Thursday, April 05, 2007

Government PETITION for grant of review?

While CAAF's daily journal doesn't contain any orders granting review and ordering briefs these days (see below), the 2 April daily journal does contain one fascinating entry.

In United States v. Nieland, Misc. Dkt. 2006-08 (A.F. Ct. Crim. App. 29 Jan. 2007), in an opinion by the great Judge Mathews (why do I fear that being praised by CAAFlog won't prove beneficial to Judge Mathews' career?), the Air Force Court rejected an Article 62 appeal. The Air Force Appellate Government Division then, according to CAAF's 2 April daily docket, "filed a petition for grant of review under Article 67(b), UCMJ, 10 U.S.C. § 867(b) (2000), on February 2, 2007, seeking this Court's review of the decision of the Court of Criminal Appeals." United States v. Nieland, __ M.J. ___, No. 07-6002/AF (C.A.A.F. April 2, 2007). Huh? When has the GOVERNMENT ever filed a petition for grant of review? The government is supposed to get the Judge Advocate General to certify the cases it loses at the CCA--eliminating that pesky petition for grant of review process that the defense must go through after losing at the CCA. The only time the government is supposed to file a petition at CAAF is after it loses there, when the government then files its semi-obligatory petition for reconsideration.

What an odd development.

That's not just my reaction; CAAF thought so, too: "On consideration [of the government's virtually inexplicable petition for grant of review], it is ordered that said petition for grant of review filed by the Government be and the same is hereby dismissed for lack of jurisdiction."

There appear to be only two potential ways to get a CCA's ruling on an Article 62 appeal up to CAAF: (1) certification by a Judge Advocate General; or (2) an extraordinary writ. There doesn't even appear to be statutory authority for the defense to file a petition for grant of review where a CCA rules for the government on an Article 62 appeal. The notion that the GOVERNMENT could file a petition for grant of review in a 62 appeal seems even farther out in left field than either of those homers that Miguel Cabrera hit at RFK this week. If we have any Air Force Appellate Government Division lurkers out there, could you please share with us what you were thinking?


Jason Grover said...

I would imagine many folks out there, including perhaps Mr. O'Connor, are wondering why the government is in the business of trying to expand CAAF's jurisdiciton. Isn't the government always arguing to limit the Court's jurisdiction.

I am also curious from our Air Force friends, does the Air Force JAG refuse appellate government requests to certify cases? That doesn't happen much in the Navy, at least when I was in appellate defense, but it did happen every now and then.

John O'Connor said...

Am I really the only non-appellate defense type who reads this blog such that I become the obligatory target of guffaws concerning government practice?

For the record, I am all for the CAAF avoiding the urge to self-aggrandize itself and grant itself jurisdiction beyond that conferred by Congress. Bravo, CAAF.

Jason Grover said...

I think Col Jessup is out there as well. I did not mean to imply you were the government stand-in, but rather the consisent voice concerning CAAF's jurisdiction.

John O'Connor said...

And I hope that consistency comes through in my applauding CAAF's refusal to extend its jurisdiction to take a government "petition for review" in an Article 62 case.

nathan.jessup said...

I can think of one additional "jurisdictional narrowest" who I wish read this blog and some of the horrific commentary on it. I just don't understand how CAAFlog and he got along so well for 2 years.