In this post I noted the publication of proposed changes to the MCM for 2017. Last week I submitted a public comment regarding those proposed changes. It’s not available on the docket website (yet), so you can read it here.
My comment addresses only one of the proposed changes: the proposal to rewrite R.C.M. 1103A (direct link) to limit appellate defense counsel review of sealed materials attached to the record of trial but not disclosed to the trial participants. This was an idea advanced last year by the Air Force Appellate Government Division (discussed here and here). The proposed change seems to be a direct response to the refusals of the AFCCA and CAAF to judicially rewrite the rule in order to limit such review. In my public comment I assert that:
There is no rational justification to allow appellate military judges to review the complete record of trial but not afford a similar right to appellate counsel (who may – and often do – outrank the judges themselves). Furthermore, protective orders issued by a court of criminal appeals or by CAAF are more than adequate to protect the privacy interests of victims, witnesses, and others whose private affairs may become part of a record of trial by court-martial.
R.C.M. 1103A was established in 2005 and reflects the considered judgment of the President informed by the decisions of the Court of Appeals for the Armed Forces (CAAF) in United States v. Romano, 46 M.J. 269 (C.A.A.F. 1997), and United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998). There are no new circumstances that warrant upsetting this settled, functional, and practical rule. The proposed amendment should be rejected.
My comment also suggests a number of additional changes to the MCM. I want to highlight one of these in particular: that the Rules for Courts-Martial explicitly state that Government counsel represent either the prosecution or the appellate government division, but not the Government at large.
Part II of the MCM repeatedly references the prosecution as a party to a court-martial, and so trial counsel should refer to themselves as the prosecution (and not as the Government or the United States). Furthermore, the arguments advanced by attorneys assigned to the various appellate government divisions are not coordinated among the divisions or with any central authority (like the Attorney General), and so the divisions should avoid the exaggerated claim that they speak for the entire Government. CAAF’s Rule 26(a) (and the AFCCA’s Rule 15.3(a)) actually allows each of the appellate government divisions to file amicus curiae briefs without invitation, emphasizing the independence of each division. If, however, each appellate government division represents the entire Government, then the rule would allow the Government to file an amicus curiae brief in support of itself.
This isn’t intended as an attack on the counsel who prosecute courts-martial and court-martial appeals. They’re professionals who represent a side in our adversarial system. But it’s at least incredibly awkward when individual prosecutors or an individual appellate government division personifies the United States. It’s also an uncomfortable characterization in a trial by court-martial where all of the participants are agents of the Executive Branch (and it could have an undue influence on the process). I realize that Article 38(a) states that trial counsel “shall prosecute in the name of the United States,” that Article 70(b) states that appellate government counsel “shall represent the United States,” and that courts-martial are captioned United States v. [Accused]. Nevertheless, I believe that use of the prosecution and the appellate government division makes an important semantic distinction.
I have already made this change in my writing on this blog, generally referring to trial counsel as members of the prosecution and to appellate government briefs as the product of the division involved.