Term of office, trial and appellate military judges

Gene has posted the changes to the Manual for Courts-Martial (MCM).  (I have started to bookmark it for my own purposes, and that version is here.)  There are a number of significant changes but I want to focus on just one for the moment because of its historical significance.  Rule 502(c)(3) MCM (2018) now provides:

"A person assigned for duty as a military judge shall serve as a military judge for a term of not less than three years, subject to such provisions for reassignment as may be prescribed in regulations issued by the Secretary concerned."

Worried that your court-martial judges will be independent rather than the wants and whims of commanders or others of influence?

When the Uniform Code of Military Justice was first enacted there was no set term of office--statutorily that gap with federal civilian judges continues.  Judge advocates would be assigned duties as a military judge in the normal process of conducting officer assignments.  Generally, military officers are assigned to duties or a unit for three years.  That assignment could be adjusted to be shorter or longer depending on the needs of the Service.  The underlying concern here is that a military judge's assignment could be shortened or terminated because leadership didn't like their judicial philosophy or rulings or findings or sentences.  Anecdotally, there have been some judges removed because of alleged unfitness, some of whom have been returned to the bench after an investigation.  There have been a number of published cases supporting concerns for judicial independence.

Unlawful "command influence is the mortal enemy of military justice." United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986), cert. denied, 479 U.S. 1085, 94 L. Ed. 2d 146, 107 S. Ct. 1289 (1987). Indeed, even "the appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial. Cf. United States v. Cruz, 25 M.J. 326 (C.M.A. 1987)." United States v Allen, 33 M.J. at 212. Accordingly, we cannot countenance -- indeed, we condemn -- the calculated carping to the judge's judicial superiors [the then Deputy Judge Advocate General of the Navy] about his sentencing philosophy. Part of the trade-off in a system in which judges lack tenure and professionally survive only by grace, see United States v. Graf, 35 M.J. 450 (C.M.A. 1992), cert. denied, 127 L. Ed. 2d 206, 114 S. Ct. 917 (1994), is special vigilance to assure judicial independence. See United States v. Allen, [33 M.J. 209 (C.M.A. 1991)]; United States v. Mabe, 33 M.J. 200 (C.M.A. 1991).

U.S. v. Campos, 42 M.J. 253, 260 (C.A.A.F. 1995) (emphasis added).  How can that be fair, or perceived to be fair, if the military judge has a concern about his current or future assignments?  Would the military judge consciously or unconsciously lean in favor of the government and prosecution for personal and professional reasons--to the prejudice of the accused and a fair military justice process.  In a recent case with a tortuous appellate and trial history, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) had this to say--in 2018.

R.C.M. 902(b)(5) targets a military judge's conflicts of interest by demanding disqualification when he or she "has a personal interest, financial or otherwise, that could be substantially affected by the outcome of the proceeding." In this context, a personal interest is "extra-judicial" as opposed to judicial. The UCMJ acknowledges and mitigates the personal interest that "results from the well-recognized effect of fitness-report evaluations on a military lawyer's service advancement and security." Article 26(c), UCMJ, prohibits a CA or any member of a CA's staff from "prepar[ing] or review[ing] any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to his performance of duty as a military judge." The Navy Performance Evaluation System Manual specifically addresses evaluation of the performance of military justice duties: "[Fitness reports] on military judges and appellate judges may properly evaluate their professional and military performance, but may not include marks, comments, or recommendations sbased on their judicial opinions or rulings, or the results thereof."

U.S. v. Hutchins, (N-M Ct. Crim. App. 29 Jan. 2018) (citations omitted).  To be clear, the CAAF finds there are sufficient safeguards in place.  See U.S. v. Mitchell, 39 M.J. 131, 142 (C.M.A. 1994).

With the background in mind let's litigate and see what can be done about terms of office as a way to protect judicial independence.

United States v. Graf

Appellant claims that his affirmed court-martial conviction was secured in violation of "the Due Process Clause" of the Fifth Amendment to the United States Constitution.  He asserts that the military judge who conducted his court-martial and the appellate military judges who decided his appeal had no "fixed terms of office" of any length. (Final Brief at 1.) He argues that the absence of fixed terms of office for these judges and their institutional control by the Judge Advocate General of the Navy precluded them from having the judicial independence required by this provision of the Constitution for judges in serious criminal cases. Accordingly, he asks that his court-martial conviction be set aside and that a new court-martial and appeal, if necessary, be ordered before military judges with some fixed term of office. E.g. Généreux v. Her Majesty The Queen, No. 22103, SCR (Sup. Ct. of Canada, Feb. 13, 1992).

United States v. Graf, 35 M.J. 450, 1992 CMA LEXIS 1032 (C.M.A. 1992) cert. denied Graf v. United States, 510 U.S. 1085 (1994).  The issue seemed dead until along came United States v. Weiss, 36 M.J. 224 (C.M.A. 1992), aff'd, Weiss v. United States, 510 U.S. 163 (1994). Weiss raised two issues: were military trial and appellate judges designated in violation of the Appointments Clause, U.S. Constitution and the Graf issue.  Bottom line, the Supreme Court determined that "The absence of tenure as a historical matter in the system of military justice, and the number of safeguards in place to ensure impartiality, lead us to reject petitioners' due process challenge."  510 U.S. at 181.

War lost?  Battle won? War still going?

Apparently, the war was lost.  But, subsequent to the Graf and Weiss litigation, the U. S. Army and the U. S. Coast Guard each issued a regulation giving military judges a three-year term of office, similar to what is in the new Rule 502(c)(3).  The other Services declined to impose any regulation.  

Now, almost 25 years later, the President through his rule-making power in Article 36, UCMJ, has ordered all of the Services to have a fixed term of office--a uniform rule.  The question remains, is three years sufficient to ensure judicial independence.  Federal judges serve for life, federal magistrate judges serve for 10 years.

Is the response, "Your Honor, the prosecution rests."

Or should it be, "Your Honor, the prosecution requests you reconsider your ruling requiring a term of office for only three years for the following reasons."