Conference Report on FY21 NDAA

The Conference Report for the proposed William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 is now out and can be found here. Readers will want to look in particular at § 542, which imposes a 12-years-of-law-practice qualification for judges of the service Courts of Criminal Appeals and alters the current provision on factual sufficiency review by those courts. It's found at pp. 544-48. Here is the conferees' explanation:

Qualifications of judges and standard of review for Courts of Criminal Appeals (sec. 542)

The House bill contained a provision (sec. 540J) that would require a minimum of 12 years of experience in the practice of law to qualify as a military judge on the Court of Criminal Appeals. The provision would also amend Article 66 of the Uniform Code of Military Justice (10 U.S.C. 866) to require the Court of Criminal Appeals, when considering appeals of court-martial convictions, to consider whether the finding is correct in fact only upon a specific showing by the accused of deficiencies of proof. Under the provision, the Court could set aside and dismiss a finding if clearly convinced that the finding was against the weight of the evidence. Further, the provision would require the entire Court of Criminal Appeals review a determination by a panel of the Court that a finding of guilty was clearly against the weight of the evidence.

The Senate amendment contained a similar provision (sec. 532).

The Senate recedes with an amendment that would remove the requirement for the entire Court of Criminal Appeals to review a determination by a panel of the Court that a finding of guilty was clearly against the weight of the evidence and would amend Article 67 of the Uniform Code of Military Justice (10 U.S.C. 867) to authorize the United States Court of Appeals for the Armed Forces to review such a determination.

When (if?) the bill becomes law, watch for even fewer grants of relief on factual sufficiency grounds than the current trickle.