The Joint Service Committee Has Proposed Making Changes to Your Military Appeal Counsel’s Ability to Review Your Case Fully – and to Defend You Properly.

Who Is the Joint Service Committee and Why Do They Matter?

The Joint Service Committee (JSC) “is an inter-agency, joint body of judge advocates and advisors, dedicated to ensuring the Manual for Courts-Martial (MCM) and Uniform Code of Military Justice (UCMJ) constitute a comprehensive body of criminal law and procedure.”[1]

What does this mean?

Put simply, the JSC is an organization that makes recommendations for changes to the UCMJ through the Department of Defense, and ultimately to the President and Congress.[2]  In doing so, the JSC “ensur[es] that the Uniform Code of Military Justice and Manual for Courts-Martial constitute a comprehensive body of military criminal law and procedure.”[3] 

The Current Language of Rule for Courts-Martial (RCM) 1103A.

In November 2016, the JSC proposed changes to the current language of RCM 1103A.[4]  This Rule, as currently written provides your appellate defense counsel the ability to review sealed portions of your trial record.

Under the Rule, it has been generally understood that, if exhibits or portions of the trial were sealed, for whatever reason, your appellate defense counsel would able to review those sealed exhibits in order to determine whether a mistake was made at the trial level.  The only general requirement was to make a motion to the court requesting access to the files.  Such motions were routinely granted.

While I was serving as an appellate defense counsel in the Air Force, however, the government began working to limit the defense counsel’s ability to review sealed exhibits by opposing motions for the defense counsel’s review of the sealed record.  These oppositions were based, in my view, on a twisted reading of the Rule,[5] which gave both government and defense counsel equal access to the sealed portions of the record.  Despite the oppositions by the government, the military appeals courts continued to grant defense motions to review the sealed records.  This was true even after the Air Force Appellate Government asked the Court of Appeals for the Armed Forces (CAAF) to prohibit such review – which CAAF refused to do.[6]

The JSC’s Proposed Changes

However, in 2016, the JSC apparently took note of (and liked) the government’s position.  Accordingly, it has now suggested that appellate counsel should not be able to review the sealed portions absent certain exceptions.

In relevant part, Rule for Court-Martial 1103A currently states that

[r]eviewing and appellate authorities may examine sealed matters when those authorities determine that such action is reasonably necessary to a proper fulfillment of their responsibilities under the Uniform Code of Military Justice, the Manual for Courts – Martial, governing directives, instructions, regulations, applicable rules for practice and procedure, or rules of professional responsibility.[7]

In other words, your appellate defense counsel may review the sealed records anytime he or she needs to do so to fulfill his or her responsibilities as a defense counsel.  The JSC’s proposed changes limit this access.  First, the recommended change differentiates between “reviewing and appellate authorities,” and “appellate counsel.”[8]  Next, the recommended change sets forth certain procedures for requesting review based on whether or not the information was disclosed to defense counsel at trial prior to being sealed.[9]  Importantly, if the information was not disclosed to the defense at trial, then the JSC’s proposed change states that

Materials . . . not released to trial government or defense counsel and subsequently sealed, may be examined by reviewing or appellate authorities. After examination of said materials, the reviewing or appellate authority may permit examination by appellate counsel for good cause.

So, What’s the Big Deal?

A reading of the proposed change could easily make one think there is no issue because all the defense must due is show “good cause.”  Clearly needing to review the sealed records to properly defend a client would qualify as good cause, right?

Wrong.

First, if the needed good cause was merely to meet the defense counsel’s responsibility, there would have been no need for the proposed change to the rule since that qualification is in the current version of the Rule.  Accordingly, “good cause” must mean something more.  And, in my experience, good cause likely means being able to assert that something exists in the records that are beneficial to the client.[10]

But therein lies the Catch 22.  How can your court-martial appeals counsel show the trial judge erred by not disclosing the records at trial if the appellate counsel cannot see the records?  Nevertheless, this is the JSC’s proposed rule.  So, if this proposed change passes, it will be critical for an experienced appellate defense counsel to scour the record and speak to the trial defense counsel to determine if there is even an inkling of what is in the sealed portion of the record and make the best argument for why it should be unsealed.

If you have been convicted at a court-martial and are looking for an experienced counsel, please give me a call.  All initial consultations are free of charge and I’d welcome the opportunity to hear about your case and discuss how I can help.

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[1] See http://jsc.defense.gov/

[2] See “The Joint Services Committee” by Chris Kennebeck, Executive Secretary of the JSC.

[3] See http://jsc.defense.gov/

[4] See Federal Register, Notice, dated November 29, 2016.

[5] Rule for Court Martial 1103A.

[6] See No. 16-0251/AF – United States, Petitioner v. United States Air Force Court of Criminal Appeals, Respondent; No. 16-0270/AF – United States, Petitioner v. United States Air Force Court of Criminal Appeals, Respondent (orders denying motions by government for extraordinary relief).

[7] RCM 1103A(b)(4).

[8] See Federal Register, Notice, dated November 29, 2016.

[9] See Federal Register, Notice, dated November 29, 2016.

[10] See e.g., Military Rule of Evidence 513 (discussing the need to present “a specific factual basis demonstrating a reasonable likelihood that the records or communications would yield evidence admissible under an exception to the privilege.”).


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