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.

11 Responses to “Scholarship Saturday: A cure for impotent appellate courts”

  1. FlufferNutter says:

     I think we should totally change the appellate system. The burden should be on the prosecution to prove their case again at the appellate level. In other words, we should be having at least two trials for these people who are charged with crimes.  Even one wrongfully convicted person too many.

  2. Concerned Defender says:

    I like Fluffer Nutter’s take to some extent.  Perhaps not a full blown trial, or perhaps some hybrid of a trial and a paper case, presented to a totally different judge and jury.  While they would know it’s a conviction on something, they look at it with a fresh set of eyes and can call any witness or see any evidence they think needs to be reviewed anew.  A psuedo de novo review if you will.
    I will also add that if any conviction (or a discharge from the military) is overturned based on certain criteria (which could be established, but basically a violation of any of the accused rights, concealment of information, misleading witnesses, etc.) any prosecution, defense, or judge lawyer is immediately disbarred.  Yes – if you put away or help put away or are so ineffective as a lawyer to prevent same, that is IAC and you should not be practicing law. Done. Turn in your law license, do not pass go, do not collect  $200.  I am so sick and tired of reading case after case of the clearly wrong person being accused and convicted for political purposes.   All these lawyers need to have some REAL skin in the game.
    Finally, for ANY types of appeals – whether administrative or criminal, an appeal should be required to be COMPLETED in 6 months.  It is totally inexcusable for an appeal to take 2, 4, 8 years.  The harm that occurs to an innocent or wrongly separated or convicted accused is irreparable at that length of time.  And that passage of time is simply maddening.  It should not take 2 years to re-look at a case for which perhaps the trial was only 2 days.  A panel could be impaneled and give at least a preliminary review of it in a single day.  There’s NO excuse for some of these to take years – even with the backlogs they have.  
    IF it’s resources, then stop railroading so many folks into wrongful convictions or separations which waste massive amounts of resources at multiple levels. 
    Justice delayed IS justice denied.

  3. Michael Korte says:

    Concerned Defender:  Equally concerned, but what do you think should happen when the appeal is on Month #5 / Week #4 and the parties and appellate court are not complete with their review? Should the passing of time result in overturning an otherwise just conviction?  Your hybrid Court suggestion is supposed to run faster than the trial court from crime to trial in most trial jurisdictions, yet you set a goal deadline that only works if the one type of case you are concerned about is the only case the appellate judges are working on, the only case the appellate defenders are fighting, and the only case the appellate government team is defending on appeal.  1. Completeness.  2. Accuracy.  3. Speed.  Pick 2.  Right now we’re going with 1 & 2 to the best of our collective abilities.
    Delay is deeply frustrating and often embarrassing for everyone involved.  If you find yourself in the position of defending a wrongly convicted appellant, re-prioritize your caseload to reflect that and petition the court to expedite the trial/appeal and force the government to do the same.  
    Also, your post made me chuckle because “Psuedo De Novo” was the name of my Latin-based law school rock band.  We were insufferable and broke up after Jimmy quit and Jody got married.  I should’ve known we’d never get far.

  4. DCGoneGalt says:

    Gimme some Bryan Adams references from Cuts Like A Knife.  Reckless was the beginning of a slide that ended with that terrible Robin Hood song.

  5. Isaac Kennen says:

    Michael Korte said:

    If you find yourself in the position of defending a wrongly convicted appellant, re-prioritize your caseload to reflect that and petition the court to expedite the trial/appeal and force the government to do the same.  

    An appellate defense counsel won’t “find [them]self in the position of defending a wrongly convicted appellant” until they’ve reviewed the record of that client’s trial.  That won’t happen until they’ve read the record of trial for the 15-20 clients that are in front of that client in the queue.
    If we want to speed up the appellate process, there are no magic bullets or tricks to be employed.  For faster appeals, the solution is a combination of: 1) increasing the number of appellate counsel (defense and government), and 2) increasing the number of appellate military judges. All other supposed means are alchemy.  When you want more of something done, you get more people working on it.

  6. stewie says:

    I don’t know, eye of newt always worked for me in speeding up appellate review.

  7. Hmmmm says:

    Counsel can prioritize their own cases, and put contested ones first if they are concerned.  They are not Subway sandwich artists, forced by management to handle customers in the order they walked into the place.  Lay out 15-20 cases on a table. 3 are likely to be contested sex assault cases with a slight chance of an innocent client (vs. AWOL, drug cases, larceny, etc).  10 of those remaining are guilty pleas – those can be reviewed in less than 2 days.  Fixed. No potions required–just work smarter.  No need to increase the number of attorneys if they are all too inefficient to prioritize their case load properly and hold the “I can’t work this contested/questionable rape case because it’s #13 on my tracker” attitude. 

  8. Isaac Kennen says:

    Hmmmm, there are a lot of assumptions there: A) that the ratio of litigated v plea cases on a counsel’s docket will be 1/2 to 2/3 non- litigated; B) that counsel don’t already prioritize the “thins” they have; C) that counsel don’t start on day 1 with about half of their caseload being old cases inherited from previous counsel, with a substantial portion needing review because they have already been extended multiple times, or are pending argument, briefing, etc, such that those cases must take priority over newly-docketed records; D) that appellate counsel are non-deployable, and so will be able to spend their entire 2-3 year tour working cases; E) that counsel will not, in the middle of their tour, be assigned to take, review, brief, argue, or otherwise give priority to 5-15 cases handed over from one of their colleagues that got deployed and had to divest of cases midstream. Given those factors, if your appellate defense counsel are carrying caseloads of 15 cases or more, it may be time to ask whether you, as an institution, truly value appellate review.  

  9. Zachary D Spilman says:

    15 cases or more

    Lost me there.

  10. Isaac Kennen says:

    Zach, just curious, what would you consider a reasonable case load for a military appellate defense counsel serving a deployable, 2-3 year tour, assuming that they will file no requests to extend time with the CCA in, say, 90 percent of their cases? 

  11. stewie says:

    LOL at the idea that a guilty plea can all be reviewed in less than 2 days. GPs have to be read fully and often have issues that arise that need to be briefed and/or considered.