Ending the military's courts of criminal appeals de novo review of findings of fact.

• Author: Pinsker, Matt C.
• Position: I. Introduction through IV. Professionalism of Courts-Martial A. Professional Judiciary, p. 471-499

TABLE OF CONTENTS I. INTRODUCTION II. EXPLANATION OF ARTICLE 66(C) AND THE STANDARD OF REVIEW III. COMMAND INFLUENCE A. The Law and History of Command Influence B. Enforcing the Prohibition Against Command Influence C. Addressing Command Influence at Trial IV. PROFESSIONALISM OF COURTS-MARTIAL . A Professional Judiciary B. Military Rules of Evidence V. JUDICIAL ECONOMY A. Appellate Defense B. Government Appellate Division C. Judges VI. INCREASING DEFERENCE TO A TRIAL COURT'S FINDINGS OF FACT WILL NOT PREJUDICE THE RIGHTS OF SERVICEMEMBERS A. Convictions Are Rarely Overturned due to Factual Insufficiency B. Due Process Protections for Servicemembers Exceed Those of Civilians 1. Miranda Rights . 2. Free Appellate Counsel 3. Care Inquiry 4. Free Mitigation Experts 5. Clemency VII. COUNTERARGUMENTS VIII. CONCLUSION I. INTRODUCTION

As frequently happens, a young man and woman are intoxicated at a party and slip away for some privacy. (1) A few days later, the woman reports that she was raped, while the man claims the sexual intercourse was consensual, and eventually there is a trial. Television shows such as Law & Order and CSI promote the myth that the outcome of this trial will hinge on the introduction of forensic evidence like DNA, fingerprints, hair fibers, or semen deposits. The reality is that cases these are frequently "he said, she said," and will be decided by little more than witnesses taking the stand and reporting what they saw and heard. It is then up to the jury to decide whom it believes. When deciding the facts, a jury considers not only what is said, but also how it is said. A jury will actually see tears running down the face of a victim or her face flushing red with humiliation as she relates intimate details of a sexual assault. The jury will hear the tone of her voice as it gets choked with emotion and her deep breaths as she tries to regain her composure. A jury can compare this with a defendant who fails to make eye contact, speaks in a flat monotone as he is slouched in his seat at the witness stand with his arms crossed, uses a contemptuous or sarcastic tone in reference to the victim, and takes abnormal delays in answering basic questions.

Because a jury is actually present in the courtroom during the trial, it is exposed to more and better information than any appellate judge merely reading the record of it. For this reason, it is appropriate that, in most jurisdictions, appellate judges are deferential to a jury's findings of fact. (2) However, this is not the case in military courts. (3) In the military's courts of criminal appeals, appellate judges conduct a near de novo review of a panel's findings of fact. (4) Their review gives a "fresh, impartial look at the evidence, giving no deference to the decision of the trial court on factual sufficiency ... [while taking] into account the fact that the trial court saw and heard the witnesses." (5) If the appellate court thinks the panel was mistaken or is not convinced of an accused's guilt beyond reasonable doubt, the court will overturn a conviction. (6) This power comes from Article 66(c) of the Uniform Code Military Justice (UCMJ), which states:

In a case referred to it, the Court of Criminal Appeals may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses. (7) This unusual appellate power is a vestigial trait of the sixty-three-year-old UCMJ. When the UCMJ was enacted in 1950, appellate fact-finding review was useful because general and special courts-martial were highly unprofessional tribunals that operated very differently than civilian trials. (8) The person who decided to put the defendant on trial also selected the judge and jury. (9) These issues made the fact-finding powers of the appellate courts a necessary and vital means of protecting the rights of the accused because they resulted in the first impartial review of a trial by experienced attorneys who were independent of the commander that convened the court-martial. (10) While this unusual appellate power was logical and justified in 1950, due to fundamental changes in the UCMJ, the original arguments and reasons for its continuation no longer exist. Military justice has undergone fundamental changes since 1950 and it is time for Congress to recognize that despite its rough beginnings, military justice has evolved to the point where today it is highly professional and provides "a more protective statutory system for military accused than the Constitution provides for civilians." (11) Because of changes in military justice concerning command influence and the professionalism of courts-martial, in conjunction with an overburdened appellate system yielding few benefits, the UCMJ should be amended so that appellate courts may no longer conduct a de novo review of findings of fact.

Part II of this Article will explain the legal significance of Article 66(c) and how it deviates from the usual practice in civilian courts. Part III will explore the history of command influence and discuss how the creation of an independent military judiciary has rendered the original rationale for granting criminal-appellate courts this unusual power obsolete. Part IV furthers the argument that the reason for affording the appellate courts extensive powers no longer exists. Although military justice under the original UCMJ was very unprofessional, today's system, with modern military judges and the well- developed Military Rules of Evidence (MRE), has made the modern courtsmartial highly professional and analogous to civilian trials. Part V illustrates how Article 66(c) generates considerable work for the government's appellate attorneys, while yielding minimal benefits for the accused, and thereby contributes to the injustice of an already overtaxed, backlogged, and slow appellate system. Part VI demonstrates that even if Article 66(c) is amended to eliminate the appellate courts' fact-finding powers, the rights and protections of servicemembers will not be prejudiced as they will still have rights and protections that exceed those which the U.S. Constitution provides to civilians. Finally, Part VII considers some possible counterarguments, but shows how they do not outweigh the benefits accrued from implementing this proposed change.

2. EXPLANATION OF ARTICLE 66(C) AND THE STANDARD OF REVIEW

   Under Article 66 of the UCMJ, the military's courts of criminal appeals are required to review all courts-martial sentences carrying a bad conduct or dishonorable discharge, or more than one year of confinement. (12) To affirm a sentence, the court must review the entire record of the trial and the judges must be convinced beyond a reasonable doubt that the appellant is guilty both as a matter of law and fact. (13) The test for legal sufficiency "is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all of the essential elements beyond reasonable doubt." (14) For example, in United States v. Wilcox, (15) the Court of Appeals for the Armed Forces (CAAF) found legal insufficiency to support an Article 13416 conviction for comments a white supremacist made on the Internet because there was absolutely no evidence introduced at trial to prove that the statements were in fact service discrediting or interfered with good order and discipline. (17)

   In contrast to legal sufficiency, "[f]or factual sufficiency the test is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the [court of criminal appeals] are themselves convinced of the accused's guilt beyond a reasonable doubt." (18) Factual insufficiency occurs when there is some evidence of each element of an offense, but not enough to convince an appellate court that the accused is guilty beyond a reasonable doubt. (19) For example, in United States v. Nicely (20) a key question in the case was whether an alleged victim was too intoxicated to consent to sex. (21) The court acknowledged that there was some evidence the alleged victim was intoxicated, but as to whether the level of intoxication was at the point where she was unable to consent to sex, "[t]here [was] simply not enough evidence in the record for [the court] to be convinced of the accused's guilt beyond a reasonable doubt." (22)

   In their review, appellate courts employ a nearly de novo standard in reviewing a trial court's findings of both law and fact. (23) Beyond the provision in Article 66(c) of "recognizing that the trial court saw and heard the witnesses," (24) the court is not required to show deference to the findings of the panel, has "independent fact-finding power," (25) and may "'weigh the evidence ... and determine controverted questions of fact' differently from the court-martial." (26) As none of the judges were present at the trial--except in the case of a DuBay hearing (27)--the appellate court's review is limited to using only the record of the trial, oral arguments, and briefs. (28) This means that when the factual sufficiency of a conviction is challenged, a court of criminal appeals conducts what is essentially a retrial at the appellate phase without the benefit of witnesses or evidence. Just how much deference and consideration the judges are supposed to give the fact that the trial court actually "saw and heard the witnesses" (29) is not provided for in the UCMJ or any other authority such as the Rules for Courts-Martial (RCM) or Manual for Courts-Martial (MCM). The...