WASHINGTON — The questionable appointment of a civilian judge to a struggling military appeals court has already cast into doubt dozens of Air Force criminal cases. Now, it’s embarrassed the government attorneys who are trying to defend the appointment.
The cases are in limbo because Pentagon officials may have made an illegal appointment to the U.S. Air Force Court of Criminal Appeals. Many lives could turn depending on what happens next, from a Florida airman convicted on drug charges to a former Joint Base Lewis-McChord airman convicted on sex charges.
“The fate of approximately 40 cases, that have already been reviewed by the Air Force Court of Criminal Appeals at least once, hangs in the balance,” attorney and military law blogger Zachary Spilman said in an email interview Friday.
Another attorney experienced in military law, Phil Cave, added Friday that “in the long run” the Air Force appellate cases may simply face additional delay, while the ultimate outcome won’t change. Still, so far, it’s not going well for the government.
This week, in a slap heard all around the world of military law, the U.S. Court of Appeals for the Armed Forces bluntly rejected as inadequate a government brief defending the civilian judge’s appointment. The top appeals court said the government “insufficiently” addressed in less than three substantive pages the important issues being raised.
“Both the appellate court and counsel share in the responsibility to provide complete and effective appellate review,” the appeals court noted pointedly.
The court gave government attorneys until Jan. 23 to file a better brief. Air Force officials could not be reached for comment Friday.
The brief slap-down is the prelude to a Jan. 28 oral argument, when the five-member military appeals court will directly hear the case called United States v. Janssen. The appellate issue concerns appointments.
“Congress created the possibility of civilian appellate military judges, but it didn’t provide a specific process for their appointment,” Spilman explained, adding that the top military appeals court “will determine whether the secretary of defense, who last year appointed a civilian to fill a vacancy on the Air Force court, can constitutionally make such an appointment on his own.”
The underlying criminal case is more graphic. David J. Janssen was a senior airman based at Malmstrom Air Force Base in Montana in 2009, when he was accused of raping his live-in girlfriend.
“I told him ‘no’ and he didn’t say anything,” the girlfriend testified. “And I said ‘no’ again and he said, ‘What does ‘no’ mean? ‘No’ like you don’t want to or ‘no’ like ‘please don’t stop?’ And I said, ‘No, I don’t want to.’ And as that conversation happened, he continued.”
Convicted, Janssen was sentenced to nine years in prison and received a bad conduct discharge. His subsequent appeal was rejected last July by Judge Laurence M. Soybel and two other members of the U.S. Air Force Court of Criminal Appeals.
A retired Air Force officer, Soybel was initially appointed in January 2013 as a civilian to the Air Force court. The original appointment was made by the Air Force judge advocate general, who hoped to help the court clear away a troublesome backlog.
“It seems like it was something that was well-intentioned,” Cave said.
But questions arose over whether the general had the legal authority to appoint the civilian. Soybel’s initial appointment was rescinded and dozens of cases he helped decide were reconsidered.
Defense Secretary Chuck Hagel then reappointed Soybel to the Air Force court in June. Attorneys for Janssen and other airmen say Hagel, too, lacked the authority to appoint a civilian to the military court. Soybel left the court in October, but at least 37 decisions have been called into question.
The challenged cases ran a wide gamut.
Daniel M. Blair, for instance, was an airman at Hurlburt Field in Florida when he was convicted on a cocaine charge. James M. Boore was an airman first class at Joint Base Lewis-McChord in Washington state when he was convicted in 2011 of abusive sexual contact and giving alcohol to a minor. Zachary R. Lynch, a former staff sergeant at Joint Base Elmendorf-Richardson in Alaska was convicted of possessing sexually explicit videos involving minors.
All three men received bad conduct discharges, among other penalties. All three had their convictions and sentences upheld by the Air Force appeals court.