Petition for Writ of Certiorari — Webber v. United States

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9 3 - é 3 6 "Stiea

No. NOV -9 893

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

PRINCE S.J. WEBBER. PETITIONER

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR A WRIT OF CERTIORARI

FRANK J. SPINNER

Lt Colonel, United States Air Force

Chief Appellate Defense Counsel

Counsel of Record

Jay L. COHEN

Lt Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

Appellate Defense Division

172 Luke Avenue, Room 208

Bolling AFB, DC 20332-5113

November 1993

QUESTIONS PRESENTED

|. Was petitioner, an African-American, who was sen-

tenced to forty years in prison for the crime of rape, denied due

process of law when he was tried before a flawed jury panel,

in that it numbered less than six members, they were not

required to reach a verdict by a unanimous vote, they were not

racially representative of the military community and peti-

tioner was limited to a single peremptory challenge?

2. Can probable cause be found to exist for purposes of

issuing a search warrant under the Fourth Amendment where

the facts relied upon consist entirely of outwardly innocent

acts lacking any inculpatory connection between the pur-

ported suspect and the commission of the crime?

3. Did the Air Force Court of Military Review correctly

apply the test for legal sufficiency enunciated in Jackson v.

Virginia, 443 U.S. 307 (1979), by minimizing the importance

of exculpatory serological evidence, which should have ren-

dered the findings of guilty legally insupportable?

4. May the Judge Advocate General of an Armed Force,

who is not authorized to make appointments under the Ap-

pointments Clause of the Constitution, appoint commissioned

officers to serve as trial and military appellate judges, on the

theory that their appointment as commissioned officers al-

ready satisfies the Appointments Clause for both their judicial

and non-judicial duties?

5. Does the Due Process Clause of the Fifth Amendment

require that, in peacetime, military trial and appellate judges be

appointed to their judicial duties for fixed terms?

(1)

TABLE OF CONTENTS

Statement of the Case

Opimons below

Jurisdiction |

Constitutional Provisions Involved 2

Reasons for Granting the Writ

{1 MINIMAL DUE PROCESS UNDER THE FIFTH

AMENDMENT REQUIRES THAT NO PERSON

FACING FELONY CHARGES BE SUBJECTED TO

THE POSSIBLE LOSS OF LIFE OR LIBERTY

BASED UPON A NONUNANIMOUS VERDICT

OF AJURY PANEL CONSISTING OF LESS THAN

SIX PERSONS REGARDLESS OF JURISDICTION

MILITARY OR CIVILIAN 14

Il OUTWARDLY INNOCENT ACTS LACKING

ANY INCULPATORY CONNECTION BETWEEN

A PURPORTED SUSPECT AND THE COMMIS-

SION OF A CRIME, STANDING ALONE.

SHOULD NOT SUFFICE TO ESTABLISH THE

PROBABLE CAUSE NECESSARY TO JUSTIFY

THE ISSUANCE OF A SEARCH WARRANT

UNDER THE FOURTH AMENDMENT Is

Hl EXCULPATORY SEROLOGICAL EVIDENCE

PRESENTED BY THE PROSECUTION WAS

MISCONSTRUED AND MINIMIZED BY THE

LOWER COURTS. RENDERING THE FINDINGS

OF GUILTY LEGALLY INSUPPORTABLE IN

LIGHT OF THIS COURT’S TEST FOR LEGAL

SUFFICIENCY AS ARTICULATED IN JACKSON

I’ VIRGINIA, 443 U.S. 307 (1979) 20

IV THE METHOD OF APPOINTING MILITARY

OFFICERS TO DUTY AS TRIAL AND APPEL-

LATE JUDGES VIOLATES THE APPOINT-

MENTS CLAUSE OF THE CONSTITUTION

AND THE LACK OF ANY FIXED TERM FOR

THOSE JUDICIAL OFFICES VIOLATES THE

DUE PROCESS CLAUSE OF THE FIFTH

AMENDMENT 22

(iil)

Conclusion

Appendix A

Appendix B

Appendix C

TABLE OF AUTHORITIES

( Asses

SUPREME COURT

Ballew v Georgia, 435 U.S. 223 (1978)

Batson v. Kentucky, 476 U.S. 79 (1986)

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam)

Burch v. Louisiana, 441 U.S. 130 (1979)

Burns v. Wilson, 346 U.S. 137 (1953)

Duren v Missouri, 439 US. 357 (1979)

ix parte Milligan. 71 U.S. [4 Wall.] 2 (1866)

ix parte Quirin. 317 US. 1 (1942)

hrevtag v Commissioner. 111 S.Ct. 2631 (1991)

Henry v. United States, 361 U.S. 98 (1921)

Illinois v. Gates, 462 U.S. 213 (1983)

Jackson v. Virginia, 443 U.S. 307 (1979)

Kahn v. Anderson, 255 U.S. 1 (1921)

Matthews v. Eldridge, 424 U.S. 319 (1976)

Medina v. California, 112 S.Ct. 2572 (1992)

Middendort v. Henry, 425 U.S. 25 (1976)

O Callahan v. Parker. 395 US. 258 (1969)

Palmore v. United States. 411 U.S. 389 (1973)

Rostker v. Goldberg, 453 US. 57 (1981)

Shoemaker v. United States, 147 U.S. 282 (1893)

Solorio v. United States, 483 U.S. 435 (1987)

Strauder v. West Virginia, 100 US. 303 (1880) .

laylor v. Louisiana, 419 U.S. 522 (1975).

lumey v. Ohio, 274 U.S. 510 (1927)

United States v. Raddatz, 447 U.S. 667 (1980

12.

)

United States ex rel Toth v. Quarles, 350 U.S. 11

(1955)

Whelchel v McDonald. 340 U.S. 142 (1950)

Page

lla

17. 18

23. 26

16. 18

15. 18

23.24

19. 20

20. 2]

13, 28

13. 28

27. 29

passim

9 23

17. 18

Cases

FEDERAL CASES

Mendrano v. Smith. 797 F.2d 1538 (10th Cir. 1986)

Watson v. McCoffer. 782 F.2d 143 (10th Cir. 1986)

MILITARY CASES

Dettinger v. United States, 7 M.J. 216 (C.M.A. 1979)

United States v. Brown, 28 M.J. 470 (C.M.A. 1989)

mited States v. Cole, 31 M.J. 270 (C.M.A. 1990).

nited States v. Graf. 35 M.J. 450 (C.M.A. 1992) ..

mited States v. Hodge, 26 M.J. 596 (A.C.M.R. 1988)

mited States v. Maharajh, 28 M.J. 797 (A.F.C.M.R

1989) picuiextamtes

United States v. McClain, 22 M.J. 124 (C.M.A. 1975)..

United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989) ...

United States v. Weiss, 36 M.J. 224 (C.M.A. 1992), cert

granted, 61 U.S.L.W. 37%3 (May 24, 1993)

— — —

Constitutional Provisions

U.S. Const. Art. I, § 8. cl. 14

US. Const. Art. II, § 2. cl. 2

US. Const. amend. IV

US. Const. amend. V

US. Const. amend. VI

US. Const. amend. XIV

Federal Statutory Provisions

10 U.S.C. § 867a (Supp. HI 1991)

28 U.S.C. § 1259(3) (Supp. II 1991)

Uniform Code of Military Justice

Art. 16(1). 10 U.S.C. §$ 816(1)

Art. 18, 1O US.C. § 818

Art. 19, 10 U.S.C. § 819

Art. 26, 10 U.S.C. § 826

Art. 48, 10 U.S.C. § 848

Art. Sl(a), 10 U.S.C

§ $51 (a)

10, 11

passim

14-16

Nm bho

nited States. 1984. RCM

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

PRINCE S.J. WEBBER, | ONER

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V1 VC OU Me Af 1h) 1S

PETITION FOR A WRIT OF CERTIORARI

rhe petitioner, Prince S J. Webber, respectfully prays that a

writ of certiorari issue to review the order and judgment of the

United States Court of Military Appeals entered in his case on

August 12, 1993

OPINIONS BELOW

The unreported order and judgment of the United States

Court of Military Appeals is found at Appendix A. The unre-

ported opinion of the United States Air Force Court of Mili-

tary Review, issued on July 14, 1992, is found at Appendix B

JURISDICTION

The final order of the United States Court of Military

Review was entered on August 12, 1993. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1259(3) (Supp. III

1991) and 10 U.S.C. § 867a (Supp. III 1991)

CONSTITUTIONAL PROVISIONS INVOLVED

The Appointments Clause, U.S. Const. Art. II, § 2, Cl. 2,

provides, in relevant part

The President shall nominate, and by and with

the Advice and Consent of the Senate, shall appoint

Ambassadors, other public Ministers and Consuls,

Judges of the Supreme Court, and all other officers

of the United States, whose Appointments are not

otherwise herein provided for, and which shall be

established by Law; but the Congress may by Law

vest the Appointment of such inferior Officers, as

they think proper, in the President alone, in the

Courts of Law, or in the Heads of Departments.

rhe Fifth Amendment of the Constitution of the United

States provides in relevant part

No person shall be deprived of life, liberty, or

property, without due process of kaw

STATEMENT OF THE CASE

Petitioner was convicted by an Air Force court-martial of

committing multiple acts of rape, burglary, indecent sexual

assault and theft, all of which arose from a single incident. He

was sentenced to be confined for forty years, to forfeit all of

his pay and allowances, to be reduced to the lowest enlisted

urade and to be dishonorably discharge from the Air Force

The conviction was based on circumstantial evidence as set

forth in the paragraphs that follow.

On September 11, 1990, sometime between 10:00 and

10:30 p.m. a person appeared at the door of Airman Linda

Los

Nantkes’ room in her dormitory situated at Kirtland Air Force

Base. New Mexico. Upon asking who was there, she heard a

muffled reply that sounded like “Webber.” After getting out of

bed and cracking the door open, she observed a slender black

male, approximately 20 years old, five feet tall, who informed

her that her windows were open. She responded that she did

not keep her windows open at night, to which the person

replied, “Well, | mean your shades or your blinds are open —

Some six to seven hours later, an intruder appeared in her

room and raped her repeatedly after placing a pillow case over

her head and threatening to break her neck if she did not stop

screaming

Although unable to positively identify the intruder, she

described him as “possibly black”, her same approximate

height (five feet, four inches) and ‘‘a slender man, very slen-

der” After the intruder departed, some forty-five minutes

subsequent to his entry, Airman Nantkes went to her bathroom

and noticed that the window was different from the way she

had left it. observing that there was no screen on the window

She then called her non-commissioned officer in charge

A rape protocol was immediately performed .at the base

hospital, following which Airman Nantkes was interviewed by

investigators from the Air Force Office of Special Investiga-

tions (OSI). At that time she provided a description of the man

who appeared at her room earlier the previous evening, who

to'd her her blinds were open. A composite drawing was

completed from her description. Items seized by the OSI trom

the crime scene included two sheets, a pillowcase, a bed-

spread, a blanket, a couple of towels, and a nightshirt. Latent

fingerprints were litted from the windowsill in the bathroom,

the cabinet in the sink area and the shower door. The OSI also

collected fiber prints, blood samples from Airman Nantkes

(and subsequently, petitioner) and hair samples from the shower

drain, pillowcase and bed sheets.

The OSI began looking for an individual named “Webber”’

for ‘“‘questioning.”’ The base “‘alpha roster” did not reveal

anyone of that name, so a door to door search began in the

dormitory where transient Air Force members resided. Even-

tually, at around 10:00 p.m. on September 12, 199118 hours

after the assault), OSI agents appeared at petitioner’s room in

the transient dormitory

When asked if he knew anyone matching the description of

the assailant, Airman Webber mentioned an individual who

had resided down the hall a week earlier. He proceeded to take

the agents to another room, however, the person found there

did not match the description. The agents then asked peti-

tioner for his military “ID” card for identification purposes,

which disclosed the name ‘“‘Webber.”” When the OSI agents

asked if he would consent to a search of his room, Airman

Webber declined

Thereupon, Special Agent Walker initiated steps to obtain a

search “authorization”, the military equivalent of a search

warrant. In the midst of this process, Airman Webber volun-

teered additional information to the agents which confirmed

that he was the person who contacted Airman Nantkes the

evening of September 11th about open blinds. He added that

he had noticed an unidentified individual peering through the

open blinds, explaining his efforts to warn the occupant

This new information was added to all the information the

OSI possessed at that time and relayed to the military magis-

trate who decided that probable cause existed to authorize a

search of Airman Webber’s room. The magistrate, Colonel

Brannum, was told that Airman Nantkes was unable to de-

scribe her assailant’s facial features, hair length or “anything”

else regarding the assailant. Colonel Brannum authorized the

search of Airman Webber’s room for a nightgown, a towel and

a pillowcase

In the course of the search, a nightgown was found under-

neath a chair cushion. When it was seized, Special Agent

Walker claimed that petitioner said, “Oh, shit.” At trial, Air-

man Webber testified that he might have said that because he

was shocked at this discovery.

A second search authorization was obtained “‘to search for

anything else of evidentiary value.” Airman Webber was also

subjected to a sexual assault protocol. During the second

search, agents found a handwritten note with Airman Nantkes’

name and other information on it Both ora! search authoriza-

tions were subsequently merged into one written search au-

thorization

Forensic tests and examination of the physical evidence

seized at the crime scene disclosed that petitioner was not the

source any fingerprints found. nor was he the source of any

hairs recovered from Airman Nantkes’ nightshirt which she

wore during the sexual assault. Semen stains found on the

bedspread, sheets and nightshirt were compared with sero-

logical samples taken from Airman Nantkes and petitioner. Dr.

Kotowski, a forensic serologist testified for the government at

trial regarding the results of these comparisons.

He claimed that petitioner could possibly have been the

source of the semen, while acknowledging that no item of

evidence was found to disclose the presence of petitioner's

PGM or Lewis blood type. In fact, the combination of ABO

type O, Lewis type a-b+, and PGM type I+ (found on the

‘tems of evidence) was inconsistent with petitioner's com-

bined ABO type O, Lewis type atb+. and PGM type 2+1+. Dr

Kotowski agreed that if the seminal stains found on the items

of evidence came from a single individual, then petitioner

would have to be eliminated as the source No report of any

DNA test can be found in the record, although a DNA test had

been requested by petitioner. There is no indication the gov-

ernment was precluded from performing a DNA test.

Airman Webber testified at trial. He specifically denied

committing the offenses or being in Airman Nantkes’ room

that morning, maintaining that he awoke, dressed, jumped on

his bicycle and left his dormitory for work at 5:15 a.m. that

same morning. Others confirmed that he arrived at work

before 6:00 a.m. to open up the shop so the B-1 aircraft he was

working on could be inspected by employees from Rockwell.

Airman Webber also presented evidence, unrebutted, of his

character for peacefulness, truthfulness, law abidingness, re-

spectful treatment of women, good military character and

good work performance

At trial, his defense counsel submitted motions requesting

that one-third of the court member panel (jury) consist of

African-Americans, that it total twelve in number, and that the

defense be allowed two additional peremptory challenges. All

these motions were denied. After challenges for cause and

peremptory challenges were exercised, five members remained,

and, consistent with established military law, they were in-

structed that two-thirds of the members must agree to reach a

finding of guilty. In this case, that meant four of five members.

It is unknown whether the members reached their findings of

guilty unanimously or not.

On appeal, inter alia, Airman Webber raised the questions

presented in this petition. The Air Force Court of Military

Review denied any relief, affirming the findings and sentence.

(Appendix B). The United States Court of Military Appeals

granted Airman Webber’s petition requesting review of that

decision, citing Issues 1X (judicial appointments) and X (judi-

cial tenure) (Questions 4 and 5, respectively, in this petition).

The Court of Military Appeals summarily affirmed the Court

of Review's decision, without hearing oral argument or pub-

lishing a written opinion. (Appendix A).

With respect to Questions 4 and S, this petition incorporates

essentially the same brief which was submitted by United

States Navy counsel in Weiss v. U/nited States, No. 92-1482,

and by United States Army counsel in Barkley v. United

States, No. 92-1646, and Doucette ¥: United States, No. 93-

68. Like Weiss, this petition raises two closely related ques-

tions (Questions 4 and 5) which go to the heart of judicial

independence for military trial and appellate judges, almost all

of whom are commissioned officers and lawyers on active

duty. Unlike judges appointed under Article I or Article II],

military judges are not appointed by the President with the

advice and consent of the Senate. Nor are they appointed for

fixed terms.

Instead. military judges are selected and appointed by the

Judge Advocate General of their respective service for such

periods of time as the Judge Advocate General determines

The decision to select, transfer and reassign officers to and

from their judicial duties ts absolute and discretionary. In other

words, those judges lack any protection from being removed

and/or reassigned in the event the Judge Advocate General is

not satisfied with their opinions, rulings or service. In the

paragraphs that follow. the institutional framework of the

military justice system will be developed, in conjunction with

the rulings of the Court of Military Appeals, to demonstrate

why the constitution has been violated ~

A. Institutional Framework

Under Article I of the Constitution, Congress has estab-

lished a three-tier system of military courts. At the top is the

Court of Military Appeals, which has five civilian judges

appointed by the President with the advice and consent of the

Senate for fixed terms. Uniform Code of Military Justice art

142. 10 US.C.A. § 942 (West. Supp 1992). The appoint-

ments and tenure of those judges are not at issue.

Below the Court of Military Appeals are four Courts of

Military Review, one each for the Army, Air Force, Coast

Guard, and Navy-Marine Corps Presently, there are approxi-

ee hhh

era |

mately 35 appellate military judges, who may be either military

officers or civilians, all of whom are appointed by the Judge

Advocate General of their respective service. In addition, for

each service’s Court of Military Review, the respective Judge

Advocates General, or the Assistant Judge Advocates Gen-

eral, sign and submit the judges’ annual fitness reports, which

are used to decide promotions, duty assignments and suscep-

tibility to involuntary early retirement. Although these courts

are permanent courts, located in the Washington, D.C., area,

none of the judges is appointed to a fixed term of office.

Unitorm Code of Military Justice art. 66 (a), 10 U.S.C. § 866

(a) (1988). The Courts of Military Review are typically di-

vided into three-member panels, each with their detailed rules

to manage and regulate dockets and the attorneys who prac-

tice before them. Absent waiver by an accused, the Courts of

Military Review are required to review all cases in which a

death sentence, confinement of one year or more, a dismissal,

or a bad conduct or dishonorable discharge 1s adjudged. Uni-

form Code of Military Justice art. 66 (b), 10 U.S.C. § 866 (b)

(1988)

Military trial judges preside at special courts-martial and, if

qualified, at general courts-martial. Trial judges must be mili-

tary officers, all of whom have been appointed as military

officers by the President with the advice and consent of the

Senate. However, their selection and appointment as a judge

is made by the Judge Advocate General of their service. Like

appellate judges, the trial judges have no fixed term of office.

Unitorm Code of Military Justice art. 26 (a)-(c), 10 U.S.C.A.

§ 826 (a)-(c) (1988). Military judges are assigned to a circuit

and are supervised by a Chief Circuit Judge, who in turn

reports to and is supervised by the Chief Judge of the Trial

Judiciary of their respective service.

Each armed force assigns military judges as and when it sees

fit. Judges often serve a two-, three- or four-year assignment.

However, a judicial assignment can be terminated at any time

through decertification as a judge or by transfer to other duties

at the discretion of the Judge Advocate General of the judge’s

armed force. '

A court-martial can try any offense committed by a member

of the armed services regardless of when or where the offense

took place, who the victim was, what was done, or why it was

done—the sole requirement is that the accused was on active

duty in the military at the time of the offense. Soforio v. United

States, 483 U.S. 435 (1987). A general court-martial may

impose sentences that include death, imprisonment for life or

terms of years, total forfeitures of pay and allowances, and/or

punitive discharges. 10U.S.C.A. § 818 (1988). Abad conduct

or dishonorable discharge carries with it a permanent stigma

and it can have an adverse impact on civilian job opportunities,

as well as on certain government-provided benefits. See United

States v. Ohrt, 28 MJ. 301 (C.M.A. 1989); United States v.

Maharajh, 28 M.J. 797 (A-F.C.M.R. 1989). Special courts-

martial may impose up to Six months confinement, and/or

forfeiture of up to two-thirds pay per month for six months,

and/or a bad conduct discharge. Uniform Code of Military

Justice art. 19, 10 U.S.C. § 819 (1988).

Military trial judges are, for all practical purposes, the

equivalent of United States District Judges and Magistrate

Judges who preside over criminal trials in federal district

courts. The drafters of the Uniform Code of Military Justice

‘William H. Cook, Courts-Martial: The Third System in American

Criminal Law, 1978 So. Ill. U. L. Rev. 1, 17-18, | Francis A. Gilligan

& Frederic 1. Lederer, Court-Martial Procedure 14-31.00, at 518-19

(1991). The Judge Advocate General does not personally issue the actual

orders for a transfer, but there is no doubt that. for all military lawyers,

including military trial and appellate judges, he controls their actual duty

assignments.

wanted military judges to be “real judges” as commonly

understood in the American legal tradition. United States v.

Graf, 35 M.J. 450, 465 (1992). The military trial judge has far-

ranging discretionary powers, including the power to “rule on

all interlocutory questions and all questions of law raised

during the court-martial,” to ‘‘[i]nstruct the members [jury]

on questions of law and procedure which may arise,”’ to

‘promulgate and enforce rules of court,” and to “exercise

contempt power.” Uniform Code of Military Justice art. 48,

10 U.S.C. § 848 (1988). If the accused elects a bench trial, a

general court-martial judge has even more discretion than

does a district judge because the court-martial trial judge is

not bound by the Federal sentencing guidelines. See (/nited

States v. Brown, 28 M.J. 470, 474 n. 3 (C.M.A. 1989). see

generally Manual for Courts-Martial, United States, 1984,

Rule for Courts-Martial 1002.

Courts of Military Review exercise all of the traditional

powers of appellate courts including those under the All Writs

Act. See Dettinger v. United States, 7 M.J. 216 (C_.MA

1979). Additionally, these courts exercise an “awesome, ple-

nary, de novo power of review.” United States v. Cole, 31 MJ

270, 272 (C.M.A. 1990). Thus, a court “[mJay affirm only

such findings of guilty and the sentence . . . as it finds correct

in law and fact. . . [I]t may weigh the evidence, judge the

credibility of witnesses, and determine controverted questions

of fact.’ Uniform Code of Military Justice art. 66 (c), 10

U.S.C. § 866 (c) (1988).

B. Rulings of the Court of Military Appeals.

The Court of Military Appeals exercised its discretionary

jurisdiction to consider petitioner’s claims with respect to

judicial appointment and tenure. Several days before it heard

argument in Weiss, the Court of Military Appeals issued an

opinion rejecting the due process claim. lU/nited States v.Graf,

_ <<

35M J. 450(C MA. 1992).° Then, on December 24, 1992, a

sharply divided court rejected petitioner Weiss’ Appointments

Clause argument and affirmed the Navy-Marine Corps Court's

decision. United States v. Weiss, 36 MJ. 224 (C.M.A. 1992),

cert. granted, 61 US.L.W 3783 (May 24, 1993)

In order to garner three votes, the majority below needed

two separate and largely inconsistent rationales. Judge Gierke,

writing the lead opinion for himself and Judge Cox, agreed

that Congress may establish a military justice system, but that

Congress cannot declare an exemption for military judges

from the Appointments Clause Therefore, Judge Gierke held

that military judges are officers who must be appointed in

accordance with the Appointments Clause, either by the Presi-

dent with the advice and consent of the Senate, by the Presi-

dent alone, by a Head of Department, or by a Court of Law

This proposition was endorsed by four of the court’s five

judges

Judge Gierke then held that the Appointments Clause ts

satisfied when a military officer ts commissioned by the Presi-

dent with the advice and consent of the Senate, because

military judges are simply military officers with legal training

Relying on Shoemaker v. United States, 147 U.S. 282 (1893),

Judge Gierke first ruled that Congress had not created a “new

office” when “Law Officers” became “Military Judges” in

the Military Justice Act of 1968 and thus no new appointment

was necessary. (/nited States v. Weiss, 36 MJ. at 228. Alter-

natively, he concluded that, if a new office had been created,

the duties of the military judge were ‘“vermane” to those

duties already required of a military officer with legal training

2A petition for writ of certioran im Graf was filed on December 29.

1992 (No. 92-1102), and it is incorporated by reference Inthe interest of

completeness, this petition will sumntarize the Graf decision, as well as

the reasons for granting review of the due process issuc

The principle we giean trom Shoemaker is that Congress may

create a new office... and give a military officer the duties of

that office without making a new appointment necessary, if the

new duties are ‘germane’.”’ /d.

Judge Crawford eschewed the opinion of Judge Gierke, and

concurred only in the result. In her view the appointment of

military judges need not comply with the Appointments Clause

at all because of the special deference given to Congress when

it regulates the land and naval forces. Her opinion does not

mention Buckley v. baleo, 424 US. 1, 132 (1976) (per curiam),

in which this Court held that no class or type of officer is

excluded from the reach of the Appointments Clause because

of the special nature of their office or the plenary power of

Congress over the subject area. Additionally, Judge Crawford

reached her conclusion even though the Department of Justice

{appearing as an amicus below, urging affirmance) disavowed

that position in both its brief and at oral argument.

Chief Judge Sullivan and Judge Wiss each filed dissenting

opinions rejecting the arguments described above. The dis-

senters tound no broad exemption to the strictures of the

Appointments Clause based on the judges’ status as military

officers or military lawyers. Chief Judge Sullivan stressed the

watershed events of the Military Justice Act of 1968 which for

the first time created a “professional judiciary” in the mili-

tary (/nited States v. Weiss, 36 MJ. at 251. He recognized

that what had occurred was no mere transfer of duties, but was

a clear break from past practice by creating the new offices of

military trial and appellate judges. Judge Wiss disagreed with

the lead opinion’s application of Shoemaker to this case, in

particular its assertion that the assignment of specific and

highly responsible judicial duties as a military judge is “ger-

mane to officers in general,” ie, to the duties of the entire

Judge Advocate General's Corps trom which military judges

are chosen. (/nmited States v. Weiss, 36 MJ at 262

The court did not revisit Graf where it had overruled Grat’s

due process objection to the lack of fixed terms of office for

military judges for two reasons. First, Graf rejected the bal-

ancing test set forth in Matthews v. Eldridge, 424 U.S. 319

(1976), which had long been used to resolve Fifth Amendment

due process claims. Instead, the court used the less exacting

Fourteenth Admendment due process standard enunciated in

Medina v. California, 112 S.Ct. 2572 (1992), which involved

review of a state criminal conviction. Second, Graf treated

dicta from United States ex rel. Toth v. Quarles, 350 U.S. 11

(1955), and Palmore v. United States, 411 U.S. 389 (1973), as

approving the lack of fixed terms of office, and announced a

new rule that military judges could not be removed in retalia-

tion for their judicial decisions. Nowhere did the Court of

Military Appeals suggest that military necessity precluded

fixed terms for military judges generally, let alone for those

who sit on the Courts of Military Review in the Washington,

D C.. area, or for courts-martial that are held in peacetime

REASONS FOR GRANTING THE WRIT

This case raises fundamental questions about the quality of

justice in the armed forces. Long established practices are

challenged, practices which this Court has found unconstitu-

tional in other criminal jurisdictions. The perception has grown,

however. that similar relief cannot be obtained by this peti-

tioner because he is a military member and this Court applies

a separate and more stringent test for military litigants seeking

relief from this Court. In the paragraphs that follow, petitioner

attempts to establish that the same justice afforded his civilian

counterpart, facing similar criminal charges, could have been

granted to him, without impairing the national defense or

violating established constitutional precedents governing mili-

tary law

MINIMAL DUE PROCESS UNDER THE FIFTH

AMENDMENT REQUIRES THAT NO PERSON

FACING FELONY CHARGES BE SUBJECTED

TO THE POSSIBLE LOSS OF LIFE OR LIBERTY

BASED UPON A NONUNANIMOUS VERDICT

OF A JURY PANEL CONSISTING OF LESS

THAN SIX PERSONS REGARDLESS OF JURIS-

DICTION, MILITARY OR CIVILIAN

It is anomalous that a Sixth Amendment right to a six-

person jury, voting unanimously, can be extended through the

“due process” clause of the Fourteenth Amendment to indi-

viduals facing criminal prosecution in state civilian jurisdic-

tions, but that same jury protection cannot be given to military

members under the “due process” clause of the Fifth Amend-

ment * If Congress and state legislatures cannot deprive civil-

ian citizens of this fundamental due process right, how can

Congress deprive the military citizen the same protection?

Basing the distinction in treatment on military necessity, na-

tional security or Congressional whim is neither logical nor

consonant with experience

Shortly after the Uniform Code of Military Justice was

enacted, and long before military members gained the right to

directly petition the Supreme Court, this Court addressed due

process claims by military members in the context of habeas

corpus proceedings Chief Justice Vinson, writing for the

Court said, ‘The military courts, like the state courts have the

‘A concurrence of two-thirds of its voting members is sufficient to

convict an accused in a military court-martial, unless the offense is

classified capital, in which case a unanimous vote is required. Uniform

Code of Military Justice arts. 5} (a), 52 (a), 1OU.S_C. §§ 851 (a), 852 (a)

If the required vote to convict 1s not achieved, an acquittal results, hence.

there are no “hung juries” in military courts

same responsibilities as do the federal courts to protect a

person from of a violation of his constitutional rights.”” Burns

v. Wilson, 346 U.S. 137, 142 (1953). Justice Douglas added

(though writing in a dissenting opinion):

[Never have we held that all the rights covered by

the Fifth and Sixth Amendments were abrogated by

Art I, § 8, cl. 14 of the Constitution, empowering

Congress to make rules for the armed forces. I think

it plain from the text of the Fifth Amendment that

position is untenable

Id. at 182. This recognition goes to the core of petitioner 's

claim Even if the Sixth Amendment does not directly extend

the right to jury trial to military members, once military courts

are formed with “jurors” certain fundamental due process

rights must be met. Thus, the size, composition and voting

methods of military juries are subject to due process analysis.

In Mendrano v. Smith, 797 F.2d 1538 (10th Cir. 1986), a

similar claim was addressed. In a habeas corpus proceeding,

the court considered a military premeditated murder and rape

conviction tried before a military jury consisting of six per-

sons, as opposed to the five in petitioner's case.* The court

concluded that no due process right was denied after noting,

“this appeal presents close and troubling questions[.]” /d. at

1547. In the opinion, the court reviewed this Court's prece-

dents as they related to civilian jurisdictions and the constitu-

tional and legislative history of military courts-martial

Citing Ballew v. Georgia, 435 US. 223 (1978) (“Justice

Blackmun, writing for the plurality, concluded that a unani-

mous conviction by a five-person jury for a non-petty offense

‘ A general court-martial must consist of a military judge and not less

than five members.” Uniform Code of Military Justice art 16(1), 10

USC. §$816(1) The accused may request trial before a military judge

alone

violated an accused’s right to jury trial’’), and Burch v. Loui-

siana, 441 U.S. 130 (1979) (‘conviction for a non-petty

offense by only five members of a six-person jury”’ held

unconstitutional) as persuasive authority favoring the habeas

petitioner, Mendrano, the court felt bound by this Court’s

decisions dating back to Ex parte Milligan, 71 U.S. [4 Wall.]

2 (1866), which have consistently held that the Sixth Amend-

ment right to jury trial does not extend to military members.

The cited cases included O'Callahan v. Parker, 395 U.S. 258,

261 (1969). Whelchel v. McDonald, 340 U.S. 122, 127 (1950),

ix parte Quirin, 317 U.S. 1, 40 (1942), and Kahn v. Ander-

son, 255 U.S. 1, 8 (1921)

Furthermore, in evaluating the due process question, the

court in Mendrano v. Smith, 797 F.2d at 1545, felt bound to

render appropriate deference to Congress in fulfilling their

duty to balance the rights of men in uniform against the

“overriding demands of discipline” of this “‘specialized soci-

ety The court concluded, given Congress’ determination

that a minimum of five members voting by two-thirds majority

would suffice for court-martial, “this balancing does not seem

constitutionally impermissible.” /d. at 1546. Petitioner re-

spectfully challenges these conclusions and suggests that closer

scrutiny of the logic and precedents is necessary.

The Afendrano court could not explain in 1979, nor can the

government demonstrate now that the ability to “fight and win

wars’ would in any way be impaired by extending to military

members the right, enjoyed by their fellow citizens, to juries

consisting of at least six members who must reach their ver-

dicts unanimously. The military justice system has changed

dramatically in the last twenty-five years, just as Chief Judge

Sullivan noted in his dissent in the Weiss decision. 36 M_J. at

251. Procedural and evidentiary rules parallel federal and state

rules in many ways. Constitutional, federal and state prece-

dents are routinely cited and relied upon in applying these

rules. Wars have been fought with these rules in place and no

credible authority can be cited for the proposition that extend-

ing these new rights to service men and women jeopardized

the ability of the armed forces to fight and win.

The government has not shown that military juries, drawn

from the ranks of professional soldiers, sailors and airmen, are

somehow better trained or equipped than their civilian coun-

terparts to decide factual questions of guilt and/or adjudge

sentences. When this Court has determined that fairness under

the constitution requires a minimum of six jurors, voting

unanimously in a non-petty criminal proceeding, given the

current state of military justice, how can it justify anything less

in a military tribunal? This question begs to be answered.

There is more. The due process violation in petitioner's case

was further compounded by the fact that Airman Webber, an

African-American, faced an all-white jury panel of five offic-

ers. In an attempt to obtain a panel fairly representative of the

racial makeup of the community and large enough to satisfy

the concerns expressed in Ballew v. Georgia, petitioner's

defense counsel requested that the jury consist of a minimum

of twelve members after challenges, that he be granted two

additional peremptory challenges and that at least one-third of

the jury be comprised of African-Americans. All these re-

quests were denied

When a single young African-American female was added

to the panel, the defense felt compelled to challenge her for

cause because she had been a rape victim. This superficial

attempt to bring balance to the court in no way satisfied this

Court’s concerns as expressed in Strauder v. West Virginia,

100 U.S. 303 (1880), Zaylor v. Louisiana, 419 U.S. 522

(1975), Duren v. Missouri, 439 U.S. 357 (1979), and Batson

v. Kentucky, 476 U.S. 79 (1986).

The “fair cross section” precedents have not been applied

to military courts, while the Batson v. Kentucky requirement

ee eee er ree

has. See United States v. Hodge, 26 M.J. 596 (A.C.M.R.

1988) (J. Smith, dissenting); and United States v. McClain, 22

MJ. 124 (C.M.A. 1975). In the military, no concerted effort

is made to include minorities in the “pools” from which jurors

are selected. Applying some, while ignoring other, p:.-edents

may occur because of the military’s different methods of

selecting “pools” from which individual jury panels are cho-

sen. This incongruity may also be explained by the difficulty a

military accused faces in obtaining evidence to establish “‘sys-

tematic” exclusion of minorities from jury pools. For what-

ever reason, the result is most disturbing. In effect, military

prosecutors are able to circumvent the holding in Batson

simply by making no effort to include minorities in the “pool.”

In terms of the jury selection and challenge process, apply-

ing some of this Court’s precedents while rejecting others

inevitably results in a failure to achieve the goals of due

process and equal protection. The exclusion of minorities

from military juries, whether systematic or not, when com-

bined with the small size of the juries and the two-thirds voting

requirement, significantly reduces the likelihood that African-

American servicemen and women will enjoy the same level of

justice as their fellow caucasian servicemembers. Certainly the

perception will remain.

In conclusion, Airman Webber has been deprived the consti-

tutional protections this Court recognzied in Ballew v. Geor-

via, Burch v. Louistana, and Strauder v. West Virginia. Con-

sistent with this Court’s opinion in Burns v. Wilson, this denial

of fundamental due process warrants review and relief.

OUTWARDLY INNOCENT ACTS LACKING ANY

INCULPATORY CONNECTION BETWEEN A PUR-

PORTED SUSPECT AND THE COMMISSION OF

A CRIME, STANDING ALONE, SHOULD NOT

SUFFICE TO ESTABLISH THE PROBABLE CAUSE

NECESSARY TO JUSTIFY THE ISSUANCE OF A

SEARCH WARRANT UNDER THE FOURTH

AMENDMENT.

Military courts follow this Court’s standards in resolving

questions regarding the determination of probable cause. There-

fore, the “totality of the circumstances test” in //linois v.

Gates, 462 U.S. 213, 233 (1983), governed the trial and lower

appellate courts’ resolution of petitioner’s motion to suppress

evidence seized in the course of two searches of his dormitory

room. Petitioner maintains that the military magistrate who

issued the search “authorization” of his dormitory room did

not have a ‘substantial basis” for determining that a “fair

probability” existed that evidence relating to the rape and

sexual assault of Airman Nantkes would be found therein.*

The facts used to justify the existence of probable cause did

not link petitioner to the commission of the crime. His contact

with Airman Nantkes the evening before the assault was

totally innocent and unrelated to any criminal activity on his

part. At best, this contact may have justified questioning

petitioner, given its proximity in time to the assault, but

nothing more. Airman Nantkes’ inability to describe her assail-

ant made the investigators’ task of finding her assailant diffi-

cult. But it also made the establishment of probable cause

impossible without additional facts or evidence to identify a

suspect. See generally Henry v. United States, 361 U.S. 98

(1959) (outwardly innocent acts insufficient to establish prob-

able cause to arrest). Under the circumstances as they existed

before Airman Webber’s room was searched, there was inad-

‘While not raised as an issue before this Court, the conduct of the

search authorities was challenged in the lower appellate courts in a

petition for new trial (based on fraud on the court), which was denied.

Discrepancies in the OSI investigative reports, handling of evidence and

statements made by Special Agent Walker, the agent who sought the

search authorization, join to make the lawfulness of this search even

more suspect.

equate information in the authorities’ hands to justify arresting

anyone or searching anywhere.

The Air Force Court of Military Review implicitly, if not

explicitly, recognized that the contact on the evening of Sep-

tember 11th was “‘an innocent transaction and was not incul-

patory.” (Appendix B, at 4). While the court used those words

when evaluating the note found in the second search of

petitioner’s room, the same logic applies to the pre-assault

“contact.” In effect, the court held that anyone and everyone

who knocked on Airman Nantkes’ door the evening before she

was assaulted automatically became a suspect and was there-

fore subject to being arrested and searched. Even the “‘com-

mon sense” standard of //linois v. Gates does not reach that

far.

This error is so egregious and the analysis of the lower court

so flawed, the searches of Airman Webber’s room must be

addressed and declared constitutionally inadequate.

Ill

EXCULPATORY SEROLOGICAL EVIDENCE PRE-

SENTED BY THE PROSECUTION WAS MISCON-

STRUED AND MINIMIZED BY THE LOWER

COURTS, RENDERING THE FINDINGS OF

GUILTY LEGALLY INSUPPORTABLE IN LIGHT

OF THIS COURT’S TEST FOR LEGAL SUFFI-

CIENCY AS ARTICULATED IN JACKSON V. VIR-

GINIA, 443 U.S. 307 (1979).

Consider the prosecution’s case. Airman Nantkes was un-

able to identify her assailant. None of the physical evidence

found in her room could be conclusively linked to petitioner.

The government attempted to establish that serological tests

of semen found in the room were “‘consistent” with tests of

petitioner’s blood and saliva, without excluding him as the

assailant. Essentially, the case hinged on the nightgown found

in Airman Webber’s room, which was discovered eighteen

hours after the assault.

Given these facts, if, in truth, the serological evidence

tended to support the conclusion that Airman Webber was not

the source of the semen found in Airman Nantkes’ room,

thereby excluding him as the assailant, then whatever appear-

ances may exist from having found a nightgown hidden under

a cushion in petitioner’s room, “no rational trier of fact could

have found proof of guilt beyond a reasonable doubt.” Jack-

son v. Virginia, 433 U.S. at 324.

The Air Force Court of Military Review described the

serological evidence as “collateral: it does not identify the

offender, and it does not exclude Airman Webber as a suspect

(despite his suggestion that it might).” Then, in two lines,

without further analysis, the court concluded that the evidence

was sufficient to convict, having previously cited Jackson v.

Virginia. (Appendix B, at 5).

The court’s brief analysis is troubling in light of the evidence

that the serological tests in fact tended to do just what the

petitioner claimed—exclude him as the source of the semen.

When the serology reports and the expert’s testimony at trial

are read, a few pertinent and significant facts emerge. The

serologist testified that Airman Webber is a secretor, which

means that his blood group substances are secreted into and

carried by other bodily fluids, including semen. He further

stated that semen and blood have the same typings 99.9

percent of the time. Airman Webber’s blood possessed Lewis

type atb+ and PGM enzyme 2+1+. Neither of these typings

were found to exist in any of the semen samples taken from the

sheets, towels or nightshirt admitted into evidence.

Yet, sufficient samples of semen existed to provide PGM

and Lewis readings of 1+ and a-b+, respectively. Airman

Nantkes did not testify that there was more than one assailant

or sources of semen. Therefore, when the government’s ex-

pert, Kr. Kotowski, testified that if there were only one source,

then Airman Webber would have to be excluded, it is incon-

ceivable that Airman Webber could be declared the source by

the trier of fact or anyone else.

While the serological evidence cannot account for or ex-

plain the nightgown (which did not have any semen stains)

found in Airman Webber’s room, it does contradict his guilt

with respect to the actual physical assault. With the evidence

in this state, petitioner's conviction is legally insupportable

and must be reversed

THE METHOD OF APPOINTING MILITARY OF-

FICERS TO DUTY AS TRIAL AND APPELLATE

JUDGES VIOLATES THE APPOINTMENTS

CLAUSE OF THE CONSTITUTION AND THE

LACK OF ANY FIXED TERM FOR THOSE JUDI-

CIAL OFFICES VIOLATES THE DUE PROCESS

CLAUSE OF THE FIFTH AMENDMENT.

This petition, like United States v. Weiss, seeks to establish

minimum standards for the appointment of military judges and

their retention in office for fixed terms. It does not seek to

have the Uniform Code of Military Justice or the military

justice system mirror that of Article III courts. Rather, it seeks

to ensure that the separation of powers requirements embod-

ied inthe Appointments Clause, and the notions of fundamen-

tal fairness embodied in the Due Process Clause of the Fifth

Amendment, are available to those who are tried by courts-

martial. Taken alone, either the Appointments Clause or the

Due Process violations would seriously undermine the fairness

of the military justice system, but occurring together they call

into question whether anyone in the armed forces can receive

the minimal level of judicial independence that every justice

system requires.

A. The Appointments Clause Violation

Not since Solorio v. United States, 483 U.S. 435,

107 S.Ct. 2924, 97 L.Ed.2d 364 (1987), has an

appeal presented questions of such fundamental im-

portance to the institutional integrity and viability of

the military justice system as does this one.

United States v. Weiss, 36 M.J. at 256-57 (Wiss, J., dissent-

ing).

The Appointments Clause precludes Congress from placing

the power to appoint inferior officers in anyone other than the

President alone, the Courts of Law, or the Heads of Depart-

ments. U.S. Const. Art. II, § 2, Cl. 2. Freytag v. Commis-

sioner, 111 S.Ct. 2631 (1991). There can be little doubt that

military judges, who exercise extraordinary authority and dis-

cretion, are Officers of the United States and are subject to the

Appointments Clause. See Buckley v. Valeo, 424 U.S. 1, 126

(1976) (per curiam). No judge of the Court of Military Ap-

peals disagreed with that proposition except Judge Crawford

and her position was specifically disavowed by the Depart-

ment of Justice.

There is considerable force to the argument that military

appellate judges are ‘“‘superior” or “principal” officers; in

which case the President must appoint them with the advice

and consent of the Senate. But in any event, both military trial

and appellate judges are at least inferior officers, so they must

be appointed either by the President, the Head of a Depart-

ment, or by a Court of Law. No court has held that military

judges are appointed to their judicial offices by any of the

authorities listed in the Appointments Clause; the only aues-

tion is whether their appointment as military judges, after they

have been duly appointed as military officers must be made by

one of the authorities set forth in that clause.

The Appointments Clause preserves ‘“‘the Constitution’s

structural integrity by preventing the diffusion of the appoint-

ment power.” Freytag, 111 S.Ct. at 2638. As the Court

reasoned in Freytag:

The Appointments Clause prevents Congress from

dispensing power too freely; it limits the universe of

eligible recipients of the power to appoint. Because

it articulates a limiting principle, the Appointments

Clause does not always serve the Executive's

interests. Kor example, the Clause forbids Congress

from granting the appointment power to inappro-

priate members of the Executive Branch. Neither

Congress nor the Executive can agree to waive this

structural protection ... The structural interests

protected by the Appointments Clause are not those

of any one Branch of government but of the entire

Republic.

Freytag, 111 S.Ct. at 2639 (emphasis added).°

Relying on Shoemaker, two Court of Military Appeals judges

found that the Appointments Clause had been satisfied be-

cause all military judges are commissioned officers of the

Armed Forces, having been appointed by the President and

confirmed by the Senate, although they have not been ap-

pointed to their judicial positions in that manner. Apparently

recognizing that a presidential appointment had some limits—

a Deputy Secretary of Defense could not simply move over to

become the Assistant Attorney General for Antitrust or a

Member of the Equal Opportunity Commission—the opinion

also concluded that there was no new office created when

Congress amended the Uniform Code of Military Justice in

* A predictable consequence of having appointments made by an

intermediate official, such as the Judge Advocate General, instead of by

persons authorized by the Appointments Clause, is the homogeneity of

the judges of the Courts of Military Review. Thus, the 35 current appel-

late judges include only two women and one African-American. The only

two civilians sit on the five-member Coast Guard Court.

= —\

1968 to create the positions of military trial and appellate

judges because the new positions were simply continuations of

the o!d ones, with some modest changes. Even if that assess-

ment were correct, and petitioner agrees with the dissenters

that it is not, that would at most allow those who were in a

judicial position in 1968—the ‘“‘incumbent[s]” in Shoemaker’s

words (147 U.S. at 301)—to continue in office without a new

appointment. Stated another way, Shoemaker can at most

solve the problem for those who were already serving in

judicial positions in 1968, not for those who were yet to be

appointed as judges, let alone those who were not yet military

lawyers.

As a fall-back, Judges Gierke and Cox argued that, under

Shoemaker, Congress can add duties to an existing office

without requiring that the person then in office be reappointed,

so long as the “new’’ duties are “germane” to the “old” ones

of that office. What they overlook is that Shoemaker arose in

a one-time situation where Congress had added duties to

persons who were already in offices to which they had been

properly appointed. But there would never be a problem for

future occupants of those offices since they would be ap-

pointed to positions encompassing both the “new” and “old”

duties. However, for military judgeships, the problem is re-

peated whenever a non-judge military lawyer replaces a mili-

tary judge who retires or is transferred to a new assignment

inside or outside the judiciary.

Even if Shoemaker allowed those who were serving as “law

officers” in 1968 to continue in the new office of military

judge, those who became military judges thereafter would fail

to meet Shoemaker 's ‘‘germaneness” test. The duties and

powers of military judges, including all of those involved in

petitioner’s case, are so different from those of prosecutor,

defense counsel, or legal advisor to a command—which is

what most military lawyers do before they become military

judges—that there is not simply an addition of a related duty,

as in Shoemaker, but a substitution of a new job, with entirely

new functions, for an old one. Surely, no one would contend

that the two civilians on the Coast Guard Court of Military

Review could be plucked from civilian life, even if they were

administrative law judges working for the federal government,

and placed on the court without meeting the requirements of

the Appointments Clause; the result should be no different for

any Other military judge, whether at the trial or appellate level.

Similarly, no one would assume that a member or the staff of

the General Counsel of the National Labor Relations Board

could simply be “‘assigned”’ the additional duties of adminis-

trative law judge at that agency without satisfying the require-

ments of the Appointments Clause, yet that is the effect of the

rulings below. Indeed, as both Buckley and Freytag make

clear, it is the function that the individual is performing that is

decisive in determining whether the Appointments Clause

applies at all, and under that analysis there can be no question

that military judges must be separately appointed because their

functions differ so markedly from those performed by other

military lawyers. At the very best, these quite expansive exten-

sions of Shoemaker raise serious questions that this Court

should address.

The decision below rests on even shakier ground because

the decisive vote was cast by Judge Crawford. She implicitly

rejected an extension of Shoemaker in favor of a much more

sweeping rationale: that the Appointments Clause does not

apply at all to military judges, although her rationale would

lead to the conclusion that the Clause does not apply to any

appointments in the armed forces. Her reasoning conflicts

with, but does not even attempt to distinguish, Buckley, which

made clear that there are no subject-matter exemptions from

the Appointments Clause based on Congress’s interest in, or

plenary power over particular subject areas. Judge Crawford’s

rationale also conflicts with decisions like Rostker v Goldberg,

453 U.S. 57 (1981), and Middendorf v. Henry, 425 US. 25

(1976), which stand for the proposition that there are no

wholesale exemptions from the Constitution simply because

the case involves military affairs. Indeed, so extreme is Judge

Crawford’s reasoning that the Department of Justice, which

appeared below as an amicus in support of respondent, spe-

cifically rejected that position in its brief and at oral argument.

It is highly unlikely that Judge Crawford would have taken the

far more expansive route to affirming petitioner’s conviction if

she had been willing to accept the rationale put forward by

Judge Gierke. Thus, if her “deference to Congress” analysis is

in error—as it clearly seems to be—there were insufficient

votes to sustain petitioner’s conviction on a principled basis.

In this case it is not simply that the Judge Advocates

General, who appoint military judges, are not listed in the

Appointments Clause, but they are the supervisors of all

military lawyers who serve in military courtrooms, including

all of those who prosecute criminal cases on behalf of the

United States. In addition, the Judge Advocates General, or

the Assistant Judge Advocates General. write the annual fit-

ness reports of the members of each service’s Court of Military

Review, which are then used to decide the appellate judges’

promotions, future duty assignments, and susceptibility to

involuntary early retirement. Indeed. the due process implica-

tions of this particular appointment arrangement raise inde-

pendent concerns that strongly reinforce the Appointment

Clause objections.

The validity of the appointment of military judges under the

Appointments Clause is a significant constitutional question

which the Court should address immediately. The 2-1-2 divi-

sion within the Court of Military Appeals attests to the serious

debate on the merits of the issues. A split in the circuits is

unlikely ever to arise, because the question has been fully and

fairly litigated and resolved by the military justice system, thus

potentially insulating it from review on habeas corpus. See

generally, Watson v. McCoffer, 782 F.2d 143, 145 (10th Cir.),

cert. denied, 476 U.S. 1184 (1986). In any event, as it did in

Freytag, this Court should grant review now to resolve the

dispute as promptly as possible

B. The Due Process Violation

The reasons the Court should grant review on the second

question presented are set out in the previously-filed Graf

petition and are only summarized below. But first, it is worth

noting that, although the two questions presented arise under

different constitutional provisions, the defects involve com-

mon concerns of accountability and fundamental fairness to an

accused Noncompliance with each of the provisions is mag-

nified by the lack of compliance with the other, such that there

is a synergistic impact on the accused’s rights. To further

compound the problem, the Judge Advocate General can both

appoint and remove military judges, yet he is also responsible

for supervising the efficient working of the military justice

system, including its prosecutors

The lower court’s application of Medina’s Fourteenth

Amendment due process analysis to a federal Fifth Amend-

ment due process claim is ample reason to hear the case

Indeed, in Medina this Court left open the correctness of one

of its prior decisions—(/nited States v. Raddatz, 447 U.S

667, 677 (1980)—which had applied Matthews v. Eldridge to

a due process challenge to a federal criminal conviction. Peti-

tioner believes that respect for state legislative judgments and

concerns of federalism, which loomed so large in Medina,

have no place where federal due process rights are at issue, but

the uncertainty created by Medina underscores the need for

this Court to settle an issue that only it can resolve. In that

regard, we also note that the concerns about overturning

specific judgiments-made by state legislatures (Medina), or

with those made by Congress for the Armed Forces (Middendorf

v. Henry), are inapplicable here because there is no evidence

that in 1968, when Congress established the offices of military

trial and appellate judge, it gave any thought to terms of office,

let alone specifically legislated to preclude them.

Certaintly, in time of war or other serious exigency, military

necessity may require some adjustments regarding the tenure

of trial judges, although not for the appellate judges who

comprise the four Courts of Military Review. Moreover, nei-

ther the government nor the Court of Military Appeals has

sought to justify the lack of any fixed term of office on grounds

of military necessity. Instead, the Court of Military Appeals

relied on other claimed protections against improper retalia-

tion against military judges for unpopular decisions—some of

which it first announced in Graf—although none of them can

be invoked by an accused, even if they were actually, as

opposed to theoretically, available to the judges themselves

But even if those protections served to prevent naked retalia-

tion, they cannot possibly guard against the more subtle and

virtually undetectable chilling influences of adverse or “faint

praise” fitness reports that can have significant impacts on

promotions, future assignments, and susceptibility to involun-

tary early retirement for all military judges

At bottom, the Court of Military Appeals fell woefully short

of justifying a massive exception to the generally accepted

principle of American jurisprudence that judicial indepen-

dence for those who preside at criminal trials and hear criminal

appeals is an absolute minimum protection for an accused, as

reflected in such due process cases as lumey v. Ohio, 274U S

510 (1927), and in the nearly universal fact that state judges

serve for fixed terms of office. The due process issue alone is

sufficiently important to warrant plenary consideration by this

Court, especially because the terms of office of a military

—

judge can be cut short by a military officer who is the ultimate

superior of both the judge and the prosecutor

CONCLUSION

rhe questions presented are genuinely important and affect

not only petitioner, but the rights of millions of Americans

serving in the armed forces. The cumulative impact of the

constitutional appointments and due process errors in

petitioner s case warrants this Court’s attention, consideration

and action. For all the reasons stated, the petition for a writ of

certiorari should be granted

FRANK J. SPINNER

Lt Colonel, United States Air Force

Chief Appellate Defense Counsel

(‘ounsel of Record

Jay L. COHEN

Lt Colonel. United States Air Force

Chief. Appellate Defense Division

(‘ounsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

172 Luke Avenue, Room 208

Bolling AFB. DC 20332-6128

(202) 767-1562

November |993

APPENDICES

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 68527/AF

CMR Dkt. No. 29239

UNITED STATES, APPELLEE

Vv.

PRINCE S. J. WEBBER (454-29-2291), APPELLANT

ORDER

On consideration of the petition for grant of review of the

decision of the United States Air Force Court of Military

Review and the petition for new trial, in light of United States

i. Weiss, 36 MJ 224 (CMA 1992), cert. granted, 61 U.S.L.W.

3787 (U.S. May 24, 1993) (No. 92-1482), it is by the Court

this 12th day of August, 1993

ORDERED

That the petition for grant of review is hereby granted on

Issues IX and X raised by appellate defense counsel:

That the petition for new trial is denied: and

That the decision of the United States Air Force Court of

Military Review is affirmed.

For the Court,

/s/ John A. Cutts, TI

Deputy Clerk of the Court

cc) The Judge Advocate General of the Air Force

Appellate Defense Counsel (JIVIDEN) Spinner

Appellate Government Counsel (PETERSON)

(la)

APPENDIX B

UNITED STATES AIR FORCE COURT

OF MILITARY REVIEW

ACM 29239

UNITED STATES

AIRMAN FIRST CLASS PRINCE S. J. WEBBER,

FR454-29-2291, UNITED STATES AIR FORCE

14 July 1992 sis

Sentence adjudged 10 January 1991 by GCM con-

vened at Kirtland Air Force Base, New Mexico.

Military Judge: Mark DeRuyter.

Approved Sentence: Dishonorable discharge, con-

finement for 40 years, forfeiture of all pay and allow-

ances, and reduction to E-1.

Appellate Counsel for the Appellant: William J.

Holmes, Esq. (argued), Colonel Jeffrey R. Owens,

and Captain Michael D. Burt.

Appellate Counsel for the United States: Captain

James C. Sinwell (argued), Lieutenant Colonel

Brenda J. Hollis, and Captain Stephen R. Irwin.

Before

LEONARD, RIVES, and JAMES

Appellate Military Judges

OPINION OF THE COURT

JAMES, Judge:

Airman First Class Webber we convicted of rape, larceny,

burglary, and indecent assault. all arising from the same inci-

dent.’ The members of the general court-martial sentenced

him to be discharged from the service with a dishonorable

discharge, to be confined for 40 years, to forfeit all pay and

allowances, and to be reduced to E-1. On appeal he renews

objections to the evidence obtained in two searches, he com-

plains for the first time that the military judge should have

instructed on alibi, and he contests the sufficiency of the

evidence and the severity of the sentence. We find no error and

affirm the convictions and the sentence

I. Facts

The victim of the rape, Airman N. went to sleep at about

2200 in her room in a woman’s dormitory at Kirtland Air

Force Base. Not long afterwards. she was awakened by a

stranger at her door. When she asked who was at the door, the

visitor said ““Webber.” It was the appellant, Airman Webber.

who had visited to tell her that her window blinds were open

Airman Webber left, and Airman N returned to sleep.

At about 0400, Airman N was awakened by a man in her

room. He soon covered her head with a pillow case, and she

was never able to give more than a general description of him

The intruder raped Airman N repeatedly and then left, taking

with him the nightgown she had worn and towels they had

used. Airman N telephoned for help at about 0515. The

window of her room had been damaged, suggesting a forced

entry.

' Violations of Articles 120, 121, 129, and 134. UCMJ, 10 USC

$$ 920, 921, 929. and 934 (1988)

Meanwhile, Airman Webber was required to be at his job at

0600. He testified that he arose at about 0445 in his own room

in a different barracks to prepare, rode his bicycle to work, and

was present before 0600.

By the next evening investigators had a composite identifi-

cation drawing of the first visitor, a general description of the

suspect, and a place to start: the transient airmen’s quarters

near Airman N’s dormitory. They went there and eventually

knocked on Airman Webber’s door. When he appeared, they

immediately recognized that he resembled the composite draw-

ing Asked if he knew anyene who resembled the composite

picture, Airman Webber said Yes and took the investigators to

a room occupied by people who bore no resemblance to it.

When the investigators asked for identification, they recog-

nized Airman Webber’s name as the one given to the victim by

her earlier visitor. After Airman Webber was told when the

event being investigated occurred, he spontaneously gave the

details of his visit to Airman N’s room. They asked his consent

to a search of his room, but he denied it. The investigators

sought and were granted authorization to search (the military

version of a warrant) his room for the gown, the towels, and

a man’s jacket described by Airman N. They found the gown

in Airman Webber’s room. The investigators testified that

when they found the gown, Airman Webber exclaimed spon-

taneously, “Oh, shit!”’ The investigators then sought and were

granted a further authorization to search for other evidence.

Then they found a note with Airman N’s name on it in hand-

writing, later found to be written by Airman Webber.

Airman Webber was not questioned and gave no further

statements. He testified at trial, admitting the earlier visit to

Airman N’s room but denying the second visit and all the

charges. He gave no explanation of how the gown got into his

room. Thus, the conviction in this case depends on the testi-

mony that the gown worn by the victim and stolen by the

assailant was found in Airman Webber’s room.

Be...

II. Two Searches

Lacking consent or some other exception to the preference

for a warrant, military investigators must obtain authorization

before searching a private place. If they do not, the evidence

may be excluded. Mil. R. Evid. 311(a), 315(a). An accused

may contest the admissibility of such evidence by objecting at

trial before pleas, Mil. R. Evid. 3] 1(d)(2)(A); R.C.M. 915(b)(3),

and Airman Webber did so, objecting to the products of both

searches. The burden to show compliance with Mil. R. Evid.

315 is-upon the usual proponent of such evidence, the pros-

ecution, by a preponderance of the evidence. Mil R. Evid.

311(e)(1); R.C.M. 915(c). The parties litigated the issues

thoroughly,’ and the Mil. R. Evid. 3] 1(d)(4); R.C.M. 915(d).

He then overruled both objections, and the gown and note

were both admitted against Airman Webber?

A. First Search & The Gown

When we examine a suppression decision, we must first

decide what facts to consider. In general, an appellate court

should not set aside factual determinations of a trial court (on

matters other than guilt) unless they are clearly erroneous. See

* During the course of the litigation, the chief defense counsel called

his assistant defense counsel as a witness to testify as to an inconsistent

Statement previously given by an investigator at a prior hearing. This

practice should be avoided in advance and discouraged at the time. See

Air Force Rules of Professional Responsibility, rule 3.7 (4 December

1989), ABA Model Rules of Professional Conduct, rule 3.7 and commen-

lary, see also United States v. Kellam, 2 MJ. 338 (A.F.C.M.R. 1976).

However, we detect no prejudice to the appellant in this case. Article

59a), UCMJ, 10 U.S.C. § 859(a) (1988).

‘ The military judge managed the litigation of these and other motions

well, producing a transcript which lends itself to orderly examination

and, equally important, which shows that the issues received orderly

consideration at trial.

generally United States v. Burris, 21 M.J. 140, 143 n.7(C.M.A.

1985). However, we may, if warranted, decide the facts for

ourselves. Article 66(c), UCMJ, 10 U.S.C. § 866(c) (1988);

(/nited States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990). Thus,

we can adopt the military judge’s findings of fact in his “‘essen-

tial findings,’ or we can reach our own. The findings of fact

in this case are supported by the record, and we adopt them as

Our OWN.

We must now decide what standard governs our review of

the decisions of the commander who authorized the search and

of the trial judge. Though it often appears from appellate

decisions that the review 1s de novo, we are reminded that “‘ja]

magistrate’s ‘determination of probable cause should be paid

vreat deference by reviewing courts.’ ”’ ///inois v. Gates, 462

US 213, 236 (1983) (quoting Spinelli v. United States, 393

LS 410, 419 (1969). Instead, ‘the duty of a reviewing court

is simply to ensure that the magistrate had ‘a substantial basis

for conclud[ing]’ that probable cause existed.” 362 U.S

257, 271 (1960), United States v. Wood, 25 MJ. 46, 48

(C M.A. 1987). See generally United States v. Postle, 20 M_J.

632, 641-42 (N.MC.M.R. 1985). When examining that deci-

sion, one looks at the totality of the circumstances. Gates;

Wood, 25 MJ. at 47. Thus, we review the commander’s

decision to determine whether it was reasonable and based in

fact

It is evident though never explicitly stated that the investi-

vators and the commander suspected that the person who

visited Airman N’s room first was likely also to be the assail-

ant. It is clear that all believed the gown to have been taken by

the assailant, and it was reasonable to believe that the assailant

would still have it. The composite picture identified Airman

Webber as the visitor and, by inferences, as the suspect. Thus,

we find that the authorization to search for the gown in

Airman Webber’s room had a substantial basis in the facts

reported to the commander. The commander’s belief that the

gown would probably be found there was reasonable. It was

not error to deny the motion to suppress it.

B. Second Search & The Note

Appellant’s most appealing argument about the second

search, which produced the note bearing Airman N’s name, is

that the second authorization was void for overbreadth How-

ever, the note was consistent with the story that Airman

Webber told the investigators about going to Airman N’s room

to warn her of her open blinds. Thus, while it linked him to the

victim, it did so in connection with an innocent transaction and

was not inculpatory. We do not reach the overbreadth argu-

ment because, even assuming an error, we find. beyond a

reasonable doubt, that admission of the note added only neu-

tral evidence that could not have had any prejudicial effect.

Article 59(a), UCMJ, 10OU SC § 859(a) (1988); Chapman v.

California, 386 U.S. 18 (1967): United States v Ward, | MJ.

176 (CMA. 1975)

Hil. Alibi Instruction

Airman Webber gave his schedule for the early morning on

the day of the rape, from which one might infer that he could

not have done all that was described and still have had time to

go to Airman N’s room, commit the repeated rapes, and return

to his own room. He contends on appeal that the military judge

should have instructed on alibi as a theory of defense, even

though he never asked for such an instruction at trial and did

not object at trial to its omission. Even assuming that alibi is

reasonably raised by the evidence. his assignment of error is

without merit: his failure to request the instruction at trial

waived it. RCM. 920(e), (f); United States v. Bigger, 2

USCM.A 297,8CMR. 97. 102 (1953): United States v.

Boyd, 17 M.J. 562 (A.F.C.M.R. 1983), pet. denied, 18 M.J. 28

(C.M.A. 1984); United States v. Hughes, 7 C.M.R. 803, 808-

809 (A.FB.R. 1953); See also United States v. Moore, 15

U.S.C.M.A. 345,35 C.M.R. 317, 320 (1965); United States v.

Martin, 15 C.M.R. 796, 805 (A.F.B.R. 1954); United States v.

Stafford, 22 M.J. 825, 828 (N.M.C.M_R. 1986); United States

v. Houser, 7 C.M.R. 336, 342 (A.B.R. 1953); United States v.

Watson, 6 C.M.R. 261, 267 (A.B.R. 1952); United States v.

Brown, 4 C.M.R. 342, 349 (A B.R. 1952). See generally

United States v. Jones, 7 M.J. 441, 443 n.1 (C.M.A. 1979).

IV. Factual Sufficiency

The test for [legal sufficiency] is whether, considering the

evidence in the light most favorable to the prosecution, a

reasonable fact-finder could have found all the essential ele-

ments beyond a reasonable doubt.”’ United States v. Turner, 25

M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. Virginia, 443

U.S. 307 (1979)). The test for factual sufficiency is “whether,

[we] are [ourselves] convinced of the accused’s guilt beyond

a reasonable doubt.” 7urner, 25 M.J. at 325.

Airman Webber has presented the case to us in the light

most beneficial to his position, cf United States v. Harris, 34

MJ, _n3(C.M.A. 1992), as he has the right to do, but

the evidence taken in context and as a whole is convincing.

Though Airman Webber emphasizes the difficulty of analyzing

serological evidence, the serology is collateral: it does not

identify the offender, and it does not exclude Airman Webber

as a suspect (despite his suggestion that it might). There was

ample evidence to support the findings in this case, and we are

ourselves convinced beyond a reasonable doubt that Airman

Webber is guilty of all specifications and charges.

V. Sentence Appropriateness

Airman Webber also complains that the sentence is unduly

severe. We have examined the record, the convictions, and the

sentence, giving due consideration to the characteristics of

this offender and to the crimes of which he was convicted.

United States v. Healy, 26 M.J. 394 (CMA. 1988): United

States v. Wingart, 27 M.J. 128 (C.M.A. 1988): United States

v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982): United States v.

Ciulla, 29 M.J. 868 (A.F.C.M.R. 1989), aff'd, 32 M.J. 186

(C.M.A. 1991), cert. denied, US. __, 116 L. Ed. 2d 135.

112 S. Ct. 172 (1991). We note that the evidence suggests

enough careful deliberation to get into the room surrepti-

tiously and to make away with some of the incriminating

evidence, and it shows callous abuse. Counterbalancing Air-

man Webber's good military service is the extensive psycho-

logical trauma inflicted upon the victim. Ifit might be said that

he had a good career, it might also be said that the lingering

effects of his abuse deprived her of her good career. We are

Satisfied that the sentence is not inappropriate?

* When deciding what action to take on a case. a convening authority

has the recommendations of his staff Judge advocate. R.C.M. 1106,

1107(b)(3)(A)(ii). The staff judge advocate’s advice in this case included

some that was mistaken. Using a standard form designed for the purpose,

the staff judge advocate completed a block entitled **maximum imposable

sentence for offenses convicted upon” (Air Force Form 242 (January

1985), item 34) by entering “DD Conf x 40 years, TF, Red to E-1.” an

abbreviated statement of the sentence adjudged. The maximum which

might have been adjudged was (because of the violations of Article 120,

UCMJ, 10 U.S.C. § 920 (1988)) imprisonment for life. This is the third

time that we have noted that the legend for the block is ambiguous. See

United States v. Wilson, 33 MJ. 512. 513 n2 (A.F.C.M.R. 1991)

(“imposable” probably means after consideration of multiplicity); United

States v. Williams, —— M.J. ——. —— n15 (A.F.C.M.R. 1992). We

assume that “maximum imposable sentence” refers to the maximum

which might be adjudged at trial, not to the maximum which would be

approved by the convening authority on review. Were it not so. the entry

would always be ‘as adjudged,”’ for no more than was adjudged may ever

be approved. R.C.M. 1107(d). Then the block would be meaningless,

contributing nothing to the convening authority’s decisionmaking. This

error was waived by the omission of the defense to note it when replying

to the staff judge advocate’s recommendations, R.C.M. 1106(f)(6). We

note that it could not have had any effect adverse to appellant. However,

the recurrence of such an error suggests that practitioners need some help

with the form

10a

The findings of guilty and the sentence are correct in law

and fact and, on the basis of the entire record,’ are

AFFIRMED.

Senior Judge LEONARD and Judge RIVES concur.

[SEAL]

OFFICIAL

/s)/ Naomi D. Allen

NAOMI D. ALLEN

TSgt, USAF

Chief Court Administrator, AFCMR

“In these days of transcripts faintly printed with tired dot-matrix

ribbons we are happy to have had the benefit of a letter perfect transcript

perfectly printed with dark, dense print on high quality paper and well

assembled and bound in sensibly divided volumes. We appreciate the

reporter s careful work

lla

APPENDIX C

Relevant portions of the Uniform Code

of Military Justice (UCMJ)

UCM§J Art. 6, 10 U.S.C. § 806 Judge Advocates and legal

officers

(a) The assignment for duty of judge advocates of the

Army, Navy, Air Force, and Coast Guard shall be made upon

the recommendation of the Judge Advocate General of the

armed force of which they are members. The assignment for

duty of judge advocates of the Marine Corps shall be made by

direction of the Commandant of the Marine Corps. The Judge

Advocate General or senior members of his staff shall make

frequent inspection in the field in supervision of the adminis-

tration of military justice

(b) Convening authorities shall at all times communicate

directly with their staff judge advocates or legal officers in

matters relating to the administration of military justice, and

the staff judge advocate or legal officer of any command is

entitled to communicate directly with the staff judge advocate

or legal officer of a superior or subordinate command, or with

the Judge Advocate General :

UCMS Art. 16, 10 U.S.C. § 816 Courts-martia! classified

The three kinds of courts-martial in each of the armed

forces are-

(1) general courts-martial, consisting of —

(A) amilitary judge and not less than five members: or

(B) only a military judge, if before the court is as-

sembled the accused, knowing the identity of the military

judge and after consultation with defense counsel re-

quests orally on the record or in writing a court com-

l2a

posed only of a military judge and the military judge

approves,

(2) special courts-martial, consisting of—

(A) not less than three members, or

(B) amilitary judge and not less than three members; or

court, and the accused under the same conditions as those

prescribed in clause (1)(B) so requetss, and

(3) summary courts-martial, consisting of one commis-

sioned officer

UCMJ Art. 26, i0 USC. § 826 Military judge of a general or

special court-martial

(a) A military judge shall be detailed to each general

court-martial. Subject to regulations of the Secretary con-

cerned, a military judge may be detailed to any special court-

martial. The Secretary concerned shall prescribe regulations

providing for the manner in which military judges are detailed

for such courts-martial and for the persons who are authorized

to detail military judges for such courts-martial. The military

judge shall preside over each open session of the court-martial

to which he has been detailed

(b) A military judge shall be a commissioned officer of the

armed forces who is a member of the bar of a Federal court or

a member of the bar of the highest court of a State and who is

certified to be qualified for duty as a military judge by the

Judge Advocate General of the armed force of which such

military judge is a member

designated by the Judge Advocate General, or his designee, of .

the armed force of which the military judge is a member for

detail in accordance with regulations prescribed under subsec-

l3a

tion (a). Unless the court-martial was convened by the Presi-

dent or the Secretary concerned, neither the convening au-

thority nor any member of his staff shall prepare or review any

report concerning the effectiveness, fitness, or efficiency of

the military judge so detailed, which relates to his performance

of duty as a military judge. A commissioned officer who is

certified to be qualified for duty as a military judge of a

general court-martial may perform such duties only when he is

assigned and directly responsible to the Judge Advocate Gen-

eral, or his designee, of the armed force of which the military

judge is a member and may perform duties of a judicial or

nonjudicial nature other than those relating to his primary duty

as a military judge of a general court-martial when such duties

are assigned to him by or with the approval of that Judge

Advocate General or his designee

(d) No person is eligible to act as military judge in a case

if he is the accuser or a witness for the prosecution or has

acted as investigating officer or a counsel in the same case

(e) The military judge of a court-martial may not consult

with the members of the court except in the presence of the

accused, trial counsel, and defense counsel, nor may he vote

with the members of the court

UCMSJ Art. 37, 10 U.S.C. § 837 Unlawfully influencing action

of court

(a) No authority convening a general, special, or summary

court-martial, nor any other commanding officer, may cen-

sure, reprimand, or admonish the court of any member, mili-

tary Judge, or counsel thereof, with respect to the findings or

sentence adjudged by the court, or with respect to any other

exercises of its or his functions in the conduct of the proceed-

ings. No person subject to this chapter may attempt to coerce

or, by any unauthorized means, influence the action of a court-

martial or any other military tribunal or any member thereof,

l4a

in reaching the findings or sentence in any case, or the action

of any convening, approving, or reviewing authority with

respect to his judicial acts. The foregoing provisions solely for

the purpose of instructions given in open court by the military

judge, president of a special court-martial, or counsel.

(b) In the preparation of an effectiveness, fitness, or effi-

ciency report or any other report or document used in whole

or in part for the purpose of determining whether a member of

the armed forces is qualified to be advanced, in grade, or in

determining the assignment or transfer of a member of the

armed forces or in determining whether a member of the

armed forces should be retained on active duty, no person

subject to this chapter may, in preparing any such report (1)

consider or evaluate the performance of duty of any such

member of a court-martial, or (2) give a less favorable rating

or evaluation of any member of the armed forces because of

the zeal with which such member, as counsel, represented any

accused before a court-martial.

UCM J Art. 66, 10 U.S.C. 866

(a) Each Judge Advocate General shall establish a Court of

Military Review which shall be composed of one or more

panels, and each such panel shall be composed of not less than

three appellate military judges. For the purpose of reviewing

court-martial cases, the court may sit in panels or as a whole

in accordance with rules prescribed under subsection (f). Any

decision of a panel may be reconsidered by the court sitting as

a whole in accordance with such rules. Appellate military

judges who are assigned to a Court of Military Review may be

commissioned officers or civilians, each of whom must be a

member of a bar of a Federal court or the highest court of a

state. The Judge Advocate General shall designate as chief

judge one of the appellate military judges of the Court of

lSa

Military Review established by him. The chief judge shall

determine on which panels of the court the appellate judges

assigned to the court will serve and which military judge

assigned to the court will act as the senior judge on each panel.

act only with respect to the findings and sentence as approved

by the convening authority. It may affirm only such findings of

guilty and the sentence or such part or amount of the sentence.

as it finds correct in law and fact and determines, on the basis

of the entire record, should be approved. In considering the

record, it may weigh the evidence, judge the credibility of

witnesses, and determine controverted questions of fact, rec-

ognizing that the trial court saw and heard the witnesses.

(f) The Judge Advocates General shall prescribe uniform

rules of procedure for Courts of Military Review and shall

meet periodically to formulate policies and procedure in re-

gard to review of court-martial cases in the office of the Judge

Advocates General and by Courts of Military Review

(g) No member of a Court of Military Review shall be

required, or on his own initiative be permitted, to prepare,

approve, disapprove, review, or submit, with respect to any

other member of the same or another Court of Military Re-

view, an effectiveness, fitness, or efficiency report, or any

other report documents used in whole or in part for the

purpose of determining whether a member of the armed forces

is qualified to be advanced in grade, or in determining the

assignment or transfer of a member of the armed forces, or in

determining whether a member of the armed forces shall be

retained on active duty

YY US GOVERNMENT PRINTING OFFICE 1993—361-243/87008

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.