United States v. Clay, 1 U.S.C.M.A. 74 (1951), held that service members are specifically excluded from the protections enshrined in the Constitution. Instead, they were solely entitled to the statutory rights granted them by Congress. These rights, referred to as “military due process,” may mirror those found in the Constitution, but they need not be. That all changed with the CAAF’s decision in United States v. Jacoby, 11 U.S.C.M.A. 428 (1960), which makes it a landmark—if not THE landmark—military justice decision.
Court of Military Appeals
The Military Commander As The Military Magistrate — A Second Look
With things settling down at the new home and things apparently working out with the condo (fingers crossed!), it’s time to return to writing. My latest law review article is coming along nicely (I hope), so I thought I’d jump back into my blogging.
Military commanders are afforded tremendous power over members of the military under their command, as well as the physical installations (bases) where they command. As it relates to military justice—i.e. military criminal law—the commander is essentially the mayor, the district/state attorney, the person who selects the group (venire) from which the jury comes out of, and also serves as the military magistrate. And in these areas, it is safe to say these powers are exercised broadly—and with little to no questioning of that authority. This post discusses this latter power and reviews the seminal case in this area and suggests that perhaps the legal, political, social, and military history surrounding military justice reform may not make the question so clear cut.
In Order To Form a More Perfect Court
It’s been a few months since I’ve been able to post or otherwise update the site. I try to post monthly, typically regarding a project I’m working on (or something a project makes me think of) or something I’m reading. But the past few months have been quite busy at my day job and have also included some travel. So, I’ve been spending all the time I can spare trying to get my latest article ready for spring 2016 submission season. Now that it is done and submissions have started, I can share some thoughts on what I’ve spent the last year or so working on, here and there.
The Origins of the “Potted Plant?”
My latest project (when I can spare the time) involves reading CAAF decisions from the 1951-1952, 1968-1969, 1994-1995, and 2014-2015 term. I’m up to the 1994-1995 term now, and came across an interesting footnote. Most judge advocates are familiar with the concept of more senior trial counsel serving as a “potted plant,” but what is less known is that this phrase may have originated in the Iran-Contra scandal.
In 1992, the United States Air Force court-martialed an Airman for wrongfully using cocaine and failing to obey a lawful order. The intermediate appellate court affirmed without opinion. After a change in appellate counsel, the Airman appealed the intermediate court’s decision to CAAF, raising an issue there not raised in the court below. CAAF subsequently remanded the case to the intermediate court for consideration of the new issue.
The intermediate court was not amused:
When the [then] Court of Military Appeals permits appellants to raise issues for the first time before them without requiring a showing of good cause, and returns the case for us to repeat our review of the case, it impeaches confidence in the Court’s performance of its statutory duties and provides incentive to appellate counsel to engage in piecemeal litigation….[1]
This is an opinion definitely worth reading, particularly the end of the majority opinion and the two concurring opinions. Each sheds light on the relationship between the military highest court and its intermediate courts. But for purposes here, one passage in CAAF’s decision warrants attention:
As far as the implication that an issue not raised at the lower level cannot be raised before us, we are sure the court below would not sanction a “potted plant” role for appellate counsel with regard to new issues.[2]
Putting aside the concern with issues being raised at the highest court for the first time, the footnote accompanying this sentence drew my attention; as a “more senior and the certified trial counsel,” I am often “relegated” to potted plant (i.e. supervisory) duties:
The term “potted plant” is used in America’s image-based society to distinguish passive non-players (“is a potted plant”) from people of action (“is not a potted plant”). It is derived from Brendan V. Sullivan, Jr.’s, response to Senator Inouye, when the Senator was attempting to limit Mr. Sullivan’s role in protecting his client (Oliver North) from what Mr. Sullivan perceived as unfair questioning by the Senate staff during the 1987 Irangate Hearings: “Well, sir, I’m not a potted plant. I’m here as the lawyer. That’s my job.”[3]
And there you have it….
————————
[1] United States v. Johnson, 42 M.J. 443, 445 (C.A.A.F. 1995) (citation omitted).
[2] Id. at 446.
[3] Id. at 446 n.2.
Pattern Instructions in Military Courts: Possible Origins of the Military Judge’s Benchbook
Military judges and practitioners rely heavily on the Military Judge’s Benchbook, which contains the pattern instructions used in the military justice system. However, not a lot of attention is paid on the history of this publication and its role in the development of military criminal law. In nearly five years of using this publication, I too never really wondered where it came from, or why it was initially produced. But after reading the decisions the Court of Military Appeals (now the United States Court of Appeals for the Armed Forces) issued in its initial term for my current project on the Court’s experience as a court of last resort, I came across a series of decisions that may serve as the early foundation for the development of the Benchbook.
More Than Just an Advocate
My latest project has me reading decisions by the Court of Appeals for the Armed Forces from a select number of terms. A few decisions from the court’s first term, 1951-1952, have caught my attention so far. One in particular helps practitioners and observers understand just why the military justice system takes being a prosecutor (trial counsel) so seriously. Would it surprise you to know that, prior to the Uniform Code of Military Justice (UCMJ) in 1950, it was military custom that the trial judge advocate (prosecutor) also defended the Accused?
Echoes of Adolphus 