The law review at my alma mater recently published an article calling for an end to the Article 66(c) power of a court of criminal appeals to conduct a factual sufficiency review of a court-martial conviction. Matt C. Pinsker, Ending the Military’s Courts of Criminal Appeals De Novo Review of Findings of Fact, 47 Suffolk U. L. Rev. 471 (2014) (link to article). The author is a practicing criminal defense attorney who worked as an extern with the Army Government Appellate Division while studying for his LL.M.
The article asserts that the justifications for the CCA’s factual sufficiency review power no longer exist because:
Due to amendments to the UCMJ over the past fifty years, military trials now resemble civilian trials and are presided over at both special and general courts-martial by an independent and professional circuit of military judges with powers modeled after Article III judges. This has reduced the potential for command influence while increasing the professionalism of trials, thus mitigating the chances of legal error. Furthermore, the fact-finding power of the military’s courts of criminal appeals is actually an impediment to justice because it adds a considerable burden on the military’s already severely backlogged appellate system. Claims of factual insufficiency are frequently and easily made by appellate defense counsel, but are very time consuming for appellate prosecutors to respond to.
Pinsker, supra, at 472. The article makes numerous assertions that I think are a stretch, including claiming that there is “a powerful military [trial] judiciary,” id. at 487, and asserting that “the United States Supreme Court recognized the change from law officers to military judges has created an independent judiciary within the military,” id. at 487 (citing Weiss v. United States, 510 U.S. 163, 191-192 (1994) (Souter, J., concurring)). However, Chief Justice Rehnquist’s opinion of the Court in Weiss explained:
[T]he position of military judge is less distinct from other military positions than the office of full-time civilian judge is from other offices in civilian society. As the lead opinion in the Court of Military Appeals noted, military judges do not have any “inherent judicial authority separate from a court-martial to which they have been detailed. When they act, they do so as a court-martial, not as a military judge. Until detailed to a specific court-martial, they have no more authority than any other military officer of the same grade and rank.” Military appellate judges similarly exercise judicial functions only when they are “assigned” to a Court of Military Review. Neither military trial nor appellate judges, moreover, have a fixed term of office. Commissioned officers are assigned or detailed to the position of military judge by a Judge Advocate General for a period of time he deems necessary or appropriate, and then they may be reassigned to perform other duties. Even while serving as military trial judges, officers may perform, with the permission of the Judge Advocate General, duties unrelated to their judicial responsibilities. Whatever might be the case in civilian society, we think that the role of military judge is “germane” to that of military officer.
510 U.S. at 175-76 (1994) (citations omitted). I agree that military judge’s have a significant measure of independence (though the fleeting nature of their assignment is notable), but I don’t agree that military judges are “powerful” (particularly when their limited powers are compared to the powers of Article III judges, or even to the powers of a convening authority).
Another assertion that I question is that:
Claims of factual insufficiency place a very heavy burden on the government’s appellate attorneys. Answering the defense’s claim of factual insufficiency forces government attorneys to reargue the case on paper, which is a very time-consuming process. A government attorney has to go through hundreds, and sometimes thousands, of pages of the trial record to pick out evidence and witness testimony supporting the finding of guilt and rebutting the claims of the appellate defense attorneys. Depending on the length of the trial record and the specific nature of the claims of factual insufficiency, addressing this one assignment of error can easily take a government attorney days to complete, despite its high likelihood of futility.
Pinsker, supra, at 503. I doubt that factual insufficiency claims are so vague as to require Government counsel to engage in scavenger hunts for rebuttal evidence, and I can’t help but marvel at the author’s claim – in a single sentence – that factual insufficiency claims both have a high likelihood of futility and require comprehensive rebuttals. The author also sees a need “to discourage appellate defense counsels from alleging factual sufficiency assignments of errors they know are unlikely to succeed.” Id. at 504. This reads like an assertion that appellate defense counsel make frivolous claims.
Another part of the article asserts that service members facing court-martial enjoy greater due process protections than civilians facing civil prosecution, citing five examples: Article 31 rights, free appellate counsel, the Care inquiry, free mitigation experts, and clemency. Pinsker, supra, at 507-519. I think each of these examples is flawed, for the following reasons:
First, the author rightly acknowledges that “the requirement in the military that an accused is informed of his or her right to remain silent and right to an attorney is more expansive than in civilian criminal justice,” id. at 508, but he ignores the reason: “Congress passed Article 31(b) ‘to provide servicepersons with a protection which, at the time of the Uniform Code’s enactment, was almost unknown in American courts, but which was deemed necessary because of subtle pressures which existed in military society.'” United States v. Jones, 73 M.J. 357, __, slip op. at 8-9 (C.A.A.F. Jul. 21, 2014) (quoting United States v. Duga, 10 M.J. 206, 209 (C.M.A. 1981)).
Next, the detailing of appellate counsel without regard to indigency is a difference from civilian practive, but the author ignores the fact that counsel are detailed only when a court-martial results in a punishment large enough to trigger CCA jurisdiction (or a JAG elects to send the case to the CCA). This portion of the article also includes what I believe is a dangerously inaccurate footnote:
There is no right to counsel at summary courts-martial. Summary courts-martial outcomes are not federal convictions, and the trial itself is not a criminal prosecution within the meaning of the Sixth Amendment. They are intended to be a brief and informal hearing, and having counsel present would defeat that purpose. Furthermore, the accused can always turn down summary courts-martial in favor of special or general courts-martial. See Middendorf v. Henry, 425 U.S. 25, 46-47 (1976).
Pinsker, supra, at 510, n. 279 (emphasis added). A summary court-martial is a jeopardy-triggering court-martial proceeding, and it can invoke any number of collateral consequences of a conviction (such as sex offender registration). Middendorf involved the narrow question of whether a summary court-martial is a criminal prosecution for purposes of the Sixth Amendment right to counsel. It did not declare that a summary court-martial conviction is not a criminal conviction.
The third factor the author identifies is the Care (guilty plea) inquiry, which he asserts is “just one more protection unavailable to civilians.” Pinsker, supra, at 515. But as with the protections of Article 31(b), the author overlooks the history behind the rule. As the Court of Military Appeals explained in United States v. Chancelor, 36 C.M.R. 453 (1966) (a case upon which the Care inquiry was based):
During the hearings on the Uniform Code of Military Justice, there was considerable concern expressed regarding the entry of guilty pleas in courts-martial, and Congress made clear the nature of the safeguards which they intended to surround the receiving of such a judicial confession.
36 C.M.R. at 455. Service members are often compelled, by the exercise of military authority, to do things. The plea inquiry is necessary to ensure that pleading guilty isn’t one of them.
Fourth, the author asserts that “another right granted to members of the military but not to civilians is the provision, at the government’s expense, of a mitigation expert in capital cases.” Pinsker, supra, at 515. This assertion implies that a mitigation expert is guaranteed, but in United States v. Kreutzer, 61 M.J. 293, 305 (C.A.A.F. 2005), CAAF noted that “capital cases do not confer a per se right to a mitigation specialist…” (though the court concluded that “erroneous denial of Kreutzer’s request for a mitigation specialist was error of constitutional magnitude.” Id.). In any event, capital courts-martial are exceptionally rare, so this point is of limited significance. And there is also the issue of the absence of an express requirement for experienced capital defense counsel in capital courts-martial. See United States v. Witt, No. 36785, __ M.J. __, __, slip op. at 114-142 (A.F.Ct.Crim.App. Jun. 30, 2014) (Peloquin, J. dissenting in part) (discussed here).
Finally, the author highlights the convening authority’s clemency power, asserting that “military members have the strong possibility of receiving clemency from the convening authority.” Pinsker, supra, at 517. But the article does not address the recent changes to Article 60(c) that significantly restrict this clemency power. Moreover, the author seems to have no qualm with the concept of a convening authority wielding an absolute veto over the findings, instead of a CCA applying relevant principles of law. Id. at 519. Compare Article 60(c)(1), 10 U.S.C. § 860(c)(1) (version effective prior to Jun. 24, 2014) (“authority to modify findings and sentence “a matter of command prerogative involving the sole discretion of the convening authority”), with United States v. Nerad, 69 M.J. 138, 147 (C.A.A.F. 2010) (CCA’s action under Article 66(c) must be based on “a correct view of the law”).
Notably, the article does not discuss the fact that a court-martial deprives an accused of the right to trial by jury. Last year, in this post, I discussed an excellent article about the need to preserve the commander’s power to reverse findings of guilt. Colonel Andrew S. Williams, Safeguarding the Commander’s Authority to Review the Findings of a Court-Martial, 28 BYU J. of Pub. L. 471 (2014) (link to article). A few months later, in this post, I revisited that article to note how a particular civilian jury’s acquittal after a lengthy deliberation would have been a conviction by a court-martial panel. There are significant differences between a court-martial panel and a jury and Colonel Williams’ article discusses features of a jury that ensure reliability (size, unanimity, random assignment, etc.), but that are missing from a court-martial panel, explaining how this can lead to inaccurate results that require correction by reviewing authorities with the power to set aside the conviction. But Mr. Pinsker’s article does not consider these differences. Instead, he asserts “the jury panel at courts-martial is superior to a civilian jury because of the rigorous entry and selection requirements concerning education, intelligence, and character standards of officers.” Pinsker, supra, at 523.
Ultimately I think that the authority of a court of criminal appeals to “may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact,” Article 66(c), is an integral part of military law. Without that authority, military law risks devolving back into “a rough form of justice.” Reid v. Covert, 354 U.S. 1, 35 (1957).