# **A Reply to the Report of the Commission on the 50^th^ Anniversary of the Uniform Code of Military Justice (May 2001):**

# **"The Cox Commission"**

#### [Lieutenant Colonel Theodore Essex]{.smallcaps}[^1]

[Major Leslea Tate Pickle]{.smallcaps}[^2][^\*^]{.smallcaps}

It is encouraging that, after all the evidence was examined, the
commission, with its 150 years of collective experience, could find no
actual problems with the UCMJ and MCM. It is disturbing that a
commission with such a depth of experience would suggest changes based
solely on perceptions. The better course of action would be to determine
whether the perceptions were accurate, and if not, suggest ways to
correct them.

# **I. INTRODUCTION**

To note the 50^th^ anniversary of the Uniform Code of Military Justice
(UCMJ), the National Institute of Military Justice sponsored a
commission chaired by the Honorable Walter T. Cox III.[^3] The Cox
Commission reviewed the UCMJ, accepting testimony and documentary
evidence from interested parties. At the conclusion of its
investigation, the Commission produced a report recommending that a
number of changes be made to the UCMJ and the Manual for Courts-Martial
(MCM).

This article will examine the Cox Commission's recommendations for
changing the current military justice system. Our position is that the
changes suggested by the Commission are not needed because there are no
actual systemic problems with the UCMJ or the military justice system.
The UCMJ should only be modified when the change will correct a real
problem. This article will show that the current system already includes
checks and balances that adequately address the Commission's concerns.

## II. FAILURE TO KEEP PACE WITH STANDARDS OF PROCEDURAL JUSTICE

The Cox Commission Report (CCR) correctly notes that the UCMJ set the
standard for modern criminal justice systems. It guaranteed certain
rights to the accused years before those rights were recognized by the
United States federal or state courts.[^4] The UCMJ has served as the
model for many systems of justice throughout the world. The CCR does not
dispute that the UCMJ and the MCM led the way in implementing modern
military criminal justice procedures. However, the CCR now finds that it
is behind the times:

> "This landmark legislation created the fairest and most just system of
> courts-martial in any country in 1951. But the UCMJ has failed to keep
> pace with the standards of procedural justice adhered to not only in
> the United States, but in a growing number of countries around the
> world, in 2001."[^5]

It is difficult to discern what the Commission means by this statement.
As discussed below, the UCMJ provides more procedural protection than an
accused would get in the federal civilian criminal court system.[^6] It
also provides more protection than an accused would typically receive in
state or foreign courts. The CCR does not define what it considers to be
procedural justice, nor does it cite a single example of injustice under
the UCMJ.

## III. NO EXTERNAL SCRUTINY

The CCR states, "The UCMJ governs a criminal justice system with
jurisdiction over millions of United States citizens, including members
of the National Guard, reserves, retired military personnel, and the
active-duty force, yet the Code has not been subjected to thorough or
external scrutiny for thirty years."[^7] This statement makes it appear
that there are no provisions in place for reviewing the UCMJ. This is
simply not the case. The UCMJ, as federal law, is subject to the
oversight of the legislature. If the President proposes amendments to
the UCMJ, there will be congressional oversight. Additionally, both the
judiciary and the armed services committees have jurisdiction to review
matters of military justice. There is even a Department of Defense
directive[^8] that establishes a Joint Service Committee on Military
Justice that is required to report to the President annually and to
propose legislation to improve military justice. The committee's annual
review of the UCMJ is both thorough and extensive.[^9]

Another check is in the U.S. code itself. Article 146[^10] provides: "A
committee shall meet at least annually and shall make an annual
comprehensive survey of the operations of this chapter." The term "this
chapter" refers to 10 U.S.C. Chapter 47, which is the UCMJ. The
committee consists of the judges of the United States Court of Appeals
for the Armed Forces (USCAAF), who are all civilians, the Judge Advocate
Generals (TJAGS) for each of the services, and the Commandant of the
Marine Corps, along with two civilians appointed by the Secretary of the
Air Force (SECAF). Moreover, another oversight is the American Bar
Association which has a standing committee on Armed Forces Law that
produces reports, recommendations, and investigations. Finally, in cases
brought under the UCMJ, virtually all hearings are public hearings,
including Article 32 investigations[^11] and appellate procedures.[^12]
Indeed, it would be hard to identify a system of criminal justice that
is more open or more carefully examined than the UCMJ.

## 

## IV. COMPARISON OF THE UCMJ WITH THE MILITARY JUSTICE SYSTEMS OF OTHER COUNTRIES

The Commission states, "In recent years, countries around the world have
modernized their military justice systems, moving well beyond the
framework created by the UCMJ fifty years ago."[^13] The Commission
cites the military justice systems of the United Kingdom, Canada,
Austria, India, Ireland, Israel, Mexico and South Africa.[^14] These
countries did change their justice systems. However, the changes they
made do not mean that the UCMJ is outdated. Rather, the countries that
changed their military justice systems had other problems to correct. In
the two cases cited by the Commission, *Findlay v. United Kingdom*[^15]
(England), and *R V. Genereux* (Canada), the legal issues decided were
quite different than any that could be raised with regard to the
UCMJ.[^16]

**A. Contrast with Findlay**

In *Findlay*, the court was concerned about two issues. The first issue
was the central role played by the convening officer in the organization
of the court-martial. The second issue involved a review process that
did not address Mr. Findlay's concerns about a fair and impartial trial.
The *Findlay* court was concerned about the following facts: the
convening officer decided the nature and detail of the charges and
recommended the type of court-martial on his own; the convening officer
could comment on the evidence and its admissibility; there was no
independent review of the charges; no legal officer sat on the
court-martial (the court did not state whether the accused had a right
to examine the court members or challenge them for cause); the only
safeguard to ensure court members were unbiased was the oath they took
(there was no mention of any judicial review of the court member
selection process); the convening officer could comment on the
proceedings of a court-martial which required confirmation―these remarks
would not form part of the record and could be communicated to the court
members; the convening officer appointed the prosecuting officer and the
defense counsel; the convening officer ruled on applications by the
defense during the trial; the sentence had no effect until confirmed by
the convening officer, who could withhold confirmation, substitute or
postpone or remit in whole or in part, any sentence; and finally, there
were no statutory or formalized procedures set out for post-trial
reviews and hearings.[^17] The situation in *Findlay* stands in marked
contrast to the procedures under the UCMJ.

Under the UCMJ, the convening authority determines the charges to refer
and the type of court-martial to be convened. However, he or she does so
only after reviewing the evidence (usually in the form of a report of
investigation) and receiving advice on the charges from the base Staff
Judge Advocate (SJA). The charges are drafted, not by the convening
authority, but by lawyers in the base legal office.[^18] For a case to
be referred to a general court-martial, an independent review of the
charges must be held at an Article 32 investigation.[^19] The Article 32
investigation provides more procedural protections for the accused than
a grand jury hearing.[^20] Furthermore, once a case is referred to a
court-martial, the military judge has the responsibility and authority
to review the charges. The judge can dismiss one or all of the charges
for multiplicity or simply based on equity.[^21] Finally, even if court
members are hearing the case, if the military judge believes a charge
was not proven beyond a reasonable doubt, he may enter a finding of not
guilty.[^22]

The procedures for choosing court members are also very different than
those questioned under *Findlay*. Under the UCMJ, the convening
authority does appoint the court members, but the convening authority
also has an obligation to pick the best-qualified members.[^23] The
court members are also required to take an oath.[^24] In addition to the
court members, a military judge is required at all special and general
courts-martial.[^25] The military judge is an independent member of the
court and has a separate chain of command from the convening
authority.[^26] It is the military judge that overseas the actual
seating of the panel that will serve on the court-martial.

Additionally, the court member selection process is documented, and a
copy of this documentation must be given to the defense during the
discovery process.[^27] This enables the accused, through defense
counsel, to better prepare questions for individual court members. The
accused has the right to examine prospective court members and challenge
them for cause.[^28] The accused also has the right to challenge one
member peremptorily, that is, for no reason at all.[^29] Both trial and
defense counsel may question the court members and may challenge them as
stated above.

Members who are found to be "biased," whether the bias is actual or
implied, may not sit on a court-martial,[^30] and case law provides that
military judges are to grant challenges for "implied" bias very
liberally.[^31] Military judges may also disqualify a court member for
bias *sua sponte*.[^32]

Another possible area of concern with the convening authority appointing
members is unlawful command influence. Under the UCMJ, the defense can
raise a motion with the military judge at trial concerning unlawful
command influence or improper court member selection. There are
provisions in place to preserve such an objection for appellate
review.[^33] Furthermore, if either unlawful command influence or
improper court member selection is found, the case cannot proceed until
the problem is corrected.[^34] The military judge may also rule on the
bias of the convening authority and disqualify the convening authority
from any participation in the case.[^35]

In addition to protecting the accused, the UCMJ also protects court
members from unfair treatment based on their service in a court-martial.
Article 37 of the UCMJ makes it unlawful for the convening authority to
base an Officer Performance Report (OPR), promotion recommendation or
assignment decision on a military member's performance as a court
member.[^36] Military members who believe they are victims of reprisal
based on their service as a court member can complain through Inspector
General (IG) channels.

To further protect the neutrality of the members, once a court is
convened, the convening authority may not speak to the court members
about the pending court-martial.[^37] In fact, once a court-martial has
been convened, neither the military judge, prosecution, nor defense may
speak with the members off the record.[^38] None of the parties may
communicate with the members about the case, and the court members are
instructed as to these rules. Once convened, the court-martial
proceedings are open to the public and any conversations between the
military judge and the court members must take place in the presence of
the counsel and the accused and be recorded verbatim.[^39] Any
conversations between the military judge and the counsel, other than 802
conferences,[^40] must be on the record as well.

In *Findlay*, the convening officer appointed both the prosecuting
officer and the defense counsel. Under the UCMJ, the SJA appoints the
trial counsel. The defense counsel is appointed by, and falls under the
supervision of, a separate chain of command.[^41] In *Findlay* the
convening officer also controlled the trial and defense witnesses, with
no review process of his decisions. Under the UCMJ, while the convening
authority controls the production of trial and defense witnesses, her
decisions are subject to judicial review.[^42]

Finally, unlike the situation in *Findlay*, there are statutory,
formalized procedures set out for post-trial reviews and hearings.[^43]
Under the UCMJ, the convening authority has the discretion to approve or
disapprove the findings and sentence of the court and can lessen the
degree of guilt to a lesser-included offense, set aside a finding of
guilty, dismiss charges or direct a rehearing. The convening authority
also has the power to lessen the severity of the punishment but cannot
increase the severity of the sentence.[^44] Convening authorities are
required to review certain matters before taking final action on the
case.[^45] This review and the action are documented and a copy is
provided to the defense.[^46] Finally, there is appellate review of all
cases, unless waived by the accused.[^47]

####### B. Contrast with Genereux

In *Genereux*, the main issue was the independence and impartiality of
the military judge.[^48] In this case, certain members of the legal
branch of the Armed Forces could be appointed to the Judge Advocate
General's office. There they performed legal duties, but could also be
detailed by the convening authority to serve as military judges on an ad
hoc basis. The court also focused on military judges' lack of financial
security, as the legal officer's salary was determined, in part,
according to his or her performance evaluation. There were no formal
prohibitions against evaluating an officer on the basis of his or her
performance as a military judge at a court-martial. Additionally, the
convening authority appointed the prosecutor, defense counsel and the
military judge. In effect, the convening authority had complete control
over each court-martial.

These concerns are not present in the United States' system. Under the
UCMJ, the military judges are ultimately under the authority of The
Judge Advocate General (TJAG) of each service. They are not in the same
chain of command as the convening authority and are not detailed to the
case by him.[^49] Also, Article 37 of the UCMJ prevents the TJAG of each
service, or anyone else, from censuring, reprimanding or admonishing a
military judge for his functions at a court-martial.[^50] Finally, in
contrast to a major concern in *Genereux*, a military judge's salary is
not determined by his performance evaluation. He is paid the same as any
other military member of the same rank and time in grade.

*Findlay* and *Genereux* highlighted the need for reform in the English
and Canadian military justice systems. However, those systems are quite
distinguishable from the United States' under the UCMJ. The procedures
that gave too much power to the convening authority in the British
system, and did not ensure an independent judiciary in the Canadian
system, do not exist under the UCMJ. Additionally, *Findlay* and
*Genereux* do not apply to the UCMJ as the United States is not a party
to the European Convention on Human Rights' nor is the military subject
to the European Court of Human Rights. To recommend that we change our
military justice system because other countries have done so, without
producing evidence that our system has the same flaws, stands logic on
its head.

## 

## V. GRASSROOTS ORGANIZATIONS AND "PERCEPTION"

The next reach is found where the Cox Commission Report notes that there
is a "ground swell" of grassroots organizations devoted to dismantling
the current system:

> As a result of the *perceived* \[italics added\] inability of military
> law to deal fairly with the alleged crimes of servicemembers, a
> cottage industry of grassroots organizations devoted to dismantling
> the current court-martial system has appeared, aided by the reach of
> the worldwide web and driven by the passions of frustrated
> servicemembers, their families, and their counsel. [^51]

The report references several groups that maintain websites devoted to
various military related causes. The Commission appears to reference
these groups to bolster its conclusion that there is a need for reform.

A review of the sites, however, shows that these groups are not
primarily concerned with reforming the military justice system. Instead,
in general, they are opposed to the result in a particular case. As
such, although the Commission uses these groups to bolster their case,
none of the proposed CCR reforms would likely convince these individuals
that the military justice system gives military members a fair trial.

For example, the report cites Citizens Against Military Justice (the
group actually calls itself Citizens against Military Injustice, or
CAMI)[^52] as a group concerned with military justice reform. CAMI's
site contains a mixed bag of complaints. The group is chaired by a
mother who is upset because her son, a US soldier, was convicted of
murder at a court-martial and is currently in confinement. The appellate
process, including the then Court of Military Appeals (COMA\--now
renamed the US Court of Appeals for the Armed Forces, or CAAF, with
Judge Walter Cox himself sitting as a member) upheld the conviction and
sentence. The soldier's appellate rights were exhausted when the Supreme
Court declined to review the case. For most of the other groups,
military justice is not their primary cause. However, they come up on a
web search because they are linked with the CAMI site. Thus, the
commission attempts to bolster its conclusion that reform is needed by
citing groups that either do not directly address the issues or ones
that have an obvious bias.

The CCR does not cite one actual instance of injustice, unlawful command
influence, reprisal or any other threat to justice under the current
system. Instead, it sees perceptions and potential perceptions of
injustice as a "threat to morale and a public relations disaster."[^53]
The CCR relied on the existence of these groups to bolster their
argument because the conclusions are based on mere
perceptions―commission members' perceptions, supported only by the
statements of witnesses devoted enough to pay their own way and testify
before them. *The commission finds in their report eight possible
negative perceptions of justice, six bad impressions, two perceived
injustices and one image problem.*

There are numerous reasons not to act based on perception alone; two
bear mentioning. First, there will always be those who have a bias
against the military justice system because of a result with which they
disagree. No matter how fair the system, these people will not be
deterred, and reforms should not be based on an attempt to please them.
The goal of groups like CAMI is not fundamental fairness, but rather to
obtain a particular result in a particular case. To follow such a course
is to put justice at the mercy of the best publicist or the most
dedicated partisan.

Second, a justice system that responds to this sort of political
pressure will not be seen to do justice. Rather, it will be seen as a
political arena where pressure can be applied to achieve a desired
result. Sadly, we have seen this as some cases have been tried in the
public relations realm, with results that many believe did not bring
justice.[^54] Justice is better served, in the long run, when incorrect
perceptions are challenged and correct information is disseminated. The
unfortunate alternative is a justice system modified to fit the
perceptions of a few interested parties.

It is encouraging that, after all the evidence was examined, the
Commission, with its 150 years of collective experience, could find no
actual problems with the UCMJ and MCM. It is disturbing that a
commission with such a depth of experience would suggest changes based
solely on perceptions. The better course of action would be to determine
whether the perceptions were accurate, and if not, suggest ways to
correct them.

## 

## VI. CONVENING AUTHORITIES AND UNLAWFUL COMMAND INFLUENCE

The first portion of the CCR executive summary reads as one long
indictment of the convening authority and his role in the military
justice system. This indictment should be dismissed as baseless as the
Commission cites no evidence against convening authorities. The
Commission is almost schizophrenic on this issue as it fluctuates from
positive to negative to positive comments. Even as the committee
condemns convening authorities in theory, it acknowledges that in
practice, even in the area they find most troubling, *there is no actual
problem.* The CCR stated "The Commission trusts the judgment of
convening authorities as well as the officers and enlisted members who
are appointed to serve on courts-martial."[^55]

In direct contradiction of this statement, in line after line, the
report suggests there could be trouble:

> There is no aspect of military criminal procedures that diverges
> further from civilian practice, or creates a greater impression of
> improper influence, than the antiquated process of panel selection.
> The current practice is an invitation to mischief. It permits--indeed,
> requires--a convening authority to choose the persons responsible for
> determining the guilt or innocence of a servicemember who has been
> investigated and prosecuted at the order of that same authority.[^56]

At the end of this dire warning, the Commission finds no abuse whatever.
It condemns the appearance of evil without addressing some essential,
relevant questions: 1) are there safeguards in place to prevent abuse;
2) are they being used; (3) and if so, do they in fact prevent the abuse
the Commission is concerned about? When the facts are examined, each of
these questions is answered in the affirmative. However, the Commission
concluded its inquiry on this issue, based not on the facts, but on the
"potential appearance" of improper influence.

This very issue was considered when the UCMJ was enacted into law. Both
the drafters and the members of Congress who considered it were
satisfied:

> "In an attempt to prevent unlawful command influence, Congress enacted
> Article 37, UCMJ, and provided for the punishment of violations of
> this article under Article 98, UCMJ. Congress also relied heavily on
> the UCMJ\'s appellate court system for protection from unlawful
> command influence, as indicated by this exchange between Senator
> Leverett Saltonstall and Mr. E. M. Morgan, Professor of Law, Harvard
> University:
>
> [Senator Saltonstall]{.underline}: Mr. Chairman, may I say this?. . .
> We have provided this very high court on the law; we have provided a
> board of review of the facts \--\
> [Professor Morgan]{.underline}: That is right.\
> [Senator Saltonstall]{.underline}: And if we have done those things,
> is not the accused amply protected from any influence?\
> [Professor Morgan]{.underline}: That is exactly the way our committee
> felt about it. . . . [^57]

Their reliance on UCMJ checks and the appellate process is reflected in
the following statement by Professor Morgan:

> On the question of restriction of command control, we felt that when
> the board of review \[predecessor of the Court of Military Review\] in
> the Office of the Judge Advocate General, which is so far removed from
> any control of the convening authority, had power to handle law, fact
> and sentence, that that eliminated a great part of the evils of
> command control. [^58]

## The UCMJ makes any willful attempt to engage in unlawful command influence a crime:

> \(a\) No authority convening a general, special, or summary
> court-martial, nor any other commanding officer, may censure,
> reprimand, or admonish the court or any member, military judge, or
> counsel thereof, with respect to the findings or sentence adjudged by
> the court, or with respect to any other exercises of its or his
> functions in the conduct of the proceedings. No person subject to this
> chapter may 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. The foregoing provisions of the
> subsection shall not apply with respect to (1) general instructional
> or informational courses in military justice if such courses are
> designed solely for the purpose of instructing members of a command in
> the substantive and procedural aspects of courts-martial, or (2) to
> statements and instructions given in open court by the military judge,
> president of a special court-martial, or counsel.
>
> \(b\) In the preparation of an effectiveness, fitness, or efficiency
> report or any other report or document used in whole or in part for
> the purpose of determining whether a member of the armed forces is
> qualified to be advanced, in grade, or in determining the assignment
> or transfer of a member of the armed forces or in determining whether
> a member of the armed forces should be retained on active duty, no
> person subject to this chapter may, in preparing any such report (1)
> consider or evaluate the performance of duty of any such member, as
> counsel, representing any accused before a court-martial.[^59]

History has borne out the confidence expressed by the congressman and
the professor. The convening authority is bound, not only by honor, but
also by the UCMJ, to pick those officers (and if requested, enlisted
members) who are best qualified to serve as court members:

> When convening a court-martial, the convening authority shall detail
> as member thereof such members of the armed forces as, in his opinion,
> are best qualified for the duty by reason of age, education, training,
> experience, length of service, and judicial temperament. No member of
> an armed force is eligible to serve as a member of a general or
> special court-martial when he is the accuser or a witness for the
> prosecution or has acted as investigating officer or as counsel in the
> same case.[^60]

The many appellate cases that have dealt with the issue of unlawful
command influence in panel selection seem to be grouped into two areas.
They are: 1) stacking the panel with regard to rank; or, 2) stacking the
panel with regard to gender. Even if the convening authority wanted to
stack a panel to obtain a particular verdict or sentence, the safeguards
in place provide ample protection against such an attempt.

The first safeguard is the discovery process. As part of discovery, the
defense counsel must receive copies of the documentation regarding the
convening authority's nomination and selection of court members.[^61]
The defense counsel can interview all the parties involved in the
nomination and selection process, including the SJA and the convening
authority. If the defense counsel believes that unlawful command
influence has taken place, she can raise a motion at trial.

Even if the defense does not make a motion at trial, the military judge
may address the issue *sua sponte* if he believes that unlawful command
influence has taken place. For example, during the voir dire process,
facts may be presented that cause the military judge to question whether
unlawful command influence has taken place. Even without a motion from
the defense, the military judge has the duty to explore the issue and
resolve it before the court-martial proceeds.

Finally, if the defense counsel does not receive satisfaction at the
trial level, the issue can be raised on appeal. In some cases,
additional facts regarding potential unlawful command influence become
known after a trial is over. When these facts are brought to the
attention of the appellate court, a post-trial hearing can be ordered to
explore the possibility of unlawful command influence.[^62]

It is disturbing that the Commission seems willing to permit the triumph
of form over substance in its recommendations. The CCR acknowledges the
need of the commander to act decisively: "During hostilities or
emergencies, it is axiomatic that commanders must enjoy full and
immediate disciplinary authority over those placed under their
command."[^63] However, without taking evidence from a single commander,
the Commission reached the self-serving conclusion that its
recommendations to remove commanders from court member panel selection
will not interfere with this need. The Commission members' vast military
justice experience is indeed impressive. However, in fairness, they
should have received evidence from those with even one year of command
experience to temper their report.

**VII. CONVENING AUTHORITY'S POWER OVER THE MILITARY JUSTICE PROCESS**

The Commission found other faults with the role of the convening
authority, stating, "As many witnesses before the Commission pointed
out, the far-reaching role of commanding officers in the court-martial
process remains the greatest barrier to operating a fair system of
criminal justice within the armed forces."[^64] This statement is a
conclusion without a foundation. The CCR makes no effort to consider the
bias of the witnesses, nor their background. It does not cite a single
case to support the assertion that the convening authority is a barrier
to justice. Nor did it cite a single case where the convening authority
created an injustice. This amounts to slander against the men and women
who perform their duties with honesty and integrity. Without any factual
foundation, the CCR's conclusion should have no place in a serious
discussion of the law.

The Commission's fear of commanding officers seems to come from a
mistrust of the commander in general. In its view, the commander is a
malevolent figure hovering over a court: "commanding officers still loom
over courts-martial, able to intervene and affect the outcomes of trials
in a variety of ways."[^65] The commander/convening authority has not
always been so viewed, nor has anything the Commission produced
demonstrated that this view reflects reality.

The UCMJ drafters trusted commanders, viewing them as a safeguard for
the rights of an accused. They trusted the commanders more than they
trusted prosecutors and lawyers. This fact has been fully understood by
the Court of Appeals for the Armed Forces. The court has often
recognized that, while unlawful command influence is the enemy of
justice, most commanders are not. Commanders have long had the court's
respect. Rather than deeming them, "the greatest barrier to operating a
fair system of criminal justice within the armed forces,"[^66] the court
finds the convening authority a protection for most service members:

> This Court also notes that one of the true cornerstones of the fair
> system of justice that our service members enjoy is the independence
> of the convening authority. His honor, professionalism, and integrity
> guarantee fairness and openness in the exercise of the courts-martial
> power. A frequent observer of the system knows that, when the
> convening authority makes a decision exercising power in this area,
> there are no unseen strings or superiors influencing his actions.
> Moreover, to influence a convening authority\'s exercise of power by
> exerting influence from a superior or on a superior\'s behalf either
> directly or indirectly is to violate the law. Arts. 37 and 98. A
> convening authority has to decide a case without any suggestion as to
> how the superior wants the case to be resolved. Art. 34, UCMJ, 10
> U.S.C. S. 834. If the superior of a convening authority wants to
> properly influence the outcome of a criminal case, let that superior
> operate in the open and under the law by assuming the power of the
> court-martial convening authority under Article 22.[^67]

The court has recognized the convening authority's role in protecting
the rights the convicted airmen as well:

> Moreover, as noted above, appellant\'s offenses were committed prior
> to the effective date of Article 58b. Thus, the convening authority
> still had the power to remit or suspend any or all of the adjudged
> forfeitures under the clemency powers granted him in Article 60, UCMJ,
> [10 USC §
> 860](../../../../../../../../research/buttonTFLink%3F_m=56e755bb6b0f75b8038a0a2348b618ee&_xfercite=%3Ccite%20cc%3D%22USA%22%3E%3C%21%5BCDATA%5B50%20M.J.%20296%5D%5D%3E%3C%2Fcite%3E&_butType=4&_butStat=0&_butNum=5&_butInline=1&_butinfo=10%20USC%20860&_fmtstr=FULL&docnum=18&_startdoc=11&_startchk=1&wchp=dGLStS-lSllA&_md5=25cfaa64e6062e98c8627abee066ad7e)
> (1983). We continue to believe that the convening authority remains
> \"the accused\'s best hope for sentence relief.\" See United States v.
> Bono[, 26 M.J. 240, 243 n.3 (CMA
> 1988),](../../../../../../../../research/buttonTFLink%3F_m=56e755bb6b0f75b8038a0a2348b618ee&_xfercite=%3Ccite%20cc%3D%22USA%22%3E%3C%21%5BCDATA%5B50%20M.J.%20296%5D%5D%3E%3C%2Fcite%3E&_butType=3&_butStat=242&_butNum=7&_butInline=1&_butinfo=%3Ccite%20cc%3D%22USA%22%3E%3C%21%5BCDATA%5B26%20M.J.%20240%2CAT%20243%5D%5D%3E%3C%2Fcite%3E&_fmtstr=FULL&docnum=18&_startdoc=11&_startchk=1&wchp=dGLStS-lSllA&_md5=5ca4441da0389372b5514cfb8a574ac9)
> citing United States v. Wilson, 9 U.S.C.M.A. 223, 226, 26 C.M.R. 3,6
> (1958). A recommendation by a military judge must be brought to the
> attention of the convening authority to assist him in considering the
> action to take on the sentence.[^68]

The convening authority is bound by law to act fairly and impartially.
If he fails to do so at any step in the proceedings, he must disqualify
himself, or the military judge will remove him. Failure to do so can
result in a case being overturned.

The fairness of the convening authority is carefully scrutinized.
Convening authorities have been disqualified where there was a
perception that their Staff Judge Advocate was biased[^69] or where the
conveying authority had personally found probable cause and authorized a
search.[^70] Convening authorities have also been disqualified for
having granted immunity to witnesses,[^71] for potential personal
bias,[^72] and for personal remarks.[^73] In short, the convening
authority's actions are continually reviewed by the military justice
system. Any bias or perceived bias can cause the convening authority to
be removed and may also require corrective action ranging from a new
sentencing hearing to a new trial.[^74]

The only unchecked authority the UCMJ gives to a convening authority is
the ability to provide sentence relief to a convicted airman. If the
convening authority finds the sentence too harsh, he may lessen the
punishment.[^75] This type of influence, the ability to provide mercy,
certainly cannot be challenged as creating the appearance of injustice
for a service member.

The other functions the commander carries out, from appointing the
Article 32 investigating officer (IO); selecting the court members (and
maybe trial counsel); deciding which witnesses to bring in for trial;
deciding whether or not to order a sanity board; deciding on who gets
immunity; and whether the findings should be approved are all subject to
defense challenge and judicial review. While the commander may "loom"
over a court-martial, it is inconceivable how the presence of a
professional officer who is bound by law to do justice, select the most
qualified members of a court, and not interfere with it once the court
is formed threatens justice more than an unfettered prosecutor who is
out to build a record. Indeed, the appellate system seems to have had to
deal with just as many cases of overzealous government counsel as with
convening authorities that attempt to achieve an unjust conviction or
harsher sentence.[^76] Absent evidence to the contrary, anyone defending
cases under the UCMJ should consider carefully whether attorneys, who
only deal with airman under criminal investigation, or commanders, who
deal with all airmen, offer the most neutral and measured consideration
of an individual case.

**VIII. COX COMMISSION PROPOSAL FOR COURT MEMBER SELECTION**

The Commission's proposal to stop convening authority selection of court
members falls short of an actual remedy to the problem they concede does
not exist:

> The Commission trusts the judgment of convening authorities as well as
> the officers and enlisted members who are appointed to serve on
> courts-martial. But there is no reason to preserve a practice that
> creates such a strong impression of, and opportunity for, corruption
> of the trial process by commanders and staff judge advocates. Members
> of courts-martial should be chosen at random from a list of eligible
> service members prepared by the convening authority, taking into
> account operational needs as well as the limitations on rank, enlisted
> or officer status, and same-unit considerations currently followed in
> the selection of members. Article 25 of the UCMJ should be amended to
> require this improvement in the fundamental fairness of court-martial
> procedure.[^77]

The CCR states, "Members of courts-martial should be chosen at random
from a list of eligible service members prepared by the convening
authority."[^78] If the convening authority prepares the list, the
convening authority is still selecting the members. It is difficult to
see how this step would prevent the appearance of injustice problem
sited by the CCR. The only difference is that the convening authority is
building the pool from which members will be chosen for a particular
case, rather than hand picking members on a case-by-case basis.
Nevertheless, if he chose to do so, a convening authority could put only
the toughest officers and enlisted members in the pool or those he knew
would follow his slightest suggestion.

If this suggestion were implemented, it would not change the perception
on which it is based. If the convening authority truly wanted to
improperly influence the members under his command, he could do so prior
to random selection. He can already influence the officer performance
ratings, assignments, and disciplinary records of the potential members.
Convening authorities today are ever mindful of their role in the
military justice system and the potential impact of their remarks. If
they are moved to the periphery, they may, in good faith, feel less
restricted in their public statements. The convening authority can still
make speeches and generate publicity, the source of many of the cases of
unlawful command influence in the past. Those other than the convening
authority, who, in the past have engaged in unlawful command influence,
such as first sergeants speaking to potential witnesses or attorneys
speaking to members, could continue such conduct.

Implementing random member selection would not in any way prevent these
examples of unlawful command influence. In fact, it might make the
potential problem worse. Removing the convening authority from the
process also removes him from the advice and counsel of the SJA that
went with the panel selection role. There would no longer be a legal
requirement that the most qualified members serve. Consequently, the
convening authority might feel less restrained to comment on the
selected panel and its results. As the convening authority is removed
from the process, courts and judges may feel his ability to influence a
panel is lessened. Therefore, they may permit the convening authority
more latitude when they determine the impact of remarks he may make or
actions he may take. As a result, there may be more, rather than fewer,
problems to address.

Giving the commander the authority to choose members also allows him the
flexibility to minimize impact on mission accomplishment. First, the
commander can remove from a list, or fail to nominate, select officers
in key positions that are needed to accomplish the mission. For example,
while preparing to deploy in support of combat operations, a commander
can exclude the Operations Group Squadron Commanders and Operations
Officers (and others specifically needed to prepare for the deployment).
This flexibility does not deprive an accused of a fair trial yet it
greatly enhances a commander's ability to accomplish his mission.
Secondly, commanders are in a unique position to know of information
regarding their officers that would render them unfit for a particular
trial. This is especially true for disciplinary information that might
impact their ability to perform their duty and that is otherwise
protected by the Privacy Act. Rather than expose these officers to
public inquiries, he can simply fail to nominate them.

Finally, giving the convening authority the responsibility for putting
members on a court serves to protect the members from other influences.
Were the members randomly chosen, others on base might feel more free to
tell them what is expected of them on the court or to give them free
advice or opinions as to how to deal with a certain case. They might be
more likely to "brief" the members selected on what is expected of them,
or the "military view" of their duty. Knowing that the commander has
ownership of the process limits this kind of improper mentoring before
trial. With random selection, rather than watch one commander, the
system would be placed in the untenable situation of having to hunt for
unlawful command influence under every bush.

Why should the commander's selection of those deemed most qualified to
serve as court members be considered an invitation to corruption? The
explanation appears to be simple mistrust of military leaders. Why? The
commander makes similar choices every day, recommending promotions,
command assignments, and school billets that impact careers. In wartime,
the commander makes life and death decisions.

The commander's integrity is the very foundation of the military. If it
is accepted that the system cannot trust its commanders, then the
military as an institution cannot be trusted. The UCMJ incorporated the
principle that service members benefit by having a commander involved in
the military justice process. The commander reviews the information then
decides whether to prosecute and, if so, what level of action to bring.
The UCMJ drafters believed that the commander was the best individual to
balance the interests of justice in each individual case. The Commission
produces nothing that suggests the convening authority has failed in
this function. They do not show that due process would be better served
by placing an accused member in the hands of the lawyers or randomly
selected court members. Absent a showing of actual, systemic improper
influence, bias or unfairness, the principle of the convening authority
selecting those best suited as court members should not be lightly
abandoned.

## IX. OTHER OBSERVATIONS REGARDING THE CONVENING AUTHORITY

## 

## The Commission's other observations regarding the convening authority also do not withstand scrutiny. The Commission cites several of the convening authority's pre-trial powers as potential sources of abuse:

> While the selection of panel members is clearly the focal point for
> the perception of improper command influence, the present Code
> entrusts to the convening authority numerous other pretrial decisions
> that also contribute to a perception of unfairness. For example, the
> travel of witnesses to Article 32 investigations, pretrial scientific
> testing of evidence, and investigative assistance for both the
> government and the defense are just a few of the common instances in
> which the convening authority controls the pretrial process and can
> withhold or grant approval based on personal preference rather than a
> legal standard. While the responsibility for such matters shifts to
> the military judge upon referral to court-martial, the delays created
> before the trial begins undermine due process for both sides at a
> court-martial.[^79]

The rules provide that witnesses shall be produced if reasonably
available.[^80] The determination of reasonably available is set out in
the rule, and it is further established by case law.[^81] The convening
authority may make the witnesses available based on the advice of the
SJA. However, if he fails to do so, there are two levels of review. The
Article 32 Investigating Officer (IO) has the independent authority to
determine if a witness is reasonably available.[^82] The nature of the
Article 32 investigation is judicial, permitting the IO to suspend
proceedings if the request is not complied with, and providing the IO
with the same protections from unlawful command influence that a court
enjoys.[^83] The decision of the IO may then be reviewed by the trial
court. Ultimately, if there is a conviction, the trial judge's decision
will be reviewed at the appellate level.

The accused is not only entitled to have a witness present, but also to
have his attorney thoroughly prepared to examine the witness. If either
of these rights is denied, the accused may be entitled to a new Article
32 investigation. Although the right to witnesses under Article 32 is
limited to those reasonably available, this is a greater right than
granted to an accused in the grand jury process of the federal court
system.[^84] At a federal grand jury, the accused has no right to have
witnesses cross-examined by his attorney, or to call witnesses. Also,
the accused does not have a right to be present, except when called as a
witness. Even if called as a witness, the accused does not have the
right to have his or her counsel present inside the grand jury room.

The differences between the procedural rights of an accused at a grand
jury hearing versus the Article 32 investigation do not stop there. The
grand jury is a secret proceeding in which the prosecutor alone presents
evidence to the grand jurors. Under the UCMJ, the Article 32
investigation is conducted by an impartial investigating officer, and is
open to the public.[^85] The accused must be present at the Article 32
investigation (unless he is disruptive) and he has the right to have his
counsel cross-examine the government witnesses and to call his own
witnesses.[^86] The accused can also choose to make an "unsworn"
statement at the Article 32. This statement is not subject to
cross-examined by the government counsel.[^87]

At a grand jury hearing, the decision to send the case to trial is made
by the jury, with input from the prosecutor only.[^88] Under the UCMJ,
the charges are reviewed by the IO, who makes a written report of his
findings and recommendations. The defense can present any evidence they
choose for the IO's consideration. The defense will also receive a copy
of the IO's report. The report is reviewed by the convening authority,
prior to the charges going forward to a court-martial.[^89]

The defendant at a federal grand jury has no right to the testimony
provided the grand jury, or to challenge it. Also, there is no
requirement that a minimum number of grand jurors who vote to indict
must hear all of the evidence presented.[^90] In every aspect, the
accused has far more rights regarding the confrontation of witnesses
against him and the presentment of evidence under the UCMJ than he would
in any other federal pretrial hearing.

The accused also enjoys significant rights under the UCMJ with regard to
pretrial scientific testing of evidence and investigative
assistance.[^91] In these matters also, the rules and the case law
provide specific, strict, legal standards from which a convening
authority cannot deviate.[^92] Not only must the government provide any
such witness that are necessary, the government must do so before the
Article 32 begins. If the government does not, the trial judge may
either order the witness produced, or order a new Article 32
investigation. The trial judge may also order scientific tests, and
again, may order a new Article 32 investigation if the tests were not
done prior to the investigation and the judge believes they should have
been done.

Rule for Court Martial 703,[^93] and the cases that have fleshed it out,
tightly control the convening authority's ability to thwart the defense
request for an expert witness,[^94] an expert consultant,[^95] and
scientific testing of evidence.[^96] In effect, even if the convening
authority refuses to grant the proper request for anything the defense
needs at trial, the defense has independent recourses to obtain a fair
trial at every phase of the proceeding, beginning with the Article 32
investigation. Finally, although a recalcitrant convening authority
might cause a delay, the UCMJ even has safeguards against a delay
becoming burdensome. The government is held to strict accountability
regarding the accused's right to a speedy trial.[^97] If a convening
authority unnecessarily causes delay, he risks having the charges
forever barred by the expiration of the 120-day speedy trial clock. No
other US system of criminal justice holds the government to such a
strict time standard.

The power of the convening authority to make these decisions is limited
by a number of factors that insure that the accused's procedural and
substantive rights are protected. The convening authority may not
"withhold or grant approval based on personal preference rather than a
legal standard."[^98] The convening authority must follow very exacting
legal standards in each instance listed above. These rights are codified
in the MCM and clarified in the case law that has developed around each
one.[^99]

Appointing a judge prior to referral of charges to rule on issues such
as witnesses and experts would not provide the relief suggested by the
Commission. In special courts-martial, the government averages less than
20 days between preferal and referral of charges. A delay of this modest
length is certainly not one that would create a perception of injustice.
For general courts-martial there is a longer period of time between
preferal and referral. However, the intervention of a military judge
during that period would not measurably speed up the process. It could
result in a number of problems of perception and reality that the
Commission does not address. The Article 32 investigating officer has
evolved into a full-fledged judicial officer, with the powers to
determine if witnesses are available and to have the witnesses produced.
If the investigating officer should abuse her power to the extent the
accused believes a substantive right was denied, he does not need a
military judge standing by to provide a remedy. He already has the right
to appeal by extraordinary writ to the next military appellate
court.[^100]

In *ABC, Inc. v. Powell*,[^101] the decision as to whether to open an
Article 32 investigation to the public was taken up by the US Court of
Appeals for the Armed Forces after the Army Court of Criminal Appeals
had ruled on the same issue. Based on that opinion, written by then
Chief Judge Cox, it is clear that the military courts do exercise
supervisory powers from the moment charges are preferred. The Army Court
of Criminal Appeals finds its authority also extends to review of cases
brought under Article 69 of the UCMJ.[^102] This authority flows from
what is commonly called the All Writs Act. The All Writs Act provides
that "all courts established by Act of Congress may issue all writs
necessary or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law."[^103]

The military courts and judges already oversee every step of the
court-martial process from preferral of charges. Once charges are
preferred, and a general court-martial is contemplated, they are sent to
an Article 32 investigation. The Article 32 IO has quasi-judicial powers
to conduct an investigation with such independence that any effort to
influence his decisions will amount to unlawful command influence. If a
military judge were to oversee this process prior to referral, it is
arguable that, under *current law*, the judge would be engaging in
unlawful command influence if he attempted to interfere with the
investigating officer's decision making process.

If a judge changes the IO ruling, or tries to force the IO to do as the
judge rules, there would be a conflict of authority between sitting
judicial officers. This would not necessarily protect the rights of an
accused. Rather, it would create uncertainty where none now exists.
Having an alternative source of rulings from that of the IO could only
encourage both the government counsel and the defense to "shop" for the
best ruling. This would cause delays, and lead to the appearance that
justice was a matter of shopping for the right authority.

Imagine a worst-case scenario. At the Article 32, the defense requests
that certain witnesses be made available. The Article 32 officer finds
that the witnesses must be made available. The government attorney
disagrees, and seeks a ruling from the trial judge. The trial judge
rules that the witnesses need not be ordered to appear, and the
government need not provide them. The Article 32 IO believes his ruling
is correct. Because he is an independent judicial officer, he abates the
proceedings until the witnesses are provided.

Whose ruling governs? Is the Article 32 process still an "independent
judicial proceeding" if the trial judge can rule differently than the
IO? Can the defense demand a new judge to rule on the issue at trial, as
the trial judge now has a stake in upholding his previous decision?
Obviously, adding a trial judge to the process adds neither clarity nor
speed. What it would do is create the potential for far more conflict.
Any judge making rulings in a case prior to referral should be
disqualified from trying the case. If he were not disqualified, he would
be in the position of ruling on his own decisions, contrary to current
practice and to concepts of fairness and due process. Consequently,
injecting a sitting judge into the process before referral is more
likely to increase delays, burdensome motions, and the perception of
injustice, rather than relieve them.

Finally, the MCM gives the military judge and appellate system, not the
convening authority, the final word. From preferal of charges to final
action, the convening authority may not engage in unlawful command
influence. If the convening authority, or one of his staff, improperly
influences a subordinate to prefer charges, the accused will get a new
preferral.[^104] The convening authority would then be disqualified from
acting on the case.

If convening authorities "loom over courts-martial," they loom low
indeed. The only way the convening authority can prevent the review of a
sentence that triggers the full appellate process is to reduce the
sentence. Even so, the office of the TJAG is charged with a review and
may submit the issues to the appellate process on its own. Though the
right to an appellate review is not absolute,[^105] the review provided
is more than is guaranteed in the civilian courts. In the civilian
world, unless he is indigent, an accused must pay for the review
process. Otherwise, unless an accused can pay, or find an attorney who
will take the matter and move the court to waive its fees, meaningful
appellate review may not be available.

Once the limitations on the convening authority are examined, it is
clear that the perceptions that caused the Commission so much
consternation are not well founded. The authority of the convening
authority under the UCMJ is both limited and subject to proper,
independent, judicial review at every stage in the courts-martial
process. The UCMJ does not suffer any of the defects that caused the
foreign justice systems cited in the report to undergo reforms.
Consequently, rather than change a fair and just system, it would be
better to change the misperceptions surrounding the convening
authority's role in the military justice process. The Commission
concludes their discussion of the convening authority by stating:

> The combined power of the convening authority to determine which
> charges shall be preferred, the level of court-martial, and the venue
> where the charges will be tried, coupled with the idea that this same
> convening authority selects the members of the court-martial to try
> the cases, is unacceptable in a society that deems due process of law
> to be the bulwark of a fair justice system^.^[^106]

This statement is simply not supportable. While the convening authority
does determine which set of charges are preferred, this decision is
reviewed, and if necessary modified, by the trial judge. The judge has
the power to consolidate charges and specifications or dismiss them
entirely. The judge may rule the convening authority's charges are
multiplicious, both for findings and sentencing.[^107] If true due
process of law, rather than perception, is the standard, then the
present allocation of responsibility among convening authorities and
military judges should be retained.

The Commission stated it has confidence in convening authorities and
members selected by them; it cited no actual prejudice in the military
justice system; and the Court of Military Appeals found that the
convening authority provides vital protections for the rights of accused
in the military justice system. In the end, the only reason the
Commission can cite to change the current system, are the perceptions of
the misinformed. Truly, this is not enough to warrant "reform".

**X. OTHER RECOMMENDATIONS OF THE COX COMMISSION**

### **A. Increase the Independence, Availability, and Responsibilities of Military Judges** {#a.-increase-the-independence-availability-and-responsibilities-of-military-judges .unnumbered}

The substance of this proposal is very much contained in the proposal to
limit the power of the convening authority. If the convening authority
is properly fulfilling his duties, and there is effective appellate
review, there is no need to expand the role of the military judge. The
reasoning used to outline and defend the convening authority applies
equally here. There are, however, a few statements the Commission made
that bear comment.

The Commission stated, "complaints against the military justice system
have long been fueled by allegations that military judges are neither
sufficiently independent nor empowered enough to act as effective,
impartial arbiters at trial."[^108] We have been unable to find a single
case in the last 20 years that found the military trial judge was not
independent. The perception that they are not may exist in the mind of
some, but it certainly has not been borne out by the case law. They do
not have merely "some modicum of judicial independence,"[^109] but
function as fully independent judicial officers, who are able, once
assigned to a case, to overturn any decision a convening authority has
made. This is not a power the convening authority has over the judge.
Judges may dismiss cases outright, they may order relief to any party,
and they may hear any motion.[^110]

At the appellate level they may even find facts,[^111] a power unique
among judicial appellate systems in America. The Commission does not
name a single power possessed by any other court that the military judge
does not have under the UCMJ. We believe there are none. The judge may
order a new service of charges, a new pretrial hearing, and new pretrial
advice. He may find an accused not guilty when there are members, and
may require the convening authority to act in appointment of experts,
witnesses, testing, or anything else necessary for justice. If the
convening authority does not act, the judge may abate the proceeding.
The military judge may dismiss charges if the convening authority delays
too much or if anyone engages in unlawful command influence. He can
order remedies as he sees fit to correct unlawful command influence. He
may dismiss members proposed by the convening authority for cause, and
they are bound, if selected, to follow the judge's instructions as to
the law. The judge may question witnesses. Under the UCMJ, the military
judge has all the independence and authority required to ensure a fair
trial.[^112] He also has a duty to ensure that a fair trial is
conducted.

The Commission stated that, until very close to trial, neither the
defense nor the prosecutors have a judicial authority to which to turn.
This is untrue, as demonstrated in the *ABC, Inc. v Powell* case.[^113]
There has been, to date, no evidence offered that the current
appointment system has prejudiced any right of a single accused.
Moreover, the Supreme Court has upheld the method of appointing military
judges and affirmed that it does not violate due process.[^114] Absent
some evidence of harm or prejudice, we should not tamper with a system
that is working.

In its final recommendation regarding the role of judges, the Commission
suggests: "Third, either the President through his rule making
authority, or Congress through legislation, should establish clear
processes and procedures for collateral attack on courts-martial and
authorize appellate military courts to both stay trial proceedings and
to conduct hearings on said matters within their jurisdiction."[^115]
Notwithstanding the Commission's perception, it appears, based on the
cases cited as well as the All Writs Act,[^116] that there already are
in place adequate procedures to ensure judicial oversight at all steps
in the courts-martial process.

In quickly addressing the issue of public confidence in the system, the
Commission is only able to provide references to several fringe groups
of individuals who advocate changing the military justice system. Those
the Commission cites as believing the system is unfair are neither
neutral observers, legal experts, nor the average American off the
street. Rather, their beliefs revolve around cases with which they
disagree. To entertain the idea of change based on these views is
unwarranted. The general public has, in the most recent polls, shown a
tremendous degree of respect for the military.[^117] There is absolutely
no evidence offered to suggest they have any less respect for the
military justice system. In any event, a system of justice that attempts
to change in the face of uninformed public opinion will find itself
achieving neither popularity nor justice. Only by adhering to principle
can a system be a true justice system. To bow to public pressure without
a reason based in law and fact is to abandon justice for expediency. To
educate the public is the far better answer. Absent a showing of a flaw
in the UCMJ, we should not let the experience of others, whose systems
and militaries are radically different from the United States', stampede
us into rash movement just so we can claim reform. The many changes we
have seen in systems of justice world-wide do not move those countries
farther from the UCMJ, but rather, move them closer to it. We should
defend a system that has served as a model for so many, rather then
contemplate change because so many others have needed change.

## B. Implement Additional Protections in Death Penalty Cases.

Given the increased scrutiny focused on capital litigation in the United
States, the operation of the death penalty in the armed forces deserves
close attention. Opponents of capital punishment have raised substantial
questions regarding whether the modern military needs a death penalty,
particularly during peacetime (an issue that the Commission feels
deserves further study).[^118] Even the most ardent supporters of the
death penalty accept the critical need for procedural fairness in
capital cases. The Commission recommends that three steps be taken to
improve capital litigation in the military:

> 1\. Require a court-martial panel of 12 members.
>
> 2\. Require an anti-discrimination instruction.
>
> 3\. Address the issue of inadequate counsel by studying alternatives
> to the current method of supplying defense counsel.

We have no comment on the suggested requirement of 12 panel members in a
death penalty case. However, we would again point out the dearth of
evidence the Commission has to support its suggestions.

On the second suggestion, we would note that trial defense counsel can
already request an anti-discrimination instruction, if they believe it
is in the client's best interests. If the instruction becomes mandatory,
then counsel's ability to choose among possible tactics in seeking
instructions or not seeking them is hampered. We would continue to allow
counsel the latitude to try the case as they believe the interests of
their client require it to be tried.

Finally, while the courts should be ever vigilant to ensure a fair
trial, particularly in a death penalty case, the court has never
reversed a military death penalty conviction based on inadequate
military counsel. It is vital that counsel be qualified in every
criminal case, and we believe that the court is best qualified to
examine whether the counsel that are practicing before it are competent.
While additional training may be a good idea, neither training nor
experience guarantee a counsel will be competent.

## C. Replace Sexual Misconduct Provisions

## 

## The CCR recommends repealing the rape and sodomy provisions of the Uniform Code of Military Justice, 10 U.S.C. §§ 920 & 925, and the offenses specified under the general article, 10 U.S.C. § 134, that concern criminal sexual misconduct and replacing them with a comprehensive Criminal Sexual Conduct Article, such as is found in the Model Penal Code or Title 18 of the United States Code. We have no objection to this recommendation. Though the report is silent as to why this should be done, it may be worthy of reasoned consideration. What is unacceptable is the Commission's swipe at those who oversee the courts-martial process, without a scintilla of evidence to support their proposition:

> Furthermore, the well-known fact that most adulterous or sodomitical
> acts committed by consenting and often married (to each other)
> military personnel are not prosecuted at court-martial creates a
> powerful perception that prosecution of this sexual behavior is
> treated in an arbitrary, even vindictive, manner. This perception has
> been at the core of the military sex scandals of the last
> decade.[^119]

The Commission is, or should be, well aware that not all such acts are a
crime under the UCMJ. In order to be an offense under the UCMJ, adultery
must be shown to adversely impact good order and discipline, or be
service discrediting.[^120] The perception that enforcing these articles
is done in an arbitrary, even vindictive manner, has not arisen out of
the court process. It comes from carefully orchestrated campaigns of
media spinning and trial by press release. Once again, the solution to
this problem is educating the public, not bowing before the most
articulate propagandist. The burden of proof that any such act is
service discrediting, must be met by the government counsel. A search of
the Lexis database on this issue revealed no cases of arbitrary
prosecution in a case of sexual misconduct.

So long as defense counsel are willing to mischaracterize the evidence
and charges to the media in an effort to rally public sympathy; and, so
long as military authorities are willing to dismiss valid charges as a
result of such public interest, the problem of public mistrust or
misperceptions of the fairness of our system of military justice will
persist. Changing the names of offenses or failing to prosecute those
that have become unpopular or are misunderstood will not make the system
fairer. Such modifications, whether *de facto* or *de jure*, may well
result in a system that is less responsive to good order and discipline
and casts even more discredit upon the military by demonstrating that we
no longer hold our members to the high standard of morality and ethics
the American people expect of their military. So long as manipulating
perception is an advantage to one side, changing the law on the basis of
perceptions so manufactured is unlikely to result in a more just system.

# **D. Discussion of Additional Issues**

*1. Role of the Staff Judge Advocate*

The Commission attacks the role of the staff judge advocate (SJA) in the
same manner as it did the convening authority, with the same absence of
evidence. Conflict, or the appearance of conflict, may exist in some
isolated cases. However, as demonstrated in the discussion of convening
authorities and the restraints on their powers, there are safeguards in
place to deal with any actual or apparent abuse. One aspect of the
Commission's argument deserves further comment:

> The broad authority granted some staff judge advocates creates a
> number of unwanted, contradictory images of courts-martial: that
> over-zealous prosecutors can pursue charges at will and are rewarded
> for aggressive prosecution, that convening authorities routinely
> disregard the legal advice of their SJA's in order to pursue
> unwarranted or even vindictive prosecutions, and that lawyers, rather
> than line officers, control the military justice apparatus.[^121]

It is difficult to reconcile the Commission's position that convening
authorities have too much authority with the position that lawyers have
hijacked the justice process. The UCMJ provides the necessary checks on
an overzealous prosecutor.[^122] In addition to the judicial oversight
of the lawyers involved in the process, commanders are the ones in
charge, not lawyers. Complaining early in the report that commanders
have too much authority, then voicing the same concern about lawyers,
undermines both positions.

2.  *Power of Prosecuting Attorneys*

Regarding the power of lawyers in the justice system, prosecutors in the
civilian justice systems have more power to charge, indict, and try an
accused than do prosecutors in the military system.[^123] Civilian
prosecutors are either elected officials or political appointees. Their
method of appointment makes them more subject to political pressures and
concerns than a convening authority or SJA.

The UCMJ provides more oversight of the prosecutorial function than
civilian systems can. The same restraints that prevent a commander or
convening authority from manipulating the system apply to his SJA, and
the trial counsel, as well as every military member. To lash out at the
good faith of military attorneys, without support in the case law, is to
strike a foul blow. This contention, that SJAs may taint the military
justice system as a class, is without merit. The Commission goes on to
say,

> "The Code and the Manual for Courts-Martial should be amended to
> stress the need for impartiality, fairness and transparency on the
> part of staff judge advocates as well as all attorneys, investigators,
> and other command personnel involved in the court-martial process.
> These amendments should be drafted so as to make clear that violation
> of these principles as well as the trust inherent in these tasks is
> punishable under the UCMJ."[^124]

This point could not be made clearer than it already is under Article 37
of the UCMJ,[^125] and the various cases dealing with the SJA and the
SJA role in courts. On the question of transparency, the SJA's role is
more transparent than any government counsel in any criminal system of
which we are aware. If a case is referred to a general court-martial,
the defense is even entitled to a copy of the SJA advice.[^126] The
defense is also entitled to the SJA Recommendation before the convening
authority takes action on the record of trial.[^127] We know of no other
system where the convicted may see and comment upon the government
counsel's advice.

The Commission's comments on the administrative processing of military
members is outside the scope of this paper. As such, we offer no comment
on their remarks addressing that issue. Similarly, the discussion of the
Feres Doctrine is outside the scope of this paper.[^128]

## *3. Sentencing*

The Commission's thoughts on sentencing bear some comment. The
requirement that the sentence be passed by the members, when the case is
tried before members, has served well for 50 years. Under military law,
the sentence is determined on a case-by-case basis. There are no
mandatory minimum sentences as there are in the civilian justice system.
Indeed, a member may be challenged for cause if they take a rigid view
of sentencing. A challenge for cause would be granted if the prospective
court member said that they could not consider "no punishment" as a
sentencing option.[^129] We believe members listen to the judge's
instructions, honestly consider all the evidence, and arrive at what
they believe to be a fair sentence for that case. They may only sit on
one case their entire career, and they are disposed to attempt to do it
correctly.

Judges, on the other hand, will listen to many cases over their term on
the bench. They also have available all the sentencing statistics from
courts throughout the military. The goal in sentencing is to be
appropriate and fair, rather than enforce a standard throughout the
military. The Commission offered no evidence that there are systematic
problems with members determining a sentence after hearing the evidence
and taking instructions from the military judge. However, they recommend
that in member cases, the convicted airman should be able to choose
whether the members or the judge will determine the sentence.

Adopting this recommendation would allow the accused to try his case
before members, hoping for an acquittal, but be sentenced by a judge,
who might be more predictable in that realm. The CCR does not give a
reason why the military community should find this more just than
allowing the members to decide both guilt and punishment. This
recommendation by the CCR seems to be a request for defense counsel to
get one more bite of the apple that will not render the system any more
fair than it is now.

*4. Appellate Court Jurisdiction*

The CCR next addressed the issue of appellate court jurisdiction in the
aftermath of the Supreme Court's decision to limit the authority of the
United States Court of Appeals for the Armed Forces in *Clinton v.
Goldsmith.*[^130] The Commission recommended further study to clarify
the jurisdiction of appellate courts. However, it seems that this case
settles the issue of jurisdiction of the appellate courts, and that
further study is unwarranted at this time:

> Although military appellate courts are among those so empowered to
> issue extraordinary writs, see Noyd v. Bond, 395 U.S. 683, 695, n. 7,
> 23 L.Ed. 2d 631, 89 S. Ct. 1876, the All Writs Act does not enlarge
> those courts\' power to issue process \"in aid of\" their existing
> statutory jurisdiction, see, *e.g*, Pennsylvania Bureau of Correction
> v. United States Marshals Service, 474 U.S. 34, 41, 88 L. Ed. 2d 189,
> 106 S. Ct. 355. The CAAF is accorded jurisdiction by statute to
> \"review the record in \[specified\] cases reviewed by\" the service
> courts of criminal appeals, 10 U.S.C. § 867 (a)(2), (3), which in turn
> have jurisdiction to \"review court-martial cases,\" § 866(a). Since
> the Air Force\'s action to drop respondent from the rolls was an
> executive action, not a \"finding\" or \"sentence,\" § 867(c), that
> was (or could have been) imposed in a court-martial proceeding, the
> elimination of Goldsmith from the rolls appears straightforwardly to
> have been beyond the CAAF\'s jurisdiction to review and hence beyond
> the \"aid\" of the All Writs Act in reviewing it. Goldsmith\'s claim
> that the CAAF has satisfied the \"aid\" requirement because it
> protected and effectuated the sentence meted out by the court-martial
> is beside the point, for two related reasons. First, his court-martial
> sentence has not been changed; another military agency has simply
> taken independent action. Second, the CAAF is not given authority, by
> the All Writs Act or any other source, to oversee all matters arguably
> related to military justice, or to act as a plenary administrator even
> of criminal judgments it has affirmed. The CAAF spoke too expansively
> when it asserted that Congress intended it to have such broad
> responsibility. (b) Even if the CAAF had some seriously arguable basis
> for jurisdiction in these circumstances, resort to the All Writs Act
> would still be out of bounds, being unjustifiable either as
> \"necessary\" or as \"appropriate\" in light of alternative remedies
> available to a servicemember demanding to be kept on the rolls.[^131]

This decision seems clear and unambiguous. It is also consistent with
the constitutional proposition that the armed forces fall under the
executive branch of the government, rather than the judicial. That some
part of the president's command is outside the court's supervision is
both reasonable and consistent with our constitutional system.

*5. Enhanced Powers for Article 32 Investigation Officers*

Finally, the CCR recommends enhancing the powers of the Article 32
investigating officer so that his report is binding on convening
authorities. This recommendation should be considered with caution.
Though more extensive and open than a grand jury, the Article 32
investigation has limits not imposed on a court at a trial. For example,
the IO cannot subpoena civilian witnesses. To make the IO's report,
which may or may not consider all the evidence that a court could,
binding on the convening authority, is to invite injustice. For example,
an IO could recommend that a case be dismissed, without having seen all
the evidence that could be offered at trial. If the report was binding
on the convening authority, justice would not be served. Conversely,
imagine the situation if the IO recommends the charges go to trial, but
the SJA believes they are not legally sufficient. This puts a heavy
burden on the accused that should not be imposed. Finally, consider the
possibility that evidence may be discovered or developed after the
Article 32. If the IO's recommendations are binding on the convening
authority, with no provision to re-open the Article 32 investigation,
the interests of justice would be harmed.

The CCR discusses the suggestion that the Article 32 officer should be
either a military judge or a field grade judge advocate with enhanced
powers. These powers would include the ability to issue subpoenas, and
to make binding recommendations to dismiss charges where no probable
cause is found. This suggestion equates to having a "judge alone trial
before a trial." An acquittal at this "enhanced Article 32" would be
binding on the government. However, the defense would be fully able to
fight the case at trial again. This asymmetrical burden would force
government representatives to fully litigate Article 32 investigations,
while permitting the defense to pick its strategy.

Though advantageous to an accused, this would not make the system more
just. As with all the suggestions made, such as changing the number of
challenges to court members, giving military judges contempt powers, and
permitting lawyer voir dire, the Commission seems to ignore some
facts[^132] and not examine others.

## 

## XI. CONCLUSION

The Cox Commission stated that there are systemic problems with the
military justice system. Throughout the CCR, however, there is no
evidence presented that supports the claim of "systemic problems." The
UCMJ provides for greater procedural protection that an accused would
receive under the federal criminal court system such as are present
within the Article 32 hearing process. The military justice system
already includes checks and balances within it to address all of the
Commission's concerns.

First, the UCMJ is subject to external scrutiny by the legislature and
the Joint Service Committee on Military Justice. The concerns present
within the military justice systems of England and Canada are not
present within our system. Our military justice system already provides
scrutiny of the convening authority's actions, as well as providing for
the independence and impartiality of military judges and an effective
and unbiased appellate review process.

The military justice system also provides checks and balances to ensure
that an accused's procedural and substantive rights are protected. There
is both trial judge and appellate review of the actions of the convening
authority, the SJA and the prosecutors. The Commission could cite no
specific instances where the military justice system had failed to
address the concerns they noted in their report, let alone show evidence
that the problems of a biased convening authority or overzealous lawyers
are systemic problems. The independence of the judiciary is ensured by
the structure of the system and the powers given to the military judge.
The Commission's proposals regarding sexual misconduct provisions,
sentencing, appellate court jurisdiction and the powers of Article 32
Investigation Officers have also been shown to be unnecessary.

In the end, what the Commission ultimately proposes, is to change the
military justice system simply because of the perceptions of some
individuals, many of whom are biased and motivated by their opposition
to particular results in their loved ones' cases. As stated previously,
there will always be those who have a bias against the military justice
system because of a result with which they disagree. If changes are made
based solely on perceptions rather than evidence, then the military
justice system will be forever at the mercy of anyone who doesn't agree
with a particular result.

We will close with the timely remarks of Judge J. De Meyer, in a
concurring opinion in the *Findlay* case cited by the Commission:

> To this judgment, the result of which I fully approve, I would add a
> brief remark. Once again reference is made in its reasoning to
> \"appearances\" (paragraphs 73 and 76). First of all, I would observe
> that the Court did not need to rely on \"appearances\", since there
> were enough convincing elements to enable it to conclude that the
> court-martial system, under which Lance-Sergeant Findlay was convicted
> and sentenced in the present case, was not acceptable. Moreover, I
> would like to stress that, as a matter of principle, we should never
> decide anything on the basis of \"appearances\", and that we should,
> in particular, not allow ourselves to be impressed by them in
> determining whether or not a court is independent and impartial.
> (emphasis added). We have been wrong to do so in the past, and we
> should not do so in the future.[^133]

Nor should the UCMJ be changed based on perceptions. We may need a
campaign to educate the public and military members, but we do not need
to change the law because of perceptions. In the end, we believe a
cautious approach to change, rather than a preference for the new,
simply because it is new, will best serve the needs of the military and
its members in the new century.

**APPENDIX**

[Comparison of UCMJ with Findlay Case]{.underline}

In the case of *Findlay v. the United Kingdom,* the court found
basically two main areas of concern that led them to find that "for all
these reasons, and in particular the central role played by the
convening officer in the organization of the court martial, the Court
considers that Mr. Findlay's misgivings about the independence and
impartiality of the tribunal which dealt with his case were objectively
justified." The two main areas of concern for the Court were the central
role played by the convening officer in the organization of the court
martial, and that the process of review did not address Mr. Findlay's
concerns about a fair and impartial trial. In the table below, we have
listed the Court's concerns and the differences found in the UCMJ.

+-----------------------------------+-----------------------------------+
| **Convening Officer Under British | ######                            |
| System**                          | ## Convening Authority Under UCMJ |
+-----------------------------------+-----------------------------------+
| Decided nature of the charges and | Decides which charges to prefer,  |
| type of court martial to be       | after review of the evidence and  |
| brought. The court does not state | advice of JAG. Charges are        |
| whether the JAG drafted the       | drafted by JAG. Decides type of   |
| charges or made recommendation on | court martial with advice of JAG. |
| the type of court martial. No     | JAG assists and advises           |
| provision for JAG to assist and   | throughout the process.           |
| advise convening authority.       |                                   |
|                                   | Military Judge can dismiss any or |
| The convening officer sends an    | all of the charges at trial if    |
| abstract of the evidence to the   | they are multiplicious. Even if   |
| prosecuting officer and the judge | charges are not "technically"     |
| advocate. The convening officer   | multiplicious, the judge may give |
| could include passages that might | equitable relief in sentencing.   |
| be inadmissible. No independent   | If a charge is unproven, the      |
| review of charges.                | military judge may enter a        |
|                                   | finding of not guilty to that     |
|                                   | charge, even in a trial before    |
|                                   | members.                          |
|                                   |                                   |
|                                   | If the convening authority        |
|                                   | decides to send the case to a     |
|                                   | general court martial (GCM),      |
|                                   | there must be an Article 32       |
|                                   | investigation. An independent     |
|                                   | investigating officer is          |
|                                   | appointed. The accused has the    |
|                                   | following rights: to be present   |
|                                   | with counsel, to receive a fair   |
|                                   | and impartial hearing (which can  |
|                                   | later be challenged at court), to |
|                                   | request the government produce    |
|                                   | witnesses if "reasonably          |
|                                   | available," and to present        |
|                                   | evidence and make an unsworn      |
|                                   | statement. Prosecution and        |
|                                   | defense counsel present evidence, |
|                                   | not the convening authority.      |
|                                   | Defense may challenge government  |
|                                   | evidence. Investigating officer   |
|                                   | conducts independent review of    |
|                                   | charges, determines whether       |
|                                   | government has a prima facie      |
|                                   | case, and makes recommendations   |
|                                   | on the appropriate disposition of |
|                                   | the charges.                      |
+-----------------------------------+-----------------------------------+
| Convening officer appointed 5     | A military judge is required at a |
| court members, none of whom were  | court-martial. Court members are  |
| legal officers. Court did not     | appointed by the convening        |
| state accused had right to        | authority, unless waived by       |
| question members or challenge     | accused (judge alone trial). The  |
| them for cause.                   | member selection process is       |
|                                   | documented, and the documentation |
| Taking an oath was the only       | is provided to the defense during |
| safeguard to ensure that the      | discovery.                        |
| court members were unbiased.      |                                   |
|                                   | The UCMJ requires that the        |
| Court did not state that there    | convening authority pick the best |
| was judicial/appellate overview   | qualified members. Both trial and |
| of the selection process.         | defense counsel may question      |
|                                   | members. Members can be           |
| Court did not state IG or similar | challenged for cause. Each side   |
| process by which court members    | has one preemptory challenge.     |
| could bring complaint.            | Members who are biased may not    |
|                                   | sit on the court. Members may be  |
| Convening officer could comment   | disqualified for actual or        |
| on the 'proceedings of a court    | "implied" bias. Case law provides |
| martial which require             | that judges are to grant implied  |
| confirmation'. These remarks      | bias challenges liberally.        |
| would not form part of the        |                                   |
| record. Could be communicated to  | Defense can raise motion with     |
| members of the court.             | military judge at trial as to     |
|                                   | command influence/                |
| Members of court communicated     |                                   |
| with judge advocate in private,   | improper selection of court       |
| without a record.                 | members; and can appeal the       |
|                                   | judge's decision. If the motion   |
|                                   | decided in favor of defense, case |
|                                   | cannot go forward until command   |
|                                   | influence is corrected.           |
|                                   |                                   |
|                                   | Military judge may rule on bias   |
|                                   | of convening authority and        |
|                                   | disqualify the convening          |
|                                   | authority from any participation  |
|                                   | in the case.                      |
|                                   |                                   |
|                                   | Article 37 of the UCMJ makes it   |
|                                   | unlawful for the convening        |
|                                   | authority to base OPR, promotion  |
|                                   | recommendation or                 |
|                                   | assignment/transfer decisions     |
|                                   | based on performance as court     |
|                                   | member. Inspector General (IG)    |
|                                   | process by which court members    |
|                                   | can raise complaint of reprisal   |
|                                   | for unfair treatment based on     |
|                                   | their service as a court member.  |
|                                   |                                   |
|                                   | Once court is convened, convening |
|                                   | authority may not speak to the    |
|                                   | members regarding the court.      |
|                                   | Military judge has sweeping       |
|                                   | powers to prevent any unlawful    |
|                                   | command influence, including      |
|                                   | dismissing the case.              |
|                                   |                                   |
|                                   | Military judge may only           |
|                                   | communicate with members in open  |
|                                   | court, with verbatim record kept  |
|                                   | of the proceeding. All parts of   |
|                                   | the hearing must be public or     |
|                                   | held with the attendance of       |
|                                   | counsel.                          |
+-----------------------------------+-----------------------------------+
|                                   | Accused can potentially choose    |
|                                   | from three different forums:      |
|                                   | judge alone, officer members; or  |
|                                   | if the accused is enlisted, 1/3   |
|                                   | enlisted members.                 |
+-----------------------------------+-----------------------------------+
| Judge advocate not a member of    | Military judge is independent     |
| court.                            | member of court. Separate chain   |
|                                   | of command from convening         |
| Convening officer appointed the   | authority.                        |
| prosecuting officer, assistant    |                                   |
| prosecuting officer, and defense  | Defense counsel not appointed by  |
| counsel.                          | convening authority. Defense      |
|                                   | counsel is not in convening       |
| Convening officer controlled      | authority's chain of command.     |
| production of witnesses for the   |                                   |
| prosecution and the defense;      | Convening authority may refuse    |
| provided witnesses for the        | defense witness request; however, |
| defense if "reasonably requested" | defense can seek relief from      |
| by defense. No check on convening | military judge if witness request |
| authority's decision on           | is denied. The military judge can |
| witnesses.                        | order production of witness and   |
|                                   | stay proceedings if the witness   |
| During the trial, the convening   | is not produced.                  |
| officer may rule on applications  |                                   |
| of the defense.                   | Accused has a right to expert     |
|                                   | witnesses; convening authority    |
|                                   | refusal may be overturned by      |
|                                   | military judge.                   |
|                                   |                                   |
|                                   | Once the trial begins, the        |
|                                   | military judge rules on any       |
|                                   | motions. Once a case is referred, |
|                                   | the defense may seek relief from  |
|                                   | the military judge if convening   |
|                                   | authority denies a defense        |
|                                   | request.                          |
+-----------------------------------+-----------------------------------+
| Judge advocate who gives advice   | Military judge, independent       |
| in secret does not cure lack of   | defense counsel, and rejection of |
| court's independence.             | members for cause, all ensure an  |
|                                   | independent tribunal.             |
+-----------------------------------+-----------------------------------+
| Sentence has no effect until      | Sentence effective immediately,   |
| confirmed, usually by the         | unless stayed. Convening          |
| convening officer. Convening      | authority has discretion to       |
| officer could withhold            | approve/disapprove findings and   |
| confirmation or substitute or     | sentence of the court. Can lessen |
| postpone or remit in whole or in  | degree of guilt to a lesser       |
| part any sentence.                | included offense, set aside       |
|                                   | finding of guilty, dismiss        |
| Second set of appeals goes to     | charges or direct a rehearing.    |
| non-legal qualified board of      | The convening authority may ONLY  |
| officers. No statutory or         | lessen the severity of the        |
| formalized procedures were laid   | punishment, cannot increase it.   |
| down for the conduct of           | Can defer sentence of             |
| post-hearing reviews and no       | confinement. Required to review   |
| reasons given for decisions made. | certain matters before he takes   |
| Also, there was a lack of         | action, including the trial       |
| participation by the accused in   | result, the staff judge advocate  |
| the post-hearing review process.  | recommendation, and the matters   |
|                                   | presented by the accused. (Can    |
| Next level review also not        | also review record of trial and   |
| legally qualified.                | other matters considered          |
|                                   | appropriate)                      |
| Legal advice to the review        |                                   |
| officials kept private.           | Review by convening authority is  |
|                                   | documented and copy is provided   |
| Must obtain leave to appeal to    | to the accused and defense        |
| Divisional Court, first level of  | counsel.                          |
| legally trained review.           |                                   |
|                                   | There is appellate review of all  |
| A court-martial appeal court      | cases, unless accused             |
| (made up of civilian judges)      | affirmatively waives review.      |
| could hear appeals against        |                                   |
| conviction from a court-martial,  | Cases reviewed by judge advocate  |
| but may not hear appeals against  | (summary courts-martial, special  |
| sentence in guilty plea case.     | court if no bad conduct           |
|                                   | discharge, and general            |
|                                   | courts-martial if no punitive     |
|                                   | discharge and less than 1 year    |
|                                   | confinement adjudged)             |
|                                   |                                   |
|                                   | All correspondence is documented  |
|                                   | and available for review by       |
|                                   | defense.                          |
|                                   |                                   |
|                                   | Court of Criminal Appeals (one    |
|                                   | for each service, composed of     |
|                                   | judge advocates) reviews all      |
|                                   | cases where a dismissal, punitive |
|                                   | discharge or 1 year or longer of  |
|                                   | confinement is adjudged. Court    |
|                                   | has authority to do factual and   |
|                                   | legal review of cases. Appellate  |
|                                   | defense counsel provided free of  |
|                                   | charge, unless the accused waives |
|                                   | this right.                       |
|                                   |                                   |
|                                   | Court of Appeals for the Armed    |
|                                   | Forces is next appellate level    |
|                                   | and is composed of civilian       |
|                                   | judges.                           |
|                                   |                                   |
|                                   | Accused can also appeal to        |
|                                   | Supreme Court as final appellate  |
|                                   | authority.                        |
|                                   |                                   |
|                                   | All levels of appeal are open to  |
|                                   | scrutiny, hearings open to the    |
|                                   | public, and opinions of the       |
|                                   | courts published.                 |
|                                   |                                   |
|                                   | Right to appeal is same           |
|                                   | regardless of plea.               |
+-----------------------------------+-----------------------------------+

[^1]: ^\*^ *Lt Col Essex, USAF (B.A. Miami University of Ohio; JD The
    Ohio State University ) is the Chief of Aviation Law at Air
    Education and Training Command. He is a member of the Ohio and
    Louisiana bars, and a Solicitor for England and Wales. He has been
    in private practice in Ohio, and served as a Public Defender prior
    to joining the Air Force in 1985. He has been an area defense
    counsel and circuit defense counsel. He has written articles for the
    Air Force on the Article 32 Hearing, cross-examination, and the
    trial of child sex offenses. The views expressed in this article do
    not necessarily represent those of the United States Air Force.*

[^2]: ^\*\*^ *Major Pickle USAF (B.A. Gonzaga University, J.D. Rutgers
    Law School-Camden) is currently the Executive Officer at Air
    Education and Training Command. She is a member of the New Jersey
    Bar. Major Pickle has served as a defense counsel and circuit trial
    counsel and has tried over 80 cases. The authors would like to thank
    Col Joyce Spisak for her invaluable assistance in completing this
    article. The views expressed in this article do not necessarily
    represent those of the United States Air Force.*

[^3]: Report of the Cox Commission on the 50^th^ Anniversary of the
    Uniform Code of Military Justice (May 2001) \[hereinafter CCR\]. The
    Commission Executive Summary can be located at the website of the
    National Institute of Military Justice found at www.nimj.org (last
    accessed 29 Jun. 02).

[^4]: *See* Miranda v. Arizona, 384 U.S. 436 (1966) (giving civilians
    the equivalent of Article 31 or Miranda rights); *also* Gideon v.
    Wainwright, 372 U.S. 335 (1963) (giving rights to counsel for
    indigent defendants); these Supreme Court cases giving civilians two
    of the most important substantive rights, both came after the UCMJ,
    which was enacted on 5 May 1950, with an effective date of 31 May
    1951; *See* Act of May 5, 1950, 64 Stat. 108 (codified as amended at
    10 U.S.C. § 801-946).

[^5]: CCR, *supra* note Error: Reference source not found at 1.

[^6]: Federal Rules Criminal Procedure, 18 U.S.C. § 201-235
    \[hereinafter F.R.C.P.\].

[^7]: CCR, *supra* note 1, at 2.

[^8]: US Dep't of Defense, Directive 5500.17, Role and Responsibilities
    of the Joint Service Committee (JSC) on Military Justice (8 May
    1996).

[^9]: For a summary of the 1998-2000 annual reviews done by the Joint
    Service Committee on Military Justice see
    https://aflsa.jag.af.mil/GROUPS/AIR_FORCE/JUSTICE/JAJM/

    LEGISLAT.htm (last accessed 22 Apr 02).

[^10]: UCMJ, art.146 (2000).

[^11]: [Manual for Courts-Martial, United States,]{.smallcaps} R.C.M.
    405(h)(3) (2000) \[hereinafter MCM\]*; see also* San Antonio
    Express-News v. Morrow, 44 M.J. 706 (A.F.C.C.A. 1996) (Article 32
    hearings are presumptively public); ABC News, Inc. v. Powell, 47
    M.J. 363 (1997) (absent cause shown that outweighs the value of
    openness, the military accused is entitled to public Article 32
    hearing).

[^12]: MCM, s*upra* note Error: Reference source not found, at R.C.M.
    1203 and 1204. *See also* www.armfor.uscourts.gov/

    Calendar.htm for the published calendar of hearings before the
    United States Court of Appeals for the Armed Forces (last accessed
    22 Apr 02).

[^13]: CCR, *supra* note 1, at 3.

[^14]: *Id*. at 4.

[^15]: Findlay v. United Kingdom, 24 Eur. Ct. H.R. 221 (1997).

[^16]: For a line by line comparison of the UCMJ and the British system
    prior to the *Findlay* case, see Appendix.

[^17]: Findlay, *supra* note 13.

[^18]: MCM, *supra* note Error: Reference source not found, R.C.M.
    307(c).

[^19]: *Id*. at R.C.M. 405(a).

[^20]: Compare MCM, *supra* note Error: Reference source not found,
    R.C.M. 405 with F.R.C.P. *supra* note Error: Reference source not
    found, 18 U.S.C. § 201-235. *See also* Major General Jack L. Rives
    and Major Steven J. Ehlenbeck, *Civilian v. Military Justice in the
    United States: A Comparative Analysis,* 52 A.F.L. [Rev]{.smallcaps}.
    215 (2002) (this volume).

[^21]: MCM, *supra* note 9, R.C.M. 801(e)(1)(A)*; see also* Weiss v.
    United States, 510 U.S. 163 (1994).

[^22]: *Id*. at R.C.M. 801(e)(1)(A) and R.C.M. 907.

[^23]: UCMJ art. 25(d)(2) (2000).

[^24]: MCM, *supra* note Error: Reference source not found, R.C.M. 911
    Discussion.

[^25]: *Id*. at R.C.M. 501.

[^26]: [UCMJ,]{.smallcaps} art. 26 (2000); MCM, *supra* note 9, R.C.M.
    503(b).

[^27]: MCM, *supra* note 9, R.C.M. 701(a)(1).

[^28]: *Id.* at R.C.M. 912(b-f).

[^29]: *Id.* at R.C.M. 912(g).

[^30]: *Id.* at R.C.M. 912(e); s*ee also* United States v. Wiesen, No.
    9801770, 2001, CAAF LEXIS (Dec. 13, 2001).

[^31]: United States v. Rome, 47 M.J. 467 (1998).

[^32]: MCM, *supra* note Error: Reference source not found, R.C.M. 906
    and 912; United States v. Thomas, 43 M.J. 550 (N-M. Ct. Crim. App.
    1995).

[^33]: MCM, *supra* note Error: Reference source not found, R.C.M.
    912(f)(2)(B)(4).

[^34]: *Id*. at R.C.M. 912(b)(1-2).

[^35]: *Id*. at R.C.M. 801(e)(1)(A).

[^36]: UCMJ[,]{.smallcaps} art. 37 (2000).

[^37]: *Id*.

[^38]: MCM, *supra* note Error: Reference source not found, R.C.M. 802,
    803, 804, and 805.

[^39]: *Id*. at note 37.

[^40]: *Id*. at R.C.M. 802 (a summary of the discussion is required to
    be put on the record).

[^41]: *Id*. at R.C.M. 503(c)(1) (detailed in accordance with
    regulations of the Secretary of each service).

[^42]: *Id*. at R.C.M. 906(a).

[^43]: *Id*. at R.C.M. 1101, 1107 and 1209.

[^44]: *Id*. at R.C.M. 1107, 1108 and 1109.

[^45]: *Id*. at R.C.M. 1107(a)(3).

[^46]: *Id*. at R.C.M. 1107(h).

[^47]: *Id*. at R.C.M. 1201-1210.

[^48]: R v. Genereux, 1 S.C.R. 259.

[^49]: UCMJ, art. 26 (2000).

[^50]: *Id* at Error: Reference source not found.

[^51]: CCR, *supra* note 1, at 3.

[^52]: *See* www.militaryinjustice.org (last accessed 22 Apr 02).

[^53]: CCR, *supra* note 1, at 3.

[^54]: Tony Cappacio, *Pilot Errors*, [am. journalism rev.]{.smallcaps},
    Oct. 1997, at 18 (summarizing the entire Kelly Flinn incident); *see
    also* Tom Curley & Steven Komarow, *For Army, the Focus Now Turns to
    Remaining Cases*, USA TODAY[,]{.smallcaps} Apr. 30, 1997
    (summarizing charges and verdicts related to Aberdeen Proving Ground
    cases); McKinney v. Ivany, 48 M.J. 908 (Army Ct. Crim. App. 1998);
    and Mark Thompson et al., *So, Who's to Blame?*, Time, Volume

    146, No.1, July 3, 1995.

[^55]: CCR, *supra* note 1, at 7.

[^56]: *Id*. at 7.

[^57]: Hearings on S. 857 and H.R. 4080 Before a Subcomm. Of the Comm.
    On Armed Services, 81^st^ Cong., 1^st^ Sess. 90 (1949)(statements of
    Senator Leverett Saltonstall and Mr. E. M. Morgan, Professor of Law,
    Harvard University) \[hereinafter Hearings\]; *see also* Hearings on
    H.R. 2498 Before a Subcomm. of the Comm. On Armed Services, 81^st^
    Cong., 1^st^ Sess. 652 (1949) *and* United States v. Cruz, 20 M.J.
    873 (A.C.M.R. 1985), *rev'd on other grounds* 25 M.J. 326 (C.M.A.
    1997).

[^58]: Hearings, *supra* note Error: Reference source not found, at 45.

[^59]: [UCMJ,]{.smallcaps} art. 37 (2000).

[^60]: [UCMJ]{.smallcaps}, art. 25 (d)(2) (2000).

[^61]: MCM, *supra* note Error: Reference source not found, R.C.M.
    701(a)(1).

[^62]: *See* United States v. Dinges, 55 M.J. 308 (2001)*; see also*
    United States v. Baldwin, 54 M.J. 308 (2001).

[^63]: CCR, *supra* note 1, at 5.

[^64]: *Id*. at 6.

[^65]: *Id*.

[^66]: *[I]{.smallcaps}d*. at 6-7*.*

[^67]: United States v. Hagen, 25 M.J. 78 (C.M.A. 1987), *cert. denied*
    484 U.S. 1060 (1988).

[^68]: United States v. Lee, 50 MJ 296 (1999) (*Opinion of the Court*,
    Cox)*; see also* United States v. Johnston, 51 M.J. 227, 229 (1999)
    (*Opinion of the Court,* Cox).

[^69]: United States v. Johnson-Saunders, 48 M.J. 74 (1998).

[^70]: United States v. Wilson, 1 M.J. 694 (1975).

[^71]: United States v. Hernandez, 3 M.J. 916 (A.C.M.R. 1977).

[^72]: United States v. Nix, 40 M.J. 6 (C.M.A. 1994).

[^73]: United States v. Fisher, 45 M.J. 159 (1996).

[^74]: United States v. Voorhees, 50 M.J. 494 (C.A.A.F. 1999).

[^75]: MCM[,]{.smallcaps} *supra* note Error: Reference source not
    found, R.C.M. 1107(d)(1).

[^76]: A review of the cases in each area yielded an equal amount of
    "court stacking" and "prosecutorial misconduct" cases.

[^77]: CCR, *supra* note 1, at 7.

[^78]: *Id*.

[^79]: *Id*.

[^80]: MCM, *supra* note Error: Reference source not found, R.C.M.
    405(g)(1)(A).

[^81]: United States v. Chuculate, 5 M.J. 143 (C.M.A. 1978); United
    States v. Chestnut[, 2 M.J. 84 (C.M.A.
    1976)](../../../../../../../../research/buttonTFLink%3F_m=1287a6189a684761f10f5120a732479b&_xfercite=%3Ccite%20cc%3D%22USA%22%3E%3C%21%5BCDATA%5B5%20M.J.%20143%5D%5D%3E%3C%2Fcite%3E&_butType=3&_butStat=242&_butNum=11&_butInline=1&_butinfo=%3Ccite%20cc%3D%22USA%22%3E%3C%21%5BCDATA%5B2%20M.J.%2084%5D%5D%3E%3C%2Fcite%3E&_fmtstr=FULL&docnum=1&_startdoc=1&_startchk=1&wchp=dGLSzV-lSlWV&_md5=baab0326a4563222372dd88109d5a087);
    United States v. Ledbetter[, 2 M.J. 37 (C.M.A.
    1976)](../../../../../../../../research/buttonTFLink%3F_m=1287a6189a684761f10f5120a732479b&_xfercite=%3Ccite%20cc%3D%22USA%22%3E%3C%21%5BCDATA%5B5%20M.J.%20143%5D%5D%3E%3C%2Fcite%3E&_butType=3&_butStat=242&_butNum=10&_butInline=1&_butinfo=%3Ccite%20cc%3D%22USA%22%3E%3C%21%5BCDATA%5B2%20M.J.%2037%5D%5D%3E%3C%2Fcite%3E&_fmtstr=FULL&docnum=1&_startdoc=1&_startchk=1&wchp=dGLSzV-lSlWV&_md5=a91908b99fd118379947374bebae6d42).

[^82]: MCM, *supra* note Error: Reference source not found, R.C.M.
    405(g)(1)(A).

[^83]: United States v. Reynolds, 24 M.J. 261 (C.M.A. 1987) (IO is a
    quasi-judicial official who must act in a neutral and independent
    manner)*; see also* United States v. Freedman, 23 M.J. 820
    (N.M.C.M.R. 1987) (where found interference with IO decision by
    convening authority).

[^84]: F.R.C.P., *supra* note Error: Reference source not found,
    (effectively the US Code of Criminal procedure provides for no
    rights to an accused before a grand jury at all-see sections 3321,
    3322, and 3332).

[^85]: MCM, *supra* note Error: Reference source not found, R.C.M.
    405(d)(1)*; see also* San Antonio Express-News v. Morrow, 44 M.J.
    706 (A.F.C.C.A. 1996).

[^86]: MCM, *supra* note Error: Reference source not found, R.C.M.
    405(f) and (g).

[^87]: *Id*. at R.C.M. 405(f)(12).

[^88]: F.R.C.P., *supra* note Error: Reference source not found.

[^89]: MCM, *supra* note Error: Reference source not found, R.C.M.
    405(j) and 406.

[^90]: United States v. Leverage Funding Systems Inc., 637 F.2d. 645
    (9^th^ Cir. 1980), *cert. denied* 452 U.S. 961 (1981).

[^91]: United States v. Mustafa, 22 M.J. 165 (C.M.A. 1986)
    (Nevertheless, as a matter of military due process, service members
    are entitled to investigative or other expert assistance when
    necessary for an adequate defense, without regard to indigency)*;
    see also* United States v. Toledo, 15 M.J. 255 (C.M.A. 1983)
    (accused entitled to access to qualified psychiatrist for purpose of
    presenting insanity defense).

[^92]: MCM, *supra* note Error: Reference source not found, R.C.M.
    703(d)*; see also* United States v. Garries[, 22 M.J. 288, 290
    (C.M.A.
    1986).](../../../../../../../../research/buttonTFLink%3F_m=c08e7a1433bc88a1593d5d4024457826&_xfercite=%3Ccite%20cc%3D%22USA%22%3E%3C%21%5BCDATA%5B1999%20CCA%20LEXIS%20138%20%5D%5D%3E%3C%2Fcite%3E&_butType=3&_butStat=242&_butNum=13&_butInline=1&_butinfo=%3Ccite%20cc%3D%22USA%22%3E%3C%21%5BCDATA%5B22%20M.J.%20288%2CAT%20290%5D%5D%3E%3C%2Fcite%3E&_fmtstr=FULL&docnum=1&_startdoc=1&_startchk=1&wchp=dGLSzV-lSlWV&_md5=b268092e8d87c891a6478c3698691e37)

[^93]: MCM, *supra* note Error: Reference source not found, R.C.M. 703.

[^94]: United States v. Robinson, 24 M.J. 649 (N.M.C.M.R. 1987).

[^95]: Garries, 22 M.J. 288.

[^96]: [United States v.
    Reinecke](../../../../../../../../research/retrieve%3F_m=924dd37f73cdc13edc81c411e4b6a105&docnum=1&_fmtstr=FULL&_startdoc=1&_startchk=1&wchp=dGLStV-lSllb&_md5=52af22513ba60e30079ef604e95d1587),
    31 M.J. 507 (A.F.C.M.R. 1990), *aff'd* 32 M.J. 63 (C.M.A. 1990).

[^97]: MCM, *supra* note Error: Reference source not found, R.C.M. 707.

[^98]: CCR, *supra* note 1, at 7.

[^99]: MCM, *supra* note Error: Reference source not found, R.C.M.
    405(f), 703 (right to witnesses, evidence, appointment of expert
    witnesses)*; see also* U.S. v. Miro, 22 M.J. 509 (A.F.C.M.R. 1986);
    U.S. v. Garries, 22 M.J. 288 (C.M.A. 1986); US v. Tornowski, 29 M.J.
    578 (A.F.C.M.R. 1989); Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct.
    1087, 84 LE 2^nd^ 53, (1985); and U.S v. Van Horn, 26 M.J. 434,
    (C.M.A. 1988).

[^100]: San Antonio Express-News v. Morrow, 44 M.J. 706 (A.F.C.C.A.
    1996)*; see also* McKinney v. Jarvis, 46 M.J. 870 (Army Ct. Crim.
    App. 1997); and ABC News, Inc. v. Powell, 47 M.J. 363 (1997).

[^101]: 47 M.J. 363.

[^102]: UCMJ, art. 69 (2000) (provides for appellate review by judge
    advocate of each general court-martial resulting in a conviction,
    not otherwise reviewed by court of criminal appeals)*; see also* Dew
    v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998).

[^103]: All Writs Act of 1948, 28 U.S.C. § 1651 (2001).

[^104]: United States v. Miller, 31 M.J. 798 (A.F.Ct. Crim. App. 1990),
    *aff'd* 33 M.J. 235 (C.A.A.F. 1991).

[^105]: MCM, *supra* note Error: Reference source not found, R.C.M.
    1201.

[^106]: CCR, *supra* note 1, at 8.

[^107]: MCM, *supra* note Error: Reference source not found, R.C.M. 801
    and 906(b)(4), (5), (10) and (12).

[^108]: CCR, *supra* note 1, at 8.

[^109]: *Id.*

[^110]: MCM, *supra* note Error: Reference source not found, R.C.M. 801
    and Discussion.

[^111]: *Id*. at R.C.M. 1203(b).

[^112]: UCMJ, art. 26*; see also* MCM, *supra* note Error: Reference
    source not found, R.C.M. 801 and Discussion, 802, 803, 809, 910-915,
    917, 981, 920 - 922, and 1007(a); United States v. Quintanilla, No.
    00-0499, 2001 CAAF LEXIS 1256 (Oct. 19, 2001) (where the court
    stated that the judge has broad discretion in carrying out this
    responsibility, including the authority to call and question
    witnesses, hold sessions outside the presence of members, govern the
    order and manner of testimony and argument, control voir dire, rule
    on the admissibility of evidence and interlocutory questions,
    exercise contempt power to control the proceedings, and, in a bench
    trial, adjudge findings and sentence.); Weiss v. United States, 510
    U.S. 163 (1994).

[^113]: ABC, 47 M.J. 363.

[^114]: Weiss, 510 U.S. 163.

[^115]: CCR, *supra* note 1, at 9.

[^116]: *See* *supra* note Error: Reference source not found.

[^117]: *See* The Gallup Organization, *Military Retains Top Position in
    American's Confidence Ratings*, June 25, 2001, accessible at
    http://www.gallup.com/poll/releases/pr010625.asp (last accessed 22
    Apr 02).

[^118]: CCR, *supra* note Error: Reference source not found, at 9.

[^119]: *Id*. at 11.

[^120]: UCMJ, art. 134 (2000).

[^121]: CCR, *supra* note 1, at 12.

[^122]: [MCM,]{.smallcaps} *supra* note Error: Reference source not
    found, R.C.M. [405, 906(]{.smallcaps}b)(4), (9-12) (judicial
    authority to amend or dismiss charges and specifications), and 915
    (military judge can grant a mistrial); also the appellate process
    serves as a check on prosecutorial power; *see* U.S. v. Meek, 44
    M.J. 1 (1996).

[^123]: [F.R.C.P.]{.smallcaps}, *supra* note 4, § 3321, 3322, and 3332.

[^124]: CCR, *supra* note 1, at 13.

[^125]: UCMJ, art. 37 (2000).

[^126]: MCM, *supra* note Error: Reference source not found, R.C.M. 406.

[^127]: *Id*. at R.C.M. 1106.

[^128]: The Feres Doctrine, Feres v. U.S., 340 U.S. 135 (1950), stems
    from the Federal Tort Claims Act, 28 U.S.C. §1346 (b), and bars most
    service member claims against military.

[^129]: MCM, *supra* note Error: Reference source not found, R.C.M.
    912(f)(1)(N).

[^130]: 526 U.S. 529 (1999).

[^131]: *Id*.

[^132]: MCM, *supra* note Error: Reference source not found, R.C.M.
    912(d). (It is the experience of the authors that attorneys
    conducting voir dire is the preferred practice in military courts.
    While some military judges conduct the actual questioning of
    members, they almost always allow counsel to submit questions for
    them to ask and allow counsel to follow-up on any information that
    is given during the group voir dire, during the individual voir dire
    of members. Even when lawyer voir dire is permitted, the military
    judge has the final say as to what court members are asked).

[^133]: Findlay, *supra* note 13.