Decision time for the SG (Solicitor General, not Super Grover)

The appellate government divisions had a rough month of September. The Navy-Marine Corps Appellate Defense Division lost Dearing, Harvey, and Long. The Army Government Appellate Division -- egad! -- lost Loving. The Air Force Appellate Government Division lost Lane.

There’s an old saying that the secret to any great appeal is losing at trial. Similarly, the secret to any great military cert petition is losing at CAAF. Will a great military cert petition arise from September’s CAAF decisions? The simple answer is we don’t yet know. While more than 90 days have passed since each of the government losses, the government unsuccessfully sought reconsideration in four of its five September losers. And 90 days haven’t yet elapsed since each of those reconsideration petitions was denied.

United States v. Harvey, 64 M.J. 13, is the only case the government lost in September for which it did not seek reconsideration. Harvey was a UCI/post-trial delay case that provoked separate dissents from Judges Crawford and Baker.

As we have previously discussed here and here, the Navy-Marine Corps Appellate Government Division has made a cottage industry of challenging and defying CAAF’s ruling in United States v. Dearing, 63 M.J. 478. Dearing deals with the escalation instruction when the defense relies on self-defense. Judge Crawford dissented from the original decision. CAAF denied the government’s reconsideration petition on 15 November, meaning that the SG has until 13 February before he must decide whether he wants to continue the government’s anti-Dearing jeremiad.

In Long, 64 M.J. 57, CAAF suppressed the seizure of e-mails from a government computer over Judge Crawford’s dissent. CAAF denied the government’s reconsideration petition on 7 November, making any cert petition due on 5 February 2007.

CAAF denied the government’s petition to reconsider its ruling in Loving v. United States, 64 M.J. 132, on 11 December. The Loving opinion, over Judge Crawford’s dissent, ordered a DuBay hearing to examine an ineffective assistance if counsel claim in a military death penalty case. A cert petition would be due by Monday, 12 March 2007.

Last, but not least, is United States v. Lane, 64 M.J. 1, the subject of endless debate between the Muppet and me. (Hey, that would have been a good title for an autobiography of Jim Henson: The Muppet and Me.) Lane, of course, held that Senator Graham’s participation on the Air Force Court of Criminal Appeals violated the Constitution’s Incompatibility Clause. Judge Crawford dissented. CAAF denied reconsideration on 7 November, making any cert petition due by 5 February – the same day a cert petition would be due in Long. As I have previously contended, Lane is the most likely case of the five to result in a cert petition.

One final note: the SG’s practice in the past has been to seek an extension before filing a cert petition, so the first step to any ultimate government cert petition in a military case will likely be a request for additional time. Historically, the SG has often chosen not to file a cert petition even after seeking such an extension.

--Dwight Sullivan