In an upcoming essay, Vanderbilt Law Professor Nancy J. King posits that:
[State appellate courts are plagued by] a failure to correct wrongful convictions, the absence of supervision of lower courts’ handling of certain categories of issues of particular public concern, and unnecessary delay.
Criminal Appeals, in Academy for Justice, A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., forthcoming 2017).
To support her contention that, in the States, the normal appellate process is insufficient, Professor King points to a 2013 study looking at hundreds of non-capital defendants who were convicted but later exonerated by DNA evidence. That study found that “courts provided no help to 90% of them.” Id.
To explain the helplessness of those State appellate courts, Professor King points to three culprits. First, she takes aim at “the deferential legal standards courts use to review trial-court decisions.” Id. at 4. She next points out that, because the evidence required to prove procedural errors is often not part of the record on appeal, “the normal mechanisms for judicial review” (which usually oblige appellate courts to consider only matters in the record of trial) do not adequately address claims like ineffective assistance of counsel, juror misconduct, or the government’s failure to disclose or preserve exculpatory evidence. Id. at 4-5. The final reason direct appeal failed so many innocent accused is that “some of those convicted of crimes they did not commit could point to no flaw in the proceedings that led to their convictions, even though new evidence supported their innocence.” Id. at 5.
Though some of Professor King’s criticism might apply to the military justice system, not all of it does. For example, the highly-deferential standard of review that State appellate courts apply to the question of whether a trial court received sufficient evidence to prove the accused guilty beyond a reasonable doubt (i.e., whether the conviction is “factually sufficient”) does not apply to the military justice system. Unlike traditional appellate systems, Article 66, UCMJ, empowers (and requires) intermediate military appellate courts to review the factual sufficiency of convictions de novo. Unlike their civilian counterparts, the intermediate military appellate courts give the trial court’s determination of guilt very little deference. The intermediate military appellate courts must reverse a conviction unless, on the evidence of record, they themselves are convinced of the convict’s guilt beyond a reasonable doubt. This hightened standard of factual sufficiency review is an important feature distinguishing the military justice system from it’s civilian cousin. The difference is, perhaps, a reflection of the fact that military verdicts are not rendered by a jury and the court-martial panel is not required to return a unanimous verdict to convict. Nonetheless, the existence of a robust factual sufficiency review process in the military justice system effectively addresses Professor King’s third criticism, because , unlike civilian defendants, military convicts have an appellate forum where they can assert actual innocence.
While Professor King’s criticism of the standard State courts use when evaluating factual sufficiency of the conviction does not apply to the military jurisdiction, her concerns regarding the standard of review for matters other than factual sufficiency are applicable. Among the state defendants whose erroneous convictions were eventually reversed, they usually received no relief on direct appeal even when error was found. In particular, when error was found in the admission or exclusion of evidence, those errors were usually disregarded by State appellate courts as being “harmless” or as “lacking prejudice.” Id. Military appellate courts apply a similarly constrained standard when reviewing error. Article 59, UCMJ, precludes a court from granting relief for legal errors “unless the error materially prejudices the substantial rights of the accused.”
Professor King’s complaint that direct appeal does not typically permit a convict to challenge their conviction using evidence outside the record, also applies to the military jurisdiction. Article 66, UCMJ, limits intermediate military appellate courts to considering only “the entire record” when reviewing a case for error. When matters from outside of the record are needed to resolve an issue on direct appeal, the military courts are forced to employ the burdensome Dubay (post-trial fact-finding hearing) procedure. To remedy this shortcoming, Professor King recommends that jurisdictions “provide a more accessible forum (than direct appeal) for litigating non-record claims.” Id. at 11. Her article is light on recommendations regarding what a “more accessible” forum should look like in practice, other than to recommend that defendants should be able to raise those non-record claims – like ineffective assistance of counsel, juror misconduct, or government failure to preserve/disclose exculpatory evidence – to the trial court, where the record can be supplemented. Id. at 12. To that point, it is worth noting that the new Article 60, UCMJ, which will come into effect in 2019 as a result of Section 5321 of FY 17 NDAA, will allow military trial judges to engage in post-trial motions practice, subject to implementing regulations which are currently under consideration. Perhaps, non-record claims might be cognizable at those hearings.
Professor King also has some interesting recommendations for improving the timeliness of appellate review. A few of those suggestions might be useful in the miltiary jurisdiction. For example, she recommends that appellate courts adopt “a ‘sentencing calendar’ to provide expedited review of . . . sentence-only appeals.” Id. at 8. A sentence-only appeal “’can be resolved based on a review of a limited record—typically just the judgment of conviction, presentence investigation report, and sentencing hearing transcript—that can be prepared on an expedited basis.’” Id. Professor King recommends a separate calendar – not a separate court. However, if the military jurisdiction was inclined to create separate sentence-only appellate tribunals, Article 68, UCMJ, might provide a mechanism. That statute permits the establishment of “branch office” courts of criminal appeals located “with any command.” That statutory provision was left undisturbed by the FY17 NDAA, and could potentially offer a means to create limited-jurisdiction sentence-only appellate courts.
Another of Professor King’s recommendations to improve appellate timeliness is for appellate courts to adopt practices and rules which “make oral argument count.” Id. at 9. She specifically points to “[o]ne Arizona court” which provides a tentative opinion to the parties before hearing oral-argument. “After an informal conference, one judge of the panel prepares a draft decision, then provides it to the parties.” Id. This practice helps practitioners provide more useful arguments to the court, and also apparently “works to preserve collegiality and guard against confirmation bias.” Id. At least one judge of that court felt that it also did not create any additional work, but merely moved the “opinion-producing work and consultation to a point earlier in the process.” Id. at 9-10.
Professor King’s observations and recommendations regarding the civilian criminal appeals system are not applicable to the military justice system in a wholesale way. But, many of the aspects of the civilian system she critiques have analogues in the military. Therefore, some of her observations are worthy of further study, and potential application, in the military justice system.