United States Court of Appeals for the Armed Forces: Wikis

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United States Court of Appeals for the Armed Forces
United States Court of Appeals for the Armed Forces.PNG
Established 1951
Jurisdiction United States armed forces
Location Washington, D.C.
Coordinates 38°53′26.55″N 77°00′15.64″W / 38.8907083°N 77.0043444°W / 38.8907083; -77.0043444Coordinates: 38°53′26.55″N 77°00′15.64″W / 38.8907083°N 77.0043444°W / 38.8907083; -77.0043444
Composition method Presidential nomination with confirmation by the Senate
Judge term length 15 years
Number of positions Five
Website armfor.uscourts.gov
Chief Judge
Currently Andrew S. Effron
Since September 1996

The United States Court of Appeals for the Armed Forces (in case citations, C.A.A.F.) is an Article I court that exercises worldwide appellate jurisdiction over members of the United States armed forces on active duty and other persons subject to the Uniform Code of Military Justice. The court is composed of five civilian judges appointed for 15-year terms by the President of the United States with the advice and consent of the United States Senate. The court reviews decisions from the appellate courts of the services: The Army Court of Criminal Appeals for the Army, the Navy-Marine Corps Court of Criminal Appeal for the Navy, the Coast Guard Court of Criminal Appeals for the Coast Guard, and the Air Force Court of Criminal Appeals for the Air Force.

Cases on the court's docket address a broad range of legal issues, including constitutional law, criminal law, evidence, criminal procedure, ethics, administrative law, and national security law. The cases before the court may only be reviewed upon a granted petition for review (which only occurs in 10 percent of cases), by certificate from an individual service Judge Advocate General, a sentence of death, a petition for extraordinary relief or a writ appeal petition. Statistics show that the court only reviews approximately 10 percent of all court-martial convictions. Unlike all geographic United States courts of appeal, the court exercises purely discretionary review.

Decisions by the court are subject to direct review by the Supreme Court of the United States. However, the court functions as gatekeeper of the Supreme Court unlike any other federal appeals court in the United States.[1] Denials from petitions for review or relief in extraordinary petitions are currently not subject to review by the Supreme Court.

Two bills were introduced in the 110th Congress to permit the Supreme Court to review cases in which the court either denies a petition for grant of review or denies relief in an extraordinary petition. The House of Representatives bill, Equal Justice for Our Military Act of 2007 passed by voice vote on September 27, 2008 but the Senate failed to take action on the bill and it died at the end of the Congress. On January 15, 2009, in the 111th Congress, Rep. Susan A. Davis, chairperson of the Subcommittee on Military Personnel of the House Armed Services Committee introduced the Equal Justice for Our Military Act of 2009, HR 569.[2]

Contents

Judges

The court has five judges, who are nominated by the President of the United States and confirmed by the United States Senate. Judges serve fifteen-year terms. After their term, they must be either re-appointed or retire from the court. When hearing a case, all five judges sit as a panel.

Article 142 of the Uniform Code of Military Justice provides that not more than three judges may be appointed to the court from the same political party, which is a common provision for Article I courts and administrative agencies.

The judges regularly meet in conference to discuss recently argued cases. As a matter of custom, there is full discussion of each case followed by a tentative vote. If the chief judge is in the majority, the chief judge assigns the responsibility for drafting an opinion to a judge in the majority. If the chief judge is not in the majority, the next senior judge in the majority assigns the case. After an opinion is drafted, it is circulated to all judges, who have the opportunity to concur, comment, or submit a separate opinion. After the judges have had an opportunity to express their views in writing, the opinion is released to the parties and the public.[3]

Current composition of the court

As of 2009, the judges on the court are:

# Title Judge Duty station Born Term of service Appointed by
Active Chief Senior
17 Chief Judge Andrew S. Effron Federal (VA) 1948 1996–present 2006–present Clinton
18 Circuit Judge James E. Baker Federal (VA) 1960 2000–present Clinton
19 Circuit Judge Charles E. Erdmann Federal (MT) 1946 2002–present G.W. Bush
20 Circuit Judge Margaret A. Ryan Federal (VA) 19?? 2006–present G.W. Bush
21 Circuit Judge Scott W. Stucky Federal (MD) 1948 2006–present G.W. Bush

Vacancies and pending nominations

There are no pending nominations at this time.

List of former judges & current senior status judges

# Judge State Born/Died Active service Term as Chief Judge Senior status Appointed by Reason for
termination
1 Quinn, Robert E.Robert E. Quinn RI 1894–1975 1951–1975 1951–1971 (none) Truman death
2 Latimer, George W.George W. Latimer UT 1901–1990 1951–1961 (none) (none) Truman term expired
3 Brosman, Paul W.Paul W. Brosman FL 1899–1955 1951–1955 (none) (none) Truman death
4 Ferguson, Homer S.Homer S. Ferguson PA 1889–1982 1957–1971 (none) 1971–1976 Eisenhower retired
5 Kilday, Paul J.Paul J. Kilday TX 1900–1968 1961–1968 (none) (none) Kennedy death
6 Darden, William H.William H. Darden GA 1923– 1968–1973 1971–1973 1973–present Johnson
7 Duncan, Robert MortonRobert Morton Duncan OH 1927– 1971–1974 1973–1974 (none) Nixon resigned to join the District Court for Central Ohio
8 Cook, William HolmesWilliam Holmes Cook IL 1920–1999 1974–1984 (none) (none) Ford resigned
9 Fletcher, Jr., Albert B.Albert B. Fletcher, Jr. KS 1925–1998 1975–1985 1975–1980 (none) Ford formal reason assigned was disability, precipitated by felony conviction for sex offense following a jury trial
10 Perry, Matthew J.Matthew J. Perry SC 1921– 1976–1979 (none) (none) Ford resigned to join the District Court for South Carolina
11 Everett, Robinson O.Robinson O. Everett NC 1928–2009 1980–1992 1980–1990 1992–2009 Carter death
12 Cox III, Walter T.Walter T. Cox III SC 1942– 1984–2000 1995–1999 2000–present Reagan
13 Sullivan, Eugene R.Eugene R. Sullivan MO 1941– 1986–2002 1990–1995 2002–present Reagan
14 Crawford, Susan J.Susan J. Crawford MD 1947– 1991–2006 1999–2004 2006–present G.H.W. Bush
15 Gierke III, H. F.H. F. Gierke III ND 1943– 1991–2006 2004–2006 2006–present G.H.W. Bush
16 Wiss, Robert E.Robert E. Wiss IL 1929–1995 1992–1995 (none) (none) G.H.W. Bush death

Chief judges

Chief Judge
Robert E. Quinn 1951–1971
William H. Darden 1971-1973
Robert M. Duncan 1973-1974
Albert B. Fletcher, Jr. 1975-1980
Robinson O. Everett 1980-1990
Eugene R. Sullivan 1990-1995
Walter T. Cox III 1995-1999
Susan J. Crawford 1999-2004
H. F. Gierke III 2004-2006
Andrew S. Effron 2006–present

The position of Chief Judge is rotated among the judges to the most senior judge who has not previously served as Chief Judge. The Chief Judge serves in that position for five years unless his or her term as a judge expires sooner. Prior to 1992, the Chief Judge was designated by the President from among the sitting judges.

History

U.S. Court of Appeals for the Armed Forces courthouse on E Street in Northwest Washington, DC.

Courts-martial are judicial proceedings conducted by the armed forces. The Continental Congress first authorized the use of courts-martial in 1775. From the time of the American Revolutionary War through the middle of the twentieth century, courts-martial were governed by the Articles of War and the Articles for the Government of the Navy.

Until 1920, court-martial convictions were reviewed either by a commander in the field or by the President, depending on the severity of the sentence or the rank of the accused. The absence of formal review received critical attention during World War I, and the Army created an internal legal review process for a limited number of cases. Following the war, in the Act of June 4, 1920, Congress required the Army to establish boards of review, consisting of three lawyers, to consider cases involving death, dismissal of an officer, an unsuspended dishonorable discharge, or confinement in a penitentiary, with limited exceptions. The legislation further required legal review of other cases in the Office of the Judge Advocate General.

The military justice system under the Articles of War and Articles for the Government of the Navy received significant attention during World War II and its immediate aftermath. During the war, in which over 16 million persons served in the American armed forces, the military services held over 1.7 million courts-martial. Many of these proceedings were conducted without lawyers acting as presiding officers or counsel. Studies conducted by the military departments and the civilian bar identified a variety of problems in the administration of military justice during the war, including the potential for improper command influence.

In 1948, Congress enacted significant reforms in the Articles of War, including creation of a Judicial Council of three general officers to consider cases involving sentences of death, life imprisonment, or dismissal of an officer, as well as cases referred to the Council by a board of review or the judge advocate general. During the same period, Congress placed the departments of the Army, Navy, and Air Force under the newly created Department of Defense. The first Secretary of Defense, James Forrestal, created a committee under the chairmanship of Professor Edmund Morgan to study the potential for unifying and revising the services' disparate military justice systems under a single code.

The committee recommended a unified system applicable to the Army, Navy, Air Force, Marine Corps, and Coast Guard. The committee also recommended that qualified attorneys serve as presiding officers and counsel, subject to limited exceptions. Numerous other changes were proposed by the committee to enhance the rights of servicemen in the context of the disciplinary needs of the armed forces. The recommendations included creation of an independent civilian appellate court.

The committee's recommendations, as revised by Congress, became the Uniform Code of Military Justice (UCMJ), enacted on May 5, 1950. Article 67 of the UCMJ established the Court of Military Appeals as a three-judge civilian court. The report of the House Armed Services Committee accompanying the legislation emphasized that the new court would be "completely removed from all military influence of persuasion." The legislation became effective on May 31, 1951. In 1968, Congress redesignated the court as the United States Court of Military Appeals.

In 1989, Congress enacted comprehensive legislation to enhance the effectiveness and stability of the court. The legislation increased the court's membership to five judges, consistent with the American Bar Association's Standards for Court Organization. In 1994, Congress gave the court its current designation, the United States Court of Appeals for the Armed Forces.

Jurisdiction & appellate review of courts-martial

Courthouse for the Court of Appeals in Washington, D.C.

Courts-martial are conducted under the UCMJ, 10 U.S.C. §§ 801-946, and the Manual for Courts-Martial. If the trial results in a conviction, the case is reviewed by the convening authority—the person who referred the case for trial by court-martial. The convening authority has discretion to mitigate the findings and sentence.[4]

If the sentence, as approved by the convening authority, includes death, a bad-conduct discharge, a dishonorable discharge, dismissal of an officer, or confinement for one year or more, the case is reviewed by an intermediate court. There are four such courts—the Army Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeal, the Air Force Court of Criminal Appeals, and the Coast Guard Court of Criminal Appeals. The Courts of Criminal Appeals review the cases for legal error, factual sufficiency, and sentence appropriateness. All other cases are subject to review by judge advocates under regulations issued by each service. After such review, the Judge Advocate General may refer a case to the appropriate Court of Criminal Appeals. The Courts of Criminal Appeals also have jurisdiction under Article 62 of the UCMJ to consider appeals by the United States of certain judicial rulings during trial. Review under Article 62 is limited to issues involving alleged legal errors.[4]

The Court’s primary jurisdictional statute is Article 67(a) of the UCMJ, which provides:

The Court of Appeals for the Armed Forces shall review the record in: 1) all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death; 2) all cases reviewed by a Court of Criminal Appeals which the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces for review; and 3) all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review. Under Article 67(c), the Court’s review is limited to issues of law. The Courts of Criminal Appeals and the U.S. Court of Appeals for the Armed Forces also have jurisdiction to consider petitions for extraordinary relief under the All Writs Act, 28 U.S.C. § 1651.[4]

The Supreme Court of the United States has discretion under 28 U.S.C. § 1259 to review cases under the UCMJ on direct appeal where the U.S. Court of Appeals for the Armed Forces has conducted a mandatory review (death penalty and certified cases), granted discretionary review of a petition, or otherwise granted relief. If the court has denied a petition for review or a writ appeal, consideration by the Supreme Court may be obtained only through collateral review (e.g., a writ of habeas corpus).[4] There is pending legislation in the 110th Congress to amend 28 U.S.C. § 1259 to permit direct review in the U.S. Supreme Court of any case eligible for review in the court regardless of whether the court grants or denies a petition for review or relief.

Controversy over limited Supreme Court review

As initially established, the court was the final authority on cases arising under the military justice system, except for a limited number of cases considered by the Supreme Court under collateral proceedings, such as through writs of habeas corpus. In 1983, Congress passed the Military Justice Act which authorized very limited direct appeal to the Supreme Court of cases decided by the U.S. Court of Military Appeals. All denials of grants of review and of relief in extraordinary petitions are insulated from direct review by the Supreme Court. This has caused controversy over the last half decade between the Department of Defense and various military servicemembers' rights groups and legal advocacy associations. The moving force behind the issue is said to be Navy veteran Norbert Basil MacLean III who has lobbied Congress since 2004 to change the law and permit all cases reviewed by the court, whether granted or denied, to be eligible for direct review in the Supreme Court. In 2006 a report issued by the American Bar Association (ABA) showed that 90 percent of all court-martialed servicemembers whose cases were eligible for review by the court were shut out of the Supereme Court because the court had either denied a grant of a petition for review or denied extraordinary relief.[5] The ABA called on Congress in 2006 to fix the law and permit all court-martialed servicemembers the right to direct review in the high court.

On October 6, 2008 the Congressional Research Service issued a report entitled "Supreme Court Appellate Jurisdiction Over Military Court Cases."[1] The CRS report noted that under existing law the court "functions as a gatekeeper for military appellants' access to Supreme Court review."[1] The report further noted that "if the CAAF denies an appeal, the U.S. Supreme Court will typically lack the authority to review the decision. In contrast, criminal appellants in Article III courts have an automatic right of appeal to federal courts of appeals and then a right to petition the Supreme Court for review."[1] Two bills were introduced in the 110th Congress to remedy servicemembers' unequal access to the high court: 1) Equal Justice for Our Military Act of 2007, HR 3174; and 2) Equal Justice for United States Military Personnel Act of 2007, S.2052. The Department of Defense (DoD) is opposed to the bills arguing that opening up the Supreme Court to servicemembers would only serve to burden the high court. In 2006 DoD General Counsel William J. Haynes, II wrote to lawmakers opposing servicemembers having any additional access to the Supreme Court. On September 27, 2008 Rep. Lamar S. Smith (R-Tx.), arguing in opposition to HR 3174, cited Haynes' letter during floor debate in the U.S. House of Representatives. Nevertheless the Equal Justice for Our Military Act of 2007 was passed by a super majority voice vote of two-thirds by the House and reported to the U.S. Senate.[6] The Senate failed to act on the House passed HR 3174 and the bill died at the end of the Congress. However, on January 15, 2009, in the 111th Congress, Rep. Susan A. Davis, chairperson of the Subcommittee on Military Personnel of the House Armed Services Committee introduced the Equal Justice for Our Military Act of 2009, HR 569.[2]

Three retired chief judges of the court support the proposed legislation: judges Walter Cox III, Robinson Everett and Eugene R. Sullivan.[7][8][9][10] The ABA, Fleet Reserve Association, Military Officers Association of America and National Institute of Military Justice support both the House and Senate bills. [7][11][12]

Counsel in cases before the court

Each service Judge Advocate General has established separate appellate divisions to represent the government and the defense before the service Courts of Criminal Appeals, the U.S. Court of Appeals for the Armed Forces, and the Supreme Court of the United States regardless of indigency. A servicemember whose case is eligible for review is entitled to free representation by government-furnished counsel, and also may be represented by civilian counsel provided at the servicemember’s own expense. [3]

When the court grants review, and in cases involving mandatory review, the parties are notified of the briefing requirements under the court’s rules. In most cases, oral argument is scheduled following submission of briefs, but the court decides a number of cases without oral argument. The court notifies the parties and counsel of the oral argument date, and the oral argument schedule is posted on the court’s website. In a typical case, each counsel is given 30 minutes to present argument, on behalf of their client, to the court.[3]

Counsel appearing before the court must be admitted to the Bar of the Court or obtain permission of the court to appear in a specific case. An application for membership in the court’s bar may be obtained from the Court’s website, www.armfor.uscourts.gov, or by writing to the Clerk of the Court. Over 33,000 attorneys have been admitted to practice since the Court was established in 1951.[3]

Project outreach

Most of the court’s oral arguments are held at its courthouse in Washington, D.C. On occasion, as part of the court’s judicial outreach program, the Court will hold arguments at law schools, military bases, and other public facilities. This practice, known as Project Outreach, was developed as part of a public awareness program to demonstrate the operation of a federal court of appeals and the military criminal justice system.[3]

Other facts

See also

References

  1. ^ a b c d Supreme Court Appellate Jurisdiction Over Military Court Cases by Anna C. Henning, Congressional Research Service, October 6, 2008
  2. ^ a b U.S. Congress. House (2009) Equal Justice for Our Military Act of 2009 Congressional Record - House H380 (January 15, 2009)
  3. ^ a b c d e Practice & Procedure Before the Court, CAAF website (retrieved on October 13, 2008)
  4. ^ a b c d Appellate Review, CAAF website (retrieved on October 13, 2008)
  5. ^ American Bar Association Resolution 116, adopted by ABA House of Delegates on August 7-8, 2006
  6. ^ U.S. Congress. House (2008) Equal Justice for Our Military Act of 2007 Congressional Record - House H10623-24 (September 27, 2008)
  7. ^ a b "Military appeals lack way to top", by Marcia Coyle, The National Law Journal, August 18, 2008, front page
  8. ^ "Bill will allow service members to appeal to Supreme Court" Press Release from Congresswoman Susan Davis, July 25, 2007, retrieved from Rep. Davis' website on March 25, 2008.
  9. ^ "A Soldier's Right to Fight" by Casey Hynes, TakingBackPolitics.com, September 30, 2008 (retrieved October 12, 2008)
  10. ^ 2005 Annual Report of Code Committee on Military Justice section 1 page 2 "Senior Judge Everett also addressed the Code Committee and encouraged consideration of... Supreme Court review of cases in which petitions for grant of review have been denied...." March 28, 2006 (retrieved on October 12, 2008)
  11. ^ U.S. Congress. House. (2007) Representative Davis of California statement on Equal Justice for Our Military Act of 2007. 110th Cong. 1st sess. Congressional Record-House-Extension of Remarks E1618 (July 25, 2007)
  12. ^ Letter from Fleet Reserve Association Director Joseph L. Barnes to Senator Feinstein (July 9, 2008) retrieved on FRA website August 26, 2008
  13. ^ "National Register Information System". National Register of Historic Places. National Park Service. 2008-04-15. http://www.nr.nps.gov/.  

External links

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