The Bar Association of the District of Columbia
Military Law Committee
Cox Commission Statement for the Record of
Philip D. Cave
107 North Payne St.
Alexandria, VA 2001
March 13, 2001
COMMISSION ON THE 50TH ANNIVERSARY
OF THE UNIFORM CODE OF MILITARY JUSTICE
(The "Cox Commission)
Good morning. Judge Cox, Members of the Commission, I am pleased to be here on behalf of the Bar Association of the District of Columbia, and on behalf of the men and women who serve in the armed forces of the United States.
As you know, I am a retired Navy judge advocate, now in private practice in Alexandria, Virginia.
I have been associated with military justice for more than 23 years.
I have served a total of almost nine years as a trial counsel, defense counsel, and a supervising attorney while on active duty. I have also served three years as the Deputy Director of the Navy-Marine Corps Appellate Defense Division. At other times I have been a staff judge advocate advising commanders. In the last years of my service I was involved with military justice policy and practice, particularly through the DoD Joint Service Committee on Military Justice and the Navy Clemency & Parole Board.
The recent tragic events surrounding the collision of the USS GREENVILLE have drawn media attention once again. And so too has the case involving Petty Officer Daniel King.
1. The Virginia Pilot reports that a legal defense fund has been set up for Commander Scott Waddle, CO of USS GREENVILLE - Because "While Waddle has been furnished legal representation by the Navy, he believes that counsel is inexperienced and inadequate, his appeal for different counsel (read IMC) has been denied. He has since retained civilian counsel. (March 3, 2001,
Legal Fund Created for Commander of Sub Greeneville, the
Virginian-pilot.)
The underlying issue here is the right to Individual Military Counsel, which as Captain Barry has pointed out, has been reduced to no meaningful right at all. Further at issue, is the experience level of the judge advocates, and the persons who supervise and/or train them.
2. The Christian Science Monitor Asks "How Just Is Military Justice?" (Brad Knickerbocker,
How Just Is Us Military Justice? Christian Science Monitor, 03/05/2001.)
3. Petty Officer King was released a few days ago after about 18 months in pretrial confinement. Along the way there were significant issues of the prosecution denying King access to his counsel. There were other issues involving the classified nature of the evidence and materials involved in the case. Several points: Compare that to the current situation involving FBI agent Hanssen. Plato Catcheris and another experienced attorney represent him, and a
judge recently issued a protective order under the Classified Information Procedures Act (CIPA).
Supreme Court Justice Oliver Wendell Holmes said that. "A System of Justice must Not Only Be Good, but it must Be Seen to Be Good."
MGen Kenneth J. Hodson, Perspective: the Manual for Courts-martial - 1984, 57 Mil. L. Rev. 7 (197x). "Discipline is enhanced far more by a belief that a soldier can get fair treatment than it is by any system of iron-fisted military justice which appears to be unfair."
In each of those cases the treatment of a senior officer has led to the questioning of the fairness of military justice. Today we want to speak to you on behalf of the service-member who doesn't normally have that opportunity to speak.
Captain Barry has spoken primarily about the history and philosophy surrounding what we know as the Uniform Code of Military Justice and Military Justice. I want to focus my remarks more toward the practical aspects of how we might achieve a more just system. For the first 175 years the military judicial system was intended to secure obedience to the commander. The form of justice was different to that ordinarily found in civilian criminal trials. That is no longer true for many of the courts-martials held today. Not all of these cases affect good order and discipline.
There are two systems a disciplinary (justice) and a criminal (justice) system. The existence of the two systems has very different and very substantial consequences for the service-member accused of an offense. My remarks today focus on the court-martial system, the criminal justice system. Some system of immediate and prompt discipline is necessary and appropriate. Those service-members charged with minor offenses and who have potential for further service do end up in the disciplinary justice system. Alternatively, those charged with serious offenses are effectively "discharged" from the unit and put into the criminal justice system. At that point the commander's interest in good order and discipline is minimal. Excising the accused from the unit and assuring a prosecution is the most the commander does and can do.
The commander, to the greatest extent possible must be removed from any part, let alone influence, in a court-martial once the decision is made to seek a court-martial.
Jurisdiction should be strictly limited to cases occurring overseas, in military ships, or on military aircraft. In addition, jurisdiction should be limited to cases where another service-member is the victim or the crime is against military property.
Once the commander has decided on a criminal trial the case must be transferred to an independent prosecuting authority who will act in the same manner as the United States Attorney. However, that attorney's role in the defense counsel preparation and presentation of a case should be removed.
Administration of the court-martial process should fall to an independent administrative officer and clerk of court, in the same manner as found in the United States District Court. They could, but need not, be the same entity.
The accused should have access to an independent defense counsel, possibly from a "joint defense command." That defense counsel should be supervised by an experienced litigator who has the funding and the authority to ensure proper resources are provided to the defense counsel. At a minimum this should include access to an independent investigator, who has a badge and who has access to data. There is a general recognition amongst the Service judge advocates that the cases heard are more complex and that their counsel do not always have the requisite experience. Therefore the IMC right should be expanded closer to what it used to be (worldwide, based purely on scheduling).
The Ungoverned Revolving Door of Defense Counsel should be addressed. In United States V. Loving, 41 M.j. 213, 320 (199)(Wiss, J., dissenting), seven appellate counsel represented appellant in the court of military review; five others represented him in this court. it is unclear at times who was the lead counsel in the court of military review because counsel is not required by that court's rules of practice and procedure or by the court's internal operating procedure (see rule 26, Court of Military Review Rules of Practice And Procedure, 22 M.J. CXXXVIII) to file a motion for leave to withdraw if the reason for withdrawal was reassignment outside the defense appellate division and if the chief of that division assigns new counsel from within the division.
There should be a standing judiciary where judges, with tenure, are assigned to a judicial circuit. There should be two levels of judge. A military magistrate judge should be permitted to decide all pretrial issues, including search authorizations, suppression motions, confinement hearings, and Article 32 investigations. The military magistrate judge should be permitted to accept guilty pleas and impose a sentence in certain cases.
A second tier trial judiciary, with tenure, should then be available. The judiciary could be composed of a combination of military officers, civilians, and judge advocate recalled for the purpose.
The trial judge should retain jurisdiction over the case from start to end. The end being docketing at the Court of Criminal Appeals. The trial judge should have the power to issue orders and writs to ensure the fair and orderly process of the trial and to ensure the fair and orderly process of the post-trial processing of the case. The trial judge should be able to hold post-trial hearings for any reason including a motion for a new trial or for post-trial release from confinement.
The second, and only other input, of the commander to a court-martial should be a decision on executive clemency, to include return to duty. We have addressed in detail in our written submissions the need to make punishments more flexible, less stigmatizing, and with a shorter term effect.
The present post-trial review process should be retained, but with significant improvement, not the least being tenure for the judges. Lost in the humor of the telling, was a not too subtle point of Judge James Baker's anecdote about his reserve officer commission. "How do I give up my commission?" -- because I am very conscious that this Court is a civilian court. (Retirement of Hon. Thomas A. Granahan, Clerk, U.S. Court of Appeals for the Armed Forces, CAAF, 1 March 2001. )
The ability of the military member to seek federal review of her court-martial via habeas corpus petitions should be retained. An Article III court hears the case, and the substantial benefits of the Federal Rules of Civil Procedure are available in such actions.
Once again, thank you for the opportunity to present remarks and comments to the Commission.