CAAFlog's 2020 Top 10

1. The End of Factual Sufficiency Review by CCAs 
A somewhat unique fixture of appellate review in military justice will be coming to an end thanks to the NDAA passed by Congress (vetoed by the President, but this will soon be overridden). De novo review of the weight of the evidence to support a conviction—called “factual sufficiency”—will no longer be permissible.
 
2. Pandemic Practice 
This year will forever be remembered for the Coronavirus Pandemic. Courts were shut down and cases were postponed. Later in the year, CAAF adapted and held in-person arguments with extensive precautions. This year has changed the way that many lawyers practice, and has broken down old patterns thought to be necessary. For example, tens of thousands of lawyers have worked from home for months with less impediment to their productivity than many may have imagined. “Zoom Court” is now a fixture in most jurisdictions. Perhaps we will see more generous teleworking policies for federal employees and uniformed lawyers as well.
 
3. The Resolution (?) of the Bergdahl case 
The Bergdahl case carries little significance for the development of the law—the facts are quite unique, and apparent UCI is no longer a valid claim. However, Bergdahl is perhaps the most well-known military justice case in the last 20 years, involving multiple Presidents, Guantanamo detainees, and a Serial Podcast. The direct review of SGT Bergdahl’s convictions ended with a sharply divided opinion rejecting his apparent UCI claim. As I have argued, I believe this should have come out the other way. The lack of prejudice to the case’s outcome should not have been central to the analysis of apparent UCI, but it was. The case is now proceeding as a writ on the basis of newly-discovered facts about the trial judge.
 
4. The Machinery of Death Lumbers On – Hennis & Hasan 
In 2015, with a Hillary Clinton victory seemingly inevitable (and leading progressives around that time calling for a wholesale reform of constitutional law), Justices Breyer and Ginsberg penned a dissent in Glossip v. Gross arguing that the death penalty itself was per se unconstitutional. One had a sense that death penalty litigation, already an arcane practice, would be coming to an end—that Dwight Sullivan and Jonathan Potter would go from giving CLE talks to giving history lectures. Of course, that is not what happened. The year of 2020 reminded us that the death penalty is alive and well in military justice. ACCA recently affirmed the Hasan case (the Fort Hood shooter) after a lengthy delay, and just before the start of the Pandemic CAAF affirmed the death sentence of Timothy Hennis. The Supreme Court will confer regarding Hennis’s petition for cert next Friday.
 
5. A SCOTUS Case – Briggs  
It is notable whenever SCOTUS grants review of a military justice case, and therefore the recently-released Briggs opinion is one of the top stories of the year. The question presented was an issue of statutory interpretation affecting the relevant statute of limitations for adult rape. The Court’s opinion put an end to a saga in which CAAF struggled with the question and reversed its prior position. Perhaps most significant for the future is Justice Gorsuch’s concurrence, which indicates that he does not believe that SCOTUS direct review of CAAF is constitutional. This is significant more, I think, in that the concurrence failed to gain even a single additional vote. Direct review is constitutionally secure (sorry Prof. Bamzai).
 
6. Retiree Issues (Begani and Larrabee) 
The constitutionality of jurisdiction over retirees and reservists became a hot issue in the latter part of the year. The DC District Court held in the Larrabee case that Congress’s jurisdictional scheme covering Fleet Reservists was unconstitutional in that these reservists were not part of the “Land and Naval Forces” (thus, an Article I violation). The court’s opinion, read broadly, would cover all retirees, but one senses that this was not what was intended. CAAF will now weigh in on this issue as well in the Begani case, which will be argued early next year. The court will also consider an Equal Protection claim in that case regarding the disparate treatment of different classes of retirees. In my view (not universally shared) Congress should clean up this irrational vestige before the courts do the cleaning themselves.
 
7. A New CAAF Judge 
Judge Ryan retired in August, and her seat was filled last month by Judge Hardy. The impact of this on the development of the law is, at this stage, unclear.
 
8. Limiting the Good Faith Exception--White  
The Supreme Court’s creation and expansion of the “good faith exception” to the exclusionary rule makes it difficult for a defendant/accused to vindicate his or her Fourth Amendment rights even when a violation occurs. See, e.g., Herring v. United States, 555 U.S. 135 (2009). Many circuits, following the lead of SCOTUS, routinely slap down claims to exclude evidence on the basis of the exception. It is therefore notable when a circuit-level jurisdiction chooses to read the exception narrowly and add back some teeth to the Fourth Amendment. CAAF did this unanimously in White, holding that there was insufficient probable cause for the issuance of a warrant/search authorization under the Gates test—even when applying the higher bar of the good faith exception. While one commenter here said that the court is unprotective of Fourth Amendment rights, this opinion should disabuse him/her (tread lightly, Poster).
 
9. Protecting the Right to Counsel of Choice--Watkins  
In Watkins, CAAF held that a civilian defense counsel had a conflict of interest once counsel detected an “insinuation, at least from his perspective, that somehow he was complicit in assisting [the] Appellant and his wife in avoiding service of process.” Watkins at *3. The Accused then expressed that he wanted the civilian counsel dropped from the representation, but the trial judge refused. In rebuking that decision, CAAF further demonstrated that it is supportive of the right to counsel of one’s choosing, in line with other cases such as Hale 78 M.J. 268 (CAAF 2019).
 
10. Tell us below what you would add.

Brenner Fissell

EIC