Civilian Judicial Review of Military Criminal Justice

AuthorCaptain Thomas Al. Strassburg
Pages01

TABLE OF CO.VTE.VTS

1. Introduction . . .

11. Hisrorical Development . . . . . 3A Early History . . . . . . . . . . . . . . . ? 1. England . . . 1

\lil,tar).kppealr. . . . . . . . . . . . . . !?

2. United States . . . . . . . . . . R B. Direct Review of Caurrs-martial-The Court of111. The Expansion of Collateral Review . . . . . . . . . . . 25 A. ScopeofRelieu . . . . . . . . . . 25 B. \lethods of Review . . . . . . . . . . . . . . . . . ?O C. Limiting Doctrines . . . . . . . . 35

I\-, The Growth af Pretrial Relief . . . . . . . . . . . 40V, Federal Dlstrict Judger' Viem of Their Role In the

Supervision of llilitary Justice . . . . . . . . . . . 12\-l, The Possibility of Further Expansion ai Review . 14 VI[. The Propriety af Broad Collateral Revieti by the Fed-eral courts . . . . . . . . . . . . . . . . 48A The Desirability of Extensive Review of CnmB. The Seed for Judicia( Scrurmy af Slilirary

  1. The Extent to which Expansion of Review can

  2. Policv Factors lmblred in the Expansion of

    mal Cases 'Generally . . . . 48

    Justice . , . . 50

    be Supported bv Precedent 54

    Collateral Review 59 VIII. Conclusion. Touard a Better S!-stem of Renew 61

    PAGE

    I. ISTRODLCITOX

    Jumce IVilliam 0. Douglas. rpeaking for a majority of rhe Unired States Supreme Court in the landmark decision of O'Callihni v. Pnkn.' stated that "courts-marnal as an instirution are smgularl? inept in dealing uith the nice subtleties of constitutional law."' and rhat while a ''civilian trial . . . 1s held m an atmosphere conducive to the protection of individual rights, , , a military trial is marked b! the age-old maniferr destiny af retributive just~e.'' These statements hare apparently been accepted as factual by some cnmnientators and quoted in support of the proposition that the mlmry criminal price process should be subjecr to close scrutiny by the federal judiciar) .' The federal courts. however. including rhe Supreme Court. hare hstorically taken a "hands-off" attitude to2 ard milltar! tribunals It 1s the purpose of this paper to trace the development of civilian judicial review of criminal justice m rhe armed forces with a view toward determining whether such review should be expanded

    limited and 9

    hether the system of review which exists at presenr should be changed.

    Based upon the premise that 1t is impossible to fully understand the current law without reference ro its hatory, an effort vill be made m the first pan of this paper ro discuss the aiailabhty. method. and scope of civilian rcviem oi m h r > - JUS~ICC from an historical standpoint. Since the law adopted h>- the founders of this nation for rhe government of our armed forces was based upon the mhrar!

    1 2 i of Great it seems appropriate to begin wrh a discussion of the relationship of the common law courts to the milirary and naval courts-martial of England during the eighteenth century

    CIVILIAN JUDICIAL REVIEW

    11. HISTORICAL DEVELOPUENT A. EARLY H/STORY

    1. England

    The idea that the decisions of military tribunals should be subject to civilian reriew 1s not a new one in Anglo-American law. Blackstone in his Connnentmies on the Laws of England states:f\llore rigaraur merhodi were pur I" use for the rasing of imies mdrhe due drrciplinr of the roldiery which ice CD be looked upon only sstemporiry ~ x c ~ e s ~ e n ~ e i of the x ~ e , and not 8s my part of the p~rmaninr md pcrpcmd hws oi rhe kingdom. For m ~ t d leu_, uhrch IS bully uponno settled pmcipler. but 13 snrirely ubitrsry ~n 11s dsciiianr, 15, I S Sir \larrhew Hde obirriei, ~n frurh 2nd c e d q no liu, bur iorncrhing ~ n - dulgrd rather than illaued IS e lew.7

    Blackrtone goes on to discuss the case of the Earl of Lancaster. who was tried under martial law m 1321 and whose case was reverred some five years later because he had been tried ~n time of peace.8 Nevertheless, Blackitone recognized the king as the first in military command and stated that he had the sole power of raising mzd reg;-laring fleets and XVhile he lamented the fact that Parliament had, by its annual mutiny act~,'~sanctionedthe trial by court-martial in time of peace of members of the standing army, Blackitone also recognized the almost absolute power of the Crown with reeard to military offenses?' It is nor surprising, therefore, that few ca&s canbe found in which the decisions of courts-mania1 were subjected to the scrutiny af the common law couns. It is clear that direct review mar nowhere provided.

    In 17?4 Lord Xlanrfield. In his opinion in the case of Mostyn v. F.zbrigar,'2 made reference to a case in which the Court of King's

    Bench airarded damages co a plaintiff who had been punished by d court-nimid' One Stephen Canning. a carpenter 111 rhe Ofice ai Ordnance at Gibraltar. vas apparent!\- tried b\ a garrison court-m i a l actin? under the authoricy of

    result of LIS sentence he aas imprisoned. gnen three lhundred

    shes. and deported. In 1-18 he sought redress m an mion for

    tre,piss aomsr rhe governor. vho had approled the sentence lt

    ii ai the oFmm of rhe Court of Kino's Bench that rhe courr-~iidrrial in quesrion lacked jurisdiction to rry%unnmg. as he was not sublecr io militarv Iaa Thf ]ur) awarded a substantial ium as damages?

    The leadin? elghreenth century author in the field of mhtar! relates rhe cast of one Lieutenant Fr!e who was caniicred b\

    ,I ~ o ~ r t - m r t i d l based upon same depormoni of persons u!ioin he

    IT as not pernimed to confront He u ,IS ienrenced to confinemem vliicli v a s later remitted. bur he broughr an action ii

    nonerheleis. Unlihe Stephen Cunning's mion, Frye'sm e for false lmprmmrnenr and uai brought not againstnho approied the sentence bur dgainit the president of the COUII-111amal. \lore sqnhcantl>-. Fr)c'r action was based not upon a lack

    i,f i m s d m m b;t upon the errmeom admission of certain evidence. Subrmnrlal damaees were auarded and the Court of Co~iinian Plea5 tndlcared rhat F;!-e could sue the orher members of the COUICIliUtlal.

    Srephen .\d>el' and other authors of the period asserted that the ~ ~ n i n i o n lm courts could mue writs of prohibirian to preient rhe eyecurlon of sentences of cowts-niartial which acted be!-ond their iurlsdicrion and could issue umrs of error or cenio~mp r as (hey

    could to correct )udeinents of orher inferior courts'. In 1-91. huo.

    CIVILIAN JUDICIAL RETIER'

    ever. a case was decided in the Court of Common Pleas which iscited by modern authors for the proposition that the inquiry of common Ian courts into court-marnal proceedings was limited to the question of lumdicnon.'@ One Samuel Grant uas convicted by a eeneral court-martial of being instrumental ~n enlisting two men;"to the s e n m of the Em India Cornpan)- knowing that they were soldiers. and he uas sentenced to be reduced in rank and pay and to receive one thousand lashes.?" He sought a writ of prohibition to prevent the execution of the sentence. claiming that he was not a soldier and was not subject to the lurisdicrion of the court-martial.21 Lord Laughborough m his opinion in Grmr v. Gouid dxussed the relationship berueen courts-martial and the common lau courts ''Nard courts marrial. military courts martial, courts of admiralty. courts of prize. are all liable to rhe controlling authority which the courts of \Vestminster Hall hate from time to time exercised for the purpose of prexenring them from exceeding the jurisdiction giren to them: rhe general ground af prohibition, being an excess of lurisdiction when they assume a power to act in matters not within their cognizance." 9z He went on to say, "!t does not occur to me that there is any other [ground] that can be stated, upon which the courts of \Testmmiter Hall can interfere in rhe proceedings of other courts, where the matter is clearlv u-chin their jurisdiction. . . . It cannot be a foundation for a proh;binon, that ~n the exercise of their jurisdiction the court has acted erroneously."23 The factual issue of his amenabdir) to military law was resolved against Grant. and the

    writ of prohibition was nor

    Le8 than ten ! e m after Lord Louehboroueh delivered his opinion in Gi-rim i'. Gaiild it became cIc.~thar the scope of rei iew would be smildrI\- limited In cases involi me applmtlons for other prerogmr e ivms including the writ of haben;corpur.>' In the case of The Ktvg

    i'. Sziddis'' I[ vds argued that the sentence of a caurr-martial a a i required to conform co the sentence aurhorlred by the lax, of England for iinidar offenses. In support of the argument counsel cited rhe case of one of the alleged murmeers of His \Ispv's Ship Bounty

    ii ho v a s ei entualls dlsckdreed from mprmnmenr &r "rhe opnion of [he Judges a d s raken;a-ha all reported aoainsr the legah? of the sentence an the mound of the rqecrionaf leGl eiidence." 2- Thar case, hoverer. didmnnor involve an attack on the court-mama1 b\-means of a prerogmr-e vnt.'. In an? event, ~n the Saddir case three

    CWILIAN JUDICLAL REYIEW

    judges of the Court of King's Bench were of the opinion that on a return to a w i t of habeas corpus it was sufficient ro show that the prisoner was held under the sentence of a "court of competent jurisdiction to inquire into rhe offence, and with pmer to inflict such a punishment." 28

    In summary, during the eighteenth century, when the military forces of England were subject to l a w which farmed the basis for those adopted for the government of the Cnited States militarv,3' civilian judicial revien- of courts-martial was very limited. It appiars thar rerieir could he had either after the sentence had been served or before it became effective. The method of seekin reiiem depended upon the time at which it was sought and the refef a\.ailable. liter a sentence had been served, an action at lam for damages against

    3 member of the court-martial or other official who had a part in ordering the sentence executed was apparenrlv the only remedy asadable. Considering the seventy of the sentences ai courts-martial during that period, such a reviem mas obviously of limited value.

    ...

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