The continuing appearance of bias in the certification of cases by the Judge Advocate General of the Air Force
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.