[UPDATE] NDAA 2021: Changes coming down the pike, part 1

12/8/2020

Editor's note: Tom Fricton notes below that the elimination of de novo factual sufficiency at the CCAs has now been approved by Congress's conference committee. This issue was discussed at length on here over the summer. See also here.

Update 12/8/2020: Trump's OMB has notified Congress that he intends to veto the NDAA.

On 3 December 2020 a conference committee of both houses of Congress reported out a version of the Mac Thornberry National Defense Authorization Act for Fiscal Year 2021, better known as the NDAA 2021. The forty-five hundred page behemoth still needs to be voted on by both houses, and is still subject to presidential veto due to a shortage of votes in the house for a veto-proof majority. There are a number of issues that may impact military justice that bear notice if the bill becomes law. Over the course of a few posts, these changes will be discussed.

The most notable change for military justice practitioners is a major change to factual sufficiency review by the CCAs. Previously, every CCA, under article 66(c) had the obligation to affirm only charges that the judges themselves were convinced of guilt beyond a reasonable doubt. The new article 66 requires the same review, giving deference the the fact that the trial court viewed the evidence and deference to the findings of fact by the military judge, but now will consider whether the Court is “clearly convicted the the finding of guilty was against the weight of the evidence.”

This is a huge change as the CCA was previously endowed with “awesome, plenary, de novo power” United States v. Cole, 31 M.J. 270, 272 (C.A.A.F. 1990) under article 66 to independently review the factual sufficiency of charges beyond a reasonable doubt.

First, it should be noted this doesn’t remove legal sufficiency, or whether any reasonable trier of fact could have found every element beyond a reasonable doubt. United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011).

Second, appellate defense divisions are likely sharping their knives in anticipation of this one. One issue is whether this shifts the burden to the defense. United States v. Troutt, 24 C.M.R. 246, 249 (U.S. C.M.A. 1957) (cited by United States v. Washington, 57 M.J. 394, 400 (C.A.A.F. 2002) (“[I]n order to perform its article 66(c) review, … we must be assured on appeal that the court did not improperly shift the burden to appellant to raise doubts about his guilt.”). Another issue is whether the legislation can remove the “beyond a reasonable doubt” standard from article 66 review. The previous article 66 did not include that standard: it was implied by the courts as the appropriate standard. This was drawn from the due process clause allowing convictions only if proof has been marshaled beyond a reasonable doubt. United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979) (finding a constitutional due process right to review by a proof beyond a reasonable doubt standard). Finally, CAAF has previously ruled Article 66(c) review is a “substantial right.” United States v. Jenkins, 60 M.J. 27, 30 (C.A.A.F. 2004). The defense will likely argue this change should be subject to strict scrutiny review.

While these are a just a few preliminary thoughts regarding this change, CAAF watchers can be assured, there will be much ink spilled over factual sufficiency in the next few years.

The next article on the NDAA 2021 will address some new data gathering pilot programs and how they may change discovery requests.

Maj Tom Fricton

Military Justice Editor

19 Comments

Scott

12/8/2020 07:14:19 am

I always thought factual sufficiency review by the CCAs was there to “make up for” the lack of a unanimous verdict requirement. I.e. if the non-unanimous panel gets one wrong the CCA is there as a safety net.

Tami a/k/a Princess Leia

12/8/2020 10:55:54 am

Perhaps we are now at the point where we need to argue the military justice system is unconstitutional in and of itself. Making all of these changes to our system to be more like federal district courts, yet refusing to implement any of the protections the federal district courts provide to defendants, like unanimous verdicts and no-bill indictments stopping a case dead in its tracks.

Philip D. Cave link

12/8/2020 11:45:21 am

Actually--a bit of hyperbole, Art. 36 requires "civilianization" except where undirected by Congress. What reasons, in 2020 are there to not follow more closely civilian practice? And if there are reasons are they reasonable, valid, etc., etc., etc. There is no reason the Prez can't import FRCP 5.1 into RCM 405, for example?

William E. Cassara

12/8/2020 12:48:47 pm

A devastating move IMO. In a system that can be heavily tilted against an accused, FS review is absolutely necessary. As Tami said, if you want to require unanimous 12 member verdicts, then fine, you can take away FS review. But in the few cases where the CCA's reverse based on FS, it is of paramount importance.

Brenner M. Fissell

12/8/2020 12:52:49 pm

I agree: "It is better that ten guilty persons escape than that one innocent suffer." -- Blackstone

12/8/2020 01:13:15 pm

As usual, Brother Bill points out "in the few" cases. Just like losing the Burton presumption and the Art. 32.

Brian

12/8/2020 01:30:30 pm

Two notes:

First, I believe the clearly convinced standard was first proposed by the Effron report back in 2015.

Second, it seems highly unlikely that there is a constitutional challenge here as the post implies. There is perhaps no constitutional right to any appeal. See mcKane v Durston, 153 US 684 (1894); Jones v Barnes 103 S. CT 3308 3312 (1983 (“There is, of course, no right to an appeal”). The case cited, Turner, was referring to legal sufficiency review under Jackson v Virginia. A clear and convincing standard is still more favorable than just legal sufficiency.

Nathan Freeburg

12/8/2020 03:37:45 pm

However, Scott is right that the factual sufficiency review has been justified because of non-unanimous verdicts. The ground is getting very ripe for a real collateral attack on that issue.

12/11/2020 10:04:28 am

Are we thinking of how Ramos v. Louisiana may affect the practice of nonunanimous verdicts?

When doing that we should consider the history of jury size and the unanimity history of military justice going back before even the British Articles of War were adopted for the Continental Army in 1775.

For some of that history we might look at United States v. Viola, 26 M.J. 822 (A.C.M.R. 1988) aff’d 27 M.J. 456 (C.M.A. 1988), pet. denied 490 U.S. 1020 (1989). Here is a link to the DoJ brief in response to the Cert. petition -- https://www.justice.gov/sites/default/files/osg/briefs/1988/01/01/sg880169.txt

I think any challenge would have to address the history of MJ being "different" and Congress's action or lack of action under the make rules clause.

Over the years the "Bill of Rights" has been extended by law or practice into MJ practice. See, e.g.,

Constitutional rights identified by the Supreme Court generally apply to members of the military unless by text or scope they are plainly inapplicable. In general, the Bill of Rights applies to members of the military absent a specific exemption or certain overriding demands of discipline and duty. Though we have consistently applied the Bill of Rights to members of the Armed Forces, except in cases where the express terms of the Constitution make such application inapposite[,] these constitutional rights may apply differently to members of the armed forces than they do to civilians. The burden of showing that military conditions require a different rule than that prevailing in the civilian community is upon the party arguing for a different rule.

United States v. Easton, 71 M.J. 168, 174-75 (C.A.A.F. 2012) (internal citations, quotation marks, ellipses, and brackets omitted).

DHMLS has a pithy explanation here.

http://jpp.whs.mil/Public/docs/06-Public_Comment/dd_201408_BillofRights_ApplicationToCM_Sullivan.pdf

And, there will be no challenge until the issue is raised at trial--IMHO.

Poster

12/8/2020 01:34:35 pm

We were discussing the ways to improve the quality of members in the JAG Corps. I can't help but think that this will hurt in that regard. Being an ACCA judge is an honor and great responsibility. Think about it, you might be overturning a 2 or 3 stars action in the ACCA.
Being able to put trust in your subordinates, in so much as they are, is one of the best enablers of a ranking officer.
If the OTJAG is supporting this, he is damaging his own branch.

12/8/2020 02:27:51 pm

Last summer ACCA overturned the sexual assault convictions - and 21 year sentence - of a West Point cadet for factual insufficiency (US v. Whisenhunt: https://www.jagcnet.army.mil/Apps/ACCAOpinions/ACCAOpinions.nsf/SD/9EE2E42F14CD0F0D8525840F00464C40/$FILE/sd-whisenhunt,%20jd.pdf ).

In the last paragraph the court addressed the standard of review they applied:

“Ultimately, we are not required to determine categorically whether appellant or LM’s testimony is true, or even whether their testimony is more likely true than not. We do not review convictions under a preponderance of the evidence standard. Instead, we may only affirm convictions that we are ourselves convinced have been proven beyond a reasonable doubt. We are not so convinced in this case.”

It is not at all clear that the court would have reached the same conclusion under the newly proposed standard.

Don Rehkopf

12/8/2020 04:02:28 pm

It doesn't take an oracle to see the genesis of removing the FS review powers from the CCA's - at least in recent times, a large percentage of the small percent where it happens, have been sex offenses which never would have made it past the old Article 32 stage.

And what is particularly galling-at least to me-is the perpetuation of the lie that factual sufficiency review in criminal appeals is "unique" to the military under the UCMJ. That is and has been a lie. For example, in NY where I practice, we've long-had a similar right of FS review, e.g., NY Penal Law § 470.15(1) provides:

1. Upon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant.

Texas (unless recently changed) also provided for FS review in criminal cases. See Perkins v. Texas, 19 S.W.3d 854 (2000).

Much of the "confusion" here is also due to the basic failure of those complaining, to understand federal criminal appellate procedure. While not co-extensive, the federal "plain error" rule also allows (albeit more limited) review of some FS issues. See, e.g., https://lawrepository.ualr.edu/cgi/viewcontent.cgi?article=1104&context=appellatepracticeprocess for a good overview of the federal "plain error" principles.

The bottom line is that military convictions are lower on the totem pole than dog-doo when it comes to fundamental fairness.

AnnoyingProle

12/9/2020 09:57:56 am

It's a bit amusing hearing folk bemoan the fundamental unfairness of the military justice system, because in my time on both sides, I've never once seen a Defense counsel who leapt at an offer by the Government to have DOJ take the case. In every case, the moment it looked like and AUSA could take over the case, Defense rushed to sign a deal before that could happen.

There are obviously a variety of factors: the staggering difference in discovery rights, the far less forgiving federal judges, the mandatory appellate review, the mandatory factual sufficiency review (now potentially watered down), the dramatically different sentencing landscape--and of course, everyone would rather be in a military brig than a federal pen.

But if more Defense counsel genuinely believed in the manifest injustice, you'd think there'd be a few more signing up to have an AUSA take over the case.

Somehow, I suspect that if we successfully civilianize military justice (say, perhaps simply separate the servicemember upon indictment and then immediately hand them off to a special military DOJ unit for prosecution under the FRCP), a lot of counsel would be banging on the door to be let back in.

12/9/2020 11:07:33 am

Are you talking CP or adultery or drunk sex charges? I’d agree with you on the first but not the latter two.

12/9/2020 03:10:55 pm

Yes, sentencing for CP in particular is vastly different (I.e. higher) in the federal system than in the military system.

Attorney

12/9/2020 03:37:55 pm

Like Mr. Freeburg suggests, you overlook two huge things.

First, the feds would never take the overwhelming majority of the cases that get referred in our system.

Second, the feds routinely turn away cases offered to them by the state, and generally only grab very serious cases with overwhelming evidence.

So yeah, if you take out those two minor differences...

12/10/2020 04:29:47 pm

I don't overlook it. Obviously general sexual assault doesn't even fall under the federal criminal code.

But my point is, if we're so much safer and better protected in federal court, how come we don't jump at the chance to move then when offered the chance? And this isn't just in CP cases, but drug cases, Mann Act violations, cybercrimes, wire fraud, etc.

Regardless of whether the Feds would take most of our cases (what they'll take varies greatly by district), logically, if the federal system is so much more defense friendly, we should jump at the chance to get in.

It seems like most of the responses are "well they only take the strong cases"--okay, but if I have a tough, uphill case as a defense counsel, wouldn't I want that in the system with the best protections? And yet we still desperately try to avoid having a case go to an AUSA.

Freeburg suggests that while the table might be tilted in favor of the Feds for CP (or the other crimes I note), it wouldn't be for an alcohol-facilitated sexual assault. Really? Look, I can litigate the average AFSA by the seat of my pants too, but when I'm trying to be a competent defense counsel, having full discovery BEFORE trial is a wonderful thing. I'm assuming *someone* here is familiar with the gulf of difference between how MRE 404 and FRE 404 practically treat notice. I've known Trial Counsel who've been told by DOJ "We're not going to give that evidence to you, because you're just going to give it to Defense counsel, right?"

And that's before we even get into the difference in judges.

Anyway, I stand by my assessment. If the military just kicked folks out where a grand jury indicted on PC for a felony, and DOJ prosecuted, we'd all be screaming to be let back into the kiddie pool. Sure, some stupid loser no-PC cases would hopefully be killed earlier in the process. But our clients would on average be much worse off.

12/11/2020 07:44:12 am

I don't think we disagree that the military justice system as such affords more protections to a military accused.

But in practice, it means little: the same system finds excuses to prosecute on cases the feds don't waste their time on.

12/11/2020 04:21:57 pm

Thanks for these comments. Very interesting.

Your comment will be posted after it is approved.

CAAFlog

[UPDATE] NDAA 2021: Changes coming down the pike, part 1

Maj Tom Fricton

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