CAAF show cause order in Dearing

I'm home for a brief pit stop before hitting the road for Philly in the morning. (Go Navy! Beat Army!)

While I was gone, by far the most important development was a show cause order from CAAF.

In an order dated 24 November, CAAF compelled the government to show cause by 4 December (!) why the requested writ of mandamus shouldn't issue. Dearing v. United States, __ M.J. ___ No. No. 07-036 (C.A.A.F. Nov. 24, 2006).

CAAFlog has gotten its hands on the petition for extraordinary relief that led to the show cause order. I don't want to say that the petition was thin on support, but if you put the Dearing petition and Mary-Kate Olsen in a line-up, any witness would finger the Dearing petition as the anorexic one. Yet, without bothering to cite even a single case in support of its position, the Dearing petition achieved the rather rare distinction of producing a show cause order. How? The case involves what appears to be the United States Disciplinary Barracks' direct challenge to CAAF's authority.

On 18 September 2006, CAAF ruled in Dearing's favor on his appeal. 63 M.J. 478 (C.A.A.F. 2006). CAAF held that "the military judge erred in failing to instruct the panel on the concept of escalation of the conflict as it relates the issue of self-defense." Id. at 479. CAAF also held that "Appellant was denied his due process right to speedy post-trial and appellate review." Id. As a result of these holdings, the finding of guilty to the most serious offense was set aside and Dearing remained guilty of only an obstruction of justice offense. As CAAF noted in its post-trial delay analysis, "Appellant was sentenced on March 14, 2000, and is presently incarcerated. The maximum sentence for the offense of obstruction of justice is five years. . . . In our view Appellant has already suffered prejudice as he has served more than the maximum punishment for the single offense that he stands convicted." Id. at 487 n.45.

Based on this procedural history, it seems apparent that Dearing was entitled to be released from confinement when CAAF issued its mandate on 22 November. See, e.g., Buber v. Harrison, 61 M.J. 70, 70-71 (C.A.A.F. 2005) (summary disposition) ("Having determined that Petitioner has already served confinement in excess of the affirmed sentence, and that the Respondents have failed to show cause why the requested relief should not be granted, we find that he is entitled to the requested relief in this case. Accordingly, it is ordered that said petition for extraordinary relief in the nature of a writ of habeas corpus is hereby granted. Respondents are directed to release Petitioner from post-trial confinement immediately.").

But what seems apparent to me and (I hope) you, dear reader, wasn't apparent to the government. Dearing's petition for writ of mandamus recounts: "This Court’s Mandate in Petitioner’s case was provided to the United States Disciplinary Barracks by counsel for Petitioner. Through conversations with the Disciplinary Barracks legal staff and with counsel for the Government, counsel for the Petitioner has learned that Petitioner will not be released from incarceration. Additionally, his status as a prisoner at the Disciplinary Barracks will not change." Petition for Extraordinary Relief in the Nature of Writ of Mandamus at 3-4.

So it appears that the USDB is telling CAAF that it doesn't care what it held. Challenging a court's authority is generally a good way to get one's name on the losing end of a writ. It will be interesting to see whether the government chooses to moot this case before filing its answer on Monday by either releasing Dearing or changing his status to pretrial confinement and giving him an IRO hearing.

--Dwight Sullivan