Concurring opinion by Judge Baker urges significant change in UCMJ appellate review

Hon. James E. Baker

In United States v. Arness, decided today, the U.S. Court of Appeals for the Armed Forces ruled -- expressly overturning several precedents -- that the intermediate military courts could not exercise All Writs Act review of cases that had not been referred to them by the Judge Advocates General. (Presumably this leaves intact the CCAs' power to grant extraordinary writs before there is a sentence, since at that point a case remains within their potential appellate jurisdiction, independent of any action by the Judge Advocate General.) 

Concurring in the result, just-retired Judge James E. Baker offered the following remarkable valedictory comments at the end of his separate opinion:

B. Article 69, UCMJ, Does not Serve the Purposes for Which it Was Intended

     Article 69, UCMJ, was enacted in 1956 with the purpose of preserving “the right to present minor cases for review by” the CCA in order to “achiev[e] certainty in, and uniformity of, interpretation of the Uniform Code in each armed force, as well as for all the armed forces.” See [United States v.] Monett, 16 C.M.A. [179,] at 181, 36 C.M.R. [335], at 337 [(1966)].

     Whatever was intended with Article 69, UCMJ, the fact is TJAGs do not as a matter of practice refer cases to the CCA or to this Court pursuant to Article 69, UCMJ, review. That means that a majority of cases arising under the UCMJ are sub-jurisdictional. That also means that a majority of courts-martial are not subject to appellate judicial review or civilian judicial review.

     TJAGs are not independent or impartial judicial entities. TJAGs represent the government and, while in theory they are to exercise independent judgment when it comes to Article 69, UCMJ, review -- and I do not doubt the sincerity with which they do so -- the fact is, they are closely aligned with the government. TJAG review, as a matter of appearance, is neither independent of government interest nor impartial.

     A restrictive reading of Article 69, UCMJ, also means that if the government wishes to avoid appellate judicial review, it need only ensure that an accused receives a sub-jurisdictional sentence. This can be done through the use of plea bargains and plea agreements. The accused’s usual interest, of course, beyond acquittal, is to minimize sentence exposure, not to ensure appropriate appellate review of legal questions, or to otherwise ensure that the government upholds the spirit and letter of the Fourth, Fifth, and Sixth Amendments.

     Nor are legal questions, due process issues, and questions of legal sufficiency limited to cases involving sentences greater than one year’s confinement or a punitive discharge. Although it is safe to assume more complex cases with greater punitive exposure are more likely to raise legal questions warranting appellate review and decision, this does not mean sub-jurisdictional cases are devoid of legal questions warranting judicial review. This means that the standard of justice as between services in sub-jurisdictional cases may not, in fact, be uniform between the services.

     The consequence is that a majority of cases are not subject to appellate review by the CCAs. This cannot be what Congress intended when it created a military justice system subject to appellate review. This also means a majority of appellate cases are not subject to civilian oversight. This cannot be what Congress intended when it created a system of military justice subject to civilian judicial oversight. But Article 69, UCMJ, is not clear, and this is the result.

     Therefore, I would invite the President and the Congress to consider Article 69, UCMJ, anew and in clear and plain language determine where and when courts-martial should be subject to direct judicial review. Without such clarity, the government will argue for and apply the narrowest possible jurisdiction, a view with which this Court has shown a recent propensity to agree. [Emphases added.]

One would think this was in the nature of an open letter to the Military Justice Review Group as well as the House and Senate Armed Services Committees.

Two years ago, under the heading How "Robust" is Appellate Review of Courts-Martial?, Professors Elizabeth L. Hillman, Stephen A. Saltzburg, Kate Stith and Judith Resnik, Col. (ret) Dwight H. Sullivan, and the editor of this blog wrote on Balkinization:

First, for a court-martial to qualify for review by a service Court of Criminal Appeals (CCA) under Article 66, the sentence as approved by the [Convening Authority] must include the death penalty, confinement for a year or more, or a punitive discharge (i.e., dismissal for officers and service academy cadets and midshipmen, bad-conduct or dishonorable discharge for enlisted personnel). Because of the jurisdictional threshold, many special and general courts-martial are not subject to review by the military appellate courts. Instead, the only available direct review is within the office of the Judge Advocate General under Article 69. That review is conducted without judges, appellate counsel, full briefing or oral argument.

A few numbers demonstrate the limits. In Fiscal Year 2012, 368 (21.3%) of the 1727 special and general courts-martial received by the TJAGs were eligible only for the internal administrative review. A handful of these Article 69 cases may have been referred to the CCAs as a matter of JAG discretion but, once there, they are subject to narrower review than Article 66 cases. Compare Article 66(c) (power to weigh evidence, judge credibility of witnesses, and determine controverted questions of fact) with Article 69(e) (CCA may take action “only with respect to matters of law”).

Do not suppose that courts-martial that don’t meet the jurisdictional threshold for CCA review are unimportant. Many can have significant effects on the accused, including lifelong stigmatization as a federal offender and, in some cases, sex offender registration, loss of the right to possess firearms, deportation, and other collateral consequences.