Sunday, May 4, 2014

Should we have permanent trial courts, we have permanent appellate ones

Cdr. Philip D. Cave, JAGC, USN (Ret)
It seems every 10 years or so, usually when there is some “crisis” of military justice we talk a lot about the need for change.  Every 20+ years or so we even appoint a lot of people and official groups to do something about change.  As Professor Fidell notes in earlier posts (here and here) we are at it again.

Just this week we have two incidents to illustrate why we need standing - I mean permanent - military courts with two levels of military judge.  There should be a military judge (MJ) and a military magistrate judge (MMJ).  I and others have long argued for permanent courts rather than the ad hoc judicial appointment made upon referral of charges.  Think of how a U.S. magistrate judge is almost always available to deal with thorny legal issues, as well as giving practitioners an independent and timely means of dealing with the mundane day to day minutiae of military prosecutions.

Congressional creation of permanent courts-martial was and is easy to fix.  A little over 20 years ago, Cassandra-like I predicted several general developments in U.S. military justice.  Many of today's courts are much more complex than ever - that was a prediction.  I doubt too many will disagree with that assessment.  Many of today's cases are challenging to hardened and experienced advocates no less than to the nugget out of justice school.  And, because of these complexities, I predicted the lack of permanent courts would prevent a quick response in these complex cases, would hinder the preservation of an accused rights, prevent the preservation of the record, and – well, allow for a mess.  Through today's prism we can add protection of a complaining witness's rights.  I think the ad hoc way the military has had to deal with pre-preferral issues has contributed to all types of confusion, bad or lax practice, and a failure to afford an accused her rights in the pre-referral stage.  Prosecutors, SJAs, and commanders will ignore their duty because there is little remedy available to an accused.  Note in both examples below you have wrong and high-handed behavior by prosecutors.  One way to seek remedies for pretrial abuses is through the extraordinary writ.  With permanent trial courts writs become unnecessary.  Further if the prosecution feels government rights are in jeopardy they can go to the same trial court rather than submit extraordinary writ petitions. But some background.

LTC Morse is a senior judge advocate accused of sexual assault.  Because of his duty position the case has received more notoriety than most.  But the underlying issues present in his case are not new and are likely to be repeated.  (See here, here, and here.)  The lawyers for LTC Morse were engaged in what most consider lawful activities designed to defend him in a prosecution or other adverse action.  In the process the defense counsel apparently developed exculpatory information not found, looked for, and declined by CID.  (Posted here.)  The defense counsel were told to stop investigating -- at their client’s peril if they didn’t.  At that point neither the prosecution nor the defense had a locally reasonably available magistrate judge they could go to; the defense was left to file an extraordinary writ petition with the Army Court of Criminal Appeals.

At Camp Pendleton, prosecutors became aware that the defense counsel at an ongoing Article 32, UCMJ, hearing, might be in possession of a cellphone that might contain evidence relevant to the investigation.  (Posted here.)  In their zeal and without foresight it appears they trashed (see pictures here), apparently all of the defense counsel offices.  The search authorization was issued by the area commander at the behest of the government representatives.  The government had no magistrate judge to turn to, as would a U.S. Attorney.  The defense also was without a reasonably close available judicial forum to seek to quash or cabin the search.  A writ to NMCCA even on a work day would likely have been untimely.  (Note, this is not an issue of whether the government had a right to the evidence.  The issue concerns the way in which the government executed the warrant against defense counsel and their offices.  The two issues are separate.  But the issues illustrate why having a military magistrate judge available was, and continues to remain necessary.)

In each of the above two cases, a standing court and military magistrate judge might have nipped the two issues above in the bud.  The two issues above are not new, they just haven’t generated as much attention in the past because they were not happening in the midst of a political storm. 

I envisage something similar to how the U.S. federal district courts operate.  The military magistrate judge would be available to issue search warrants, to preside in Article 32, UCMJ, investigations, to hold preliminary hearings such as arraignments, to hear and decide or recommend on motions filed by the parties.  Suitable issues that come to mind are suppression motions, MRE 412 motions, MRE 513 disclosure and motions, and discovery are just a few matters, along with hearing ex parte motions for witness and expert assistance and production).  As members of the judiciary the military magistrate judges would be independent of command and prosecutors, unlike the present pre-referral system.

I envisage that appointment to be a military magistrate judge would be a first step to later appointment as military judge.  The MMJ would be in the grade of at least O-5.  That is the same grade as any number of the trial judges now sitting in courts-martial.

It is not completely certain that a military magistrate judge system would solve all of the issues.  What I do think it would solve is command and prosecutor influence over pretrial matters, add transparency to the process, allow the defense to have early or earlier access to what the defense is entitled to have or do, and I think it will be more protective of the privacy and rights of a complaining witness.

I still cannot understand why having a permanent judiciary is so controversial and hard to do today. Having reread the legislative history of Article 26, UCMJ, again, I can see how in the early years of the UCMJ the concept of a permanent judiciary was hard to come to.  However, I offer, once again, that it is time for a trial judiciary overhaul, along with an appellate judiciary overhaul.  The rest of the trial judiciary organization is much more controversial and will await another day (or two) and perhaps any comments you have.

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