Maurer's Addendum

Two more quick observations about ACCA’s Dial reasoning:

1. The court cites to Middendorf (slip op. at 8) ostensibly for two reasons:

• For the proposition that it is for the discretion of Congress, not the Court, to strike the balance between due process and military efficiency, and
• That expediency is a valid justification for the non-unanimity rule because it was a “valid justification for abrogating the right to counsel at summary courts-martial”

As further cause to believe ACCA simply didn’t invest much effort in rebutting the trial court’s EP analysis, it makes another blatant error: ACCA knows full well that Middendorf[1] involved a summary court-martial.  Both Congress and the Supreme Court have long held is not even (in substance, procedure or purpose) a “real” criminal trial.  As readers of CAAFLog know well, such hearings are characterized by a series of absences: no judge, no panel, no prosecutor, no defense counsel, no appellate process, no punitive discharge or confinement longer than 30 days, no “federal felony conviction.”  If ACCA thinks Middendorf suffices to describe a “rational” basis for the non-unanimous voting rule in an actual “felony-type” court-martial in which all other artifacts of civilian criminal trial due process can be found (see, e.g., Ortiz), then why not look also at Article 15, UCMJ, as further evidence of Congress’s willingness to trade due process for efficiency?  If that is absurd (and it is), what makes ACCA think a summary court-martial is a relevant example?  This brings to mind the Supreme Court’s criticism of the government’s argument in Reid v. Covert – one also based on “efficiency”:
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the concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and, if allowed to flourish, would destroy the benefit of a written Constitution and undermine the basis of our Government.
 
It is disarming to note that ACCA ignores significant and relevant SCOTUS precedent actually discussing the “expediency” basis (in Reid) and ignores precedent that says unequivocally that a commander’s ability to ensure good order and discipline is only incidental to the court-martial’s primary purpose of ensuring justice (Ortiz).  Instead, Middendorf?

2. ACCA writes: “Verdicts with a three-fourths majority, on the other hand, can presumably be reached more quickly on average and provide greater finality for both the command and the accused.” (slip op. at 8)

First, ACCA is saying that Congress’s presumed “rational basis” is itself a presumption that such swiftness occurs “on average” when unanimity isn’t required.  Congress has said nothing (nor for that matter, has the president in the MCM) about the specific virtue of swiftness of deliberation leading to verdict; nor is there any empirical study – or even testimony about anecdotal experience – that helps make such a claim about the “average” case easy to believe.  It is, instead, a species of easy-to-make assertions actually drawn from intuition; but even a “rational basis” requires more than a mere reliance on intuition—it is usually premised on facts.  What if the data, if it were to be collected, was inconclusive?  What if it revealed the opposite?  We don’t know one way or the other because ACCA is satisfied with not knowing and only presuming. 

Second, “greater finality for both the command and the accused?”  Since when has that been a legitimate ground for deviating from civilian norms of due process in a criminal court-martial?  (Even if we acknowledge that it justifies the “speedy trial” right, that right co-exists with civilians accused of criminal offenses…it is not a departure or deviation from a civilian norm as the non-unanimous guilty verdict rule is).  Again, this rationale is fine for justifying the methods of non-judicial punishment under Article 15, and even for summary courts-martial as discussed above, but neither one of those is the adjudicatory forum of Dial or any other court-martial involving a panel’s deliberation on the facts.  If ACCA places weight on this value, one must consider what else might provide for “greater finality for both the command and the accused.”  How about taking away the accused’s appellate rights?  Or reducing the burden of proof to “preponderance of the evidence,” or jettisoning “rape shield” evidentiary rules?  Or requiring a guilty plea?  All of these suggestions are absurd, but they do meet the criteria supposedly endorsed by ACCA in Dial: (1) they obviously depart from norms of civilian criminal justice; (2) they presumably enhance military efficiency; (3) they make it easier for the command to “open and shut” a case (so, presumably, related to point (2)); and (4) they create a stronger sense of “finality” from the accused’s perspective. 
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These counterfactuals were easy to imagine; what is not easy to imagine is why ACCA left the door to them so wide open with (at best) superficial analysis that relies so heavily on an easily-distinguishable case and a weak rationale based on intuition, not rationality.  If CAAF does address this matter, in Dial or some other case, the field (not to mention every accused servicemember) deserves a more thorough disputation.  

[1] Curiously, ACCA misspells the name of the party (as “Mittendorf” [sic]).  Maybe a trivial gripe, but Dial is undoubtedly one of the infrequent and highly-anticipated published opinions by the court, and the field should expect better proofreading even it doesn’t get better reasoning.

LTC Dan Maurer

Guest

Update from a verified commenter, Donald Rehkopf

RE: LTC Mauer's outstanding analysis of Dial's "problems." First, at the time of Crowder's testimony, "common law" crimes, murder, rape, robbery, etc., in CONUS were prosecuted in either State or Federal Court, where unanimity was required (with the then exception of Louisiana - Oregon came a bit later). Crowder convinced Congress to totally overhaul the then Articles of War giving courts-martial jurisdiction over all military and civilian crimes. See, 39 Stat. 619, 650 et seq. (1916).

Another historical source frequently overlooked is the 1946 "Vanderbilt Report" to the Secretary of War - essentially a "blue ribbon" panel examining the problems with the AW and military criminal procedures. Here's a link to it: https://tile.loc.gov/storage-services/service/ll/llmlp/Vol-I_WDAC-documents/Vol-I_WDAC-documents.pdf

They made 7 general findings as to criticisms of military justice:

1. There was an absence of sufficient attention to and emphasis upon the military justice system, and lack of preliminary planning for it.

2. There was a serious deficiency of sufficiently qualified and trained men to act as members of the court or as officers of the court.

3. The command frequently dominated the courts in the rendition of their judgment.

4. Defense counsel were often ineffective because of (a) lack of experience and knowledge, or (b) lack of a vigorous defense attitude.

5. The sentences originally imposed were frequently excessively severe and sometimes fantastically so.

6. There was some discrimination between officers and enlisted men, both as to the bringing of charges and as to convictions and sentences.

7. Investigations, before referring cases to trial, were frequently inefficient or inadequate.

Some things never seem to change.