It is commonly understood that appellate courts exist to serve two functions – “(1) correction of error (or declaration that no correction is required) in the particular litigation; and (2) declaration of legal principle, by creation, clarification, extension, or overruling.” See J. Dickinson Phillips, Jr., The Appellate Review Funtion: Scope of Review, 47 Law & Contemp. Prob. 1 (Spring 1984). CAAF was created to be the military jurisdiction’s court of last resort—it’s the military’s Supreme Court. See Noyd v. Bond, 395 U.S. 683, 694 (1969) (oyez) (related CAAFlog post).

In a recent article published by the Vermont Law School, In Order to Form a More Perfect Court: A Quantitative Measure of the Military’s Highest Court’s Success as a Court of Last Resort, 41 Vt. L. Rev. 71, Captain (USAF) Rodrigo M. Caruço posits that, in a healthy system, the work of a court of last resort, such as CAAF, should be almost exclusively declaration of legal principle rather than error correction. Captain Caruço reached that conclusion after having studied SCOTUS decisons and decisions from State courts of last resort. Those high courts rarely engage in error correction. In contrast, CAAF appears to spend just under half of its time correcting errors in individual cases rather declaring law for the military jurisdiction. Id. at 108. Captain Caruço identifies two causes for this: 1) incompetence by advocates and courts below, and 2) (perhaps because of that incompetence) CAAF does not yet feel comfortable behaving as a court of last resort should.

To remedy this situation, Captain Caruço recommends that CAAF’s rules be amended to adopt a standard for granting review that mirrors SCOTUS’ Rule 10. Such a rule would expressly state, as SCOTUS Rule 10 does, that review “is rarely granted when the asserted error consists of erroneous factual findings or misapplication of a properly stated rule of law.” Id. The rule would then provide that, except in dire circumstances, review would only be granted to serve law-declaration grounds, such as to resolve inconsistencies in how the law is being applied among the services. Captain Caruço also recommends that CAAF start “signposting” its decisions – identifying in the decision itself which law-declaration purpose compelled CAAF to grant review in the first place. By signposting, perhaps CAAF could serve as a bellwether for the entire jurisdiction – providing gentle instruction to the appellate bar which would in turn improve that bar’s advocacy. A more effective appellate bar would then presumably influence the service Courts of Criminal Appeals to weed out more errors at their level, reducing the number of cases presented to CAAF still requiring error correction.

Captain Caruço’s article does not address it, but readers will be aware that the competency of the participants in the military justice system, at all levels, has also been a concern for Congress. Indeed, through § 542 of the National Defense Authorization Act of Fiscal Year 2017 (Public Law 114-328) (the passage of which was this blog’s #1 Military Justice Story of 2016), Congress has required the service secretaries to establish “military justice experience designators or skill identifiers” so that “counsel detailed to prosecute or defend a court-martial have sufficient experience and knowledge.” That statute is also intended to ensure that judge advocates entering the military justice system get trained by folks with appropriate experience and skill to perform those duties. Additionally, the FY17 NDAA requires “appropriate minimum terms” for the assignment of military trial judges (§ 5184) and appellate judges (§ 5330). Those statutory measures were intended to improve the quality of military justice practice on the bench and from the bar, at trial and on appeal. It is hard to escape the impression that Congress also intended by those measures to make military justice a specialty practice.

If Captain Caruço’s premise is correct, then CAAF is a sentinel species for measuring the effectiveness of Congressional reforms (or the military institution’s implementation of those reforms). If the proportion of error correction decisions issued by CAAF increases, then CAAF-as-groundhog might be telling us that winter is still coming. In contrast, if the Court’s proportion of error correction decisions decreases, then CAAF-as-groundhog might be telling us that spring is nearly here.

18 Responses to “Scholarship Saturday: CAAF as sentinel species”

  1. Vulture says:

    Question of standing reach the Supreme Court.  How CAAF should not correct errors in individual cases baffles me.

  2. Burner says:

    Out of curiosity, what’s the basis for Captain Caruco’s conclusions that it is “healthier” for courts of last resort to focus (nearly) exclusively on rule making, rather than error correction? I’m skeptical of congress’s and the services’ ability to significantly reduce incompetence in the military justice system. Also doesn’t seem like CAAF is taking error-correction cases at the expense of important rule-making cases. If they’ve got the resources to address injustice on a case-by-case basis, I’m not sure I see the need to change their operating procedure.

  3. Vulture says:

    In addition, if the service wants an answer to a question of law don’t they certify the case? 

  4. Jimbo JAG says:

    “It is hard to escape the impression that Congress also intended by those measures to make military justice a specialty practice.”

     
    Indeed Congress did, before JAG brass quashed.

  5. Dew_Process says:

    The proverbial pink elephant in the room is that the CCA’s cannot be trusted to do the “error correction” function because by-and-large they exist to find ways to affirm convictions. And once upon a time, some of us remember when you stood a decent chance of getting some relief via Article 69 “appeals.”
     
    And, if one is going to point the “incompetence” finger, one needs to look at the inexperienced trial defense counsel who, while well-intentioned and zealous, simply do not have the experience factor to deal with many of the complexities – legal and factual – that permeate many GCM’s these days.  And again, that’s not to imply that there aren’t some damn good military defense counsel out there kicking butt, but with the advent of the “easy out” admin separation process, the number of trials, especially at the Special C-M level, are significantly lower. And who remembers non-BCD “specials?”

  6. Isaac Kennen says:

    Out of curiosity, what’s the basis for Captain Caruco’s conclusions that it is “healthier” for courts of last resort to focus (nearly) exclusively on rule making, rather than error correction?
     

    Then bent of Captain Caruço’s piece seems to be that, in healthier systems, the court of last resort should not need to engage in error correction as often because the trial judiciary and intermediate judiciary would have already purged error from cases before those cases reach the court of last resort’s threshold.  The extent to which that is or is not occurring is probably a useful metric for measuring the health of the system overall.  An error corrected by the court of last resort is one which was not corrected by the trial court, the staff judge advocate, the convening authority, the Judge Advocate General, and the Court of Criminal Appeals.

    Speaking to this dynamic, Captain Caruço’s article, at page 109, quotes from the Court of Military Appeals’ 1952 decision in United States v. James, 3 C.M.R. 113, 114-15:
     

    It is not this Court alone that is endowed by Congress with responsibility for insuring that courts-martial are conducted in accordance with required procedures. The reforms intended by the Uniform Code of Military Justice will not be carried out until officers concerned with ordering, conducting and reviewing courts-martial observe scrupulously their duties and responsibilities under the Code and the Manual. 

     

  7. Vulture says:

    I love that he applied a numeric score to his underlying data.  That would be interesting to get  a look at.

  8. Burner says:

    Then bent of Captain Caruço’s piece seems to be that, in healthier systems, the court of last resort should not need to engage in error correction as often because the trial judiciary and intermediate judiciary would have already purged error from cases before those cases reach the court of last resort’s threshold.  The extent to which that is or is not occurring is probably a useful metric for measuring the health of the system overall.

    In that case, the focus on rule-making is a consequence of a healthy system, rather than a cause. Wouldn’t changing the court’s rules to shift its focus be putting the cart before the horse?

  9. Vulture says:

    This is why the application of a numeric score is so impressive.  He has already proposed a metric.

  10. AFADC says:

    As someone who has practiced in both military and state criminal courts, I’m skeptical of the underlying assumption that state courts have significantly higher degrees of competence than military courts.  I’ll admit my state court experience is limited to a single state.  With that disclaimer, the litigation talent in the military I have seen, on average, exceeds that of what I’ve seen in state court proceedings – both bench and bar.  And state courts of appeal (at least in the one state I’ve practiced in) are just as likely to look for ways to affirm as the CCA’s.  I do agree that state supreme courts are less likely to correct errors than CAAF but that just means that more errors get left uncorrected, not that the competence of the practitioners at the lower levels is better.  I’ve never practiced in civilian federal court but I’ve heard from others that the litigation talent there exceeds that in both state and military courts.

  11. Tami a/k/a Princess Leia says:

    Trying to compare CAAF to SCOTUS as a “court of last resort” is like comparing apples to oranges.  SCOTUS is a civilian court, its rules are geared toward resolving civilian cases.  SCOTUS also decides civil matters in addition to criminal matters.  Third, CAAF’s mission is set by statute, not internal rule-making. 
     
    I would argue CAAF’s mission is solely error correction.  CAAF is designed to be an “error correction court of last resort” because the military justice system affords fewer protections for accused than the civilian criminal system.  Until Congress starts including protections for military accused, like a finding of no PC after an Article 32 hearing ends a case and a unanimous verdict for findings of guilt, we will always need CAAF to be an “error correction court of last resort” to fix errors in cases that should never have seen the inside of a courtroom.
     
    As far as encouraging military justice specialization, I recall a time when there WERE MJ specialists.  Those who had designators.  Many of whom ended up being told they had too much MJ experience, so they needed to do something else if they wanted to get promoted.  Today’s counsel, both trial and defense, have less experience nowadays due to the emphasis on generalization.

  12. LLOD says:

    Yeah, this ignores the perception (often accurate) that CCAs, predominately staffed with career officers,  are a rubber stamp for the Government. CAAF has to engage in error correction or no one else will.

  13. Vulture says:

    Another Cum Laude once presented an opinion on a case that is instructive here.  See US v. Stefan 69 MJ 256.  CAAF found that an error where a COJ was too involved in the post trial process but the error was harmless.  Why was it harmless?: Well, anyone would conclude that that the crimes where serious, what difference did a COJ’s opinion make?  That was pretty much what the CAAF opinion was. 
    A study determinative on what weight the CAAF opinions have on the lower courts is fine, and I am glad to see it. 

  14. stewie says:

    It’s the second level in our system. It’s roughly akin to a State Supreme Court if you think about it…but only roughly. A state crim case would go to a state appellate court, then to the State Supreme Court, then likely back through the Fed system from District Ct, to Appeals Court then finally the Supremes.
     
    And that’s ignoring that we have a unitary system where everything gets handled at once as opposed to almost every other system where attorney errors are handled differently than other issues for example.
     
    So I agree, the CAAF isn’t really a “court of last resort” even if in practice it is because the Supremes rarely take a case. Thus they absolutely should perform an error-correcting function, and the fact that they do does not in and of itself mean that the military system is more error prone than say your average State jurisdiction.
     
    I maintain if one looked at it, we’d come out pretty similarly to a lot of state jurisdiction, better than some, worse than others, but while I agree we have real issues that need fixed, we tend to beat ourselves up as if we are the dregs of the criminal justice system in America, and the reality is, I’d take a couple of TDS attorneys at Fort Whatever over an overworked PD in a major city, or a local civilian defense attorney at one of the small towns our bases are usually located in.
     
     

  15. Michael Lowrey says:

    How willing a court of last resort is to engage in correction of error depends in part upon how otherwise busy it is. CAAF doesn’t have that much on its plate these days — it issued 34 opinions last term including those cases of error correction (or not) — so it’s hardly surprising that its judges are willing to consider such cases.

  16. Isaac Kennen says:

    CAAF doesn’t have much on its plate these days – it issued 34 opinions last term[.]

     
    Some have said similar things about SCOTUS.
     
    http://www.nytimes.com/2009/09/29/us/29bar.html

  17. Charlie Gittins says:

    Part of the reason for the need for CAAF to be an error correction court is the way that the review of court-martials has evolved over time.  Initially, the Article 34 advice required the SJA to really look at a case before recommending referral.  The 34 advice might have been lengthy, not the 4 lines that it has been reduced to these days.  Similarly, the Review Officer job required the Review Officer to actually read the ROT and if error was found, bring it to the attention of the SJA.  SJA post-trial review required an actual written review, an opinion that the findings and sentence were supported by the facts (and marshaling same) and that the sentence was appropriate.  Now, SJA review is perfunctory and given the many erroneous SJA actions reviewed at both CCA and CAAF, pretty much blown off by the SJAs these days.  Without the requirement for rigorous review at the command level, it has been left to the CCAs (well, not so much) and CAAF to correct errors.   

  18. John O'Connor says:

    Given that Congress created a civilian Article I court to guard against the risk of unlawful command influence from review solely by military officers, I don’t think CAAF can ever unshackle itself from some degree of error-correction.  It simply doesn’t exist solely to ensure uniformity among the service courts.