Petition for Writ of Certiorari — Fortner v. United States

Supreme Court brief1994

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IN THE = =e.

Supreme Court of the United States

OCTOBER TERM, 1993

JOSEPH R. FORTNER, 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

JAY L. COHEN

Lieutenant Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

ROBERT A. PARKS

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

(202) 767-1562

QUESTIONS PRESENTED

1. Whether the military judge erred to the substantial

prejudice of the petitioner by permitting, over defense objec-

tion, trial counsel to introduce evidence regarding a post-

polygraph interview of petitioner, the clear import of the

evidence being that petitioner had undergone and “failed” an

OSI polygraph.

2. Whether the method of appointing military officers to

duty as trial and appellate judges violates the appointments

clause of the Constitution and the lack of any fixed term for

those judicial offices violates the due process clause of the

Fifth Amendment.

TABLE OF CONTENTS

CONSTITUTIONAL PROVISIONS INVOLVED ...........

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REASONS FOR GRANTING THE WRIT .....................

I. THE MILITARY JUDGE ERRED TO THE SUB-

STANTIAL PREJUDICE OF PETITIONER BY

PERMITTING, OVER DEFENSE OBJECTION,

TRIAL COUNSEL TO INTRODUCE EVIDENCE

REGARDING A POST-POLYGRAPH INTER-

VIEW OF PETITIONER, THE CLEAR IMPORT

OF THE EVIDENCE BEING THAT PETI-

TIONER HAD UNDERGONE AND “FAILED”

FUN GUE PCIE II i sniercccciesssatnenenprsmretknncnare

Il. THE METHOD OF APPOINTING MILITARY

MILITARY OFFICERS TO DUTY AS TRIAL

AND APPELLATE JUDGES VIOLATES THE

APPOINTMENTS CLAUSE OF THE CONSTI-

TUTION AND THE LACK OF ANY FIXED

TERM FOR THOSE JUDICIAL OFFICES VIO-

LATES THE DUE PROCESS CLAUSE OF THE

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TABLE OF AUTHORITIES

Cases:

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

Freytag v. Commissioner, 111 S. Ct. 2631 (1991) ...

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

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

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

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

United States v. Agurs, 427 U.S. 97 (1976).......... =

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

United States v. Valenzuela-Bernal, 458 U.S. 869

SINICA cast sn tade crus scentetinetsiasieadverantevieioinnceeaninge

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

Federal Cases:

United States v. Miller, 874 F.2d 1255 (9th Cir.

Military Cases:

Dettinger v. United States, 7, MJ 216 (CMA 1979)...

United States v. Abeyta, 25 MJ 97 (CMA 1987) .....

United States v. Brown, 28 MJ 470 (CMA 1989) ....

United States v. Cole, 31 MJ 270 (CMA 1990).......

United States v. Fortner, 37 MJ 349 (CMA 1993)...

United States v. Gipson, 24 MJ 246 (CMA 1987) ...

United States v. Graf, 35 MJ 450 (CMA 1992).......

United States v. McKinnie, 29 MJ 825 (ACMR

rt eins Secon cnccantenabinesstiacninanekinss

United States v. Travers, 25 MJ 61 (CMA 1987) ....

United States v. Weiss, 36 MJ 224 (CMA 1992),

cert. granted, 113 S.Ct. 2412 (May 24, 1993) .....

United States v. West, 27 MJ 223 (CMA 1988) .......

7, 12

TABLE OF AUTHORITIES—Continued

Constitutional Provisions: Page

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Federal Statutory Provisions:

Uniform Code of Military Justice:

FA A ls, PE case biecencscesvchcasdshodcsons 6

PA, ig Ue a, OF isicsibivknvashcntcasciaeinailasanas 6

Regulations:

Manual for Courts-Martial, United States, 1984,

NE NE corer hc en ee ee ae ee 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No.

JOSEPH R. FORTNER, 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

The petitioner, Joseph R. Fortner, respectfully prays that a

writ of certiorari issue to review the judgment of the United

States Court of Military Appeals entered in his case on August

18, 1993.

OPINIONS BELOW

The opinion of the United States Court of Military Appeals

is reported at 37 MJ 349 (CMA 1993) (Appendix A). The

opinion of the United States Air Force Court of Military

Review, issued on March 11, 1992 is reported at 34 MJ 836

(AFCMR 1992) (Appendix B).

(1)

JURISDICTION

The final opinion of the United States Court of Military

Appeals was entered on August 18, 1993. The jurisdiction of

this Court is invoked under 28 USCA § 1259(3) (Supp. 1992)

and 10 USCA § 867(a) (Supp. 1992).

CONSTITUTIONAL PROVISIONS INVOLVED

The 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 the law

STATEMENT OF THE CASE

At the time of the offenses of which petitioner was con-

victed, petitioner was staying at his brother’s house in Denver,

Colorado. (R. 130). Petitioner, along with other relatives of

petitioner's brother’s wife had gathered at the house in an

effort to provide moral support to petitioner’s brother’s wife,

who was in Fitzsimmons Army Medical Center suffering from

leukemia. (R. 40). Present in the house were petitioner;

petitioner's brother, Sergeant First Class John Fortner, SFC

Fortner’s 15 year old daughter—Lisa; petitioner’s cousin,

Billy Makin, petitioner’s mother, and two brothers of

petitioner’s sister-in-law. (R. 42).

Lisa, the minor with whom the offenses were alleged to

have been committed, is a teenager who has a history of

trouble with her parents. (R. 58). This trouble included run-

ning away from home (R. 58); use of various illegal drugs, to

include marijuana, cocaine and LSD (R. 76-77); lying (R. 77);

stealing and forging her parents’ checks (R. 60); and, in

collaboration with a boyfriend, theft of her parents’ car. (R.

60). In her testimony at trial, Lisa was unable to provide any

details regarding the acts, except that petitioner and she had

engaged in sexual intercourse. (R. 49). She was unable to

testify regarding whether petitioner had undressed her or if

petitioner had in any way touched her except during inter-

course. (R. 47-48). Lisa’s testimony regarding the details of

who was in the house at the time of the incidents and how she

had gone downstairs on the evening of the second offense,

were contradicted by petitioner and other witnesses. (R. 72

and 170). Lisa did not allege the conduct by petitioner until a

month after the date the offenses were to have occurred. (R

59). No medical evidence regarding the offense was available

At the time Lisa made her report she was in trouble with her

parents for running away again and for stealing her parents’ car

and checkbook as well as for forging a check. (R. 61). Follow-

ing her report of the petitioner’s acts, Lisa’s relationship with

her father improved. (R. 61).

On 21-22 February 1990, the petitioner was tried by general

court-martial at Mather AFB, California. At trial, the prosecu-

tion introduced the testimony of a psychiatrist, who testified

that Lisa was suffering from post traumatic stress disorder. (R.

84-85). The doctor also opined that Lisa had been molested as

a small child. (R. 89). In contrast to Lisa’s allegations, peti-

tioner has steadfastly maintained his innocence before, during

and after his conviction. The only real contention to the

contrary, offered by the prosecution, is a statement made by

petitioner to his 20 year old cousin, Billy Makin, prior to the

dates the offenses were to have occurred. The statement was

made by petitioner, after being informed by Makin that Makin

had engaged in sexual intercourse with Lisa. Petitioner said, in

an effort to lighten the situation and relieve some of his

cousin’s obvious guilt, “what if I told you that I did too.” (R

99). Petitioner then added, after observing Makin’s response

to the comment, “I’m just kidding, just joking.” (R. 99). Peti-

tioner explained both the intent and context of the statement

during his direct testimony. (R. 136).

During cross-examination of petitioner, trial counsel asked

petitioner about a post-polygraph interview. (R. 164). While

defense counsel objected to any mention of such a session, the

military judge, giving defense counsel the opportunity to re-

new the objection later, ultimately overruled the objection. (R.

164). Trial counsel then elicited from petitioner that the OSI

agent in the post-polygraph interview told petitioner that

‘““maybe it was time to tell your [petitioner’s] attorneys the

truth.”” (R. 165). Petitioner then corrected the statement by

saying that the agent’s exact words were “I think you should

go back and tell your attorney the truth.” (R. 165). Defense

counsel again objected to the entire line of questioning, even

if the specific words of petitioner were not “necessarily in-

criminating.”” (R. 165). The military judge opined that the

evidence was admissible and overruled the objection. (R.

165)

Contrary to his pleas, petitioner was found guilty of two

specifications of carnal knowledge with his niece, a female

under 16 years of age, in violation of Article 120, Uniform

Code of Military Justice [hereinafter cited as UCMJ]. He was

sentenced to a bad conduct discharge, confinement for 12

months, forfeiture of $400.00 per month for 12 months and

reduction to the lowest enlisted grade (E-1). The convening

authority approved the sentence as adjudged on 26 March

1990.

On 11 March 1992 the Air Force Court of Military Review

affirmed the finding of guilty as to specification | but found

the evidence factually insufficient to support a finding of guilty

as to the remaining carnal knowledge specification. (Appendix

B). As a result, the Court set aside the finding of guilty and

dismissed specification 2 of the Charge. The Court then reas-

sessed the sentence approving only so much of the sentence as

provides for a bad conduct discharge, confinement for one

year, and reduction to E-1. Petitioner then submitted a Peti-

eee

tion for Grant of Review with the United States Court of

Military Appeals asserting one issue of error. On October 2,

1992, that Court granted petitioner’s Petition and ordered the

submission of additional briefs. After hearing oral argument,

the Court of Military Appeals affirmed the lower court’s deci-

sion. (Appendix A).

With respect to the second question, this petition incorpo-

rates essentially the same brief which was submitted by United

States Navy counsel in Weiss v. United States, No. 92-1482,

and by United States Army counsel in Barkley v. United

States, No. 92-1646, and Doucette v. United States, No. 93-

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

tions (merged here into Question 2) 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

III, 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 of their respec-

tive service for such periods of time as the Judge Advocate

General determines. The decision to select, transfer and reas-

sign officers to and from their judicial duties is 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.

Military trial judges are, for all practical purposes, the

equivalent of United States District Judges and Magistrate

Judges who preside over criminal trial in federal district courts.

The drafters of the Uniform Code of Military Justice wanted

military judges to be “real judges’ as commonly understood in

the American legal tradition. United States v. Graf, 35 MJ

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 ques-

tions of law and procedure which may arise,” to “promulgate

and enforce rules of court,” and to “exercise contempt power.”

UCM] Art. 48, 10 USC § 848 (1988). If the accused elects a

bench trial, a general court-martial judge has even more dis-

cretion than does a district judge because the court-martial

trial judge is not bound by the Federal sentencing guidelines.

See United States v. Brown, 28 MJ 470, 474 n.3 (CMA 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 MJ 216 (CMA 1979).

Additionally, these courts exercise an ‘““awesome, plenary, de

novo power of review.” United States v. Cole, 31 MJ 270, 272

(CMA 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.”

UCM3J Art. 66(c), 10 USC § 866(c) (1988).

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. United States v. Graf,

35 MJ 450 (CMA 1992).' Then, on December 24, 1992, a

sharply divided court rejected petitioner Weiss’ Appoint-

' A petition for writ of certiorari in Graf was filed on December 29,

| 1992 (No. 92-1102), and it is incorporated by reference. In the interest

of completeness, this petition will summarize the Graf decision, as

well as the reasons for granting review of the due process issue.

a |

ments Clause argument and affirmed the Navy-Marine Corps

Court’s decision. United States v. Weiss, 36 MJ 224 (CMA

1992), cert. granted, 103 S. Ct. 2412 (May 24, 1993).

The court did not revisit Graf where it had overruled Graf'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 US 319

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

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

Fourteenth Amendment 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 US 11

(1955), and Palmore v. United States, 411 US 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

1. THE MILITARY JUDGE ERRED TO THE SUB-

STANTIAL PREJUDICE OF PETITIONER BY

PERMITTING, OVER DEFENSE OBJECTION,

TRIAL COUNSEL TO INTRODUCE EVI-

DENCE REGARDING A POST-POLYGRAPH

INTERVIEW OF PETITIONER, THE CLEAR

IMPORT OF THE EVIDENCE BEING THAT

PETITIONER HAD UNDERGONE AND

“FAILED” AN OSI POLYGRAPH

At trial, the critical issue was whether the carnal knowledge

ever occurred. Lisa said that it did, (R. 49), and petitioner

denied that the conduct ever occurred. (R. 135 and 139).

Since there were no witnesses to the alleged conduct, every-

thing came cown to the credibility conflict between the

prosecutrix and petitioner. During cross examination of peti-

tioner, trial counsel obliquely introduced information regard-

ing an OSI polygraph taken by petitioner.? No foundation was

laid for this test, nor was any further information regarding the

polygrapher or the instrument itself ever introduced.

In United States v. Gipson 24 MJ 246 (CMA 1987), this

Court addressed the uses of polygraphs in courts-martial and

ruled that polygraph results were not per se inadmissible. In

United States v. West, 27 MJ 223 (CMA 1988), the Court

explained that its earlier decision did not mean that polygraph

results were per se admissible. Instead, “polygraph results

must be evaluated under the entire spectrum of evidentiary

rules.” /d., at 225. Under the facts of the instant case there

was no evaluation of the reliability of the test nor its results.

Thus, no foundation was ever set forth regarding the poly-

graph conducted upon petitioner. Perhaps, this is because

rather than trying to introduce the polygraph and the

polygrapher’s interpretation of the test results, trial counsel

referred to the ultimate conclusion reached by the polygrapher

and needed nothing else.

In United States v. McKinnie, 29 MJ 825 (ACMR 1989),

the Army Court of Review opined that the admissibility of

polygraph results turns upon whether the evidence is relevant

and whether it is helpful to the factfinder and whether its

probative value is substantially outweighed by its prejudicial

effect. The problem in the case sub judice is that no informa-

> The petitioner was arraigned on 21 February 1990, prior to the

effective date of the promulgation of Mil. R. Evid. 707 (6 July 1991)

which provides that results of polygraph examinations are inadmissible

in courts-martial in any way. It is arguable, however, that this case

provides one of the specific scenarios the drafters sought to rectify by

enforcing a total ban on the use of polygraph results.

tion of any type was ever introduced regarding the polygraph

itself. Instead, the evidence was the single statement by the

polygrapher during the postpolygraph interview. Thus, no

findings were made by the military judge regarding any of the

criteria supporting admissibility of the polygraph results. See,

Gipson, 255 (Evertt, C.J. concurring) (“Obviously the train-

ing, experience, and skill of the polygrapher must be taken into

account by the judge.”’). In other words, we are left with the

naked, untested, and untestable, clearly evident, assertion that

petitioner lied to his attorney at the time of the polygraph and

was lying on the stand when he denied that the acts in question

ever occurred. This conclusion clearly violates the limitation

that ‘‘[a]t best, the expert [or someone conveying information

arrived at by the expert] can opine whether the examinee was

being truthful or deceptive in making a particular assertion a/

the time of the polygraph exam.” Gipson, at 253 (emphasis in

original).

As the above recited facts clearly indicate, trial counsel was

permitted to introduce, over defense objection, evidence re-

garding a post-trial polygraph interview, which reveals that an

OSI polygraph was conducted on the petitioner. The real

prejudice from this revelation lies in the combination of the

existence of the polygraph and the statement of the OSI agent

that petitioner should tell his attorneys the truth. The only

conclusion to be drawn from this combination is that petitioner

had failed an OSI polygraph. This revelation and the prejudice

flowing from it is not mitigated by trial defense counsel’s

assertion that the statement by petitioner was not necessarily

incriminating. The incriminating evidence, and the source of

the prejudicial error, is the combination of the existence of the

polygraph and the OSI agent’s comment for which there is no

other reasonable interpretation than the petitioner’s test re-

sulted in a finding of deception indicated.

The concept of subtly introducing the unfavorable results of

a polygraph is hardly new. In United States v. Miller, 874 F.2d

clea aie

1255 (9th Cir. 1989), the Court rooted out the fact that the

prosecutor asked a polygrapher about the questions and an-

swers to indirectly show the result of the exam. Furthermore,

the Court divined that “[t]he operative fact the government

sought to establish through the polygraph evidence was that

Miller’s admissions were reliable because he decided to make

them only after being told that he had failed the poly-

graph.” Miller, 874 F.2d at 1262. This is strikingly similar to

the case at bar where the government counsel sought to

impermissibly tip the balance of the credibility scales by intro-

ducing the polygrapher 's statements through the cross-exami-

nation of the petitioner.

The prejudice resulting from the receipt of this evidence by

the military judge, who stated “I think it’s admissible,’’ is

obvious given the nature of the credibility contest in this trial.

(R. 165). There was no corroboration of Lisa’s claims: no

physical evidence; a month between the date the incident was

to have occurred and the date that she reported it; and a

motive to lie, found in the attempt to improve her standing

with her father and diverting attention from herself after steal-

ing the car and checks and forging a check. It cannot be said

that the erroneous admission of the polygraph results, via the

questions of trial counsel, were harmless. Furthermore, under

the standards announced in Gibson, supra, West, supra, and

United States v. Abeyta, 25 MJ 97 (CMA 1987), the military

judge’s admission of the polygraph results, even by the back

door as was effected here, is clearly erroneous and constituted

an abuse of discretion. See, United States v. Travers, 25 MJ 61

(CMA 1987) (The challenged action must be found to be,

inter alia, clearly unreasonable, clearly erroneous or without

evidentiary support. /d., at 63).

Despite the state of the evidence, the Court of Appeals felt

that the evidence was too attenuated to show prejudice in a

judge alone trial.

Suffice it to say, we are supremely confident that the

military judge engaged in no such farfetched specu-

lation and that he paid no heed whatever to any

supposed implication in the polygrapher’s hearsay

statement to appellant. We are equally confident that

no plain error or prejudice occurred here.

United States v. Fortner, 37 MJ 349, 351 (CMA 1993). Of

course, as this Honorable Court has opined,

[t]he proper standard of materiality must reflect our

overriding concern with the justice of the finding of

guilt.... This means that the omission must be

evaluated in the context of the entire record. If there

is no reasonable doubt about guilt whether or not

the additional evidence is considered, there is no

justification for a new trial. On the other hand, if the

verdict is already of questionable validity, additional

evidence of relatively minor importance might be

sufficient to create a reasonable doubt.

United States v. Valenzuela-Bernal, 458 US 869, 868 (1982)

(quoting United States v. Agurs, 427 US 97, 112-3 (1976)).

As already noted, one of the specifications petitioner was

convicted of was dismissed for being factually insufficient.

There was an intense credibility battle going on, with plenty of

ammunition on the petitioner’s side. To dismiss the petitioner’s

claim simply because the prejudice occurred in a judge-alone

trial is not consistent with this Honorable Court’s injunction to

reexamine the entire record and to do so with the mindset that

the validity of one conviction of carnal knowledge had already

been dismissed because it was not fully supported by the

facts—the same facts which underlay the conviction now

being examined. Even evidence of “relatively minor impor-

tance” must be given complete and proper weight. The deci-

sion of the Court below does not indicate such review was

undertaken. As such, it is critical to due process to reexamine

this case and grant review of the decision below.

II. 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 mirror that of Article III courts. Rather, it seeks to

ensure that the separation of powers requirements embodied

in the Appointments Clause, and the notions of fundamental

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 just

system requires.

A. THE APPOINTMENTS CLAUSE VIOLATION

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. US Const. Art. II, § 2, Cl. 2, Freytag v. Commissioner,

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

judges, who exercise extraordinary authority and discretion,

are Officers of the United States and are subject to the Ap-

pointments Clause. See Buckley v. Valeo, 424 US 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, and so they

must be appointed either by the President, the Head of a

Department, 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

question 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.

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 Appointments

Clause objections.

B. THe Due Process VIOLATION

The reasons the Court should grant review on this question

are set out in the previously-filed Graf petition and are only

summarized below. But first, it is worth noting that, although

the two issues presented in this question arise under different

constitutional provisions, the defects involve common con-

cerns of accountability and fundamental fairness to an ac-

cused. Noncompliance with each of the provisions is magni-

fied 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— United States v. Raddatz, 447 US 667,

677 (1980)—which had applied Matthews v. Eldridge to a due

process challenge to a federal criminal conviction. Petitioner

believes that respect for state legislative judgments and con-

cerns 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.

Certainly, 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 actuaily, 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.

The Court below has failed to justify this massive exception

to the generally accepted principle of American jurisprudence

that judicial independence for those who preside at criminal

trials and hear criminal appeals is an absolute minimum protec-

tion for an accused, as reflected in such due process cases as

Tumey v. Ohio, 274 US 510 (1927), and in the nearly universal

fact that state judges serve for fixed terms of office.

CONCLUSION

The petitioner’s case is a worthy one for a grant of certio-

rari. Review of this case is crucial because it strikes at the

heart of our adversarial system of justice: do we hold the

prosecutorial arm of our system to their high burden of funda-

mental fairness, or do we reward the trial counsel’s tactics of

“shoe-horning” the results of the polygraph into evidence

before the members. The failure of the military judge to

disallow such a tactic is error which amounts to a clear abuse

of discretion. This error was not harmless as the Court of

Military Appeals reasoned, because of the tenuous nature of

the evidence of this case. It is especially critical where it tipped

the scales of credibility enough to account for the petitioner’s

sole remaining conviction. Surely, this Honorable Court does

not wish to condone this type of activity. This case provides an

excellent opportunity to redefine the parameters of govern-

mental conduct within the military justice system, and to

reaffirm the basic tenets of fundamental fairness which are

crucial to amy respected judicial system

Respectfully submitted,

Jay L. COHEN

Lieutenant Colonel, United States Air Force

Chief, Appellate Defense Division

(Counsel of Record