"If a Tree Falls in the Forest . . .": Publication and Digesting Policies and the Potential Contribution of Military Courts to American Law

Eugene R. Fidell*

With the demise of the Court-Martial Reports, the advent of the Military Justice Reporter as an element of the National Reporter System, and the publication of a Shepard's Citations for military cases, important steps were taken toward the integration of military jurisprudence with the larger body of American criminal law. In this article, Mr. Fidell suggests that these steps may not be as effective as one would have hoped because of deficiencies in the digesting arrangements, and urges a reexaminaton of those arrangements as well as the policy with respect to publication of military appellate cases. Improvements in these areas could help foster increased interaction between the military and civilian legal systems.

I. INTRODUCTION.

Sweeping reviews of the military justice system resemble, in some ways, bamboo or locusts: they come in cycles. Every so often, one law review or another awakens to the fact that there is such a system, and accepts a major article or publishes a symposium issue1 or, more likely, an

* LeBoeuf, Lamb, Leiby & MacRae, Washington, D.C. B.A., Queens College 1965; LL.B., Harvard University 1968. The author is indebted to Irene C. Carstens for her assistance in the preparation of this article, and to Alan J. Chaset for his thoughtful comments on a draft.

1. E.g., United States Court of Military Appeals: A Review of the 1975-76 Term, 52 IND. L. J. 151 (1976); Symposium, Military Law, 10 AM. CRIM. L. REV. 1 (1971); Justice in the Military, 22 ME. L. REV. 1 (1970); The Uniform Code of Military Justice-Its Promise and Performance (The First Decade: 1951-61), A Symposium, 35 ST. JOHN'S L. REV. 197 (1961); A Symposium on Military Justice, 6 VAND. L. REV. 161 (1953). For obvious reasons, such symposia have also appeared in the reviews published by the armed forces. E.g., Symposium on Military Justice, 12 MIL. L. REV. 1 (1961).

occasional student note.2 The American Bar Association Journal regularly carries short articles on the Uniform Code of Military Justice.3 Nonetheless, it has been said with some justice that "what little scholarly writing there is about military law appears in service-sponsored publications and criticism of the [United States Court of Military Appeals'] opinions lacks the open and robust nature that characterizes other specialty bars such as the tax bar or the personal injury bar."4 Such scholarly comment as there is tends to fall into two main categories: the sweeping panorama, pointing out major trends such as the prolonged “civilianization" debate, or, for variety, microscopic analyses of individual cases for the purpose of pointing up flaws thought to infect the system."

5

Each approach has some merit; together they help ensure that we overlook neither forest nor trees. Sometimes, however, we may also be able to discern things of importance simply by shifting our focus to yet a third zone-those less obvious features of the system which seem to be so much a part of the landscape that at first the eye misses them. The practice of the Court of Military Appeals in granting review of issues not specified by any litigant is one such perspective previously addressed in these

2. In addition, for a time, several civilian law reviews regularly carried articles on military law. For a short while, the Miami Law Quarterly had a section entitled Synopsis of the Decisions of the Court of Military Appeals. The New York University Law Review also carried a series of articles on military law as part of the Annual Survey of American Law. See Hartnett, Survey Extended-The Literature of Military Law Since 1952, 12 VAND. L. REV. 369, 381 & n.69, 393 & n.85 (1959); see also Gaynor, Military Justice Source Material, 55 L. LIBR. J. 16, 30 (1962). It is surprising that none of the three military law reviews currently publishes an annual survey of military law along the lines of the circuit reviews by academic law reviews for the United States Courts of Appeals. See generally Roehrenbeck, A Checklist of Annual Surveys of State and Federal Laws, 73 L. LIBR. J. 17, 18-21 (1980).

3. E.g., Lasseter & Thwing; Military Justice in Time of War, 68 A.B.A.J. 566 (1982); Fidell, Military Justice: The Bar's Concern, 67 A.B.A.J. 1280 (1981); Cooper & Cooke, Military Justice: Marching to a Different Drumbeat, 64 A.B.A.J. 1362 (1978); Waltz, The Court of Military Appeals: An Experiment in Judicial Revolution, 45 A.B.A.J. 1185 (1959).

4. F. Gindhart, Designing and Implementing a Social Science Module for Management in the United States Court of Military Appeals 29 (1980) (unpublished thesis on file at the Institute for Court Management, Denver, Colo.). Such criticism as there is has not always been well-received. See Cook, Courts-Martial: The Third System in American Criminal Law, 1978 So. ILL. U. L. Rev. 1, 29 n.126 (C.M.A. "reviewed one critical article as reflecting conduct unbecoming a member of its bar, but no disciplinary proceedings were instituted").

5. Compare, e.g., Sherman, The Civilianization of Military Law, 22 ME. L. REV. 3 (1970), with, e.g., Gasch, Who is Out of Step?, ARMY LAW. June 1978, at 1, and Avins, Hazardous Duty in Military Law: The Inapplicability of Civilian Sources, 51 MARQ. L. REV. 51, 62 (1962).

6. E.g., Avins, New Light on the Legislative History of Desertion Through Fraudulent Enlistment: The Decline of the United States Court of Military Appeals, 46 MINN. L. REV. 69, 72 (1961).

pages. A second involves appellate procedural rules. Two others are the policies concerning publication of opinions, and the arrangements made to facilitate decisional and doctrinal interaction between the military appellate courts and the other organs of appellate criminal justice in this country. A consideration of these may prove a revealing exercise for both the civilian and military bars, not simply for the purpose of gauging the development of the military justice system, but to suggest an area in which its potential contribution has not yet been fully achieved.

In a foreword to the treatise on military law published in 1956 by the present Chief Judge of the Court of Military Appeals, Judge Brosman suggested that "it is overly optimistic, I am afraid, to expect that any substantial number of civilians-either lawyers or laymen-will undertake to thumb through the decisions of the Court of Military Appeals and the Boards of Review and the statutes from which they stem, for the purpose of attempting to discover what is transpiring in the sphere of military justice. "8 Much has transpired in the intervening years, but the civilian audience for military law remains quite limited, and will probably always be that way-particularly in the absence of conscription. This article will explore whether changes could be made in the system of disseminating and digesting military appellate decisions to render this body of law more accessible and thereby advance the objective of making military law “an integral part of American jurisprudence,” 1o even if it springs from “a legal tradition that is radically different from that which is common in civil courts."11

II. THE RELATIONSHIP BETWEEN MILITARY AND CIVILIAN LAW.

Civilian jurisprudence has occasion to refer to military law in three types of cases. The first category includes those cases where a military personnel action such as a court-martial, nonjudicial punishment or administrative

7. Fidell, The Specification of Appellate Issues by the United States Court of Military Appeals, 31 JAG J. 99 (1980).

8. BROSMAN, Foreword to R. EVERETT, MILITARY JUSTICE IN THE ARMED FORCES OF THE UNITED STATES iii (1956). See also Waltz, supra note 3.

9. According to the periodic statements of circulation, the average paid circulation of West's Military Justice Reporter was 3508 copies for the year ending September 30, 1977, 3 M.J. Adv. Sh. No. 12, L, 2956 for the next year, 5 M.J. Adv. Sh. No. 12, XLII, 2934 for the next two years, 7 M.J. Adv. Sh. No. 12, XXXVIII, 9 M.J. Adv. Sh. No. 13, LXIV, and 2940 for the year ending October 1, 1981. 11 M.J. Adv. Sh. No. 13, XXVIII. Military procurement accounts for much of this circulation.

10. Quinn, United States Court of Military Appeals and Military Due Process, 35 ST. JOHN'S L. R.EV. 225, 254 (1961), quoted in Cook, supra note 4, at 30.

11. Noyd v. Bond, 395 U.S. 683, 694 (1969).

discharge is the subject of collateral attack. 12 The second includes those occasional cases in which the subject matter of civilian litigation—civil 13 or criminal 14—is such that it directly or indirectly requires or suggests the consideration of issues of military law. The third includes all those infinite other cases in which military jurisprudence might—like the jurisprudence of any common law jurisdiction-be referred to for whatever persuasive value or precedential merit it might possess.15 This latter category is potentially the broadest of the three, but to date is in reality the one where civilian reference to military jurisprudence has fallen most short of the possible level of interaction.

Despite the opportunities thus presented, in the more than three decades since the Court of Military Appeals decided its first case, it has had little influence on the development of American law, either federal or state.

12. E.g., O'Callahan v. Parker, 395 U.S. 258 (1969) (court-martial jurisdiction); Dumas v. United States, 620 F.2d 247 (Ct. Cl. 1980) (nonjudicial punishment; gate search); Donnelly v. United States, 525 F. Supp. 1230 (E.D.Va. 1981) (nonjudicial punishment; canine search of leased quarters); Giles v. Secretary of the Army, 475 F. Supp. 595 (D.D.C. 1979), aff'd as modified, 627 F.2d 554 (D.C. Cir. 1980) (discharge upgrade; urinalysis).

13. E.g., Platis v. United States, 288 F. Supp. 254, 264 (D. Utah 1968), aff'd, 409 F.2d 1009 (10th Cir. 1969) (FTCA; automobile accident); In re Brown, 402 So.2d 354, 355 & n.1 (Miss. 1981) (impact of military conviction for negligent homicide of husband on guardianship of child); cf. Rapp v. Gibson, 51 Cal.2d 467, 470 (1959) (en banc) (termination date of war).

14. E.g., United States v. Newell, 578 F.2d 827, 830 (9th Cir. 1978) (inapplicability of military suppression rules to civilian federal prosecution); United States v. Head, 416 F. Supp. 840, 844 & n. 10 (S.D.N.Y.), aff'd, 546 F.2d 6 (2d Cir. 1976), cert. denied, 430 U.S. 931 (1977) (civilian drug prosecution of Air Force member); United States v. Shafer, 384 F. Supp. 486 (N.D. Ohio 1974) (prosecution of Kent State national guardsmen); Gov't of the Canal Zone v. Furukawa, 361 F. Supp. 194 (D.C.Z. 1973) (civilian drug prosecution based on sham military "inventory"); Martin v. Commonwealth, 592 S.W.2d 134 (Ky. 1979) (confession tainted by illegal civilian arrest for unauthorized absence); State v. Nelson, 298 N.C. 582, 260 S.E.2d 637 (1979), cert. denied, 446 U.S. 929 (1980) (military search; civilian prosecution); State v. Sanders, 295 N.C. 361, 245 S.E.2d 674, 685 (1978) (civilian prosecution for murder of military policeman).

15. E.g., Miranda v. Arizona, 384 U.S. 436, 489 & n.63 (1966) (custodial interrogations); United States v. Morrow, 537 F.2d 120, 140 (5th Cir. 1976), cert. denied, 430 U.S. 956 (1977) (search by foreign authorities); United States v. Griffin, 413 F. Supp. 178, 184 (E.D. Mich. 1976) (canine search); United States v. Tiede, 86 F.R.D. 227, 244 n.69 (Berlin 1979) (noting analogy between U.S. Court for Berlin and courts-martial); People v. St. Andrews, 101 Cal. App.3d 450, 466 n.5, 161 Cal. Rptr. 645 (1st Dist. 1980) (reasonableness of rape defendant's belief that victim had consented); State v. Wells, 290 N.C. 485, 501, 226 S.E.2d 325, 335 (1976) (intent element of assault with intent to commit rape); Kinard v. State, 335 So.2d 916, 924 (Ala. Crim. App. 1975) (Bookout, J., dissenting) (plain view searches); State v. Crenshaw, 27 Wash. App. 326, 336 n.2, 617 P.2d 1041, 1047 n.2 (1980) (insanity test; collecting cases); State v. Williams, 285

The Boards of Review and Courts of Military Review have had even less influence, even though they have decided many more cases than the Court of Military Appeals. Text writers refer to military cases only infrequently. 16 Aside from materials such as the Public Law Education Institute's Military Law Reporter or the Bureau of National Affairs' United States Law Week and Criminal Law Reporter, cases arising under the Code do not commonly appear in the specialized "services" available to civilian lawyers.17 Civilian courts (both federal and state) have taken note of the work of the courts established under the Code more often than is commonly thought, 18 but the level of interaction seems low considering the "law explosion" that occurred in this 30-year period. 19 Except where the civilian case itself directly involved issues of military law (as in the first two categories identified above), the civilian courts have not afforded particular deference to those few military decisions that may have been brought to their attention.

Some of this is understandable. On constitutional matters, there may be a reluctance to defer to judgments of the Court of Military Appeals because that court possesses no special expertise in the area,20 even though the subjects considered by it "involve the same type of constitutional issues

N.W.2d 248, 257 (Iowa 1979), cert. denied, 446 U.S. 921 (1980) (hypothetical independent source rule for searches and seizures); see also cases cited in notes 32 (impossibility defense) and 35 infra (voiceprint evidence).

16. Some of the few treatises to cite military cases are W. LAFAVE & A. SCOTT, HANDBOOK OF CRIMINAL LAW 438-39, 443 (1972); S. KADISH & M. PAULSEN, CRIMINAL LAW AND ITS PROCESSES 365 (3d ed. 1975); N. LEECH, C. OLIVER & J. SWEENEY, CASES AND MATERIALS ON THE INTERNATIONAL LEGAL SYSTEM 676 (1973) (reproducing Army Board of Review case); E. CLEARY, MCCORMICK'S HANDBOOK OF THE LAW OF EVIDENCE 490 n.31 (2d ed. 1972).

17. Such cases as are reported in the civilian "services" appear on a thoroughly unpredictable basis. On occasion, Court of Military Appeals cases have materialized in Callaghan & Co.'s Federal Rules of Evidence Reporter. See, e.g., United States v. Weaver, 23 C.M.A. 445, 50 C.M.R. 464, 1 Fed. Evid. Rep. 1078 (1975); United States v. Pjecha, 7 M.J. 455, 5 Fed. Evid. Rep. 773 (C.M.A. 1979). They also figure occasionally—indeed, sometimes prominently-in annotations. E.g., Annot., 24 A.L.R. Fed. 189, 191 n.1 et seq. (1975) (extensive discussion of military cases); Annot., 97 A.L.R.3d 294, 317 (1980) (citing military voiceprint case).

18. See, e.g., W. GENEROUS, SWORDS AND SCALES: THE DEVELOPMENT OF THE UNIFORM CODE OF MILITARY JUSTICE 177 (1973) (decision in United States v. Smith a landmark on insanity issues; "one of the few Court of Military Appeals opinions ever cited by civilian federal courts").

19. A review of the May 1982 Shepard's Military Justice Citations indicates 16 citations to military cases in the Supreme Court, 87 in the United States courts of appeals, 25 in the district courts, and 17 in the courts of 12 states. These figures do not reflect the period prior to the advent of the citator, but computer research suggests that civilian reference to military cases was, if anything, even sparser in prior years.

20. E.g., Schlesinger v. Councilman, 420 U.S. 738, 765 n.3 (1975) (Brennan, J., concurring in part and dissenting in part).