the AFCCA mistakenly relied on the concept of “military due process,” an amorphous concept as used by the AFCCA that appears to suggest that servicemembers enjoy due process protections above and beyond the panoply of rights provided to them by the plain text of the Constitution, the UCMJ, and the MCM. They do not.
Vazquez, slip op. at 15. Judge Ryan writes for the majority, with Chief Judge Baker and Judge Stucky each writing separate concurring opinions.
The case involves a general court-martial conviction for aggravated sexual contact with a child under the age of 12. The alleged victim (who was 4 or 5 at the time of trial) testified by remote means during the trial, and four other government witnesses also testified, before one of the members realized that the father, whom he had seen in the witness waiting area, was one of his subordinates in the rating chain. The member was excused, but this reduced the panel to four members; below the quorum of five required for a general court-martial. Five additional members were detailed by the Convening Authority and, after voir dire, two were added to the panel. A verbatim transcript of the proceedings up to that point was produced and read to the two new members (in accordance with Rule for Courts-Martial 805(d)(1)).
There was no objection from the defense, but in a published opinion the Air Force CCA set aside the findings and dismissed the charge. United States v. Vazquez, 71 M.J. 543 (A.F.C.C.A. 2012) (Vazquez I). The court’s action was predicated on it finding “a violation of the appellant’s military due process rights” which the court found “per se prejudicial and mandate reversal of the appellant’s conviction.” Vazquez I, 71 M.J. at 552 (emphasis added).
Not so fast, says Judge Ryan:
The AFCCA was required, given the absence of any objection at trial, to conduct plain error analysis and identify the specific prejudice to a substantial right of Appellee. Its determination that reversal was required because “military due process” was violated, without more, was, quite simply, incorrect.
Vazquez, slip op. at 7-8. Judge Ryan then begins a plain-error analysis of whether the procedures in Article 29(b) and Rule for Courts-Martial 805(d)(1) are unconstitutional as-applied to the Appellee. She finds that they are not, and that the military judge did not err, because:
First, the AFCCA relied on the concept of “military due process,” and there is no such thing. Slip op. at 15.
Second, Congress specifically authorized the procedure used in this case, and while the military judge had numerous options available at trial (such as recalling witnesses or declaring a mistrial), “Appellee’s acquiescence and complicity in every aspect of the procedures used did not create a record upon which to support an as-applied challenge. Nor did they afford the military judge either a reason to declare a mistrial or a reason or opportunity to craft alternative procedures short of a mistrial, such as recalling witnesses.” Slip op. at 16.
Third, “Appellee has further failed to show, either at trial or before this Court, how the members in his case were either actually unfair or appeared to be unfair.” Slip op. at 17. Moreover, the AFCCA’s conclusion that the right to a “‘jury’ . . . must include, at a minimum, having the same jury present for the entire trial” (Slip op. at 18 (quoting Vazquez I, 71 M.J. at 549)) is “directly contrary to Article 29(b), UCMJ . . . [and] the AFCCA provides no relevant authority in support of its bald assertions and fails to explain how Article 29(b), UCMJ, could even be facially constitutional if either of their assertions was correct.” Slip op. at 18.
Fourth, the concerns of the Confrontation Clause were adequately addressed by the procedure employed at trial, and Judge Ryan writes that “we note that absent a defense objection.” Slip op. 20. This is a recurring theme of the opinion.
Finally, perhaps as an emphasis to this theme, she concludes:
While a case could exist where Article 29(b), UCMJ, would be unconstitutional as applied, Appellee has not met the burden of showing that it is his case.
Judge Ryan’s analysis relies heavily on the Supreme Court’s highly-deferential consideration of the statutory scheme created by Congress for military judges (who were challenged in part due to the lack of fixed terms of appointment) in Weiss v. United States, 510 U.S. 163 (1994). “In this context, the Supreme Court held that a petitioner’s rights were violated only if ‘the factors militating in favor of [the petitioner’s interest] are so extraordinarily weighty as to overcome the balance struck by Congress.’” Vazquez II, slip op. at 13 (quoting Weiss, 510 U.S. at 177-78). A footnote further explains that “absent an argument that the statutory scheme is facially unconstitutional, or an accused demonstrating that it is unconstitutional as applied to him, we presume that the statutory scheme established by Congress and implemented by the President constitutes both the parameters of what process is due and a fair trial in the military context.” Vazquez II, slip op at 13 N.3.
The concurring opinions take no issue with this analysis, making the words “military due process” a big red flag for practitioners, and setting a high bar for future challenges to the procedures for handing replacement members.
Chief Judge Baker’s concurring opinion discusses his conclusion that the military judge did err by failing to inquire if the parties wanted a mistrial. Specifically, he finds that the military judge should have presented the parties with three options:
In my view, the military judge in this trial had a duty to inquire of the parties whether they wanted to proceed with a mistrial, recall the Government witnesses who had already testified, or proceed with the application of R.C.M. 805(d) and Article 29, UCMJ.
Baker, C.J. con. op. at 4. He sees this error as forfeited (by the failure of the defense to object), tests for plain error, and finds that “Appellee has failed to carry this burden for the same reasons the record fails to establish a violation of his right to a fair trial.” Id. at 6.
Judge Stucky’s concurring opinion makes “no disagreement whatsoever with the majority concerning the merits of this case.” Stucky, J. con. op. at 1. But he finds that the Appellee waived this issue:
In this case, the military judge offered Appellee several opportunities to object to the procedure for replacing court members and reading a transcript of the previously given testimony to the new members. Appellee did not merely forfeit this issue by not objecting, such that we would apply plain error; he affirmatively declined to object to any aspect of the procedure. Under these circumstances, I conclude he waived appellate review of this issue.
Id. at 2.
For those who (used to) use the term “military due process,” Vazquez is a seminal opinion. For the rest of us, its just business as usual.
• AFCCA oral argument audio
• AFCCA opinion (published) (corrected opinion)
• Blog post: Significant published AFCCA decision
• AFCCA order denying habeas relief
• Blog post: JAG certifies two issues
• Appellant’s (Government) brief
• Appellee’s brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: In the CAAF
• Blog post: U.S. v. Vazquez smashes a zombie’s skull
• Blog post: Opinion analysis