The military's approach to appellate law.

• Author: Thoman, Jay L.

The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States. (1)

1. THE APPELLATE COMPONENT OF THE MILITARY JUSTICE SYSTEM

   Long gone are the days when "military justice" meant a rush to judgment with charges read after sunrise, a conviction by lunch, and a firing squad--blindfold optional--completing its work by sunset. (2) Today's military justice system, the Uniform Code of Military Justice, found in the Manual for Courts-Martial, (3) is replete with protections for servicemembers, not the least of which is a robust appellate system. (4) It is this final safeguard in the military's justice system that I will explore to give the reader an understanding of the military's approach to appellate law and how this portion of the legal structure guarantees that America's servicemembers are protected by the very laws they have volunteered to defend.

   The military has essentially a two-tiered appellate system. There are four service courts, the Army Court of Criminal Appeals, the Navy-Marine Court of Criminal Appeals, the Air Force Court of Criminal Appeals, and the Coast Guard Court of Criminal Appeals, each composed of military judges from the Judge Advocate General (JAG) Corps. From this level, cases are appealable to the Court of Appeals for the Armed Forces, a court composed of five civilians, appointed by the President, who serve fifteen-year terms. (5) As is typical of appellate courts generally, military appellate courts are limited by the records they receive on appeal, even in cases in which the appellate court believes the record to be inaccurate. (6) The appellate courts do have de novo review, allowing another reassessment of the findings, albeit limited to the facts in the record, with the ability to overturn the result of trial if the reviewing court deems appropriate. (7)

   The intermediate service courts automatically review any case where the sentence of the accused includes confinement for more than a year, a bad-conduct or dishonorable discharge, dismissal of an officer, or death. (8) In fiscal year 2009, the most recent year available for statistics from the Army's intermediate service court, there were 1069 courts-martial, and of those, 605 resulted in sentences serious enough that they mandated automatic review by the service court. (9) During that same time period, CAAF issued forty-six opinions in cases arising from the various intermediate courts after reviewing petitions in approximately 950 cases. (10)

   Like CAAF, each service court operates under its own set of rules. (11) Counsel appearing before these courts must remember that their procedural rules are typically enforced much more closely than are the procedural rules at trial level. (12)

2. DUTIES OF MILITARY APPELLATE LAWYERS

   1. Competence

      Each service also has its own appellate personnel consisting of both government and defense appellate divisions. (13) The attorneys that staff these departments are all licensed practitioners, required to follow the ethical rules of the jurisdictions in which they are admitted to practice as well as the military rules of professional responsibility for their particular service, not least of which is the requirement of competence. (14) Typically, most of these positions are held by junior legal officers who have held at least one other assignment before taking on appellate counsel responsibilities. Their prior military experience is often beneficial in helping them understand the uniquely military aspects of an otherwise typical appellate case, such as flying surface-of-the-earth missions in Italy or interrogating terrorists in Iraq. (15)

      Another issue that is unique to the military system--and that military appellate counsel regularly face--is speedy post-trial processing. (16) A competent appellate defense counsel needs not only to recognize dilatory post-trial processing, but to preserve and document it to allow the client to receive credit for the problem. For example, in United States v. Jones (17) the appellant, quite possibly on the advice of his counsel, documented the prejudice he suffered because of excessive post-trial delay. This ultimately resulted in the disapproval of his bad-conduct discharge. (18) Not only do counsel need to recognize the post-trial delay opportunity, but they also must provide the court with proof demonstrating prejudice and actual harm. (19)

      One way to prove actual harm is to have a knowledgeable official from a potential civilian employer submit an affidavit stating that but for appellant's missing DD-214 discharge certificate, appellant would likely have received employment. (20) Even if appellant ultimately finds another job, as Jones did, if it is for less pay or reduced benefits, a viable appellate issue still exists as evidenced by Jones's success. (21) One of the finer takeaways from Jones is to carefully screen what proof is submitted to the court. Jones submitted affidavits from three different officials at the trucking company, each of whom offered varying degrees of certainty about his job prospects if he did have a DD-214. (22) While the court ultimately found prejudice, in commenting on the affidavit that was most definitive about his job prospects, the court stated, "[i]f that were the only document that Appellant had submitted, it would seem unquestionable that he has established that the unreasonable post-trial delay prejudiced him." (23) The court then proceeded to examine the other statements, observing that while the one, by itself, made for a clear issue warranting relief, the inclusion of the others made it a much more difficult question. (24)

      A competent appellate advocate will consider the juxtaposition of Jones with another excessive post-trial delay case, United States v. Bush, (25) that not only illustrates the difficulty of post-trial delay claims, but also how closely success is linked to substantiation. Bush was without a DD-214 for a significantly longer period of time than Jones and was similarly turned down for a job as a result. (26) Bush, however, failed to submit any supporting documentation from potential employers and failed to explain why he was unable to do so. (27) Because the court was asked to rely exclusively on Bush's own affidavit, which had no independent verification, the court rejected his claim of employment prejudice. (28) While it is impossible to tell from the court's opinion whether counsel informed Bush that he should provide an employer's statement and whether Bush was unwilling or unable to obtain one, early attorney emphasis on this point might have made all the difference.

      If submitting an unsupported affidavit from a client is bad, proffering an unsigned affidavit based on a telephone conversation between attorney and client is even worse. This situation is exacerbated in the military, because the appellate attorney is almost never in the same location as the client, and is forced to proceed without any personal contact. If a client is released from confinement before the conclusion of the appellate process, the client will often return to his or her home, inevitably--or so it seems to appellate counsel--in some other state. In United States v. Gunderman, (29) for example, appellate defense counsel submitted an unsigned affidavit on behalf of the client alleging that counsel below "never told me that I could also submit a request to the convening authority that he not approve my adjudged forfeitures and defer my automatic forfeitures ... [or] waive any automatic forfeitures." (30) The court, however, "decline[d] to use an unsigned document as extrinsic evidence upon which to base a decision." (31) The court went on to "reaffirm a longstanding legal principle: the oath or swearing process itself has legal import." (32)

      In Gunderman, appellate defense counsel learned in a telephone conversation with her client that there was an appealable issue with the advice the client had received from trial defense counsel, but was unable to obtain a signed document at the time. (33) Later, when it was necessary to submit an affidavit to the court, counsel was still unable to locate her client. (34) Any time an appellate attorney learns something from the client that will require the client's signature, it is imperative for the competent appellate counsel to obtain the necessary signature before the client's release from confinement, especially if there is any chance that the client may be released before the appellate process is complete and then disappear. The best policy is to immediately begin work on obtaining the necessary signature from the client because dealing with a distant confinement facility, often in a different time zone, is usually a time-consuming process that involves considerable effort. (35)

      Another aspect made more complex for the military appellate attorney is the diaspora of those involved in the original trial. Military witnesses can be particularly difficult to find due to recurring deployments and changing of duty assignments; further, once they leave the military, departing servicemembers routinely leave the area, moving back to their original homes or new places adopted in their travels. (36) The importance of including detailed affidavits containing facts that can only come from others is highlighted in United States v. Martin, (37) another case in which appellant "failed to overcome a presumption of competence," on the part of trial defense counsel, due at least to some extent to a lack of specificity. (38) On appeal, Martin provided his appellate defense counsel with an affidavit containing a list of about twenty sentencing witnesses that his trial defense counsel never called. The court observed, however, that the appellant "has not provided any specificity as to what those...