The United States Court of Military Appeals. 1975-1977: Judicializing the Military, Justice System

• Author: Captain John S. Cook
• Pages: 02

Tabla of Contents

1. INTRODUCTIOS . . . . . . . . . . . . . . . . . . . . . . . . . 11. BACKGROUKD AND OVERYlE\V . . . . . . . . 111. THE EXPASDIKG ROLE OF THE SfILIT.4RI- JUDGE ............................

1. The Military Judge Must Ensure that the Accused Receives a Fair Trial ..........

2. The Militan Judge is Responsible for the Criminal Process Outside the Courtroom .............................

3. The Convening Authontr's Powers o ~ e r Trial Proceedings Wd1 Be Restricted . . . .

   4. THE COURT OF MILIT.4RY APPEALS \TILL SUPERVISE THE EUTIRE SlILIT;\RY JLSTIC€ SYSTEM . . . . . . . . . . . . . . . .

1. CMA \Vi11 Supervise All Personnel k x h m the llilitair lustice S,stem . . . . . . . . . . . .

2. ChfA \+'ill

   Ex;rcise iTs' Authonu Throughout the Sfilitari JUSIK~ $stem . . . . . . . . . C. CXA \Vdl Make Rules and Establish Polin for the \lilitar\ rustice System . , , . , . ,

   5. THE COURT OF MILITARY APPEALS \VILL IKTERPRET BRO.4DLY THE RIGHTS OF IUDIVIDLALS , , , , . , , . , , , , , , , , , , , , . , , , , ,

      P a p

      44 45

      j3

      P,.p

      A Juriid~tmn . . . . . . . . . . . . . . . . . . . . . . 123 B. Substantive Crimes . . , , 132 C. Speed) Trial and Review . . 133 D. Sentencing . . . . . . . . . . . . . . . . . . . . . 139

      E Self-Incrimination . . . . . . . . . . . . 143 F. Search and Seizure . . . 149 VI COSCLUSION . . . . . . . . . . . . . IF1

   1. ISTRODUCTION

      Since June 1975. the United Stater Court of Vilitaii Appeals' has signiilcanrlr changed the militan justice sxstern. Slost mporrantl\. the court has robsrantiallr shified the balance of power in the sistem br malidating or restricting pow ers pre\iouil\ exercised bb commanders and other line personnel. and bi depositing greater ultimate authorit, m the hands of lai\\eri and judges. More iubtl\. the court has endearored to adjust the attitudes iiith uhich all participants in the sIstem exercise their particular authorit,

      The ~mplicanons of such changes are obvious11 important to the inilitari. which, given its specialized nature. has tradition-all! rested in the commander relatkeli ireeping poncrs mer an almost unlimited range of activities. The full impact of the changes accomplished b! the court to date is as \et unclear. and further changes appear imminent. In iieu of the effects such changes vill mtvxabl) engender. one must ask smeral questions. First, xhat ha\e the changes been, and what additional developments are likeit to follox in the near future: Second, nhat has motirated the court to folloa the path it Eon? Third, nhat doer all of this mean tor militdr\ justice, aiell ai the militar% iociet% generalh; fin all^, what if an\thing should nr 111 the militarr societx. particularli lanrers and judges, be doing about these transformations? Hopefull). this article, irhich \\dl examine the courts i\ork during the last iuo,ears. nil1 help ans~erthese questions.

      11. B.4CKGROUND ASD OVERVIETIThr /$e of thr Ian' has not bwn logic, 21 has bern rxprn-enie

      -0liter Wendell HolmesZ

      The cham to examine the court's r%ork since its June 1975 opinions is no accident, for it nas at that time that Chief Judge Albert B Fletcher. Jr. assumed active duties on theV'hile numerous forces, both external and internal, have con\erged to impel the court's recent activism, It is clear that Chief Judge Fletcher has been the catalyst m this chemistr!. His presence has given the court's direction a force and character it aould othericise probably not have had But while the impetus provided bv the Chief Judge has been highl, important, one cannot lose sight of other major factors under1)-ing the present court's xork.

      Initiallv. a brief look at the historical debelopment of mill- tar) justice is in order. It should be recognized that the trend aha, from total command domination of the military justice s)stem has existed for at least half a century.' Throughout this time military justice has moved, albeit at a samewhar irregular pace, toaard a closer approximation of the procedures and an assimilation of the values of cmlian criminal legal svstems in this countr). This mmement has been marked b) two inrerrelated trends First, it has gradually been recognized that senicemembers are entitled t~ a panoply of rights similar, If not identical. to that enjoyed hi civilians Cancommntl), the role

      a ChiefJudge Fletcher bas nominared b\ Preiidenr Ford 013 March 13. 1975 and

      doxn on lune 20, 1975 P g the ~ U U T L Chef Judge Flerrher had

      Rii I (Summer I

      of lan\ers and judicial officersh 111 the adrninisrrarirr ol rhe

      and appellate re\ieii On the orher hand, the mlitan sxstern remained relatiieli far behind in some areas.'? Hoi\e\er. even after the CCMJ was amended 111 1968 to increase the aiailabilit\ of 1a"iers and the poriers of trialj~dges.'~the commander still retained substantial pouers over the process at rhe trial le\ el. 14

      The CCXlJ creatrd a ti\o-lmcI appellate courr siitern uhiih,\as composed ol rnhraI\ hoards (noa ~ouns)iif x\ieh and a ri\~lian Court of \lhtan Appeals ahich stood at thr apex of rhe milita~\ justice iiirem. The eriitence of these courts. and partirularl\ the Count of Milman Appeals seined as onc restraint upoii the aurhorit\ iomiuaiiders fiiinirrli held mer rhe ~ ~ s t c i i i . ~ ~

      Yrierthelrss. despite the existrmr of these cuurrs and the e~trnsion of procedural safeguards to i e r i ~ e personnel. the single factor v hirh most dtatinguiihes the militan JUS-tier ststern fr

      Alrhough this anrhorin has been diluted in

      man\ respects.'' it still permeates the entire s\sten.18 CSfA is now cutting a ~ a i that puuer, and is depositing authorit, mer the judicial system in judicial hands. A \arm! of factors appear to underlie the court's efforts to continue, and perhaps hasten, the trends of the lasi half centurv

      Of obvious importance are the iereral changes ~n the court's membership nithin a relatixeli short period of time. In addition to Chief Judge Fletcher's ascension to the court, there were three other changes on the three-member court betireen Februan 1971 and February 1976.'* These were bound to

      ~~ ~ ~~

      'j

      The commander 5 p % e r ha, bern diluted in ieitral

      Senior Judge Ferguion sax man, of his earlier posnnons hcrorne Is%

      Judge irilliarn H Cook airurned hlr por~tnon on the bench on Augur 21 1974 and i p s whrcqucnrl\ reappmntcd IO a full term cxpiringon \(ai I 1981 Judge

      causc some changes in outlook, regardless of Iiho the ne\\

      Other farces \\err also at t\ork In the later li160's and earl, 1970 i. ChJA had become, in the opinion of some obseTers romeahat consenatire in the exercise of Its pouers and had failed IO meet expectations which II had itself raised earlier.z" This conservansm ma\ ha\e resulted from an unwillingness to roch the boat during -\merican involvement in the Vietnam conflict. Regardless of its origins, this conser\atism persisted in the face of increased criticism af the s\item.il Some obserrers called for the abolition or drastic xiision nf the inilltan justice i\stcm:32 at the same time arilmn muits were subject-

      judger uere

      mg militan justice to greater ~crutin).~~

      As the Vietnam conflict dreii to a close, hoamer. civilian courts, led bi the Supreme Court, acknowledged the specialized and different nature af the milltar) s o ~ i e t v . ~ ~

      Then in

      Srhlis~ngrr

      i~. C~unciirnnn'~the Supreme Court placed its faith

      in the milirarr court swtem. and imposed upon the milltar) the priman responsibilit) for protecting those subject to its authorit\.z6 In a sense this decision gave CSlh a mandate to respond to the problems and criticisms of the mihtar) justice qstem; at least the present court seems to have treated Councilman this aav

      commilnder ilndjudmal neutral Ba martial should haie no placr among I ers' id P I 10

      \\bile thex faitorb ma, he seen as hating cunitiinerl tu mipel some farm of change. the\ do nut tn theiiiiel\e~ Culli

      coun feels that roniiderationr of juwce must bc gi\rn greater emphasis and 11 has concluded that the ruq~~~~emcnis of ius- rice are too sapl~isticated. and thr mathineii of I U S ~ K C too romplcx tu be left to the commandrr to ripelate. because he frequenrl\ lids a narural interesr m putting a hiriden thumh iiii the disciplman side of the rcait.

      This precept has generalh heen reflcrted in the rcndeniôf the court to distinguish and sepa~ate tunitions C Y ~ . ~ C I S ~

      hi

      the commander and other line personnel Thr iommander 17

      permitred to retain his disciplinan functions. bur his tunctims in administering justice ( 2 P judicial functions) haie beer, taken from him. This dichoromvation ha5 heen effectuated 111

      other wa>s as iiell. as thr court has attemptd to guaid againsrhat it perceibe5 ai undue infrmgemenr of rhe ~ntcgiit\ of rlie

      administratiun of jusrice br disiiplinan atti\itiei and attitudes. This tendenii desenes close icrutin), for it must he recognized that jusrice and discipline are properl\ bur ti\o sides of the same comi. IO rhe e~tentrhat the court separates them unneccssml\, it riskr deialumg the n h d e ststem.

      The iecond precepr 1s the court's \leu of 11s 01\11 role 111 the militar) justice s\stem. Relared io Its imr rhar the legal prafeision must run the militan justice iiirem is the perception that itself must pia) a drnamir leadership role 111 the ststem sees itself as tlie onl) instmtion capable of bringing to sxstcm the t\pe of constant leadership 11 helmes necessari. Congressional change is onl, an occasional measure. and Congress caniior giie its stead, attention tu the s~stem Indeed Cl1.4 i4 is in a pasinon ret the Constitutiom and the r'C\lJ for the entire 'usrice sistem and to supeniie it on a constant basiss viei\. such supenision is. at huttom. proper11 ajudicia1 function. Thus. fortified nith nhat it takes as its mandate from Srhiciing?r L' Courrcilninn the court will exercise extensi~e authont) oter the entire srxem.

      These philosophies are reflecred in rhe three baric trends to he examined in this article These trends ale first. Chl.4 he-heres rhar the trial iudician must rake an...