Scholarship Saturday: CAAF as sentinel species

By Isaac Kennen

Scholarship Editor
www.caaflog.org

It is commonly understood that appellate courts exist to serve two functions – “(1) correction of error (or declaration that no correction is required) in the particular litigation; and (2) declaration of legal principle, by creation, clarification, extension, or overruling.” See J. Dickinson Phillips, Jr., The Appellate Review Funtion: Scope of Review, 47 Law & Contemp. Prob. 1 (Spring 1984). CAAF was created to be the military jurisdiction’s court of last resort—it’s the military’s Supreme Court. See Noyd v. Bond, 395 U.S. 683, 694 (1969) (oyez) (related CAAFlog post).

In a recent article published by the Vermont Law School, In Order to Form a More Perfect Court: A Quantitative Measure of the Military’s Highest Court’s Success as a Court of Last Resort, 41 Vt. L. Rev. 71, Captain (USAF) Rodrigo M. Caruço posits that, in a healthy system, the work of a court of last resort, such as CAAF, should be almost exclusively declaration of legal principle rather than error correction. Captain Caruço reached that conclusion after having studied SCOTUS decisions and decisions from State courts of last resort. Those high courts rarely engage in error correction. In contrast, CAAF appears to spend just under half of its time correcting errors in individual cases rather declaring law for the military jurisdiction. Id. at 108. Captain Caruço identifies two causes for this: 1) incompetence by advocates and courts below, and 2) (perhaps because of that incompetence) CAAF does not yet feel comfortable behaving as a court of last resort should.

To remedy this situation, Captain Caruço recommends that CAAF’s rules be amended to adopt a standard for granting review that mirrors SCOTUS’ Rule 10. Such a rule would expressly state, as SCOTUS Rule 10 does, that review “is rarely granted when the asserted error consists of erroneous factual findings or misapplication of a properly stated rule of law.” Id. The rule would then provide that, except in dire circumstances, review would only be granted to serve law-declaration grounds, such as to resolve inconsistencies in how the law is being applied among the services. Captain Caruço also recommends that CAAF start “signposting” its decisions – identifying in the decision itself which law-declaration purpose compelled CAAF to grant review in the first place. By signposting, perhaps CAAF could serve as a bellwether for the entire jurisdiction – providing gentle instruction to the appellate bar which would in turn improve that bar’s advocacy. A more effective appellate bar would then presumably influence the service Courts of Criminal Appeals to weed out more errors at their level, reducing the number of cases presented to CAAF still requiring error correction.

Captain Caruço’s article does not address it, but readers will be aware that the competency of the participants in the military justice system, at all levels, has also been a concern for Congress. Indeed, through § 542 of the National Defense Authorization Act of Fiscal Year 2017 (Public Law 114-328) (the passage of which was this blog’s #1 Military Justice Story of 2016), Congress has required the service secretaries to establish “military justice experience designators or skill identifiers” so that “counsel detailed to prosecute or defend a court-martial have sufficient experience and knowledge.” That statute is also intended to ensure that judge advocates entering the military justice system get trained by folks with appropriate experience and skill to perform those duties. Additionally, the FY17 NDAA requires “appropriate minimum terms” for the assignment of military trial judges (§ 5184) and appellate judges (§ 5330). Those statutory measures were intended to improve the quality of military justice practice on the bench and from the bar, at trial and on appeal. It is hard to escape the impression that Congress also intended by those measures to make military justice a specialty practice.

If Captain Caruço’s premise is correct, then CAAF is a sentinel species for measuring the effectiveness of Congressional reforms (or the military institution’s implementation of those reforms). If the proportion of error correction decisions issued by CAAF increases, then CAAF-as-groundhog might be telling us that winter is still coming. In contrast, if the Court’s proportion of error correction decisions decreases, then CAAF-as-groundhog might be telling us that spring is nearly here.

- Originally published on February 11, 2017 on www.caaflog.com. Original publication preserved by archive.org, here. Image available, without attribution, in the CAAFlog archive, here.