Pursuant to Article 67, UCMJ, 10 U.S.C. § 867, CAAF’s jurisdiction includes (in part) cases where the court grants review “upon petition of the accused and on good cause shown,” and cases that “the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces for review.” The different standards in these provisions create an inherent difference between an accused’s petition for review and a Government appeal in the form of an order from a JAG. But nothing prevents a JAG from ordering CAAF to review an issue for the benefit of an accused and thereby give the accused standing before the court equal to that available to the Government.

However, the Judge Advocate General of the Air Force recently ordered CAAF to review a sizable  number of cases under circumstances that almost exclusively benefit the Government. I discussed these cases in an April post titled: The appearance of bias in the certification of cases by the Judge Advocate General of the Air Force.

In that post I also discussed ten other Air Force cases that the JAG didn’t certify but that I felt warranted certification because they raised significant legal issues. Unlike the cases that were certified, the ten uncertified cases involved issues that would benefit the accused service members. And all of those cases remain uncertified (though CAAF did grant review in one of them). Analyzing these cases, I concluded that the JAG’s apparent eagerness to compel CAAF review of issues for the benefit of the prosecution, but not for the defense, creates “an appearance of bias [that] is a threat to the entire military justice system.” I also wrote:

Unfortunately, there’s no easy answer to the growing appearance of bias in the Air Force certification process. A rush of anti-prosecution certifications would just invoke cynicism. So too would the failure to certify pro-prosecution issues strongly deserving of further review (such as the AFCCA’s recent opinion reversing the convictions on confrontation grounds in United States v. Katso, __ M.J. __, No. 38005 (A.F.Ct.Crim.App. Apr. 11, 2014) (discussed here) (link to slip op.)).

Now CAAF’s daily journal for Monday reveals that the Air Force JAG is continuing this trend:

No. 14-5008/AF. U.S. v. Joshua KATSO. CCA 38005. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND APPELLEE’S SIXTH AMENDMENT RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE MILITARY JUDGE PERMITTED, OVER DEFENSE OBJECTION, THE TESTIMONY OF THE GOVERNMENT’S DNA EXPERT, AND THAT THE ERROR WAS NOT HARMLESS

I still think that Katso is deserving of review by CAAF (after all, my writeup of the CCA’s opinion is more than 2,100 words long), and certification was the only way the court would get the case. But as deserved as this certification is, it is still part of a disturbing (and disappointing) trend.

12 Responses to “The continuing appearance of bias in the certification of cases by the Judge Advocate General of the Air Force”

  1. RKincaid3 (RK3PO) says:

    Amen, Zach.   Amen.

  2. Zachary D Spilman says:

    A postscript for those keeping score.

    So far this term CAAF has resolved six cases with Air Force certifications. Of those six, the court summarily affirmed the CCA (rejecting the certified issue) in five:

    1. United States v. Arriaga, No. 13-5008/AF (discussed here).
    2. United States v. Lindgren, No. 13-5009/AF (discussed here).
    3. United States v. Burns, No. 14-5001/AF (discussed here).
    4. United States v. McIntyre, No. 14-6005/AF (discussed here).
    5. United States v. Seton, No. 14-6008/AF (discussed here).

    The sixth case was United States v. Finch, 73 M.J. 144 (C.A.A.F. Mar. 6, 2014) (CAAFlog case page), which involved a cross-certification (a certification after CAAF granted review of the appellant’s petition). The appellant lost at CAAF.

  3. LT Caffey says:

    As a casual observer of appellate practice in the AF, I also find the trend in TJAG certs troubling as well, though it is for a slightly different reason.  I would submit a more tangible perception is that of a TJAG who lacks confidence in the very CCA that he is responsible for manning with qualified appellate judges.  When TJAG uses his assignment authority to man the CCA, it is presumed that he does so with an eye towards putting qualified personnel on the Court.  Under the current “certify all loses” construct that is AF certification practice, it would appear that he only has confidence is their ability to preserve trial results favorable to the Government, but his confidence is undermined by adverse results.  Shouldn’t he should be equally confident in their deliberative process regardless of outcome? He either has confidence in the CCA or he does not.  If he doesn’t have confidence in a Court that he mans, then why would any appellant have confidence? More importantly, why would the Court have any confidence in itself? 
    To be fair, the VAST majority of the certs have occurred in the period between full-time TJAGs where it appears that the decision to certify issues has been largely deferred to the government appellate shop.  While Katso was certified by the new TJAG, given the ongoing transition, it seems unlikely that he spent a lot of time deliberating on it.  It will be interesting to see what his approach will be.  While not a court of his creation, will he show confidence in it by limiting his use certifications to novel issues that require CAAF’s attention, or will it continue to be a vehicle to address CCA decisions adverse to the prosecution.  
     

  4. La Renard says:

    In how many of the ten cases that you discussed did someone from appellate defense actually staff a request package to TJAG to seek TJAG certification. If they did not request certification in any of those cases then you are presupposing an unwarranted level of omnisicence on TJAG as to which questions should be certified.  If the majority of those cases had certs requested and denied then your concerns would have more validity, if not the axiom, “ask and you shall recieve” springs to mind.

  5. Zachary D Spilman says:

    Sadly, La Renard, we don’t know the answer to your question. That’s why my April post raising the issue included this call for greater transparency:

    The better answer is transparency, sunlight being the best disinfectant. Undoubtedly, there’s a process to obtain TJAG certification in the Air Force. That process needs to be more public and – if it isn’t already – it needs to be adversarial.

    Such transparency cuts both ways.

    And on the omniscience front, I think at least some of the ten cases I discussed were unquestionably certification-worthy. For instance, by not certifying United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page) (or another challenge of Mr. Soybel’s appointment) the JAG allowed the issue to fester for months, only increasing appellate delays. In Yarber, the JAG cherry-picked one of two very-similar Article 62 appeals decided within days of each other. The pathetic facts of Mobley speak for themselves. So too with the pathetic facts of Carr.

    There’s also the expectation that TJAG reads (or is at a minimum briefed on) all of the decisions of his CCA. I think that expectation is entirely reasonable. Heck, I read every case from every CCA, along with every federal case that references the UCMJ. And I didn’t pick those ten cases at random – the issues they raised were intriguing. Note that each of those cases was analyzed prior to and independently of the bias post (that was actually part of my selection criteria – undoubtedly there are more worthy cases with less-intriguing CCA opinions).

  6. AF JAG says:

    @LT Caffey–GREAT POINT!  I’m glad to hear the defense bar say this–once “hired”/”appointed” the hiring/appointing authority has NO GROUNDS to question the performance of the person hired or appointed. 
     
    This is actually very enlightening . . . so now you will agree with me then that by extension an Accused should never be able to assert an IAC claim against a civilian counsel that he has independently hired. 
     
    Isn’t that the logical consequence of your rationale, after all: “When [the accused] uses his [hiring] authority to man [his defense team] it is presumed he does so with an eye toward putting qualified [counsel] on [his defense team] . . . Under the current “[appeal] all loses” construct that is [appellate defense] practice, it would appear that he only has confidence is their ability to preserve trial results favorable to the [himself], but his confidence is undermined by adverse results.  Shouldn’t he should be equally confident in their [performance] regardless of outcome?”
     
    Wait, what?  You say that’s absurd?  . . . YES, @LT Caffey–that IS absurd.  It’s absurd because people make mistakes, even after “hired”/”assigned” with the best of intentions and expectations, and that’s what appeals are all about. 
     
    Now them, if you want to have a conversation about the AF TJAG certifying almost exclusively government cases and how that compares to the Solicitor General’s power in the federal system, and whether all of that is “fair” and in the best interests of “justice, “I’m listening.  But your assertion that the legal conclusions of an appellate judge may never be challenged by the government because once upon a time TJAG appointed them is, well, unreasonable.
     
    And finally, let me save all of my fellow posters a little effort:  I KNOW that my IAC comparison is not a perfect mirror image analogy, that is why it is an analogy for discussion purposes.  So when you engage on this post, please do so on the basis of discussing the underlying assertion by LT Caffey:  that a party should be collaterally estopped from appealing the actions of someone they hired/appointed.  I’d recommend not wasting typeface on critiquing the exact alignment of the analogy I used to jump start this conversation.  Such a myopic critique would just miss the larger point that is definitely worthy of discussion.  I think we’ll all get more out of this thread that way.

  7. Zeke says:

    @ AF JAG-  
    Your rant is absurd because it assumes that the average accused and TJAG are equals in terms of legal knowledge, maturity, training, and intellect.  Presumably, we pick our TJAGs and make them general officers because they have better judgment than other senior officers trained in the law, much less a lay accused.  We expect better judgment out of them than merely appealing every case which they believe the CCA got wrong… Only exceptional cases involving novel statutory or constitutional interpretations impacting the administration of justice in a broad sense should be appealed by the government – and those sorts of issues should be appealed whether they benefit the accused or not.

  8. LT Caffey says:

    AF JAG,
    I think Zeke might be onto something.  Put more simply (and nicely) you are trying to homogenize someone with Constitutional rights (say for example and Airman facing capital murder) and someone with arguably Constitutional (or at least statutory) obligations and saying the same standard applies to both.  Under you analysis, anybody that hires a contractor is subsequently barred from suing them when they botch the project.
    Additionally, I am unclear as to why you label the assertion “that the legal conclusions of an appellate judge may never be challenged by the government because once upon a time TJAG appointed them is, well, unreasonable” as “mine” because, well, that is not what I said.  What I said was that a consequence of continuing to certify cases in this manner risks creating a “perception…of a TJAG who lacks confidence in the very CCA that he is responsible for manning with qualified appellate judges.”  While it is clear that you do not like my assertion, by misstating it and then attacking your own misstatement, it still leaves one wondering what you have to say…if anything…to contradict the original, actual assertion regarding the perception that the certification might creative.
    Finally, one who admonishes people to avodi “wasting typeface” should use less ALLCAPS.
    TGIF

  9. Brian lc says:

    ZS,
    If we don’t know whether certification was sought by appellate defense, than your speculation seems to go a bit too far.  You could just as easilly have titled the post “The apparent continuing failure of AF Appellate Defense to request TJAG certification in meritorious cases.”  Each speculation is as probable as the other.  (While I imagine the government may be more likely to have a TJAG’s ear, I also imagine appellate defense may be institutionally inclined to rely on petitions).
    Can’t disagree with your call for transparency, but this is perhaps an overly provocative spin (unless you or someone actually can answer the foundational factual issue).  Maybe someone will FOIA this and provide an answer.

  10. Zachary D Spilman says:

    We don’t even know if a Defense request for certification is an option in the Air Force, Brian lc

    I think discussion of the fate of such requests, if they exist, or of the absence of such requests, is fair ground when considering how or whether to reform the system. But I think such discussion misses the mark on this issue. In the comments section to my first post on this issue, I had this exchange:

    April 29, 2014 at 1:27 PM
    John O’Connor says:

    I’m not sure this shows much.  As you note, the accused has a petition for review and a means of seeking CAAF review.  I understand that certification automatically provides some level of CAAF review and that review via petition is discretionary.  But in the cases you cite where review was denied, CAAF seems to have agreed with TJAG that CAAF review was not appropriate.

    For the instances where CAAF granted review, I can’t tell from your post how many of those cases involved a request for TJAG certification that was denied.  In any event, I don’t necessarily think that a TJAG should view Government and Defense requests for certification through the same lens.  For the defense, the TJAG might reasonably conclude in many cases that CAAF ought to decide whether review is a good use of court resources.  For the Government, TJAG is forced to be the final arbiter of that question.

     

    April 29, 2014 at 4:00 PM
    Zachary D Spilman says:

    Three points in response to John O’Connor:

    1. You say that where CAAF denied review, the court seems to have agreed that certification was unwarranted. I think this is a leap, because CAAF can’t deny a certification. It can (as I wrote) dodge the certification, but it also can (and does) dodge granted issues. Either way, that dodge occurs only after the review that Article 67 says the court “shall” conduct. To get that review, a service member must show good cause, while TJAG need only file the certificate. It’s the difference between the journey to the courthouse and what happens when you finally get there.

    2. You write that of the granted cases, you can’t tell “how many of those cases involved a request for TJAG certification that was denied.” Bingo. That’s why I suggest greater transparency. At the outset, is there even a process for a service member to request certification in the Air Force? Though, if there is such a process, it begs the question of why it never seems to result in certification on behalf of the service member…

    3. You say that TJAG should view certification through a Government-friendly lens. I tend to agree, and I acknowledged in my post that certification is the Government’s way to appeal to CAAF. So it makes sense that certifications skew towards the Government. But the trend at issue is far more than a skew. It is – as I wrote – “suspiciously one-sided.”

    Here’s a hypothetical. Imagine an appellate defense counsel calls his client with good news of a favorable decision by the CCA. But he warns the client that it’s not over yet, as the JAG has 60 days to certify the case. The client says, “gee Sir, that doesn’t seem fair. After all, didn’t the JAG appoint the guys who just decided the case in my favor?” The attorney responds by noting that if the CCA had decided the case in favor of the prosecution, then they would have asked CAAF to review the case. “Sure,” says the client, “but had the CCA decided in favor of the prosecution, would the JAG still send the case to CAAF?”

    I feel confident that any appellant, in the hypothetical raised at the end of my response quoted above, would consider the AF JAG to be biased. More importantly, I believe that “an[y] objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the [process].” United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006). And I fear that this issue (and particularly the opaque nature of the certification process) places an “intolerable strain on public perception of the military justice system.” United States v. Wiesen, 56 M.J. 172, 175 (C.A.A.F. 2001).

    The danger is that an observer (perhaps a member of Congress interested in dismantling the UCMJ) will conclude that the institution believes that any member of the Air Force who does not prevail at the JAG’s own CCA is undeserving of the JAG’s discretionary assistance in an appeal to the civilian CAAF. That adds a measure of perceived partisanship to a billet that (because of its general supervisory nature) must at all times be, and appear to be, unbiased. 

    Of course, it’s impossible to divine the motives of the multiple officers who served as Judge Advocate General of the Air Force during this flurry of certifications, and I won’t speculate. There may well be a rigorous and adversarial review process for certification requests in the Air Force, and the defense may have an equal voice at the table. We just don’t know. 

    But I’ll add two final points: First, before raising this issue, I went looking for published Air Force policy on certifications that might illuminate this issue. I found none. Second, I was careful to frame this issue as one of the appearance of bias, because that’s all that the evidence supports. As I wrote:

    The fact that none of these [ten] cases was certified by TJAG doesn’t prove the existence of bias in favor of the prosecution. But when compared with the relatively-massive number of Air Force certifications on CAAF’s docket this term, these uncertified cases create a growing appearance of bias. It’s unlikely that TJAG is truly only interested in appealing Government losses, but it’s certainly starting to look that way.

    This is my point and the reason for the posts’ title.

  11. brian lc says:

    ZS,
    I understood your point, but you lose me (slightly) with your hypothetical.  Your hypo reasonably argues that the rules governing certification may appear biased to an accused.  True enough (although an accused may also see the same concern with an Article 62 appeal of a trial judge that was appointed by the government..but I digress).  The post, however, deals not with the rules as the exist generally, but the rules as applied by the USAF.  
     
    (I think the better argument on the appearance of bias, would be that the cases certified were not cert worthy…support of which is found in CAAF’s summary affirmances.  And, I think this is more likely what is driving this discussion.  If all the certified cases involved really close calls, all involving developing areas of the law that were highly consequential and needed to be resolved by CAAF, there would be less rancor).
    My more general concern is that there seems to be a trend towards hyperbolic titles and argument.  Having followed CAAFlog for over half a decade, I see a decline in civility in the comments (and a corresponding drop in useful dialogue).  To me, this makes the site less interesting and useful.  But, the effort that contributors (mainly you it seems) put into it is a public service.  For that, I am thankful.

  12. Zachary D Spilman says:

    I don’t know how I feel about the worthiness of all of the recent certifications, brian lc. I came out in favor of certification in Katso when I analyzed the CCA’s opinion (penultimate paragraph), primarily because of the significance of the issue. That was about two weeks before the post raising the bias issue (but after other posts observing the one-sided nature of the increased AF certification activity). I don’t think I took a position on the merits of the other cases.

    But to add some illustration to your comment about “really close calls” and “developing areas of the law,” I think it worth mentioning that of the now-thirteen certifications, we independently covered the CCA’s opinions in eight of them (all but Arriaga, Lindgren, FinchBurns, and Huey):

    1. United States v. Arriaga, No. 13-5008/AF, __ M.J. __ (C.A.A.F. Sep 23, 2013) (summary disposition) (plain error issue).
    2. United States v. Lindgren, No. 13-5009/AF, __ M.J. __ (C.A.A.F. Sep 23, 2013) (summary disposition) (plain error issue).
    3. United States v. Finch, 73 M.J. 144 (C.A.A.F. 2014) (CAAFlog case page) (cross-certification).
    4. United States v. McPherson, No. 14-5002/AF (CAAFlog case page) (Article 12 issue).
    5. United States v. Wilson, No. 14-5003/AF (cert. discussed here) (CCA op. discussed here) (Article 12 issue).
    6. United States v. Burns, No. 14-5001/AF (discussed here) (factual sufficiency issue).
    7. United States v. McIntyre, No. 14-6005/AF (cert. discussed here) (CCA op. discussed here) (corroboration issue).
    8. United States v. Seton, No. 14-6008/AF (cert. discussed here) (CCA op. discussed here) (lost evidence issue).
    9. United States v. McDowell & DeMario, No. 14-5005/AF (cert. discussed here) (CCA op. discussed here) (gov’t writ pet.).
    10. United States v. Piolunek, No.s 14-5006 & 14-0283/AF (CAAFlog case page) (cross-certification).
    11. United States v. Morita, No. 14-5007/AF (cert. discussed here) (CCA op. discussed here) (subject matter jurisdiction).
    12. United States v. Huey, No.s 14-0384/AF & 14-5009/AF (cert. discussed here) (cross-certification).
    13. United States v. Katso, No. 14-5008/AF (cert discussed here) (CCA op. discussed here) (confrontation clause).

    Considering that I recently explained my bias, I suppose this degree of coverage implies that I think the bulk of these cases were worthy of certification (Sam covered the CCA’s opinions in McPherson and Piolunek, and Phil covered McIntyre, but I think these three cases worthy of our attention)But the ten uncertified cases that I highlighted in my first post on this issue were also independently discussed on this blog (something I considered a prerequisite for making that list). So it’s not enough that the issue is worthy of CAAF’s attention. Rather, it’s about how the issue and the case gets to the court (note the last sentence in my first point in response to John O’Connor, quoted above).

    As for your comment about hyperbole, I’d really appreciate some examples (offline if necessary: zack@caaflog.com). I think we’ve made a conscious effort to push against that, and I think we’ve been successful.