Donald N. Zillman

We note with sadness the death on July 27 of Donald N. Zillman. Don was a longtime close observer of military justice as well as military personnel policies more generally. He wrote extensively about these fields, including articles concerning the decline in the number of veterans in the U.S. Congress. He was incurably optimistic and encouraging of others. For many years he was the Edward Godfrey Professor of Law at the University of Maine School of Law. He graduated from the University of Wisconsin (B.A., J.D.) and the University of Virginia Law School (LL.M). He served as a U.S. Army judge advocate and taught law at Arizona State University, the University of Utah, and the University of Maine. He served as Dean at Maine Law and, for six years, as President of the University of Maine at Presque Isle (UMPI). He was a visiting professor at the United States Military Academy at West Point and the University of Southampton (UK).

UMPI posted this obituary.

Are we coming to the end of an all-volunteer military force?

The Washington Post on September 22, 2023 carried an opinion piece by former Defense Secretary Mark T. Esper (2019-2020).  He was President Trump's Defense Secretary and fired after he called Trump's effort to subvert the 2020 presidential outcome "a national embarrassment that undermined our democracy." His term as Defense Secretary was distinguished by his attempt to modernize the military and especially the recruitment thereof.  For that reason his concern about the decline in the number of Americans who are qualified and interested in serving, deserves attention:

"The fact is , the pool of Americans ages 17 to 24 who are qualified and interested in serving continues to shrink.  When I was Army secretary in 2017, 71 percent of these 34 million young people could not meet the military's entry requirements, mostly because of obesity, drug abuse, and physical and mental health problems.  That number is even higher now.  About half of the 23 percent remaining who are eligible to serve today decide to attend college.  At the same time, the share of the entire cohort with a propensity to serve has dropped from 13 percent to 9 percent.  That leaves fewer than 500,000 potential recruits.  It's hard to believe that a nation of 333 million people can't produce a larger pool."

Maybe if the military offered to cover the cost of a college education after military service more young people would be interested in enlisting.

Use of race in detailing court-martial members--no mas

Yesterday, the U.S. Court of Appeals for the Armed Forces, in an opinion by Judge Sparks, decided United States v. Jeter, No. 22-0065. Judge Maggs dissented. From the opinion for the court:

In United States v. Crawford, 15 C.M.A. 31, 35 C.M.R. 3 (1964), our predecessor Court stated that in the course of creating a venire panel, it is appropriate to add an African American servicemember to the panel specifically because of that servicemember’s race. The Court stated that if such a step constitutes discrimination, “it is discrimination in favor of, not against, an accused.” Id. at 41, 35 C.M.R. at 13. However, in Batson v. Kentucky, the Supreme Court held that “[a] person’s race simply is unrelated to his fitness as a juror.” 476 U.S. 79, 87 (1986) (citation omitted) (internal quotation marks omitted). Accordingly, we conclude today that our predecessor Court’s holding in Crawford was abrogated by the Supreme Court’s holding in Batson. In other words, Crawford’s authorization— indeed, its encouragement—to use race when deciding who should be appointed to a court-martial venire panel is no longer good law. As a result, whenever an accused makes a prima facie showing that race played a role in the panel selection process at his court-martial, a presumption will arise that the panel was not properly constituted. The government may then seek to rebut that presumption. Here, the Government did not meet its burden. Therefore, the decision below is reversed but a rehearing is authorized. [Footnote omitted.]

Jeter is the court's 24th full-opinion case of the about-to-end Term.

Judicial independence case in Canada

Edwards et al. v. H.M. The King, a case pending in the Supreme Court of Canada, raises a fundamental issue of judicial independence: Can a military judge be independent if he or she is a serving officer? The parties' factums and briefs from two organizational intervenors can be found here. The cases will be argued at 9:30 a.m. on October 16, 2023. The hearing will be webcast live.

UK research tool

Those who concern themselves with British military justice will want to save a link to the July 20 Summary of Court Martial Appeal Court Cases, issued by the Judge Advocate General.