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May 01, 2017

A Day in the Life of an Appellate Military Judge

By Colonel Rodger A. Drew Jr.

A day in the life of an appellate military judge is, in many ways, similar to that of any other federal or state intermediate appellate court judge. However, in other ways, it differs due to the unique aspects of military trial judges—because most military appellate judges are commissioned officers of their respective military services.

The oldest form of national criminal justice in the United States is the court-martial, predating the Declaration of Independence, the Articles of Confederation, and the U.S. Constitution. On June 30, 1775, the Second Continental Congress enacted the American Articles of War and on July 29, 1775, General George Washington established the Judge Advocate General’s Corps. The American Articles of War were based on the British Articles of War of 1774, which trace their heritage back to the Swedish Code of Gustavus Adolphus of 1621. From the American Revolution until 1920, the only appellate review of a court-martial in most instances was by the commander who convened the court and his staff.

In 1920, the Articles of War were amended to add Article 50 1/2, which directed the judge advocate general to “constitute, in his office, a board of review consisting of not less than three officers of the Judge Advocate General’s Department.” The board of review’s jurisdiction was limited to legal errors in any court-martial of a general officer, and only certain courts-martial of lower-ranking officers and cadets. For enlisted soldiers, the board of review’s jurisdiction only extended to courts-martial adjudging the death penalty and not even those in time of war. All other courts-martial were reviewed for legal sufficiency by a lawyer in the Office of the judge advocate general or at a lower level.

In 1950, following World War II, during which more than 1.7 million courts-martial were held under the Articles of War and the Articles for the Government of the Navy, Congress replaced both military codes with the single Uniform Code of Military Justice (UCMJ). The UCMJ provided for boards of review for each of the armed forces, including the newly formed Air Force. The boards were granted broad power to review court-martial records of trial, determine questions of law and fact, weigh evidence, and reduce sentences. Each Board of Review was composed of three lawyers, typically senior judge advocates. The UCMJ also established the Court of Military Appeals, which was composed entirely of civilian judges, to hear appeals from decisions of the boards of review.

In 1968, the boards of review were renamed the Courts of Military Review. In 1994, the Courts of Military Review were further renamed the Courts of Criminal Appeals (CCAs). At the same time, the Court of Military Appeals was renamed the U.S. Court of Appeals for the Armed Forces. Since 1984, the decisions of the Court of Military Appeals and, from 1994 on, the U.S. Court of Appeals for the Armed Forces have been subject to review by the U.S. Supreme Court.

The CCAs are independent appellate judicial bodies authorized by Congress and established by the respective judge advocate generals pursuant to 10 U.S.C. § 866(a). The CCAs hear and decide appeals of court-martial convictions and certain interlocutory appeals pendente lite. The judge advocate generals personally assign appellate military judges to their CCAs. Most judges are colonels in the Air Force, Army, and Marine Corps or captains in the Navy and Coast Guard (“O6s” in military terms). The Coast Guard also has a civilian judge, a “GS-15.” Virtually all of the remaining judges are lieutenant colonels/commanders (“O5s” in military terms). Appellate military judges are selected by the judge advocate generals based on their expertise in military justice. Roughly half are former military trial judges. Almost all have been staff judge advocates, serving as senior advisors to commanders responsible for convening courts-martial.

Unlike most other appellate courts (including the Court of Appeals for the Armed Forces), not only do the military intermediate CCAs determine disputed matters of law, but they also have de novo fact-finding authority. Harkening back to the early days of the UCMJ, when there was no statutory guarantee that any court-martial trial participant (prosecutor, defense counsel, or presiding official) was necessarily a licensed attorney, the CCAs were the first place in the military justice system were the judges were required to be licensed attorneys. As a result, the CCAs were empowered to correct factual errors at trial. The CCAs may affirm only such findings of guilt, and the sentence or such part or amount of the sentence, as they find correct in law and fact and determine, on the basis of the entire record, should be approved. In considering the record, they may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses. The CCAs employ a proof-beyond-a-reasonable-doubt standard to most factual matters. After the 1968 amendments to the UCMJ, all trial participants, including the counsel and military judge, are also now required to be licensed attorneys. Notwithstanding that change nearly 50 years ago, the CCAs still retain their de novo fact-finding authority.

Most appeals to the CCAs are of right, based on the sentence. Any sentence including a bad conduct discharge, a dishonorable discharge, or (for officers) a dismissal, or a year or more of confinement, is granted automatic appeal to the CCAs. In addition to the military trial defense counsel, provided by the government at no expense regardless of the accused’s ability to afford to hire an attorney (an accused can choose to hire a civilian attorney at his or her expense, in addition to appointed military trial defense counsel), an appellant is provided a separate military appellate defense counsel to advocate on his or her behalf before the military appellate courts.

Unlike our counterparts on the military trial bench, military appellate judges don’t generally travel. Like most appellate judges, we have our own courthouse where appellate advocates come to file and argue their cases. The Air Force CCA, on which I sit, is located at Joint Base Andrews near Washington, D.C. The CCAs entertain oral arguments on motion. Presently, the Air Force CCA has two to three oral arguments a month. In addition to oral arguments in their own courtrooms, the CCAs will do one or more oral arguments a year at other locations, typically at law schools around the country. The purpose of these “Project Outreach” arguments is to broaden the understanding of military justice among the civilian legal community as well as to encourage law students and lawyers to apply to become military judge advocates.

Each of the CCAs operates in panels and most decisions are panel decisions. Rarely the CCAs will issue opinions en banc, in cases of particular significance. The various CCAs operate slightly differently from each other, in terms of members of the court and support staff. The Air Force CCA presently has nine judges, two commissioners (who act as law clerks for all nine judges), a civilian clerk of the court, and two paralegals. As a result of limited clerk support, a military appellate judge researches and writes virtually all of his or her opinions. However, all opinions are circulated among the commissioners and other judges in a collaborative fashion.

In a typical week on the Air Force CCA, each of the three panels conference for an hour or two on Monday to discuss draft opinions and pending oral arguments; most judges telework one day a week, on either Tuesday, Wednesday, or Thursday; most weeks one of the panels has an oral argument; and on Friday, the court as a whole comes together for breakfast (we take turns bringing in breakfast for each other), at which time we discuss the entire court’s docket, and for training or continuing education. Many judges are active in national, state, or local bar associations. For example, the majority of the Air Force CCA judges and several of the Army CCA and Navy-Marine Corps CCA judges attended the ABA Judicial Division Appellate Judges Conference’s Appellate Judges Education Institute in Philadelphia in November 2016.

A day in the life of an appellate military judge is uniquely satisfying. Being able to serve the nation in his or her uniformed military while simultaneously serving the interests of justice and the development of the law is a particularly humbling and collegial professional experience.