United States v. Arness , 74 M.J. 441 ( 2015 )

UNITED STATES, Appellee
v.
Mark K. ARNESS, Lieutenant Colonel
U.S. Air Force, Appellant
No. 14-8014
Misc. Dkt. No. 2013-30
United States Court of Appeals for the Armed Forces
Argued February 10, 2015
Decided August 19, 2015
STUCKY, J., delivered the opinion of the Court, in which
ERDMANN, C.J., and RYAN and OHLSON, JJ., joined. BAKER, J.,
filed a separate opinion concurring in the result.
Counsel
For Appellant: Captain Michael A. Schrama (argued); Captain
Johnathan D. Legg (on brief).
For Appellee: Gerald R. Bruce, Esq. (argued).
Military Judge: Don M. Christensen
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Arness, No. 14-8014/AF
Judge STUCKY delivered the opinion of the Court.
Appellant’s approved sentence was less than the
statutory minimum required to trigger direct review by the
United States Air Force Court of Criminal Appeals (CCA).
Nevertheless, the CCA concluded that it had jurisdiction to
consider Appellant’s petition for a writ of error coram
nobis. The CCA denied Appellant any relief, however, and
he filed a writ-appeal at this Court. We specified an
issue: whether the CCA had jurisdiction to entertain the
writ petition. We hold that the CCA was without
jurisdiction to consider Appellant’s case, and we dismiss
the writ-appeal.
I. Background
A military judge sitting as a general court-martial
convicted Appellant, contrary to his pleas, of fourteen
specifications of going from or absenting himself from his
place of duty; ten specifications of false official
statements; and two specifications of conduct unbecoming an
officer by submitting a memorandum he knew to be fabricated
to both the Air Force Board for Correction of Military
Records and the Secretary of the Air Force. Articles 86,
107 and 133, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 886, 907, 933 (2012). The convening authority
approved the adjudged sentence: confinement for eleven
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months and a reprimand. After reviewing Appellant’s case
under Article 69(a), UCMJ, 10 U.S.C. § 869(a) (2012), the
Judge Advocate General determined that the findings and
sentence were supported in law, and elected not to send the
case to the CCA for review under Article 69(d).
Thereafter, Appellant asked the Judge Advocate General to
reconsider his decision, alleging that certain errors were
committed in his court-martial. The Judge Advocate General
denied reconsideration on the basis that Appellant’s
conviction and sentence were final under Article 76, UCMJ,
10 U.S.C. § 876 (2012).
Appellant filed a petition for extraordinary relief in
the nature of a writ of error coram nobis at the CCA. The
CCA determined that it had jurisdiction to consider the
petition, and that the “requested writ [was] ‘necessary or
appropriate,’ as there [were] no adequate alternative
remedies available to the petitioner,” but held that the
petitioner was not entitled to relief on the merits.
United States v. Arness, No. 2013-30, 2014 CCA LEXIS 160,
at *6, 2014 WL 1309825, at *2, *3 (A.F. Ct. Crim. App. Mar.
11, 2014) (unpublished).
Appellant filed a pro se writ-appeal at this Court.
We specified the jurisdiction issue and ordered the Judge
Advocate General of the Air Force to appoint counsel to
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represent Appellant. United States v. Arness, 73 M.J. 454
(C.A.A.F. 2014) (order).
II. Discussion
The courts of criminal appeals are courts of limited
jurisdiction, defined entirely by statute. See United States v.
Politte, 63 M.J. 24, 25 (C.A.A.F. 2006). Relevant to this
appeal, this limited jurisdiction is spelled out in two
statutes: Articles 66 and 69, UCMJ, 10 U.S.C. §§ 866, 869
(2012).
The first provision requires the CCA to review the record in
each trial by court-martial “in which the sentence, as approved,
extends to death, dismissal of a commissioned officer, cadet, or
midshipman, dishonorable or bad-conduct discharge, or
confinement for one year or more.” 1 Article 66(b)(1), UCMJ.
General court-martial cases not meeting the minimum requirements
of Article 66(b)(1) must be reviewed in the office of the Judge
Advocate General, absent an accused’s waiving or withdrawing
from appellate review. Article 69(a), UCMJ. “If any part of
the findings or sentence is found to be unsupported in law or if
reassessment of the sentence is appropriate, the Judge Advocate
General may modify or set aside the findings or sentence or
both.” Article 69(a), UCMJ. Under limited circumstances, the
1
Unless it is a capital case, an accused may waive appellate
review. Article 66(b)(2), UCMJ.
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Judge Advocate General may also modify or set aside the findings
or sentence of cases not reviewed under Article 66 or Article
69. See Article 64, UCMJ, 10 U.S.C. § 864 (2012).
The second provision affecting a CCA’s jurisdiction provides
that it may also review:
(1) any court-martial case which
(A) is subject to action by the Judge Advocate
General under this section [§ 869], and
(B) is sent to the Court of Criminal Appeals by
order of the Judge Advocate General; and
(2) any action taken by the Judge Advocate General
under this section in such case.
Article 69(d), UCMJ. Review in such cases is limited to matters
of law, unlike the CCA’s normal review under Article 66(c). See
Article 69(e), UCMJ.
Here the CCA recognized that Appellant’s sentence did not
entitle him to direct review under Article 66. Arness, 2014 CCA
LEXIS 160, at *6, 2014 WL 1309825, at *2. The CCA reasoned,
however, that it had jurisdiction to consider Appellant’s writ
petition because the Judge Advocate General could have sent the
case to the CCA for review, and because “Article 69(d)(2), UCMJ,
authorizes [the CCA] to review ‘any action taken by the Judge
Advocate General under this section” in a court-martial.’” Id.,
2014 WL 1309825, at *2. The CCA concluded that, because it
“could have properly reviewed the original proceeding under
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Article 69, UCMJ . . . [it] retains authority to issue
extraordinary writs in cases reviewed under Article 69, UCMJ.”
Id., 2014 WL 1309825, at *2.
In arriving at this conclusion, the CCA relied heavily upon
a case in which the United States Army Court of Criminal Appeals
came to a similar conclusion as to its jurisdiction. Dew v.
United States, 48 M.J. 639, 646 (A. Ct. Crim. App. 1998). In
turn, Dew relied on two decisions in which we found jurisdiction
under the All Writs Act, 18 U.S.C. § 1651(a) (2012), to
entertain petitions for extraordinary relief where the sentence
was less than that required for review before the service
courts. These were Unger v. Ziemniak, 27 M.J. 349, 351-55
(C.M.A. 1989); and McPhail v. United States, 1 M.J. 457, 462-63
(C.M.A. 1976).
In Unger, we relied on our earlier decision in McPhail.
McPhail is distinguishable from the present case in that it
involved a fundamental problem of jurisdiction not present here.
Of greater importance is that the expansive concepts of remedial
jurisdiction which underlay McPhail and, in particular, Unger
were later seriously undermined by the Supreme Court’s decision
in Clinton v. Goldsmith, 526 U.S. 529 (1999). We need not
consider here what Goldsmith may say with regard to our own
appellate jurisdiction; it is enough to state that we repudiate
the expansive approach taken in McPhail, Unger, and Dew. To the
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extent they are inconsistent with our opinion in this case,
McPhail and Unger are overruled.
The CCA having been limited to the jurisdiction granted it by
Article 69(d), the analysis is straightforward. Here, the CCA
misread Article 69 and, in doing so, its own jurisdiction.
Consideration of extraordinary relief is not “in aid” of the
CCA’s jurisdiction, because the CCA had none in the first place.
The statute does not authorize the CCA to review every case
which is subject to action by the Judge Advocate General
pursuant to Article 69. Instead, it grants the CCA authority to
review any action taken by the Judge Advocate General “under
this section in such case” -- a case that the Judge Advocate
General elects to refer to the CCA. Article 69(d)(2), UCMJ
(emphasis added). As the Judge Advocate General did not refer
Appellant’s case to the CCA -- a statutory prerequisite for its
review -- the CCA was without jurisdiction to review it. As
this Court’s jurisdiction is predicated on the jurisdiction of
the CCA, we are without jurisdiction to hear the writ-appeal.
See Article 67, UCMJ, 10 U.S.C. § 867 (2012).
III. Judgment
The judgment of the United States Air Force Court of
Criminal Appeals is vacated. Appellant’s writ-appeal is
dismissed for lack of jurisdiction.
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BAKER, Judge ∗ (concurring in the result):
There are usually two sides to every story, or case. Where
Article 69, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
869 (2012), is concerned, the statutory language is not as
unambiguous as portrayed by the majority opinion. As explained
below, multiple interpretations are available. However, under
any plausible interpretation, the Government has not established
jurisdiction. Therefore, I concur in the result.
In Goldsmith, this Court went too far and asserted
jurisdiction over what was clearly an administrative matter.
Goldsmith v. Clinton, 48 M.J. 84, 87-90 (C.A.A.F. 1998) rev’d,
526 U.S. 529 (1999), vacated, 52 M.J. 415 (C.A.A.F. 1999). The
connection to court-martial jurisdiction was tenuous at best.
The Supreme Court concluded as much and reversed. Clinton v.
Goldsmith, 526 U.S. 529, 534–36 (1999). However, in recent
years this Court has swung too far in the other direction and
neither asserted nor defended its jurisdiction or the
jurisdiction of military appeals courts to hear appeals. See
Ctr. for Constitutional Rights v. United States, 72 M.J. 126,
130 (C.A.A.F. 2013); United States v. Rodriguez, 67 M.J. 110,
116 (C.A.A.F. 2009); United States v. Rorie, 58 M.J. 399, 405-07
(C.A.A.F. 2003). Where this Court has found jurisdiction it has
∗
Former Chief Judge James E. Baker took final action in this
case prior to the expiration of his term on July 31, 2015.
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done so by the narrowest of margins. LRM v. Kastenberg, 72 M.J.
364, 368 (C.A.A.F. 2013); United States v. Denedo, 66 M.J. 114,
125 (C.A.A.F. 2008), aff’d and remanded, 556 U.S. 904, 913-15
(2009). Therefore, if the President and the Congress believe
that judicial appellate review is important, if not essential,
to a uniform and credible military justice system, or that
civilian judicial oversight upholds an important constitutional
principle, I would urge the Congress and the President to
consider where and how to clarify and express judicial appellate
jurisdiction over courts-martial. Likewise, I would urge the
President and the Congress to clarify the appellate jurisdiction
of the courts of criminal appeals (CCAs) with respect to Article
69, UCMJ, and to do so conscious of how this article has been
applied, or more to the point, not applied.
A. Article 69, UCMJ, Applied to this Case
In this case, the parties agree on three points. First,
the All Writs Act, 18 U.S.C. § 1651(a) (2012), applies to the
CCAs. Second, the act can only be used in aid of jurisdiction
that already exists; it does not create or expand jurisdiction.
Third, however useful it might be, the courts of criminal
appeals and this Court do not have supervisory authority over
courts-martial or military justice, outside the context of
hearing appeals.
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The United States Air Force Court of Criminal Appeals
determined that Appellant was not entitled to Article 66, UCMJ,
10 U.S.C. § 866 (2012), review because his sentence was sub-
jurisdictional in nature. He was not sentenced to one year or
more of confinement and did not receive a punitive discharge.
Nonetheless, the court determined that review of Appellant’s
motion for a writ in this case was in aid of its existing
jurisdiction, on the basis of three considerations. First, the
Judge Advocate General (TJAG) could have referred the case,
meaning that the CCA could potentially have reviewed it.
Second, in the view of the lower court, Article 69(d)(2), UCMJ,
“authorizes this court to review ‘any action taken by the Judge
Advocate General under this section’ in a court-martial.”
Third, the court drew support from Dew v. United States, 48 M.J.
639, 645 (A. Ct. Crim. App. 1998), which found that, “[a]s the
highest judicial tribunal” in each service’s court-martial
system, the CCAs “are expected to fulfill an appropriate
supervisory function over the administration of military
justice,” id., which is sufficient basis to resolve
extraordinary writs. United States v. Arness, Misc. Dkt. No.
2013-30, 2014 CCA LEXIS 160, at *6, 2014 WL 1309825, at *2-*3
(A.F. Ct. Crim. App. Mar. 11, 2014) (unpublished).
The reasoning is succinct and ultimately not persuasive,
especially because the TJAG did not refer the case to the CCA as
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provided for in subsection (d)(1) of Article 69, UCMJ. Neither
did he take action on the case, as referenced (according to some
interpretations) in subsection (d)(2). Nevertheless, I differ
with the majority opinion’s analysis in reaching this
conclusion.
Article 69, UCMJ, states:
(d) A Court of Criminal Appeals may review, under
section 866 of this title (Article 66) –-
(1) any court-martial case which (A) is
subject to action by the Judge Advocate
General under this section, and (B) is sent
to the Court of Criminal Appeals by order of
the Judge Advocate General; and,
(2) any action taken by the Judge Advocate
General under this section in such case.
On the one hand, the presumptive view, and that taken by the
majority, is that subsections (1) and (2) are to be read
together, as they are connected by the conjunctive “and.” Thus,
there is a trigger, controlled by TJAG, followed by what might
be viewed as a subject-matter limitation. In other words,
according to the majority opinion, a CCA may only review an
Article 69, UCMJ, case which is subject to action by the TJAG
under Article 69, UCMJ, and is also sent to the CCA by the TJAG
in accordance with subsection (d)(1). Upon undergoing its
review, the CCA may only review “any action taken” by the TJAG
“in such case,” per subsection (d)(2). “Such case” is thus a
case reviewed by the TJAG and sent to the CCA. This narrow
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reading is also consistent with the general principle that the
jurisdiction of Article I courts should be read narrowly.
On the other hand, the real question presented in this case
is whether there is a different view that is both available,
and, perhaps, more persuasive. See King v. Burwell, 192 L. Ed. 2d
483, 501 (2015) (recognizing that in certain cases, “the context
and structure of [an] Act compel [courts] to depart from what
would otherwise be the most natural reading of the pertinent
statutory phrase”). Here, the statutory language supports an
alternate reading to that propounded by the majority: namely,
that subsection (d)(2) of Article 69, UCMJ, is a second grant of
jurisdictional authority, rather than a third requirement
contained in a single grant of authority.
Under this view, contrary to the majority opinion’s
assumption, the inclusion of “and” between subsections (1) and
(2) is not used as a conjunctive. It is used to present a list
of two. See 192 L. Ed. 2d at 494 (“[O]ftentimes the ‘meaning --
or ambiguity -- of certain words or phrases may only become
evident when placed in context.’” (quoting FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 132 (2000))).
Indeed, as several federal circuit courts have recognized,
at times the conjunctive “and” and the disjunctive “or” are
interchangeable, particularly where “a strict grammatical
construction will frustrate legislative intent.” United States
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v. Moore, 613 F.2d 1029, 1040 (D.C. Cir. 1979); see also
McCormick v. Dep’t of Air Force, 329 F.3d 1354, 1355 (Fed. Cir.
2003) (“Our sister circuits have likewise read ‘or’ to mean
‘and’ or ‘and’ to mean ‘or’ in order to effectuate Congress’s
intent.” (citations omitted)); United States v. Gomez-Hernandez,
300 F.3d 974, 978 (8th Cir. 2002) (“Although the word ‘and’ is
usually a conjunctive, to ascertain the clear intention of the
legislature . . . courts are often compelled to construe ‘or’ as
meaning ‘and,’ and again ‘and’ as meaning ‘or.’” (citation
omitted) (internal quotations marks omitted)); United States v.
Sherman, 150 F.3d 306, 317 (3d Cir. 1998) (adopting Moore’s
proposition that the word “or” in statute at issue is more
appropriately read as “and”); United States v. Smeathers, 884
F.2d 363, 364 (8th Cir. 1989) (citing Moore in support of the
proposition that “[n]ormally the word ‘or’ connotes disjunction
. . . . This rule of construction yields, however, when a
disjunctive reading would frustrate a clear statement of
legislative intent.” (citations omitted)); Bruce v. First Fed.
Sav. & Loan Ass’n of Conroe, Inc., 837 F.2d 712, 713 (5th Cir.
1988) (holding that the word “and” in the antitying provision of
12 U.S.C. § 1464(q)(1) should properly be read as “or”); United
States v. Scrimgeour, 636 F.2d 1019, 1022-24 (5th Cir. 1981)
(adopting Moore to conclude that the use of “or” means “and” in
statute at issue).
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This Court has also recognized that, at times, “and” must
be read to mean “or” and “or” to mean “and” so as to give effect
to legislative intent. See United States v. Tee, 20 C.M.A. 406,
407, 43 C.M.R. 246, 247 (1971) (collecting cases) (“Where
legislative intent compels such a result, the normal meanings of
‘and’ and ‘or’ may be reversed.”); United States v. Chilcote, 20
C.M.A. 283, 286, 43 C.M.R. 123, 126 (1971) (“The disjunctive
‘or’ and the conjunctive ‘and,’ . . . are not to be considered
as interchangeable unless reasonably necessary in order to give
effect to the intention of the enacting body.” (citing Earle v.
Zoning Bd. of Review of Warwick, 191 A.2d 161, 163 (R.I. 1963)),
superseded by statute on other grounds, Pub. L. No. 98-209, §
7(b), 97 Stat. 1402 (1983))); see also United States v.
Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008) (finding that the
“substantial basis in law and fact” test for the providence of a
plea which “is presented in the conjunctive (i.e., law and fact)
. . . is better considered in the disjunctive (i.e., law or
fact)”).
In this reading, section (d) of Article 69, UCMJ, presents
the chapeau -- “[a] CCA may review” -- and subsections (1) and
(2) present the two distinct circumstances in which a CCA would
have jurisdiction under Article 69, UCMJ. First, the CCA may
review any case subject to action by the TJAG that the TJAG
refers to the CCA, per subsection (d)(1). Under such
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circumstances, although a case is “subject to action by the
TJAG,” the TJAG may decide not to review the case and send it on
to the CCA instead. Second, the CCA may review any case where
the TJAG has taken “any action” under this section. This is a
CCA review of what the TJAG has actually done, to ensure that it
comports with the law. Under this reading, the CCA would not
have jurisdiction in those cases where: (a) the accused waives
or withdraws his right to appellate review, or (b) the TJAG
reviews the case and takes no action, i.e., affirms the case “as
is.”
This alternate reading of the statute interpreting “and” to
be disjunctive is supported by several canons of statutory
interpretation, including the so-called “plain language” canon,
which, in this case, proves not so plain. First, the heading
seems to suggest a list of two. Second, “subject to action” is
prefatory language. The TJAG could take action. This language
is thus distinct from subsection (d)(2) where the TJAG has in
fact taken “any action.” Subsection (d)(1)(A), requiring that a
court-martial case be “subject to action” by the TJAG, would
then become redundant language if “[a]ny action taken by the”
TJAG under subsection (d)(2) was an additional requirement,
rather than a separate predicate for jurisdiction. Presumably,
if the TJAG has taken “[a]ny action” in a case, that case was
“subject to action by the” TJAG. Reading the “and” in the
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disjunctive, therefore, would not only comport with the plain
language of the statute, but also avoid the rule against
surplusage. See Ratzlaf v. United States, 510 U.S. 135, 140-41
(1994).
Third, reading “and” in the disjunctive is also arguably
consistent with the overall purpose of the UCMJ and appellate
schemes, because it provides for appellate judicial review
within a unitary military justice system rather than moving such
review to boards of review or habeas review in Article III
courts. It is hard to imagine that Congress intended to create
a system where the government could abuse a right or skirt the
law and then avoid judicial review by having the convening
authority ensure the punishment was sub-jurisdictional,
preventing the CCA from rectifying the error. Congress, we
know, did not intend to limit CCA review only to Article 66,
UCMJ, qualifying-sentence cases, because the CCA can and does
exercise review on an interlocutory basis where the sentence is
not yet known. See Kastenberg, 72 M.J. at 368 (“A writ petition
may be ‘in aid of’ a court's jurisdiction even on interlocutory
matters where no finding or sentence has been entered in the
court-martial.”).
Despite the merits of this alternative interpretation, I
nonetheless believe that the presumptive view that CCA review is
not triggered unless and until the TJAG refers an Article 69,
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UCMJ, case to the CCA is -- at this stage in UCMJ practice --
the better view. There is plain language support for this
reading in the final clause of subsection (d)(2) of Article 69,
UCMJ, “in such case.” If this clause did not refer back to
subsection (d)(1), it is not clear to what it refers, and this
language would therefore become superfluous. Moreover, Article
69, UCMJ, has not previously been interpreted as providing two
separate grants of jurisdiction, but rather as a singular grant
with three threshold requirements. If TJAGs’ actions were
subject to CCA review without referral to the CCA by the TJAG,
then we would expect to have seen multiple cases involving such
exercise of jurisdiction. You would also expect a track record
of CCA review of courts-martial not otherwise subject to review
under Article 66, UCMJ. The President and executive branch have
interpreted Article 69, UCMJ, this way as well. This is
reflected by the discussion in Rule for Court-Martial (R.C.M.)
1201(b)(3), which states: “Review of a case by a Judge Advocate
General under this subsection is not part of appellate review
within the meaning of Article 76 or R.C.M. 1201.”
Further, this view comports with legislative history. The
original version of Article 69, UCMJ, passed by the House of
Representatives, did not authorize certification of issues by
the TJAG to the CCA at all, providing no opportunity for
appellate review of sub-jurisdictional cases. See United States
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v. Monett, 16 C.M.A. 179, 181, 36 C.M.R. 335, 336-37 (1966).
The Senate added the certification provision to give the TJAG
authority to certify a case for CCA review, suggesting that
appellate review without referral by the TJAG was never
available for sub-jurisdictional cases. Id. Finally, where
Article I courts are concerned, the tie goes to the narrow view
of jurisdiction.
In any event, even if we were to accept Appellant’s
alternative reading of the statute, the CCA would not have
jurisdiction over this case. The TJAG did not refer the case to
the CCA and the TJAG did not take any action in the case.
Therefore, I concur in the result.
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 Monett, 16 C.M.A. at 181, 36
C.M.R. at 337.
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-
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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
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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.
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