The Supreme Court October 2006 term's military justice docket

One advantage of blogging is that it creates pressure to write. The counter that the No-Man put at the bottom of the CAAFlog page creates even more pressure -- I insanely care more about the rate at which that counter rises than the trajectory of my 401(k) -- that's warped, but it's true. And I know that unless new content appears regularly on this blog, the number on the counter will grow about as quickly as the holly bush in my yard -- and that CAAFlog may, also like the holly bush in my yard, die an ignoble death from neglect.

The pressure to write produces a drive to research -- which led to a "Eureka" moment tonight. In poking around on the Supreme Court's web site, I found a way to disgorge what appears to be a complete term-by-term account of all the military justice cases filed at the Court. Go onto the "docket" page and type in "Court of Appeals for the Armed Force." The result is a list of cases in which the lower court's decision was rendered by CAAF -- going back to the October 2000 term. What an interesting list.

Let's focus on the current term. There are six military justice cases on the October 2006 term's docket: Quintanilla, Magyari, Lucas, Parker, McKeel, and Christian.

The Court has already denied cert in Quintanilla, Magyari, Lucas, and Parker. McKeel goes to cert conference this Friday. The SG's response in Christian is due 27 November.

Lucas and Christian are particularly interesting, as is one overall trend among the cases.

First Lucas. CAAF denied Lucas's petition for grant of review. Which means, of course, that the Supremes don't have statutory certiorari jurisdiction over the case. On 15 September 2005, the Navy-Marine Corps Court decided Boatswain's Mate First Class Eric V.F. Lucas's appeal. NMCCA granted partial relief, including knocking out the adjudged and approved BCD, eliminating the forfeitures, and reducing the confinement from a year to 8 months. (Lucas had already served the time about three years before NMCCA ruled.) On 26 May 2006, CAAF denied Lucas's petition. 63 M.J. 295. Lucas's civilian defense counsel -- John B. Wells (the same civilian defense counsel as in McKeel) -- nevertheless filed a cert petition on 23 August 2006. Instead of pointing out that UCMJ art. 67a does not allow for certiorari in such a case, the Solicitor General waived his right to respond and the Supremes denied the petition on 10 October.

Now Christian. After being convicted of various child sex offenses, Staff Sergeant David P. Christian, U.S. Army, received a sentence that included 16 years of confinement. On appeal, Christian challenged the effective date of life without eligibility for parole (LWOP), arguing that it was unavailable on the date of his offenses and that he entered into a pretrial agreement on the basis of the mistaken belief that he was protecting himself from the possibility of LWOP. CAAF rejected that argument, as well as a Grostefon ineffective assistance of counsel claim. 63 M.J. 205. Here's where things get really interesting. On 22 August, the Supremes docketed Christian's pro se cert petition with leave to file in forma pauperis. Why was it pro se? Did Christian want appellate defense counsel to file on his behalf? Was he refused? While a cert grant seems unlikely for an issue concerning LWOP's effective date for a sodomy with a child under 12 offense, such an issue would seem to clear the frivolousness hurdle. A previous post discussed Lovett's successful pro se petition for a writ of mandamus seeking continued representation by appellate defense counsel after Lovett lost his case at CAAF. Did Christian present a similar situation? The Supreme Court's docket entry for the Christian case raises many more interesting questions than it answers.

Here's the interesting trend. Ignore the cert petition in the case where the Supremes didn't have jurisdiction and the pro se cert petition. Four of the remaining four cert petitions are in Navy or Marine Corps cases. It is impossible to draw any conclusions on the basis of such a small sample size. But it raises the question of whether there is a different attitude toward Supreme Court practice at the Navy Yard than at Bolling or Balston.

--Dwight Sullivan