Monday, February 26, 2007

Tate's fate includes NC&PB date (after long wait)

Today's daily journal update includes a denial of the Navy-Marine Corps Appellate Government Division's petition to reconsider United States v. Tate, 64 M.J. 269 (C.A.A.F. 2007). United States v. Tate, __ M.J. ___, No. 06-0291/NA (C.A.A.F. Feb. 22, 2007).

LT Mizer is Tate's counsel. Brian, can you brief us on the grounds on which Appellate Government unsuccessfully argued for reconsideration?

We previously discussed the Tate opinion here.


brian mizer said...

I most certainly can. In its petition for reconsideration, the government argued that clemency and parole are not rights listed in the Manual for Courts-Martial. Because they are not listed as rights within the Manual, they cannot be post-trial rights as contemplated in R.C.M. 705, which was promulgated by the President only to protect rights established in the Manual. If you listened to the argument at the C.A.A.F., you will recognize this argument as the focus of the government's argument. But, perhaps because the government attorney that briefed the case was not the same that argued the case, this argument was not raised in the government brief. The government raised this new argument in its petition for reconsideration. After a brief reading of Mr. Fidell's Rules Guide, I did not respond.

Guert Gansevoort said...

How does that argument constitute the misapprehension of law or fact contemplated by Rules 31 and 32? Has the Navy-Marine Corps Appellate Government Defense Division read the C.A.A.F.'s response to its similar petition for reconsideration in United States v. Dearing, which was posted on the daily journal on November 15, 2006? If the government's argument is as you describe it, the government's argument is both ridiculous and new. As has previously been discussed on this blog, the government had great arguments in support of its position in Tate. What justifies the C.A.A.F.'s departure from Mezzanatto? And each of the Federal Circuits have held that civilians are able to waive appellate review entirely, let alone clemency and parole. I find it hard to believe that they abandoned sound legal argument, which has been adopted by the Supreme Court, and instead opted for the argument discussed above. As a deceased taxpayer, I am disturbed.

Anonymous said...

You silver tongued Nederlander, you give up your true identity. Only a defense hack could argue without a wink that a petition for reconsideration properly is reviewed under the Dearing model (wasn't raised in the original brief), and forget to mention Article 67 review, the 2005 Loving decision (CAAF jurisdiction extends until the case is complete, in a few senses), among other things. But no matter, bring those things up next time the tears flow. Kudos to the sly fox that led CAAF down the same path.

Frankly I'm a little confused by Guert's comment. That's right, CAAF did depart from Mezzanatto, but the Marine attorney also relied on Mezzanatto. Does the G have his sides confused?

The Government lawyer argued a few points, plain language, the court's own case law (which was pretty broad previously), Mezzanatto, and also that the clemency and parole rights under the Secretary Instruction derive from Codal sections distinct from those that create the Secretary's clemency powers under the UCMJ, or clemency under the Rules. A fly on the wall tells me that on reconsideration they argued that Federal District courts and Appeals courts permit nearly identical pretrial bargaining regarding the waiver of any and all post-trial motions for sentencing relief under the Federal sentencing system. Hence the rulemaking argument.

You're right, CAAF has constricted bargaining leeway, and to read the opinion, it seems to rely on "public policy" to reach that holding. Hmmmm. Maybe you're having a more two-sided discussion that I thought at first.


Nathan Jessup said...

The more important question than the aggrandizement of the contributors to this site is the grant in US v. Othuru on today's daily journal. If you read the opinion below one has to question: a) how does CCA have jurisdiction in the case when there is no adjudged BCD or confinement for one year (not to mention the whole contingent confinement issue); b) how can admission of the primary source of the appellant's conviction, statements from his own mother and wife that he was guilty, be harmless Beyond a Reasonable Doubt; and c) why the hell is the Navy wasting all this money to bring testimony from Nigeria to a base in the UK for BAH fraud? Maybe they could use it on some legal clerks to avoid the 1,298 days of delay! I thought that was strictly a devil dog problem, Go Navy!

Jason Grover said...

Is Tate really so complex? RCM 705(c) bars wavier of post-trial rights. The right to ask for clemency is a right that only happens after the trial. Thus 705(c) bars it. Easy decision.

CAAF is not out of line here, but for those that don't like the reduced bargaining power, there is an easy fix, get the Joint Service Committee to recommend a change to RCM 705.

By the way Col Jessup, this blog is about much more than the aggrandizement of its contributors. I believe there is a lot of wagering going on as well. . . .