USCMA and the Specified Issue The Current Practice

• Author: by William N. Early, Lizann M. Longstreet, and James S. Richardson
• Pages: 02

1. INTRODUCTION

   In this, its 37th year of operation, the Umted States Court of Mihtary Appeals (COMA) finds itself under intense and welcomed scru-tiny from vmou8 sources. A Department of Defense Study Group has iasued Its report;' the Court Cornnutteen has held meetings and heard testimony for some 12 months and promises .a report by January1989; the Court Rules Advmory Comm~ttee~has proposed new case processing standards designed to reduce delays m case disposition; and a noted member of the court's bar4 has delivered an Incisive evaluation of some of its practices in B lecture at The Judge Advocate General'B School m Charlottesville, Virginia. All of this exammation

   W r William N Early, Colonel U S A F [Ret 1, IS the D~recforof the Central Legal

   Staff afthe Court ofMilitaly Appeals He received a B A (Kith dxatincfmnl and P J D rwnh diannetmn) from George Waihington Univeram Before coming fa rhe eowt hs was the Chid Judge of rhr United Sfafss Air Farce Coun of Military Review

   Mrs LirannM Langsfreet.Cammsnder,USNR.ilastaffatfampyaithfhecourt

   She reeelved B B A from Marquetre Unwermty, B J D from the University of Baltr. more, B paduare certificate in Mana~srnent

   Infarmafmn Sysrems from the University of Southern Cahfarma, and m M P A from Southeastern Umvermty

   Mr Jamea S Rlehardaon. formerly Captain, U S M C , and a former militaryiudge. is a sfaifattorney with the eaurt He recaved a B A from Fmrtburg State College and a J D from rhe Umuers~fy of Maryland

   The vnrem wish to acknowledge the contributions of llrs Barbara Pasaarnaneck. Chief Legal Technician of the Central Legal Staff, and Mlns Awes Kiang, Amstant Court Librarian, far the ~ollecfion and tabulation of btatistici that ~ppear

   ~n thii BR~- de blr John A Cvtts 111. Deputy Clerk of the court mnd Reporter of Deemone, also

   provided invaluable assibtance ~n rewewing the mRicIo for form and content and ~nchecking research and citations

   'The Department of Defense Ad HOE Study Group was appomred on July 17. 1987. and included members of the unrfarmed aenicea lincluding the Coast Guard1 and memhera of the General Counael's office

   'The Court Committee, eonn6tmg of ten dimngnihed members of the c~v~lian bar

   linclvding a reporter) and support staff, wai appointed by the court ~n October 1987 ''tostudy ismee and make recommendatmns eaneernmg the court% efarutw role and mandare statua. argannafmn, SI_, staff, admmistratmn, and ~perativns'' Rather than ~new~ieat~on,thiawac areestabliahrn~nioftheCammitre~uhirhrasariginallycreated in 1953 and chaired by Whitney North Seymour 25 M J XCIX (C M A 19871

   'The Rules Advisory Committee. a continuing body, was appointed by ths court to study and make recommendations concerning the wult.i Rules of P ~ ~ t f ~ c e and Rocedue

   'Fidel1 and Greenhouse. A Robing Cornmirrirn Spsrifisdlaruea und Ihe Function o/ Ih. Lnilad States Court ofYililaiy Appeals, 122 Md L Rev 117 119881

   seems to be, at least partially, generated by the renewed emphasis on converting the court from article I to article 111 status

   As an mmtution of this age. the court welcomea constructive criticism from Ita hen&, becaw a new lmk at entrenched practices offers the court a chance to irnpiwe and to continue to grow The court hae carefully considered each study and has conducted certain studies of its own designed to improve Its management practice8 The court has already approved for a year of trial a new procedure giving the gov. ernment the option afnot filing an opposmg bnef to the petition brief of the accused? and the Court has remstated a "term system" after some thirteen years of non-use.'Through an intense effort, the court has reduced its carryover backlog of cases both 1x1 the petition and master dockets After enjoying the stability of three sittmgjudges for the first time in several years. the court IS ready to look at and to consider ideas to improve Its ease processing times and to be ready to respond to new developments in the law and practice of the military community

   An important criticism has been directed at the court's longstandmg practice of specifying issues and its use ofthe Central Legal Staff In reviewing cases where appellate defense counsel have assigned no

   LSSUBS. This article will address these matters 11. "REVIEW' AND "EXAMINATION": CASES AND ISSUES

   A currently popular syllogism among those examining the cou~t's

   1. Article 671bIi3) ofthe Uniform Code ofMilitary Justice states that the court shall review "all eases reviewed by a Court of Military Review in which. upon petition of the accused and on good cause shown. the Court of Military Appeals has granted a review '"

   2 A petition submitted on the merits 18. m the opinion of appellate defense counsel, free of appellate issues. so It does not show "good cause" for review.

   procedures goes about like this.

   "his rule which was esfabliihed by order of the court dated October 12. 1988,per- mim appellate government counael ro file m lieu of an anawer a letter rndiraring general opposirion to errvri assrgned by appellsfe defenhe eounael or indrcafinq nooppairfran to bald error3

   'The term dyifem wad adopted by order of the coun dared September 30 1988, and wasaccompanied by an annovncsmentafthecaseacaniedurerfram theprsiiovcyear

   Tnifarrn Code of Military Justice an 611b 138 10 OSC I 867(b)131 819821 lhereinafter ECMJI

   19891 SPECIFIED ISSUES

   3. Yet the court routinely reviews merits cases and oeca.

   4. The court thereby violates Its statutory grant of author- The fallacy m this syllogism is that the court milel- reviews a cabe unless It concludes that good cause is shown. Article 67(b)(31 refers to the action of the court after grant of an issue, irrespective of who advanced that issue, counsel,

   Judge, or staff When counsel submits a case "on the merits," the staff examines It to determine whether there exists "good cause" for review by the court. The staff creates a petition memorandum, which it then submits to the judges far consider. ation This memorandum commonly recommends "denial," but even then the case IS further rewewed by chambers and the individual judges to ensure that there is no "good eau~e" for granting review Occasionally the staff will discover an unraised issue for which the staff recommends further review; if the judges agree, the court then "specifies" the iame far grant of rev~ew.

   Or the judges In their ex-amination may discover an issue deserving further consideration, and they may direct the staff to draft a specified issue. Thus,there are

   two stages to the appellate process: exammatian of the record far posshie error; and then review after development and granting of an issue mentmg judicial consideration.

   A narrow reading of article 67(b)(3) would seem to prohibit the court from considering the record in a case submitted on the merm simply because appellate counsel uncovered no usue.

   This flies in the face of the direction of the Supreme Court m Anders U. CaiLfoforma' and the practice of the Court of Military Appeals from ita meeptmn. Whereas article 67(b)(3) concerns the pro-cess of selecting cases (and issues) for judicial iev~ew,article 59(a) provides the standard for remedial action favorable to the accused. The former provides for review on petition and on good cause shown, and the latter provides for reversal only when an "error matenally Prejudices the substantial rights of the accused '" The standard for review of a case by the court is far less than that required for reversal This explams why many cases panted review on speclhed mues re.sult m affirmance. It also explains why the judges feel free to specify an issue to get briefing from counsel without regard to any preconeep-

   sionally specifies an ~ssue for review

   ity m these cases.

   tlons as to ultimate disposition In sum, grant of a specified mue no more preordains reversal than does grant of an issue ramd by appel. late counsel

   There are several reasons why the court has never adopted B narrow construction of article 671bX3). Fmt, the court has always been cognizant that a primary reason for Its creation was to prowde a final civilian review of military cases This 1s in keepmg with the congressional hearings on the Code and the general phllosophy of our Canstitution that the military establishment should always be under clvh.n control and supervmon. This philosophical bent towards "paternallsm," sometimes cnticmd, was largely fostered by perceived. and Sometime8 actual, excesses in the way dmipline was administered under the Articles of War and under The Articles of the Government of the Navy dunng the First and Second World Wars

   A number of examples of "paternalism" emst elsewhere in the Code. Article 46(a)l0 prevents service members from pleading guilty unless they can demonstrate that they believe they actually are guilty. which 1s contrary to the cw~lian practice Ankle 66" provides for automatic appeal to a military appellate court for a convicted ac-cused sentenced to a punitive discharge or confinement for a year or more, unless the accused specifically waive8 this right The aforementioned ande 67IblW allows an accused to invoke the appellate juris-diction of this court in a very simple way Article 70" provides an accused free appellate repieBentation all the way to the United States Supreme Court. Recognizing that the Code LS in reality a statutory restriction on the ability of the commander to enforce disc~phne, It seems logical that Congress would wish to have a final civilian review of that exercise by a civilian tribunal

   Independent examination of a case by staff attorneys and judges removes a perception of military control of the appellate process However objectively false It may be, there IS still the perception that representation by uniformed counsel,without regard to their partieular talents, would not be as spinted as reprenentation by civilian counsel, who would be entirely free of any aspects of command eon-trol Clearly this 18 why the Code prowdes for civilian counsel if...