U.S. v. Jenkins, 60 M.J. 27

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. Article 66 provides the statutory underpinning for the service Courts of Criminal Appeal; the legislative history makes it clear that Congress intended the CCAs to serve as appellate bodies independent of the Judge Advocate Generals and Government appellate attorneys; the CCAs are intended to not only uphold the law, but provide a source of structural integrity to ensure the protection of service members’ rights within a system of military discipline and justice where commanders themselves retain awesome and plenary responsibility; for this reason, Congress endowed the CCAs with authority to find facts as well as address questions of law; as this Court has often noted, such authority is awesome, including as it does broad factfinding power and plenary de novo power to review questions of law
2. the CCA opinion in appellant’s case is 15 pages in length; it consists of 45 paragraphs, not including record excerpts; thirty-one of these paragraphs are taken virtually or wholly verbatim from 29 of the 33 paragraphs in the Government’s nineteen-page Answer before the CCA; this is done without attribution; these paragraphs include the statement of facts, legal analysis, and conclusions of law; after reviewing the CCA’s opinion, we are left in doubt that Appellant received the independent Article 66(c) review to which he was entitled
3. in the Article 66(c) context, replication of a party’s brief by the CCA in its opinion disguises the nature and substance of the court’s independent factual and legal review; as a result, neither we nor the parties can be sure where and perhaps whether the Government’s argument ends and the lower court’s independent analysis begins; this conclusion is not based on a mathematical calculation of replication; nor need we look within the lower court’s deliberations to make such a determination; it is based on the manifest demonstration on the face of the CCA’s opinion that substantial portions are derived wholly or virtually verbatim from a party’s brief; we note that “substantial” conveys both qualitative and quantitative meaning; thus, an Article 66(c) error based on the copying of a party’s brief may be rooted in the replication of certain important or contested facts, crucial legal analysis, legal conclusions, or some combination thereof, as well as the volume of material copied; such judgments are case contextual; however, assuredly an original opinion manifesting independent analysis negates need for review for an Article 66(c) error based on the copying of a party’s brief
4. the CCA’s opinion in this case replicates large portions of the statement of facts, analysis, and conclusions of law from the Government’s Answer; on such a record we cannot disaggregate the Government’s argument from the CCA’s review; therefore, we cannot determine that appellant received the awesome, plenary, and de novo review to which he was entitled by law; in short, the fact that appellant received some of what he was entitled to does not mean that he received all to which he was entitled; the lower court’s opinion indicates that he did not

Trial Stages: Appeals: Harmless / Prejudicial Error

1. Article 66(c) review is a substantial right; it follows that in the absence of such a complete review, appellant has suffered material prejudice to a substantial right