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: