On June 22, 2018, the United States Supreme court decided the case of Ortiz v. United States. Justice Kagan authored the 7-2 majority opinion. The principal issues were whether the U.S. Supreme Court had jurisdiction to review Court of Appeals for the Armed Forces (CAAF) decisions and whether a judge’s simultaneous service on the Court of Criminal Appeals (CCA) and the Court of Military Commission Review (CMCR) violated those courts’ enabling statute or the Appointments Clause of the Federal Constitution.
The majority held in relevant part as follows: Congress has long provided for specialized military courts to adjudicate charges against service members. Today, courts-martial hear cases involving crimes unconnected with military service. They are also subject to several tiers of appellate review, and thus are part of an integrated “court-martial system” that resembles civilian structures of justice.
That system begins with the court-martial itself, a tribunal that determines guilt or innocence and levies punishment, up to lifetime imprisonment or execution. The next phase occurs at one of four appellate courts: the Court of Criminal Appeals (CCA) for the Army, Navy-Marine Corps, Air Force, or Coast Guard. They review decisions where the sentence is a punitive discharge, incarceration for more than one year, or death. The Court of Appeals for the Armed Forces (CAAF) sits atop the court-martial system. The CAAF is a “court of record” composed of five civilian judges, 10 U. S. C. §941, which must review certain weighty cases and may review others. Finally, 28 U. S. C. §1259 gives this Court jurisdiction to review the CAAF’s decisions by writ of certiorari.
Petitioner Keanu Ortiz, an Airman First Class, was convicted by a court-martial of possessing and distributing child pornography, and he was sentenced to two years’ imprisonment and a dishonorable discharge. An Air Force CCA panel, including Colonel Martin Mitchell, affirmed that decision. The CAAF then granted Ortiz’s petition for review to consider whether Judge Mitchell was disqualified from serving on the CCA because he had been appointed to the Court of Military Commission Review (CMCR). The Secretary of Defense had initially put Judge Mitchell on the CMCR under his statutory authority to “assign officers who are appellate military judges” to serve on that court. 10 U. S. C. §950f(b)(2). To moot a possible constitutional problem with the assignment, the President (with the Senate’s advice and consent) also appointed Judge Mitchell to the CMCR pursuant to §950f(b)(3).
The burden of proof before a court-martial is proof beyond a reasonable doubt, just as in America’s civilian criminal courts. The burden of proof in most civil court matters is proof by a preponderance of the evidence. A burden that falls somewhere between a preponderance and beyond a reasonable doubt is “clear and convincing evidence.” The clear and convincing standard is used in certain civil cases that affect fundamental rights and in criminal court pretrial hearings.