Dueling Claims: Factual Sufficiency

6/17/2020

What am I missing? Bonus points to anyone who catches the reference in the titles.

Brenner Fissell

Editor-in-Chief

Cloudesley Shovell

6/18/2020 08:44:28 am

You're missing a riposte column!

But seriously, I believe the factual sufficiency review serves the military justice system well in its traditional role of addressing offenses most related to the maintenance of good order and discipline.

The cracks appearing in the military justice system seem to me to be closely related to attempts to make a system designed for the maintenance of good order and discipline into just another layer of federal criminal justice. This is a mistake, I think.

Kind regards,
CS

Jason Grover

6/18/2020 01:17:13 pm

I agree with the good admiral. I think history and context are important here. The system grew out of a dissatisfaction with a WW2 split-system. The returning veterans wanted it changed as they got elected to Congress. And a good 10 percent of the WW2 vets had some experience with those split systems. So Congress updated the system, made it uniform, and tried to address many of those abuses and inequities. Then in 1968, they pushed the system more towards a civilian model. But in my view, factual sufficiency is an absolute balance to other parts of the system, like member selection and the lack of a jury of your peers randomly selected from your community. Change one side of the equation that protects servicemembers from system abuses without changing the other side that deprives them of constitutional protections afforded every other citizen disrupts the delicate balance. Over the last ten years, we've seen lots of systemic changes, so this is a sign of the times. But I think we'd be better off revamping the whole structure to keep that balance between fairness, justice, prompt resolution, and appropriate methods to ensure good order and discipline rather than a piecemeal attack on specific parts we don't like.

Brenner M. Fissell

6/18/2020 02:01:43 pm

Dear Admiral,

Thank you! I had not thought of that. Could you please elaborate? Do you mean that having military officer judges re-considering facts about order and discipline (elements of 134) makes sense?

Cloudesley Shovell

6/18/2020 04:54:34 pm

Prof. Fissell,

Not limited to 134 offenses. I'm referring more to the overall structure of the UCMJ, which was created in the draftee era. The all-volunteer military is a somewhat different beast.

The convening authority has so much power in the UCMJ because the purpose of the UCMJ is to serve as a tool to maintain good order and discipline. This is why the CA has all those powers of review, approval, suspension, remission, etc. Those powers are very rarely used today.

In the draftee era, vast numbers of draftees didn't want to be there. Getting kicked out early was a reward. On the other hand, getting in trouble meant staying in the military longer. Time in confinement, remember, doesn't run against an enlistment. Consider the troublesome draftee. CA court-martials him for something, gets a sentence of 6, 6, and maybe a kick. He lets the troublemaker stew in the brig for a week or three, then sends over his senior enlisted man to have a chat with the guy, explain the facts to him. Then he suspends the sentence. Now the troublemaker is out, and the senior enlisted leadership has a powerful tool to keep him in line--the remainder of that suspended sentence hanging over his head. The CA can even sit on the results of the court-martial for a bit if he desires. Maybe he'll remit the whole thing or even disapprove the court if the guy straightens up. What a powerful tool for maintaining discipline!

Those powers are almost never used nowadays because in the all-volunteer military getting kicked out early is by itself fairly harsh punishment. I have seen the suspension and remission power for Art. 15 administrative punishment used to great effect in my naval career.

Compare the historic statistics on courts-martial (they're published every year by CAAF). By any reasonable historic standard, courts-martial are at an all-time low, because the vast vast vast majority of disciplinary issues are handled administratively. Thus, courts-martial tend only to get employed in the most serious of cases. This is causing the court-martial system to break down, because at its heart, it's not a criminal justice system, it's a system for the maintenance of good order and discipline. It is in the context of that traditional system that factual sufficiency review matters, because it serves as an important check on some of the more "rough justice" aspects of the UCMJ, such as quick trials (in theory nowadays, but critical to maintaining good order and discipline), the members selection system, small members panels, non-unanimous verdicts, etc.

Frankly I think the military would be better off with a system where major crimes (murder, sexual assault, and other high profile cases) get handed off to the US attorney for prosecution in Art. III courts with all Art. III procedural protections and rules. Get those cases out of military hands. I'd even go so far as to administratively separate the accused (subject to reinstatement if not guilty).

There are a lot of various issues involved, and they go beyond an off-the-cuff comment on a blog, but I hope I've given you an idea at least of where I'm coming from. If not, I'd be happy to give you a call at your office. Let me know.

Kind regards,
CS

Brenner M. Fissell

6/19/2020 02:09:36 pm

CS: understood, thank you! Alas my office is currently sealed off like an Ebola ward.

Zeke Kennen

6/19/2020 04:20:36 am

Congress has created a military justice system that differs in important ways from the civilian justice system that serves the broader population. For example, military members are not afforded the right to a trial before their peers - the panel is expressly required to be superior in grade to the accused. Further, the panel is not selected at random, but is instead hand-picked by the same officer (“convening authority”) that made decision to prosecute (“the decision to “refer” the case to trial). That panel is also small - a mere 4 members is permitted in special courts-martial. That matters because empirical evidence shows that smaller panels engage in less rigorous deliberations and, the smaller they are, the less likely they are to overcome biases among the group. Those deficiencies are only amplified by the fact that the relatively-small, prosecutor-picked, panel of superiors is also not required to be unanimous to convict the accused (a mere 3/4 concurrence is sufficient to convict).

Those are significant differences between Congress’ civilian justice system and the one it has created for its service personnel (and those few categories of civilians subject to the UCMJ). Those deficiencies would offend the due process clause of the Fifth Amendment if it were not due to numerous additional protections Congress affords military accused persons. Perhaps the most important of those protections is the ability of an appellate body within the military justice system to review convictions for factual sufficiency. That factual sufficiency review directly mitigates the risk of erroneous convictions that come from having panels that are not comprised of the accused’s peers, are hand-picked by the commander who made the prosecutorial decision, can be as few as 4 members strong rather than 12, and are not required to be unanimous in their verdict of conviction.

Added to all of that, we have the documented racial disparity in the administration of justice and in the composition of the officer corps from which court-martial panels are selected. That latter deficiency - the lack of minorities on court-martial panels - only makes it more likely that the members will have individual biases that court-martial panels, being small and lacking unanimity, are poorly-suited to overcome.

Further, the repeated instances of unlawful command influence we have all seen in the news over the past few years show that panels are subject to a lot of pressure to convict that a civilian jury is shielded from.

An impartial appellate authority with factual sufficiency review power helps mitigate all of those risks. And if those risks are not mitigated, the military justice system would fail a due process analysis outright.

Brenner M. Fissell

6/19/2020 11:35:54 am

Thanks, very interesting. Factual sufficiency as constitutive element of due process given other features. I think as a matter of underlying constitutional principle this is persuasive. As a constitutional law, perhaps not, given that this is Congress itself making the change. See Curry v. Sec'y of Army, 595 F.2d 873, 880 (D.C. Cir. 1979). As Phil Sundel used to say, Curry means that the process due is what Congress says is due.

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Dueling Claims: Factual Sufficiency

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