Wednesday, December 13, 2006

CAAF denies reconsideration in Loving

There's no question as to the top news du jour. Today's Daily Journal update includes the following entry from Monday, 11 December:


No. 06-8006/AR. Dwight J. LOVING, Petitioner, v. United States, Respondent. CCA 8901123. On consideration of Respondent’s petition for reconsideration of this Court’s opinion, 64 M.J. 132 (C.A.A.F. 2006), said petition for reconsideration is denied.

This starts the SG's 90-day clock to seek cert. At the Army JAG School's New Developments course last month, an Army GAD attorney indicated that the Army would seek cert if CAAF denied the reconsideration petition. Of course, the Army will have to convince the SG first. Loving is such a straightforward application of Wiggins that it seems implausible that the SG would seek review of the substance of CAAF's holding. But the jurisdictional issue -- does CAAF have the power to issue a writ between the time when the Supreme Court affirms a military death penalty case and when the President acts on the death sentence pursuant to Article 71 -- may be sufficiently intriguing to produce a cert petition. Predictions?

--Dwight Sullivan


Jason Grover said...

No cert. The SG will wait to see how it all plays out before (the DuBay hearing) seeking cert.

Although the SG will have plenty of time on his hands as there is no way he is taking that Lane case . . . .

gene fidell said...

I'll bet the SG seeks certiorari. There are other capital cases in the process, there is certainly room on the Supreme Court's docket, and the SG may see this as a way to brush CAAF back from the plate.

No Man said...

While I agree with the esteemed Mr. Fidell that the SG will not oft pass on an opportunity to play the role of Big Unit, I think politics may get in the way. There are two new Republican appointees to the Court. Their terms begin/began ?? I think with the remand and hearingoit there, not reversal, the SG may not throw the high hard one as quickly. Interesting question, could the President approve the death sentence while the case is on remand for a Dubay hearing, and, theoretically, take away the ability to go back to CAAF?