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Ending the military's courts of criminal appeals de novo review of findings of fact.


     A. The Law and History of Command Influence
     B. Enforcing the Prohibition Against Command Influence
     C. Addressing Command Influence at Trial
     A Professional Judiciary
     B. Military Rules of Evidence
     A. Appellate Defense
     B. Government Appellate Division
     C. Judges
     A. Convictions Are Rarely Overturned due to Factual
     B. Due Process Protections for Servicemembers Exceed
        Those of Civilians
          1. Miranda Rights .
          2. Free Appellate Counsel
          3. Care Inquiry
          4. Free Mitigation Experts
          5. Clemency


As frequently happens, a young man and woman are intoxicated at a party and slip away for some privacy. (1) A few days later, the woman reports that she was raped, while the man claims the sexual intercourse was consensual, and eventually there is a trial. Television shows such as Law & Order and CSI promote the myth that the outcome of this trial will hinge on the introduction of forensic evidence like DNA, fingerprints, hair fibers, or semen deposits. The reality is that cases these are frequently "he said, she said," and will be decided by little more than witnesses taking the stand and reporting what they saw and heard. It is then up to the jury to decide whom it believes. When deciding the facts, a jury considers not only what is said, but also how it is said. A jury will actually see tears running down the face of a victim or her face flushing red with humiliation as she relates intimate details of a sexual assault. The jury will hear the tone of her voice as it gets choked with emotion and her deep breaths as she tries to regain her composure. A jury can compare this with a defendant who fails to make eye contact, speaks in a flat monotone as he is slouched in his seat at the witness stand with his arms crossed, uses a contemptuous or sarcastic tone in reference to the victim, and takes abnormal delays in answering basic questions.

Because a jury is actually present in the courtroom during the trial, it is exposed to more and better information than any appellate judge merely reading the record of it. For this reason, it is appropriate that, in most jurisdictions, appellate judges are deferential to a jury's findings of fact. (2) However, this is not the case in military courts. (3) In the military's courts of criminal appeals, appellate judges conduct a near de novo review of a panel's findings of fact. (4) Their review gives a "fresh, impartial look at the evidence, giving no deference to the decision of the trial court on factual sufficiency ... [while taking] into account the fact that the trial court saw and heard the witnesses." (5) If the appellate court thinks the panel was mistaken or is not convinced of an accused's guilt beyond reasonable doubt, the court will overturn a conviction. (6) This power comes from Article 66(c) of the Uniform Code Military Justice (UCMJ), which states:
   In a case referred to it, the Court of Criminal Appeals may act
   only with respect to the findings and sentence as approved by the
   convening authority. It may affirm only such findings of guilty,
   and the sentence or such part or amount of the sentence, as it
   finds correct in law and fact and determines, on the basis of the
   entire record, should be approved. In considering the record, it
   may weigh the evidence, judge the credibility of witnesses, and
   determine controverted questions of fact, recognizing that the
   trial court saw and heard the witnesses. (7)

This unusual appellate power is a vestigial trait of the sixty-three-year-old UCMJ. When the UCMJ was enacted in 1950, appellate fact-finding review was useful because general and special courts-martial were highly unprofessional tribunals that operated very differently than civilian trials. (8) The person who decided to put the defendant on trial also selected the judge and jury. (9) These issues made the fact-finding powers of the appellate courts a necessary and vital means of protecting the rights of the accused because they resulted in the first impartial review of a trial by experienced attorneys who were independent of the commander that convened the court-martial. (10) While this unusual appellate power was logical and justified in 1950, due to fundamental changes in the UCMJ, the original arguments and reasons for its continuation no longer exist. Military justice has undergone fundamental changes since 1950 and it is time for Congress to recognize that despite its rough beginnings, military justice has evolved to the point where today it is highly professional and provides "a more protective statutory system for military accused than the Constitution provides for civilians." (11) Because of changes in military justice concerning command influence and the professionalism of courts-martial, in conjunction with an overburdened appellate system yielding few benefits, the UCMJ should be amended so that appellate courts may no longer conduct a de novo review of findings of fact.

Part II of this Article will explain the legal significance of Article 66(c) and how it deviates from the usual practice in civilian courts. Part III will explore the history of command influence and discuss how the creation of an independent military judiciary has rendered the original rationale for granting criminal-appellate courts this unusual power obsolete. Part IV furthers the argument that the reason for affording the appellate courts extensive powers no longer exists. Although military justice under the original UCMJ was very unprofessional, today's system, with modern military judges and the well- developed Military Rules of Evidence (MRE), has made the modern courtsmartial highly professional and analogous to civilian trials. Part V illustrates how Article 66(c) generates considerable work for the government's appellate attorneys, while yielding minimal benefits for the accused, and thereby contributes to the injustice of an already overtaxed, backlogged, and slow appellate system. Part VI demonstrates that even if Article 66(c) is amended to eliminate the appellate courts' fact-finding powers, the rights and protections of servicemembers will not be prejudiced as they will still have rights and protections that exceed those which the U.S. Constitution provides to civilians. Finally, Part VII considers some possible counterarguments, but shows how they do not outweigh the benefits accrued from implementing this proposed change.


Under Article 66 of the UCMJ, the military's courts of criminal appeals are required to review all courts-martial sentences carrying a bad conduct or dishonorable discharge, or more than one year of confinement. (12) To affirm a sentence, the court must review the entire record of the trial and the judges must be convinced beyond a reasonable doubt that the appellant is guilty both as a matter of law and fact. (13) The test for legal sufficiency "is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all of the essential elements beyond reasonable doubt." (14) For example, in United States v. Wilcox, (15) the Court of Appeals for the Armed Forces (CAAF) found legal insufficiency to support an Article 13416 conviction for comments a white supremacist made on the Internet because there was absolutely no evidence introduced at trial to prove that the statements were in fact service discrediting or interfered with good order and discipline. (17)

In contrast to legal sufficiency, "[f]or factual sufficiency the test is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the [court of criminal appeals] are themselves convinced of the accused's guilt beyond a reasonable doubt." (18) Factual insufficiency occurs when there is some evidence of each element of an offense, but not enough to convince an appellate court that the accused is guilty beyond a reasonable doubt. (19) For example, in United States v. Nicely (20) a key question in the case was whether an alleged victim was too intoxicated to consent to sex. (21) The court acknowledged that there was some evidence the alleged victim was intoxicated, but as to whether the level of intoxication was at the point where she was unable to consent to sex, "[t]here [was] simply not enough evidence in the record for [the court] to be convinced of the accused's guilt beyond a reasonable doubt." (22)

In their review, appellate courts employ a nearly de novo standard in reviewing a trial court's findings of both law and fact. (23) Beyond the provision in Article 66(c) of "recognizing that the trial court saw and heard the witnesses," (24) the court is not required to show deference to the findings of the panel, has "independent fact-finding power," (25) and may "'weigh the evidence ... and determine controverted questions of fact' differently from the court-martial." (26) As none of the judges were present at the trial--except in the case of a DuBay hearing (27)--the appellate court's review is limited to using only the record of the trial, oral arguments, and briefs. (28) This means that when the factual sufficiency of a conviction is challenged, a court of criminal appeals conducts what is essentially a retrial at the appellate phase without the benefit of witnesses or evidence. Just how much deference and consideration the judges are supposed to give the fact that the trial court actually "saw and heard the witnesses" (29) is not provided for in the UCMJ or any other authority such as the Rules for Courts-Martial (RCM) or Manual for Courts-Martial (MCM). The CAAF has suggested that the courts of criminal appeals should show very little deference, stating, "[t]his awesome, plenary, de novo power of review grants unto the Court of Military Review authority to ... 'substitute its judgment' for that of the military judge.... [and] the court members." (30) Furthermore, "Article 66 requires the [c]ourt of [criminal appeals] to use its judgment to 'determine[], on the basis of the entire record' which findings and sentence should be approved." (31) If the court is not convinced beyond a reasonable doubt of the appellant's guilt, it will overturn the verdict. (32)

The law granting the courts of criminal appeals this fact-finding power is well established. The following is a summary of law on Article 66(c) derived from an appellate brief filed by the U.S. Army's Government Appellate Division to the U.S. Army Court of Criminal Appeals.

The standard of review for questions of both legal and factual sufficiency is de novo. (33) The test for factual sufficiency "is whether, after weighing the evidence of record and making allowances for not having personally observed the witnesses, [the court is] convinced of the [accused's] guilt beyond a reasonable doubt." (34) The court applies "neither a presumption of innocence nor a presumption of guilt," but "must make its own independent determination as to whether the evidence constitutes proof of each required element beyond a reasonable doubt." (35)

The CAAF has described the fact-finding powers of the courts of criminal appeals as "unparalleled among civilian appellate tribunals." (36) While it is common practice for appellate courts to conduct a de novo review on questions of law, an appellate court that conducts a nearly de novo review on questions of fact is highly unusual in the American judicial system at both the state and federal levels. (37) There are some limited exceptions to this observation such as in Georgia and Illinois where appellate courts will conduct a de novo review of undisputed facts. (38) In Tennessee, when a case is tried without a jury, "the standard of review is de novo upon the record of the Trial Court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise." (39) In Iowa, for equity proceedings, courts are expected to "give weight to the fact findings of the district court, especially in determining the credibility of witnesses, but are not bound by them." (40) In Texas, "a court must determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (41)

In the federal system, Article III district courts conduct a de novo review of findings of fact from bankruptcy court judges, but only on noncore matters. (42) The tax court requires that "[d]ue regard ... be given to the circumstances that the Special Trial Judge had the opportunity to evaluate the credibility of witnesses, and the findings of fact recommended by the Special Trial Judge shall be presumed to be correct." (43) A similar rule exists in the Court of Claims. (44) As a general rule, however, Article III appellate courts "cannot ordinarily review questions of fact," (45) and when they do, they will not set aside a verdict unless the finding was in clear error or clearly erroneous.46 "Under this standard, [the appellate court] will reverse the district court only if [the appellate court] ha[s] a 'definite and firm conviction that a mistake has been made.'" (47) "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing [body] on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (48) "[R]eview under the 'clearly erroneous' standard is significantly deferential." (49) "The standard of review for a district court's finding of guilt at a bench trial is whether the conviction is supported by substantial evidence." (50) The substantial-evidence standard is less deferential than the clearly erroneous one, but still considerably deferential to whomever sat as the factfinder during the trial stage. (51)


The unusual standard of review for the military's courts of criminal appeals was created to prevent commanders from prejudicially influencing convictions and sentencing, (52) and because courts-martial under the original UCMJ were highly unprofessional tribunals and considerably different than civilian trials. (53) The problems that arose from the military's formerly unprofessional justice system are discussed in Part IV, while command influence is discussed in this Part. Command influence had been a major injustice during courts-martial in World War II, (54) for of the sixteen million men and women who served in the armed forces, an alarming 2 million courts-martial were convened, and with a conviction rate of ninety-seven percent, 45,000 servicemembers were imprisoned. (55) The upside to these troubling statistics was that they were responsible for bring to light problems in military justice, such as the proliferation of command influence under the Articles of War--the original judicial code of the armed forces. (56) As servicemembers returned home, they brought with them horror stories of military justice, which generated considerable demand for reform. (57) In 1946, hearings were held by the War Department Advisory Committee on Military Justice in eleven major cities where the complaints centered on the abuses of command control and excessive courts-martial sentences. (58) The hearings found that a significant number of commanding officers influenced court-martial proceedings to the point where they were no longer fair and impartial trials. (59) It was common practice to simply pass the highest sentence upon the accused and leave it to the commander to make adjustments. (60) World War II veteran and former Governor of Vermont, Ernest W. Gibson, described the pervasiveness of command influence in these trials:
   [W]e were advised, not once but many times on the Courts that I sat
   on, that if we adjudged a person guilty we should inflict the
   maximum sentence and leave it to the Commanding General to make any
   reduction.... I was dismissed as a Law Officer and Member of a
   General Court-Martial because our General Court acquitted a colored
   man on a morals charge when the Commanding General wanted him
   convicted--yet the evidence didn't warrant it. I was called down
   and told that if I didn't convict in a greater number of cases I
   would be marked down in my Efficiency Rating; and I squared right
   off and said that wasn't my conception of justice and that they had
   better remove me, which was done forthwith. (61)

Congress was well aware of the pervasiveness of command influence and the need for change, as evidenced by U.S. Navy veteran and then House Representative Gerald R. Ford's statement, "I can recall hearing conversations between members of boards along this line: 'What does the Old Man want us to do?'" (62) Ford's recollection showed how the military's judicial boards were not even attempting to determine guilt or innocence based on the facts of the case, but instead, did what the superior officer wanted. (63) It was felt by many that "the question of command control was perhaps the most vital single point in military justice reform." (64) Consequently, there was widespread, though not unanimous, support for a reformed system of military justice that would address the problems of command influence by curtailing the role of the convening authority. (65)

A. The Law and History of Command Influence

When the UCMJ was drafted, Congress gave the courts of criminal appeals, then called Boards of Review, (66) fact-finding powers as the mechanism to curb command influence at courts-martial. (67) The concept of limiting command influence by having appellate courts reviewing findings of fact was not new. During World War II, the Army had "a three member Board of Review, which, with the concurrence of the Judge Advocate General, could find a conviction 'legally insufficient,' and remand the case to the convening authority for a rehearing or 'such other action as may be proper.'" (68) The aforementioned public outrage concerning military justice during World War II suggests that this board was highly ineffective at combating command influence.

Between World War II and the creation of the UCMJ, Congress attempted to reform military justice and address command influence by revising the Articles of War through the Selective Service Act of 1948, also known as the Elston Act. (69) Specifically, the Elston Act sought to address the issue by "codifying] several reform initiatives for the Army, including giving the board of review the power to" conduct a factual review. (70) Pursuant to the Elston Act, the Articles of War were amended such that: "In the appellate review of records of trials by courts-martial as provided in these articles the Judge Advocate General (JAG) and all appellate agencies in his office shall have authority to weigh evidence, judge the credibility of witnesses, and determine controverted questions of fact." (71) A problem with the Elston Act, however, was that it only applied to the Army and not the Navy, Marine Corps, Coast Guard, or newly created Air Force; accordingly, soon after its enactment, Congress began developing the UCMJ. (72) The word "Uniform" in the title of the UCMJ signifies that the Code applies to all branches of the service. (73) The House of Representatives began hearings on the proposed UCMJ on March 7, 1949, (74) and it was signed into law by President Truman on May 31, 1951. (75)

The original UCMJ prohibited command influence in Article 37, entitled "Unlawfully influencing action of court." (76) It stated:
   No authority convening a general, special, or summary
   court-martial, nor any other commanding officer, shall censure,
   reprimand, or admonish such court or any member, law officer, or
   counsel thereof, with respect to the findings or sentence adjudged
   by the court, or with respect to any other exercise of its or his
   functions in the conduct of the proceeding. No person subject to
   this Code shall attempt to coerce or, by any unauthorized means,
   influence the action of a court-martial or any other military
   tribunal or any member thereof, in reaching the findings or
   sentence in any case, or the action of any convening, approving,
   or reviewing authority with respect to his judicial acts. (77)

Simply put, Article 37 states that neither the convening authority nor commanding officer is to pressure any member of the court, be it the law officer or military judge, any of the counsel, or the panel to influence the action of a court-martial or any post-trial action. (78) The modern text of Article 37 has changed little since its inception. (79) Furthermore, Article 98 made it a punitive criminal offense for a commander to violate Article 37 by purposefully trying to influence court proceedings. (80) The text of Article 98, entitled "Noncompliance with procedural rules," has not changed since it was created in 1950 and states the following:

Any person subject to this chapter who-- (1) is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this chapter; or

(2) knowingly and intentionally fails to enforce or comply with any provision of this chapter regulating the proceedings before, during, or after trial of an accused;

shall be punished as a court-martial may direct. (81)

Just because a prohibition against command influence was written into the 1950 version of the UCMJ does not mean that the practice actually ceased. Declaring something unlawful does not mean it disappears, which is evidenced by the failure of prohibition in the 1920s, the easy acquisition of marijuana despite its criminalization, and the proliferation of file-sharing music and movies. Although Article 37 prohibited command influence and Article 98 made violations of Article 37 punitive, no one has ever been prosecuted under Article 98. (82) It is an elementary concept that for a law to have meaning, enforcement is necessary. There are numerous possible explanations for why no one has been prosecuted for command influence. During Senate hearings concerning command influence, it was opined "that there is absolutely no way of proving an officer guilty of a violation of article 37 unless he is a hopeless idiot," and that "you cannot prevent an officer from discussing a case." (83) While institutional failures are another possible explanation, (84) there is also case history where although unlawful command influence may have been present, it was exercised inadvertently or without any malicious intent. (85) More often than not, commanders are not trying to target any particular individual, but instead are trying to advance their legitimate concerns of enforcing discipline, especially when selecting officers to sit on panels. (86) Still, the fact that unlawful command influence was done unintentionally and without malice is of little comfort to an accused facing potentially severe consequences because of his commander's mistake.

B. Enforcing the Prohibition Against Command Influence

Congress chose to curb command influence by affording appellate courts fact-finding powers. (87) "[A]llowing a panel of experienced judges to review sentences was seen as an important check to ensure commanders were not influencing courts-martial to hand down excessive sentences." (88) As explained below, the reason Congress chose to address command influence at the appellate level was because the commander too closely controlled the trial phase. Today, general and special courts-martial are presided over by military judges who are appointed by their branch's JAG and are independent of the convening authority's chain of command. (89) However, under the original UCMJ, general and special courts-martial were not presided over by independent military judges. Instead, the panel president, who was typically a line officer instead of a Judge Advocate, (90) presided over a special court- martial, and a law officer presided over a general court-martial. (91) Both the panel president and the law officer were subject to the command of the convening authority. (92) The position, duties, and certifications of the law officer were described in Article 26 of the original UCMJ as follows:

(a) The authority convening a general court-martial shall appoint as law officer thereof an officer who is a member of the bar of a Federal court or of the highest court of a State of the United States and who is certified to be qualified for such duty by The Judge Advocate General of the armed force of which he is a member. No person shall be eligible to act as law officer in a case when he is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case.

(b) The law officer shall not consult with the members of the court, other than on the form of the findings as provided in Article 39, except in the presence of the accused, trial counsel, and defense counsel, nor shall he vote with the members of the court. (93)

As stated in Article 26 of the 1950 UCMJ, unlike the military judges of today, law officers were appointed to a court-martial by the convening authority where they were subject to the convening authority's control and beholden to the chain of command for efficiency reports and discipline. (94) The same applied to the panel president, who, like any other panel member, was also appointed by the convening authority. (95) To put it simply, under the original UCMJ, the convening authority--the person who had already decided to court-martial the accused and selected and evaluated the jury--was also the one selecting and evaluating the law officer or panel president, who were the closest thing to a judicial authority in 1950. (96) Because the law officer and panel president were both under command of the convening authority, expecting either of them to address allegations of command influence would have been like expecting the fox to guard the henhouse. If he were to investigate or act on allegations of command influence, he would essentially be accusing his superior officer of breaking the law. (97) It is unlikely that the mere fact that it was against the law for the convening authority to pressure the law officer, panel president, or other panel members would provide much comfort to an accused, especially given the aforementioned difficulty in proving unlawful command influence. (98) Because the trial courts could not be trusted to protect against command influence, this duty logically fell upon the appellate courts.

Unlike trial courts, the members of the appellate courts could be trusted with addressing command influence because they were not subject to the convening authority's chain of command. (99) Under the original iteration of Article 66(a):
   The Judge Advocate General of each of the armed forces shall
   constitute in his office one or more Boards of Review, each
   composed of not less than three officers or civilians, each of whom
   shall be a member of the bar of a Federal Court or of the highest
   court of a State of the United States. (100)

The members of the boards of review (101) answered to the JAG and not the convening authority, making them the first independent, neutral, and disinterested review of a trial. (102) Their power to review factual sufficiency and grant relief when they felt that the evidence did not justify a conviction or sentence was an important check on a commander's power to influence proceedings and outcomes. (103) Even if command influence could not be proven--inherently a very difficult task (104) --their plenary power of review would enable them to make changes in the interest of justice if the trial record did not support the conviction or sentence. (105) The importance of an independent appellate body with these powers is self-evident considering that trials were so closely controlled and potentially influenced by commanders. However, this power is no longer necessary, in part because modern military trials are no longer so closely controlled by commanders.

C. Addressing Command Influence at Trial

Because the commanders' ability to influence trials in 1950 led to the creation of a powerful military judiciary, it follows that because the commanders' ability to influence trials has been limited, then so too should the powers of the appellate courts. The UCMJ has been amended since 1950, and general and special courts-martial are no longer presided over by law officers and panel presidents who are subject to the control of the convening authority. While the convening authority still selects the members of the panel including the president, he or she can no longer select the presiding judicial figure. (106) Instead, a military judge, who has the same independence from the convening authority as the appellate judges, presides over present day general and special courts-martial. Rather than answering to the convening authority like the law officer, a military judge is assigned by and directly responsible to the JAG. (107) The modern iteration of Article 26 states that "[t]he military judge of a general court-martial shall be designated by the Judge Advocate General, or his designee, of the armed force of which the military judge is a member for detail." (108) Furthermore, under Article 26(c), "neither the convening authority nor any member of his staff shall prepare or review 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." (109) In Weiss v. United States, (110) the United States Supreme Court recognized the change from law officers to military judges has created an independent judiciary within the military. (111) The Court stated, "the applicable provisions of the UCMJ, and corresponding regulations, by insulating military judges from the effects of command influence, sufficiently preserve judicial impartiality so as to satisfy the Due Process Clause." (112) As Justice Souter observed in his concurring opinion, this has led to what is essentially an independent judiciary, which can operate autonomously and without fear of repercussions for its decisions, just like Article III judges. (113)

What this means is that unlike law officers and panel presidents, military judges are independent of the convening authority, and therefore, can be entrusted to guard against command influence. Unlike the appellate judges sitting on the courts of criminal appeals, military judges are actually present in the court during the trial, therefore they are much better situated to recognize and address potential command influence. The CAAF has created a straightforward process for addressing possible command influence at trial. (114) First, it is the defense that must "rais[e] the issue of unlawful command influence." (115) The test is that there must be "some evidence" of "facts which, if true, constitute unlawful command influence, and that the alleged unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings." (116) The burden then shifts to the government to prove beyond a reasonable doubt any one of the following: "(1) that the predicate facts do not exist; or (2) that the facts do constitute unlawful command influence; or (3) that unlawful command influence will not prejudice the proceedings or did not affect the findings and sentence." (117) Upon a finding of unlawful command influence, a trial court may institute remedies as severe as a dismissal of charges with prejudice, or impose no remedy at all. (118) In addition, "although a military judge may not adjust or suspend a sentence, he may declare a mistrial under RCM 915." (119) Furthermore, like a federal judge, a military judge is "empowered to set aside the findings of guilty if it [is] apparent to him that the evidence [is] legally insufficient." (120) Given that unlike appellate judges, trial judges are actually present throughout the trial and are better situated to observe and act on possible cases of command influence, this modern means of rectifying command influence at trial is superior to the 1950 boards-of-review system.

Appellate courts were given fact-finding powers because all of the members of the trial, including the judicial figure, were subject to the chain of command of the convening authority. With the advent of the independent military judge, this is no longer the case. Replacing the law officer at general courts-martial and panel president at special courts-martial with an independent military judge has decreased a commander's ability to influence courts-martial proceedings. Therefore, appellate courts do not need the same fact-finding powers to rectify command influence. The fact that there is already a military judge presiding over the trial with both the independence and power to rectify command influence has rendered the fact-finding in courts of criminal appeals redundant, rather than a necessary front line of defense. Yet, the fact that historic reasons for giving the courts this unusual power no longer exists is not in itself a justification to remove this power. On the contrary, it is merely a reason to review whether the modern usage and justifications for this power warrant its continued existence. As explored below, the burden de novo factual review places on the military's overtaxed appellate system, without yielding any apparent benefits, makes it unlikely that the power is still justifiable today.


The unprofessional nature of courts-martial under the original UCMJ is a principal reason why the military's boards of review were given their unusual appellate power. (121) During the drafting of the UCMJ, Congressman Clyde Doyle stated that he believed "strongly that a military court is not comparable to a civilian court," which was why Congress should "permit the Judicial Council to review the facts as well as the law." (122) As explained below, in the early days of the UCMJ this was an accurate statement, and because of problems arising due to the lack of professionalism at trials, the fact-finding appellate powers of the boards of review were an invaluable means of remedying injustices. However, the professionalism of the courts-martial structure has greatly improved since 1950. Today, military justice is at the point where it is not only comparable to its civilian counterpart, but actually exceeds a civilian court's limitations by granting more rights and protections to the accused. (123) While Congressman Doyle's argument was valid in 1950, it does not hold true today, and accordingly, this justification for affording the military's appellate courts such an unusual power no longer exists.

A. A Professional Judiciary

In 1950, one of the most recognizable distinctions between civilian criminal trials and general or special courts-martial was the absence of a judge at courts-martial. Although a law officer was present at general courts-martial, as subsequently explained, these officers were not analogous to a civilian judge, did not exactly preside over the trial, and were not present at special courts- martial. The absence of true judges at courts-martial was a great weakness in the military justice system because judges play an important role in maintaining the fairness, integrity, and impartiality of trials. (124) Today, when a judge observes issues such as a possible juror bias (125) or the improper admission of evidence, (126) he or she has both the legal training to recognize a potential impediment to justice and the power to dispel it. The difference between a law officer and a military judge is not merely one of title, but rather marks a vast increase in the competence and professionalism in the military's judiciary, bringing military justice in line with civilian practice. (127)

To understand the significance of having a military judge instead of a law officer or panel president presiding at trial, one must look at the history of the military judiciary. The original military judicial code was the Articles of War, which was adopted in 1775 and had undergone only superficial changes since its inception. (128)
   At the end of World War I, Congress amended the Articles of War in
   response to dissatisfaction from the large number of people brought
   into contact with the command-dominated justice system for the
   first time. Congress ... required the convening authority to
   appoint, in each Army general courts-martial, one of the panel
   members to serve as a "law member." As one of the panel members,
   this law member would vote with the rest of the panel, but was
   assigned certain judge-like duties, such as ruling on the
   admissibility of evidence and instructing on the applicable law in
   a given case. Whenever possible, this law member would be a Judge
   Advocate, although a "specially qualified" officer could be
   appointed if a Judge Advocate was not available. There was still no
   requirement that the law member be a licensed attorney. Moreover, a
   majority of the panel could overrule the law member's decisions. In
   the absence of a law member, the president of the court-martial
   panel ruled upon all interlocutory issues. As with the law member,
   a majority of the panel could also overrule the president's
   decisions. (129)

Although the creation of the law member was a step in the right direction, it hardly constituted a fair and independent judiciary. By World War II, servicemembers were still "essentially subject to a 160-year-old criminal code that provided no right to trial by peers, that was largely administered by men untrained in the law, and that was closely controlled by a commander whose natural and primary interest was the maintenance of good order and discipline within his command," instead of fair proceedings safeguarding an American citizens' rights to due process. (130)

The Elston Act was a significant movement toward a professional judiciary and a precursor to the UCMJ in which Congress amended the Articles of War to "require that the law member be a Judge Advocate or a licensed attorney serving as a commissioned officer on active duty and certified by The Judge Advocate General (TJAG) as qualified for such detail." (131) The "[l]aw members continued to rule on interlocutory questions and such rulings were generally final except in two circumstances: (a) on motions for finding of not guilty; and (b) on questions regarding an accused's sanity." (132) "[They] had the additional responsibility of instructing other court-martial panel members regarding the burden of persuasion and standard of proof." (133) However, the Elston Act applied only to the Army, and there was still a need to modernize the Navy's judicial code.

During the drafting of the UCMJ, there was disagreement as to whether the military should continue its practice of having a "law member" with weak judicial powers, or to "provide for a law officer who acted solely in a judicial capacity" and was empowered to issue authoritative rulings. (134) Much of the opposition to a powerful judicial figure came out of the military's respect for rank and hierarchy. (135) The JAG of the Army at the time, Major General Thomas H. Green, opposed this system because the law officer would in most cases be junior in rank to the president of the court-martial, who was determined by his status as the highest-ranking officer on the panel. (136) Major General Green was opposed to the idea of a lower-ranking law officer issuing binding orders and rulings to a more senior and higher-ranking panel president. (137) Logically, this was a very poor argument for not having a law officer. The law officer would be trained in the law, while the president of the panel would likely be a line officer without legal expertise. (138) Just as one would find it ludicrous for an infantry General to order a dentist to drill a cavity a certain way, or a senior Chaplain to instruct an Apache pilot how to compensate for a strong wind during flight, neither should this General or Chaplain be able to instruct a lawyer on the practice of law. Despite this flawed logic, Major Green's concerns were validated, for in the early days of the UCMJ, having law officers inferior in rank to the panel president was a problem that jeopardized the integrity of the process and the rights of the accused, contributing to the appellate workload.

Ultimately, the first UCMJ mandated the appointment of a weak law officer for each general court-martial with the authority to issue final rulings of law on most interlocutory matters and to take other authoritative judicial actions. (139) "In contrast to the role of the law member under the Articles of War, the law officer of a general court-martial under the UCMJ [was intended to] occupy a position similar to a judge in civilian proceedings and would not participate as a voting member of the court-martial panel." (140) Law officers would not be appointed to special courts-martial, so the panel president would preside instead. (141) While this was a step towards creating a military judiciary, there were still multiple problems left to address. First, there was confusion resulting from law officers not being assigned to special courts-martial. This meant that at special courts-martial "the rulings on interlocutory matters and other matters of law ... [were] the responsibility of the special court-martial president" who would typically be a line officer, and not a lawyer.142 This also meant that individuals without a law school education would be ruling on legal issues. (143)

The potential for error with persons unschooled in the law making legal decisions is very high, which justifies a powerful appellate review. Errors in matters of law have the potential to result in findings of fact that otherwise would not have been made. An accused was potentially prejudiced by this arrangement because evidence that should have been excluded was often allowed at trial, possibly leading to convictions that never would have occurred had an experienced lawyer decided evidentiary matters. This is exactly what happened in United States v. Patrick, (144) where the Navy Board of Review found that "[i]t was error for the court to permit prosecution witnesses to testify over objection that an 'order' was given [to the] accused." (145) Had an attorney been presiding over this court, he or she would have known that it was improper to ask a witness to make a legal conclusion. Based in part on this testimony, the servicemember was wrongfully convicted, and the Navy Board of Review overturned the conviction. (146) In Patrick, the evidence before the Board of Review was "not a complete record of the proceedings and testimony," and the Board of Review, using its factual-review power, made the determination that the evidence was insufficient to prove the guilt of the accused beyond a reasonable doubt. (147)

Admittedly, the presence of a military judge does not guarantee these sorts of errors do not occur. For example, in United States v. Parker (148) an appellant had been convicted of first-degree murder despite the improper admission of crucial hearsay evidence, and the Navy-Marine Court of Criminal Appeals overturned the verdict. (149) The court found that some of the evidence used to implicate the appellant had been hearsay. (150) When the court removed the hearsay from its consideration of the factual sufficiency of the case, it determined that although it was more likely than not that the accused had in fact committed the murder, the members of the court were not convinced beyond reasonable doubt of the accused's guilt and overturned the verdict. (151) However, incidents like these should occur far less often with an experienced military judge, instead of a nonlawyer panel president or weakly powered law officer, presiding over courts-martial. The infrequency of incidents like this is considered in greater detail later in Part VI. Furthermore, it is worth noting that even the Parker court acknowledged that Article 66(c) made it more likely the court was protecting against a false conviction, as opposed to acquitting a guilty murderer. (152)

Unprofessional military justice causes a second impediment. In the absence of a law officer at special courts-martial, panel presidents become accustomed to expansive judicial powers that they would inappropriately attempt to exercise at general courts-martial, which created tension and conflict with the law officer. (153) The problem was that "an officer might serve in one case as the president of a special court-martial with broad powers over the proceedings, while serving in another case as the president of a general court-martial with limited, vaguely defined powers." (154) When panel presidents, accustomed to their broad powers at special courts-martial would sit for general courts- martial, they would occasionally try to usurp the authority of the lower ranking law officer. (155) Case law indicates this happened because law officers were not true judges empowered to preside over general courts-martial. (156) Although "[t]he legislative background of the Uniform Code makes clear beyond question Congress' conception of the law officer as a judge to all material intents and purposes," (157) as a practical matter, this was a complete failure. (158) Despite Congress's attempt to create a judicial figure, "the UCMJ did little to broaden the judicial authority of the law officer over that of the law member. The law officer could rule on interlocutory questions, but he still could not rule on challenges, and certain of his rulings were subject to the objections of the court members." (159)

"[T]he UCMJ did not expressly place the law officer in charge of trial proceedings at a general court-martial," which aggravated the fact that law officers lacked judicial powers. (160) "Congress retained the position of 'president' of a court-martial without clearly specifying the nature of the relationship between the law officer of a general court-martial and the president of the court-martial." (161) There is conflicting authority as to whether the law officer or the president of the panel was in charge of general courts-martial. On one hand, select quotes from the hearings on the UCMJ have clearly analogized the law officer to that of a judge, for "the law officer has been charged generally with the responsibility for the fair and orderly conduct of the proceedings." (162) Further supporting this proposition, "[t]he drafting history [of the UCMJ] described the president of a general court-martial as occupying 'a position similar to that of the foreman of a jury' except for a 'few listed' duties under paragraph 40b(1) of the 1951 MCM." (163)

However, this is conflicted by the MCM itself, as "[it] described the president of the court-martial--not the law officer--as 'the presiding officer of the court.'" (164) The MCM gave the panel president many powers and duties that are normally reserved for judges such as the following:

(a) After consultation with the trial counsel and, when appropriate, the law officer ..., he sets the time and place of trial and prescribes the uniform to be worn.

(b) As the presiding officer of the court, he takes appropriate action to preserve order in the open sessions of the court in order that the proceedings may be conducted in a dignified, military manner, but, except for his right as a member to object to certain rulings of the law officer ..., he shall not interfere with those rulings of the law officer which affect the legality of the proceedings.

(c) He administers oaths to counsel.

(d) For good reason, he may recess or adjourn the court ..., subject to the right of the law officer to rule finally upon a motion or request of counsel that certain proceedings be completed prior to such recess or adjournment, or that a continuance be granted.... Whether a matter of recess or adjournment has become an interlocutory question will be finally determined by the law officer.... (165)

This sounds confusing because it is confusing; two authorities reached separate conclusions as to who was in charge at general courts-martial. While the law officer was responsible for the fair and orderly conduct of the proceedings--and the drafting history of the UCMJ indicated that the law officers were supposed to be equatable to civilian judges--the implementing MCM recognized the president of the court as retaining his pre-UCMJ powers as the presiding officer. (166)

History indicates that the absence of a clear authority did in fact cause problems, for example, the Court of Military Appeals "observed instances ... in which the president has stepped into the breach," usurping the role of the law officers. (167) The Court of Military Appeals found occasions where law officers, typically of inferior rank to the panel president, were being "intimidated into inaction by an aggressive president." (168) There are even documented occasions where law officers were reluctant to fulfill their judicial duties as intended by the drafters of the UCMJ. This caused the Court of Military Appeals to "recommend that law officers of general court-martial not hesitate to employ the powers conferred upon them by Congress in order that military trials may proceed in a fair and orderly manner." (169)

The ambiguity as to the job description of a panel president and law officer was eventually resolved by developments in the case law of the Court of Military Appeals. As one would expect, the unclear roles of these two presiding officers led to numerous appeals filed with assignments of error concerning the roles of the panel president and law officer. Even though "[s]everal commentators ... asserted that Congress actually did not intend to equate law officers with civilian judges," the issue was rendered moot by the court. (170) Over time, through its decisions in cases concerning law officers and panel presidents, the court shaped the position of law officer to be somewhat analogous to that of a judge. As previously mentioned, the court's view was that "[t]he legislative background of the Uniform Code makes clear beyond question Congress' conception of the law officer as [a] judge." (171) The fact that the court felt it was necessary to state the role of the law officer in such blunt terms sheds some light on the degree of ambiguity initially present in the UCMJ.

The evolution of the law officer into a judge has its roots in United States v. Berry, where the court noted that the law officer, "like the judge, is the final arbiter at the trial level as to questions of law. He is the court-martial's advisor and director in affairs having to do with legal rules or standards and their application." (172) In subsequent opinions, the Court of Military Appeals continued issuing rulings where the dictum clarified the role of the law officer, recognizing that the law officer was fulfilling the role of a judge, (173) and "consistently expanded the powers of law officers." (174) In United States v. Jackson, the court held that the UCMJ imposed a duty upon the law officer to control criminal proceedings. (175) In United States v. Biesak, the court ruled that a law officer could perform a key judicial function and instruct members of the panel on inferences that can be drawn from evidence. (176) Next, in United States v. Stringer, the court held that a law officer could declare a mistrial, even though there was no provision expressly authorizing this in the UCMJ or MCM. (177) Then, in United States v. Strand, the court recognized a law officer's power to dismiss multiplicative specifications, even after the members had announced their findings. (178) In Strand, the court purposefully acted to conform the role of the law officer to that of a civil judge, noting that "[t]here is no compelling reason requiring a different practice in the military." (179) The fact that the court had to write opinions stating that law officers had these basic judicial powers is telling of just how weak, misunderstood, and undeveloped the role of the law officer was in 1950.

Much like the increased size of the military during World War I and World War II gave rise to the recognition of a need to reform the Articles of War, the escalation of the war in Vietnam led to the recognition of a need to reform the role of the law officer. (180) For example, in 1964 there were 43,668 general and special courts-martial, and in 1968 the number had grown to 65,114. (181) During this time, there was a revolution in civilian criminal due process to more vigorously protect the rights of criminal defendants. Landmark cases recognized a civilian accused's constitutional rights, which were already guaranteed to servicemembers under the UCMJ, such as the right to an attorney and to be informed of his or her rights. (182) In 1966, Senator Sam Ervin of both the Armed Services and Judiciary Committees conducted hearings on the rights of military personnel. (183) Following the hearings, Senator Ervin introduced numerous military justice reform bills to "to enhance the independence, impartiality and competence of law officers who preside over courts-martial by creating in each service an independent 'field judiciary' made up of experienced, full-time legal officers assigned and responsible directly to the Judge Advocate General of the service." (184)

Following these hearings, Congress ultimately passed the Military Justice Act of 1968 (185) to create the role of the military judge pursuant to Article 26 of the UCMJ. (186) The newly created position of the military judge expanded the position of the law officer.187 The military judge was to be the presiding officer for both special and general courts-martial, rule on all questions of law, and instruct court-martial members regarding the law and procedures to be followed. (188) The Military Justice Act was intended to
   streamline court-martial procedures in line with procedures in U.S.
   district courts ... and give [military judges] functions and powers
   more closely allied to those of Federal district judges, ... [and]
   to increase the independence of military judges and members and
   other officials of courts-martial from unlawful influence by
   convening authorities and other commanding officers. (189)

The Committee noted that the legislation would "provide for the establishment within each service of an independent judiciary composed of military judges certified for duty on general courts-martial, who are assigned directly to the JAG of the service and are responsible only to him or his designees for direction and fitness ratings." (190) "The applicable legislation has remained unchanged since the 1968 amendments." (191)

In modeling the role of the military judge after that of federal district judges, Congress granted military judges many of the powers of federal district court judges, which law officers had lacked. (192) The President of the United States has also furthered the progression towards harmonizing the powers of military judges and federal district court judges. "Pursuant to the rulemaking authority in Article 36, the President has supplemented Article 26 by prescribing RCM 902, 'Disqualification of military judge.' RCM 902 is based on the statute governing disqualification of federal civilian judges." (193) The President also promulgated the 1969 MCM, (194) and with this edition, the military judge was authorized to make many decisions that previously had been within the province of the convening authority or the president and members of the court- martial. (195) Military judges were empowered to exclude spectators from the trial for good reason, to require additional evidence, and to prevent the court members from requiring the recall of witnesses, the call of additional witnesses, or the procurement of additional evidence. (196) They were also authorized to summarize and comment on evidence for the court members, and intervene in the trial to prevent unnecessary waste of time or to clarify obscurities. (197) Quite possibly, the final stroke solidifying the power of the military judge was the holding in United States v. McElhinney, which recognized that the military judge had the power to issue legally-binding orders to a convening authority. (198)

Although in early cases the Court of Military Appeals had indicated its "aim [was] to assimilate the status of the law officer, wherever possible, to that of a civilian judge of the Federal system," the revolutionary aspects of subsequent developments of the military judiciary by Congress and the President are indicative of the fact that the court failed in this endeavor. (199) The military judiciary has come a long way since the law-officer structure in 1950. When the boards of review were granted their fact-finding powers, trials in the military were extremely different than civilian trials. They were presided over by either a panel president who was not a lawyer but made legal rulings, or by both a panel president and law officer who shared, and at times competed, over poorly understood and very limited powers. One can contrast this procedure to today's structure where trials are now presided over by a modern military judge whose position and powers were modeled after and closely resemble Article III district court judges. (200) The development of the military judge is a "development in military justice to the achievement of the high standards of the system." (201) Because of the changes in the military judiciary at trial, the initial justification in having appellate courts with unusual appellate powers no longer exists. In keeping with the military's acknowledged objective of making military justice as similar to the federal system as possible, the next logical step is for Congress to amend the appellate authority of the military's courts of criminal appeals so that they too are modeled after the federal appellate courts, which would require removing the fact-finding power of military appellate courts. (202)
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Title Annotation:I. Introduction through IV. Professionalism of Courts-Martial A. Professional Judiciary, p. 471-499
Author:Pinsker, Matt C.
Publication:Suffolk University Law Review
Date:Jun 1, 2014
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