Service Members One Step Closer to SCOTUS Access

The House last week approved a bill that would allow service members convicted in courts martial to appeal their case all the way to the Supreme Court, a rung of the federal judiciary generally forbidden to them since the court’s establishment in 1789. But the bill’s prospects in the Senate are far less promising.

The Equal Justice for Our Military Act passed in the House on Saturday by voice vote, reviving the measure after two years of inertia in committee. The bill’s chief sponsor, Rep. Susan Davis, D-Calif., and its supporters outside of Congress say it fixes a longstanding inequity that permits the government, but not service members, to beat a path to the high court.

The Department of Defense opposes the bill, raising concerns that service members could abuse the right and burden the Supreme Court with a glut of appeals.

The Senate bill, sponsored by another Californian, Sen. Dianne Feinstein (D), faces more obstacles than its counterpart in the House, Navy Times reports. The clock on this Congress is running out, and the bill exited the Senate Judiciary Committee without an up-or-down vote -- hardly a full-throated endorsement. Moreover, the bill’s consideration this late in the session would require the unanimous consent in the Senate, and at least one Republican senator opposes it.

Norbert Basil MacLean III, a Navy veteran who has long pushed for the measure (and who wrote a commentary piece about the subject for Legal Times), says the bill is long overdue.

“I hope in the waning days of this Congress, the full Senate will act and move swiftly to pass this bill so that it can be enacted as law this year," MacLean says.

Comments

[sfcusarmy]

The UCMJ is totally biased against the service member. I wish that the UCMJ would be completely remodeled after the civilian judicial system. A Commander could only refer a case to the Military Police for investigation and then the charges reviewed by a prosecutor. Then an Art 31 inquiry and then be held by Art 15 or moved to Courts Martial.

A commander would only have limited jurisdiction and only while deployed.

The puishments are real. Therefor the trial should be real. That includes a real jury (panel) of their peers. If it is a lower enlisted servicemembers, then only junior officers and enlisted members serve on the jury. Currently, it is usually field grade officers and E-9's.

My sister is a paralegal in a SJA office and she will tell you all day long that the system is so stacked against the accused.

[Conspiracy of Silence]

I commend Rep. Davis and the supporters of this bill in their advocacy for service members in working to correct the ongoing injustice that limits service members ability to appeal their cases to SCOTUS after they have exhausted their appellate rights through the military courts.

But I would ask a question in light of the previous post...what are your thoughts about a scenario where a service member receives a general court-martial conviction and receives a sub-jurisdictional sentence (no confinement and no punitive discharge) foreclosing a right to direct appellate review -- and inarguably there is little expectation of an extra-judicial discretionary act by the Judge Advocate General pursuant to Article 69.

In other words, the case is final after the commander takes action on the case...the same commander who referred the case to a general court-martial. So..all felony-level convictions in the military justice system do not have a statutorily required appellate review by a three-judge panel of one of the Courts of Criminal Appeals in the Department of Defense. I'm guessing maybe those opposing this bill assume that this can happen under the current UCMJ. Sadly, this is a loophole for military law practitioners and the government to use in an already biased military justice system.

Take a case where an officer accused (a Captain) with over 20 years of active duty service..and in the Article 32 investigation report, the investigating officer recommended an Article 15, but the commander referred the charges to a general court-martial!!? Charges relating to alleged disrespect to an officer (a Major) and dereliction of duty--equals a felony conviction?? This is a case your not suppose to hear about and should cause someone to question the motives in this case.

[An Anxious Anglican]

This bill is largely symbolic. It would allow members of the armed forces to appeal the denial of discretionary review by the Court of Appeals for the Armed Forces, which is the civilian court that oversees the military justice system. All felony-level convictions in the military justice system have a statutorily required appellate review by a three-judge panel of one of the Courts of Criminal Appeals in the Department of Defense. After this review, the Court of Appeals has discretionary review (much like any other court of appeals) over the majority of military cases. The Court of Appeals receives more than 1,000 petitions for review each year, and issues opinions in about 100. The long-standing procedure is that if the Court of Appeals thinks that there is any colorable issue of constitutional magnitude in a given case, but it is not otherwise worthy of a written opinion of the court (usually a pro se style complaint), it will grant review and summarily deny the appeal, thereby allowing the case to proceed to the Supreme Court through ordinary appellate channels. As a practitioner with 18 years of military justice experience, including seven years as a trial judge and subsequently an appellate judge within the Department of Defense, I have to agree with DoD on this one: this is a cosmetic fix for a non-existent "problem."