, Hurlburt Field FL, Jacksonville NAS FL, Ft Benning GA, Ft Gordon GA, JB Charleston SC, Ft Bragg NC, Camp Lejeune NC, Seymour Johnson AFB NC, JB Langley-Eustis VA, MCB Quantico VA, JB Andrews MD, Aberdeen Proving Ground MD, Ft Drum NY, JB Hickam HI, JB Elmendorf-Richardson AK, USAG Stuttgart Germany, Lakenheath AB England, NSA Naples Italy, CFA Yokosuka Japan, and Kadena Air Base Japan.  Once appointed by SECDEF, military trial judges should serve controlled four year terms.  SECDEF should establish a judicial review panel with at least 1/4 civilian non-DoD members, for the purpose of writing the performance reports of military judges and making recommendations should a judge need to be relieved before the end of their tour.  Removal should require both the recommendation of the judicial review panel and personal SECDEF approval.  Members of courts-martial should be detailed by a DoD-level convening authority and should serve in a temporary duty status at each of those standing courts for a period of thirty days.  The DoD level convening authority should select members blindly from the roll of active duty members from each service.  Each members’ pool should be joint, with each service being represented according to its share of the overall active duty population of the DoD.  While the pool should be required to be proportional, the panel selected from that pool to try any given accused should not have to be proportional.  The selection of members from the pool to try any given case should be random.  The panel to try any GCM or SPCM should have to be no fewer than 7 members and a conviction on a non-capital offense should require concurrence of 3/4 of the members (capital convictions should continue to require unanimous verdicts and 12 member panels).  No accused should have the right to be tried by a panel consisting of members from their own service, thought it should not be prohibited if the selection process yields such a result.  The cost of convening joint courts-martial should be paid by a DoD-level authority, and each service’s military justice budget should be reduced accordingly.  
    4.  Nonconcur.  Just keep summary courts.
    5.  Concur, kind of.  I’m okay with it if military judges serve controlled tours, are appointed by SECDEF, are rated by a judicial review panel, and are removable only with the panel’s recommendation and SECDEF’s personal approval. 
    6.  Concur.  Discussed already.
    7.  Sure, whatever good that does.
    8.  (1) Concur. (2) Concur, kind of.  Abolish service CCAs and create one Joint CCA. (3)  Nonconcur.  Keep the CCA/CAAF model but make the CCA one joint Court.  Let that CCA keep factual sufficiency review power since we’re not requiring unanimous verdicts or full-size “juries” (hopefully factual sufficiency review power will counter the risk of wrongful convictions that comes with not having 12 member unanimous panels), and add clemency power to the Joint CCA’s toolbox as well.  (4) Concur.
    9. Concur.
     
    10.  Concur.  And, that joint appellate office should be required to obtain approval of the DoD General Counsel before filing a government appeal under Article 62 with the joint CCA.  That office should be required to obtain DoD/GC approval again before certifying a case to CAAF.  SCOTUS certs by the government, of course, should still require Solicitor General approval.

  4. TC (not trial counsel) says:

    From a Convicts, PoV:
     
    1.  Yes.  Panel members should be randomized.  Clemency powers should go straight to the AFCPB.
    2.  No.  But since summary is much like a 15 maybe think about bumping it up to 3-6 months?
    3.  Yes, as Zeke pointed out.
    4.  No.  And what?  Maybe sentence by a judge, except that the members still vote whether the accused gets the kick.
    5.  See above.  Would be ok if the discharge is still voted by members and give the members/MJ power to suspend.
    6.  Yes.
    7.  kk
    8.  I have a better idea.  Maybe the Court of Veteran’s Claims and CAAF could be merged.  Like CAAF they are appointed 15 year terms.  The Military Judges would be magistrate judges appointed not by TJAG but by the new CAAF.  Military Judges could also hear CIVIL claims on VA benefits which would go nicely with you and Zeke’s point at #3.  It would also open up Civil litigation Exp. for career JAGs.  Pay should also be augmented.  I’m not sure about removing the service courts, maybe they could be combined.  Maybe require judges to certificate of appeal.
    9.  Including Summary?  Thought this was done already excluding summary.
    10.  Sure, again while you are at it combine the appellate judges as well.

  5. RKincaid3 (RK3PO) says:

    I absolutely LOVE this!  This is a good–nay, a GREAT–start!!  But much more is yet to be done.  The UCMJ will evolve, one way or the other, into a true justice system, as that is the inevitable trend since the legendary Crowder-Ansell debates circa 1916 or so.

  6. Lieber says:

    If some of you had read the link the recommendations would make more sense…but I’m a huge fan of 6, with 1, 3 and 5 being close seconds.

  7. stewie says:

    I read the link before I responded, and thus my responses remain what they are. 1 is ok, 6 goes with 1, 3 & 5 no way for the reasons stated.

  8. Contract Lawyer says:

    The one piece here that would bring fairness back to the process is the random selection of members.  With the current hysteria, there appears to be a biased against accused service members at courts-martial and this is magnified by the CA’s ability to personally select (stack) the panel.  We often talk about all the “bad cases” that will go to trial and the acquittals that will result, but many of those cases that should not have been referred do result in convictions and the principle that the system should allow some guilty to go free to prevent conviction of the innocent has been turned to accept conviction of some innocent in order to bring to trial and convict a greater number of accused.  If our system were static in the due process, which includes the right to a jury of peers, then the intake side of this problem would not matter as much because the referral of cases that should not go to trial should result in verdicts that are proportional to the strength of the cases referred.  An example of an appropriate reason to increase referral of cases is advances in technology, such as DNA, that actually prove guilt as opposed to referral of cases because social or political reasons such as command influence, political correctness, propaganda, moral panic, hysteria, predisposition biased or agenda-based reforms, panic reactions, judicial anxiety, and victim mentality mindset.      
    When the deck gets stacked on both ends (procedural laws/rules and members/jurors) the result is injustice.  Those social/political reasons are the root cause and also render most people blind to even the existence of a problem.  I have always seen the impact of the CG’s ability to stack a panel, but I believe that has been equitable until recently.  Random selection of panel members will allow a more diverse pool of members and points of view.  There would be a greater likelihood that the entire jury pool will not be drinking the Kool-Aid. 

  9. DCGoneGalt says:

    Contract Lawyer:  My 2 cents is that it all depends on what reform of choosing panels is adopted.  However, any proposal has the potential to become centralized in DC and I do not believe giving Big DOD and the Pentagon any authority over SPCMs/GCMs is a good answer.  They have shown they are unwilling/unable to withstand the political pressure and any proposal to give them more authority runs the risk of leading to regional standing panels of members who are chosen largely because they are “with the program”.  IMO, CAs (especially GCMCAs) DO NOT stack panels.  In the vast majority of cases I have found that they are interested in choosing a true cross-section of their command.  In the few instances I have suspected stacking it is SJAs that have tried to stack panels (through the members they nominate) and when it is brought to the attention of CAs they generally do the right thing.

  10. Zeke says:

    DCGoneGalt: good points, all.  Makes me rethink my opinion regarding having a centralized CA detail members.  My experience, too, has been that SPCMCAs and GCMCAs are not stacking panels… I’m much more interested in seeing minimum panel sizes of 7 or more members, requiring the pool from which CAs pick meet the demographics of the command, and boosting the proportion required to convict closer to unanimity.

  11. Contract Lawyer says:

    DC Gone – I agree if that is how the “random panels” will happen, but I was thinking about a real justice system.  What you are talking about is something else.

  12. James says:

     Regarding #1 recommendation to remove the CA from the court- martial panel selection process, this is a long held view by COL Young-See-Colonel James A. Young, III, Revising the Court Member Selection Process, 163 MIL. L. REV. 91, 107 (2000) (“As long as the person responsible for sending a case to trial is the same person who selects the court members, the perception of unfairness will not abate.”)
    His his solution in the Article is the judge should pick the panel members–he does not advocate for random selection in the article. 
    Regarding random selection, there have been at least two experiments in US Army Hstory — at Fort Riley in the 1970s and in Germany (v corp) in 05 or 06–interestingly, the AAR Comments from both were similar in one regard:  
    –FORT RILEY–See Letter from Captain Peter W. Garretson, Chief Trial Counsel, to Major Rex Brookshire, Deputy Staff Judge Advocate, Fort Riley, Kan. 6 (Feb. 20, 1975), reprint (“The primary objection of this office [to random selection] … is the inexperience and lack of maturity of the lower enlisted men. These soldiers do not have a sufficient amount of knowledge of the military community or of the way of the world to sit in judgment of their fellow soldiers.”); see also Letter from Colonel Robert L. Wood, Military Judge, to Major Rex Brookshire, Deputy Staff Judge Advocate, Fort Riley, Kan. 6 (Dec. 13, 1974) (“So far as I know, no one has ever contended that jurors should be immature, uneducated, inexperienced, have no familiarity with the military service, and have no judicial temperament …. I therefore recommend that … a new program be devised which … will not lower the qualifications of jurors.”).
    –V CORP–Two attorneys who tried cases before V Corps’ random panels complained they were “too junior.” Another attorney who observed the experiment posited “[a]ny time you have a first lieutenant as the board president, the government should be concerned ….”
    Also, the JSC studied a randomized system in he the late 90s– they ultimately rejected the reform–one of their primary concerns was panel member competence.  One of their rationals was random court-martial selection methods undermine competence because the best and least qualified within a given group have an equal chance of being selected.
    Finally– there was one possible solution to this matter in my view–have the CA blindly select the members based on article 25(d)(2) criteria– the Army has a personnel database that will allow a query based on article 25 criteria.  
     
     

  13. stewie says:

    Now that last little bit I can get on board.  A blind selection where no names or photos are used just age, years, rank, and what not.
    You could still have the lower level nomination process perhaps.

  14. DCGoneGalt says:

    Zeke:  I am tracking with you 100%, albeit perhaps not with your sense of evangelical zeal, on providing juries rather than panels to military accused.  This is even more so with the recent practical evisceration of the Article 32 process.  If Congress and military leadership in DC want to make the military justice system more like the civilian justice system, then go whole hog and provide a truly command-free chosen 8-10 SPCM members and 12 GCM members with a near unanimous vote.  My fear is that the reform ideas will only get worse because now, instead of being killed at an Art 32 where actual discovery/confrontation occured, terrible cases will be referred to trial based on the all-paper Art 32.  This will then spur more demands for reform, perhaps the member selection process discussed in the article, that will either be centralized (and thereby politicized) in DC.
     
    Contract Lawyer:  I still believe that the military has a “justice” system, generally the members (especially the enlisted) do the right thing when presented with the fats and instructions on the law.  I would certainly say that I trust the average confidential member panel to make the call on an Art 120 case much more than I do the average O-5/O-6/O-7 non-confidential commander to make the call on the same case on an Art 15.  My fear is that this independent and rational thought by members may fade as military leadership in the future makes the issue of “being with the program” on this issue a criteria for advancement.  IMO, rational (i.e. non-political, on all sides) thought on these issues still exists in private conversations, but there are few people who are willing to question the status quo outside of small private discussions because of the legitimate fear that DOD/service/JAGCorps leadership does not wish to hear honest feedback if it differs from sycophantic repetition of the dogma that has been passed down from on high.