Specified Issues in the Umted States Court of Military Appeals: A Rationale

• Author: by Robinson O. Everett
• Pages: 01

1. INTRODUCTION

Most of the cases that reach the United States Court of Military Appeals are brought to It by an accuseds petition far review pursuant to article 67(bl(3) of the Umform Code of Military Justice An appellate defense counsel, who has been appointed by The Judge Advocate General to represent the accused, files a supplement to the petition for review. This supplement seeks to persuade the court to exercise its discretionary junsdictlon to review the case To this end, counsel will assign errom committed during the trial and review of the ease However, in a substantial number ofeases the supplement filed in the Court of Military Appeals similly submit8 the case "on the menta" without assigmng any error.

In the cases in which the Court of Military Appeals orders a grant of rewew. the Court of Military Appeals usually indicates in its order the assignments of error-usually referred to as "issues"-that It will consider. In subsequent pleadings and in oral argument appellate defense eoun~el are limited to discussing the LJSU~S

that the court re.

f e d to in its order granting remew. Occasionally. issues m to which the court grants review have not been mentioned by appellate defense counsel in thew supplements to the petitions for review. The court often has referred to these as "specified" mmes to distinguish them from msues that appellate defense counsel ''assigned" in the supplement.

Recently, B leading commentator on the court has questioned the desirability of the court's practice of specifying issues for its review, even though they have not been ramd by appellate defense counsel Likewise, a committee which has been appointed to make recommendations for improvmg the courtk operations has indicated some concern about this

*Robmron 0 Everett has been Chief Judge of the United State- Court of Mllltary Appeals Q ~ L P

April 1980 He rerewed a B A (magna cum lauds) and J D (magna cum laude! from Heward Univerairi. and m LL M fram Du*e University

'10 US

C 8 86ilb8(31 119821 [hereinafter DCIJl'See Fidell. A R o i w Comm~ssum Soeci&d laruaa and thr Function af the united

In October 1988, during a questmn.and-anawer 6esmn after I had spoken to a group of Air Force lawyers, I was asked whether the court should discontinue this practice if It was granted article I11 status The unspoken premise for thia question apparently was that, eventhough the specifying of mue8 not raised by appellate defense eaun-eel might be appropriate for an article I court, it would not be suitable for an article I11 COUrt.

In hght of such concerns, I have tried to reexamine the court's practice of specifying issues with the thought that the practice may have outlived It8 usefulness However after such reexamination, I have concluded that. even though the court could awe some time and probably reduce Its Central Legal Staff by diacontinumg the practice. ITshould nonetheless be retained.

11. SPECIFYING ISSUES AND IDENTIFYING "GOOD CAUSE"

The Uniform Code provides far automatic appeal to a court of mill-tary review. which "may...