Well son you got a statement you’d like to make

Before the bailiff comes to forever take you away

Now judge judge I had debts no honest man could pay

The bank was holdin’ my mortgage and they was takin’ my house away

Now I ain’t sayin’ that makes me an innocent man

But it was more ‘n all this that put that gun in my hand

Well your honor I do believe I’d do better off dead

And if you can take a man’s life for the thoughts that’s in his head

Then won’t you sit back in that chair and think it over judge one more time

Let em’ shave off my hair and put me on the execution line

Bruce Springsteen, Johnny 99, on NEBRASKA (Columbia Records 1982)

The most recent publication of the Air Force Law Review contains an article delving into the propriety of allowing convicted servicemembers to make unsworn statements before sentencing in trials by court-martial. The article is by Air Force Major John S. Reid and is entitled “Undoing the Unsworn: The Unsworn Statement’s History and a Way Forward,” 79 A.F. L. Rev. 121 (2018).

Major Reid’s article notes that, until 1928, courts-martial were unitary proceedings where, if the military panel found the accused guilty, they immediately also adjudged a sentence. There was no separate sentencing proceeding. Undoing the Unsworn, at 136. Additionally, prior to 1878, in a court-martial, the accused had no right to testify in his own defense, and he also had no right to defense counsel until 1920. Id. at 131. In those respects, our early courts-martial closely resembled British common law trials. It is fitting, then, that our courts-martial adopted common law approaches to protecting the accused. To that end, the court-martial system adopted the common law right of allocution early. Id. at 124. The (usually) unrepresented military accused was permitted to make an unsworn “concluding statement” to the court-martial prior to deliberation on findings. Id. at 131. His statement was largely unfettered – and he could even plead innocence – so long as he veered clear of “disrespectful language toward superiors or the court, [or] any insubordination and defiance of authorities.” Id. at 132.

Of course, the military justice system did not, and still has not, made use of the greater measure the common law employed to protect accused persons. Our system has not availed itself of “the great bulwark of [our] civil and political liberties” – jury trials. Apprendi v. New Jersey, 530 U.S. 455, 477 (2000). A court-martial panel may have its virtues, but, as many commentators have noted – for example: here, here, and here – it is no jury. A court-martial panel is comprised entirely of the accused’s superiors, is not randomly selected, and is instead appointed by a convening authority “who is not a judicial official, exercises command authority and responsibility over the accused, over the members of the panel, and over the discretionary prosecutorial decision to refer the charges to a court-martial.” United States v. Benedict, 55 M.J. 451, 456 (C.A.A.F. 2001)(Effron, dissenting). Additionally, as discussed in this column recently, the American military justice system has also declined to adopt a truly independent judiciary.

Nonetheless, while those more substantive protections are left unemployed, our military jurisprudence has fully embraced the minimal protection offered by giving the accused robust allocution rights, which we now call “unsworn statements.” Major Reid’s article posits, however, that we may have embraced that protection too heartily. His article suggests that accused servicemembers now, unfairly, are permitted to use their mouths and pens to engage in “jury nullification.” Id. at 122, 131. Of course, one might reasonably question who a court-martial panel is more likely to be improperly influenced by – the convening authority that commands them, or an accused they just convicted of a crime and who is now spouting off before them, not even under oath.

Recent history suggests that unlawful command influence and the misconduct of government counsel poses the greater threat to the integrity and respectability of the military justice system. For example, in recent memory, we’ve seen cases like: United States v. Barry, 78 M.J. 70 (C.A.A.F. 2018) (CAAFlog case page); United States v. Riesbeck, 77 M.J. 154, (C.A.A.F. 2018) (CAAFlog case page); United States v. Chamblin, No. 201500388 (N.M. Ct. Crim. App. 2017) (discussed here); United States v. Claxton, 76 M.J. 356 (C.A.A.F. 2017) (CAAFlog case page); United States v. Chikaka, 76 M.J. 310 (C.A.A.F. 2017) (CAAFlog case page); and United States v. Boyce, 76 M.J. 242 (C.A.A.F. 2017) (CAAFlog case page). We have also seen criticism by the DoD Joint Proceedings Panel, and in articles featured here, here, and here.

That is not to say that the military jurisdiction’s treatment of an accused’s unsworn statements and how to deal with inappropriate content in those statements is not important. Though, it is possible that CAAF’s approach is sufficient to address that evil:

We have confidence that properly instructed court-martial panels can place unsworn statements in the proper context, as they have done for decades.

United States v. Grill, 48 M.J. 131, 133 (C.A.A.F. 1998).

The harder question may be how to deal with inappropriate content in the victim’s newly-minted right to allocution in courts-martial. Recent cases like United States v. Hamilton, __ M.J. __, No. 18-0135/AF (March 1, 2019) (CAAFlog case page), have tried to wrestle with that complex problem set, which presents a different animal altogether. A victim in a criminal trial in the Anglo-American tradition speaks for the government, not for themselves. At common law, “victims were allowed to speak in support of the Crown in ‘keeping the King’s peace.’” Undoing the Unsworn, at 162 (citation omitted). That makes sense because the “government’s primary objective” in a prosecution is “punishment of the perpetrator” rather than “restitution to the victim.” Mark Stevens, Victim Impact Statements Considered in Sentencing: Constitutional Concerns, 2 Cal. Crim. L. Rev. 3 (2000), ¶ 2. Given that dynamic, which is not present when an accused speaks, allowing victims unfettered allocution rights, cloaked in the legitimacy of the government’s power and shepherded by the government’s counsel, is a recipe for abuse. Our history bears that fear out:

I am wronged. It is a shameful thing that you should mind these folks that are out of their wits.

That is testimony uttered by Martha Carrier after the ramblings of child “victims” who claimed that they were – while in the courtroom – being invisibly “tormented” (pinched, pricked, and choked) by the defendant. On that “spectral evidence,” on August 19, [1692] 1962, “Goody” Carrier was hanged for witchcraft by the Commonwealth of Massachusetts’ General Court of Oyez and Terminer. She was hanged by the State – not by her supposed victims, whose nonsense the Court had allowed. Apocryphally, she went to the gallows still protesting her innocence of a state-sponsored “falsehood so filthy.” Perhaps that’s the sort of thing we ought to be most concerned about when it comes to unsworn statements, and not that an accused will have “unfair” sway over the government’s hand-picked court-martial panel.

16 Responses to “Scholarship Saturday: A gripe with unsworn statements”

  1. eminem says:

    I’m just appalled that we were still hanging witches during the Kennedy administration.

  2. Isaac Kennen says:

    Thanks for the catch, eminem. Date corrected!

  3. J.M. says:

    @Eminem: That would explain the magic bullet.

  4. stewie says:

    That was back when they had the little known spectral evidence exception to the hearsay rule.

  5. Nathan Freeburg says:

    Considering that the right to allocution in federal court is also pretty robust (along with RCM 1105 style matters submitted to the Judge), I don’t see what the complaint is.  
    But I would gladly give up unsworns for real juries.  Article 25 is always the real issue and nothing will make the UCMJ fair so long as that perversion exists.
    (Yes, I know the appellate courts say that robust voir dire is the solution.  I just had an appellate case where the MJ nonsensically shut down individual voir dire on some pretty standard follow-up questions.  ACCA’s response?  The judge has wide discretion.  True.  Now tell me how that equals robust voir dire protecting the Accused.)

  6. Tom Booker says:

    In response to Nathan Freeburg’s first statement, am I wrong in believing that court-martial sentencing is different from sentencing practically everywhere else (state and federal) in that the UCMJ method is adversarial?  I could be wrong (no great revelation there), but the only place where I see truly adversarial sentencing is in the capital cases.  Everywhere else it seems to be done largely by memoranda compiled by the probation folks (on behalf of the State or the United States) and maybe some allocution by the convict, but there seems to be little in the way of actual evidence (you know, witnesses under oath being directed, crossed, and re-directed by counsel) in criminal prosecutions.
    Respectfully, LTB

  7. Tom Booker says:

    Sorry for the re-attack, but I saw something in Zeke’s test that also seems a little misleading.  Courts-martial do follow, and to my knowledge always have followed, the Apprendi requirement of submitting aggravating circumstances (e.g., the apprehension element of an unauthorized absence) to the finder of fact in the case in chief.  Only upon a guilty finding (granted, not unanimous in most cases) can the convict be punished for the aggravating circumstance.
    Respectfully, LTB

  8. Dew_Process says:

    @ Tom Booker:  Last I looked (a month or so ago), there were about 6 States that in non-capital cases, if one asks for a jury trial, that jury sentences you. Other states have modified versions, e.g., in NY if there’s a Restitution issue, by statute the defendant is entitled to a hearing if s/he disputes that or the amount; and if there are factual disputes, the presiding judge has the discretion to order a hearing to “settle the record.” But, that’s only a hearing before the judge, not the jury.
    There is a rich history of allocution rights in both the UK and US as THIS Article points out.  The bigger issue now, that is not being litigated appropriately imho, are unsworn VIS’s where the Accused allegedly has no right of confrontation, and usually no time to investigate whatever unsworn claims a victim may make. I have an appeal pending where the “victim” gave an oral, unsworn statement and flat-ass lied about a significant “impact” — sentencing is a critical part of any criminal trial as SCOTUS has long held, thus the right of the accused to “confront” his/her accuser should automatically flow – which historically, under the UCMJ it did, until recently.
    As to your second point RE: Apprendi and its progeny, that’s a core Sixth Amendment issue, which as you correctly observe, has been part of the military pleading procedure for a long time, certainly before Apprendi was decided.
    The “hot” issue now appears to be the “mandatory minimum” sentences recently imposed in the UCMJ, ironically at a time when the feds are significantly reducing or eliminating such “one size fits all” sentencing.

  9. Isaac Kennen says:

    I think Apprendi is better framed as a precedent defending the prerogative of a particular type of finder of fact – the jury. We don’t have juries in courts-martial and therefore, whatever the virtues may be of submitting aggravators to the members (and surely that’s better than not),  we don’t comply with Apprendi. A court-martial panel is fundamentally less protective of the accused than a jury, for the reasons articulated above. 

  10. Kettle Black says:

    While empathizing with your frustration, it’s a little poetic seeing a complaint about potential misleading information in a victim unsworn.  Accused unsworns frequently have similar false characterizations and empty promises and apologies – and this is done by design.  The government’s supposed ability to rebut the unsworn is hollow, as the defense simply frames all the misleading portions of the unworn as opinions and thoughts rather than actual facts.  Accomplishing this is almost elementary.  The defense then drops the written unsworn on the government two minutes before it is offered, preventing any real opportunity to rebut whatever facts might be presented. 
    The defense should absolutely be given the opportunity to review a victim unsworn and confront falsehoods, but let’s not pretend this isn’t exactly what the defense has been doing for years and years.  Shouldn’t have it both ways. The protection of allocution rights is not a license to defraud the fact-finder. “Rich history” notwithstanding, there is some need for reform in how unsworn statements are handled. 

  11. stewie says:

    Kettle Black, one side or the other has it both ways sometimes. It’s not always equal, by design and by necessity. My trial counsel used to complain that certain parts favored the defense and my response was…yeah. Moving on. Some parts favor the government.
    All of this is about a TC who thought someone gave a crap unsworn and so wrote a paper about how bad unsworns can be.

  12. Kettle Black says:

    Whether a rule favors one side or the other was not really my point.  My point was that unsworns, from either side, can be (and frequently are) misleading.  In a system that is trying to determine the truth in a just manner, perhaps some reform (not to be read as elimination) of the unsworn statement is needed so neither one is misleading.

  13. stewie says:

    The same panel that just convicted him is not likely to be swayed very often by an unsworn. Concern seems greatly exaggerated IMO, and most defense counsel I know do not want the unsworn to come across as anything other than honest and sincere.
    I assume the same is done for victim’s counsel. I’ve not seen a ton of unsworns overall that come across as grossly misleading. There are inaccuracies to be sure, but that’s simply an artifact of perspective most of the time, not an attempt to fool the panel into believing an outright lie.
    Panels know the difference between sworn and unsworn. They know the latter has less credibility, and if they didn’t, the judge reminds them of it. It just seems very low on the list of things to be worried about.

  14. Terri Zimmermann says:

    Tom Booker, to answer your question about whether other jurisdictions have adversarial sentencing — yes.  We have a hotly litigated sentencing hearing every time a client is convicted in Texas and elects punishment by jury. Did it in a murder case about a year ago. The State asked for 50 years, we asked for 5, jury gave him 15. Would have preferred the NG so we didn’t need the jury for sentencing, but it was helpful to the client, especially considering the pretrial offer was 40 years.

  15. Vulture says:

    An unsworn statement supported by properly admitted evidence can be a very powerful vehicle.  It gives the Accused and opportunity to turn the panel or judges attention to impressionistic or more supposed matters.  I’m not sure why these are being attacked.  Part of the reason for the UCMJ is to promote efficiency in the military environment.  Personally I think that convictions are gained to sloppily.  So why wouldn’t the Accused have a more robust voice at that point?

  16. Vulture says:

    …too sloppily… 
    Talk about irony.