Extraordinary relief

I recently gave a lecture about CAAF's extraordinary relief practice. I've been debating whether to take the time to turn it into a short piece for the Army Lawyer -- a decision that implicates our recent discussion about whether law reviews are relevant.

But regardless of what I ultimately decide, you certainly won't see the piece in the Army Lawyer any time soon due to an increase in the operational tempo of my day job. So I'll share a few of the more interesting findings with you here at the risk of depressing the Army Lawyer's future sales.

According to CAAF's official statistics, from the 2000-2006 terms, it received a total of 127 writ appeals and 84 original extraordinary relief petitions.

Again according to CAAF's official statistics, in those same terms, it granted 8 petitions for extraordinary relief and remanded another 10.

However, both official figures appear to understate the actual numbers. By my count, there are actually 20 cases in which CAAF has granted or remanded a petition for extraordinary relief from the start of the 2000 term through the end of the 2006 term, plus two more between the start of the 2007 term and 5 June 2007 (the last day for which the daily journal is available online).

Here is one of my most interesting findings: all 22 of those cases fall within at least one of four categories:

(1) Counsel issues (not including IAC) (9)
(2) Challenge to a CCA's handling of a direct appeal (7)
(3) Enforcement of a military appellate decision (6)
(4) Capital cases (4)

(4 cases fall into two categories)

That reflects a surprising level of coherence in CAAF' extraordinary writ practice and suggests that, in practice, CAAF's judges viewed these as the most "extraordinary" issues warranting issuance of a writ.

Here's another surprising finding: of the 22 cases in which CAAF granted or remanded a petition for extraordinary relief, only 3 arose at the trial level. The other 19 arose at the appellate or post-appellate stages. All 3 cases that arose at the trial level and involved either governmental or judicial impediments to the defense counsel's representation of the accused (Wilson, Shadwell, Schmidt).

Here's something else that, at least at first blush, is surprising: while CAAF's Rule 4 provides that "[a]bsent good cause, no [original petition for extraordinary relief] shall be filed unless relief has first been sought in the appropriate Court of Criminal Appeals," 6 of the 10 cases in which CAAF granted extraordinary relief since the start of its 2000 term have been original petitions, while only 4 have been writ appeals. But that figure is somewhat less surprising in light of the prevalence of granted and remanded writs challenging some practice of a CCA -- cases in which the original writ would obviously be filed at CAAF rather than at the CCA, since it is the CCA's whose actions are being challenged.

Finally, for any of you interested in seriously pursuing these issues, below are the 22 cases I found in which CAAF either granted or remanded a petition for extraordinary relief. If you are aware of any other such cases, please let me know.

2000 Term

United States v. Leavitt, 54 M.J. 323 (C.A.A.F. 2000) (remanding to AFCCA for reconsideration of right to appellate discovery) [Category 2]

2001 Term

United States v. Wilson, 54 M.J. 450 (C.A.A.F. 2001) (summary disposition) (granting writ appeal to allow current defense counsel to communicate with former defense counsel) [Category 1]

United States v. Campbell, 54 M.J. 349 (C.A.A.F. 2000) (remanding to AFCCA for reconsideration of right to appellate discovery) [Category 2]

2002 Term

United States v. Nguyen, 56 M.J. 252 (C.A.A.F. 2001) (summary disposition) (granting writ appeal to allow continued representation by civilian counsel) [Category 1]

United States v. Brown, 56 M.J. 351 (C.A.A.F. 2002) (summary disposition) (granting petition for extraordinary relief to compel remand to convening authority as ordered by CAAF’s original holding) [Category 3]

United States v. Washington, 56 M.J. 352 (C.A.A.F. 2002) (summary disposition) (same) [Category 3]

2003 Term

United States v. Shadwell, 58 M.J. 142 (C.A.A.F. 2003) (summary disposition) (granting writ appeal petition seeking reversal of trial judge’s ruling disqualifying civilian defense counsel because of a conflict of interest) [Category 1]

Diaz v. JAG, 59 M.J. 34 (C.A.A.F. 2003) (post-trial/appellate delay) [Category 2]

2004 Term

United States v. Schmidt, 60 M.J. 1 (C.A.A.F. 2004) (per curiam) (granting writ appeal to lift restrictions on an accused’s communications with his counsel) [Category 1]

Toohey v. United States, 60 M.J. 100 (C.A.A.F. 2004) (post-trial/appellate delay) [Category 2]

2005 Term

Kreutzer v. United States, 60 M.J. 453 (C.A.A.F. 2005) (summary disposition) (granting mandamus petition to compel the United States "to remove Petitioner from death row at the United States Disciplinary Barracks and place Petitioner in appropriate custody in light of the circumstances and status of his case") [Categories 3, 4]

Buber v. Harrison, 61 M.J. 70 (C.A.A.F. 2005) (summary disposition) (granting habeas petition to compel United States to comply with the Army Court of Criminal Appeals' holding) [Category 3]

Lucero v. United States, 61 M.J. 147 (C.A.A.F. 2005) (remanding to determine whether petitioner is seeking to sever his attorney-client relationship) [Category 1]

Parker v. United States, 60 M.J. 446 (C.A.A.F. 2005) (remanding to NMCCA with guidance about panel membership) (capital case) [Categories 2, 4]

Goodwin v. TJAG, 60 M.J. 428 (C.A.A.F. 2004) (remanding to determine whether petitioner is seeking to server his attorney-client relationship) [Category 1]

Young v. Commandant, 60 M.J. 428 (C.A.A.F. 2004) (remanding to determine whether petitioner is seeking to sever attorney-client relationship) [Category 1]

Taylor v. Commandant, 60 M.J. 429 (C.A.A.F. 2004) (remanding to determine whether petitioner is seeking to sever his attorney-client relationship) [Category 1]

Walker v. United States, 60 M.J. 354 (C.A.A.F. 2004) (remanding to NMCCA with guidance about panel membership) (capital case) [Categories 2, 4]

United States v. Flynn, 60 M.J. 389 (C.A.A.F. 2004) (remanding to NMCCA for compliance with Jenkins) [Categories 2, 3]

2006 Term

Loving v. United States, 64 M.J. 132 (C.A.A.F. 2006) (remanding for DuBay hearing) (capital case) [Category 4]

2007 Term

Lovett v. United States, 64 M.J. 232 (C.A.A.F. 2006) (summary disposition) (granting mandamus petition to order the Judge Advocate General of the Air Force to provide appellate defense counsel "to represent Petitioner for the purposes of review of his court-martial under Article 67a, UCMJ") [Category 1]

Dearing v. United States, 64 M.J. 364 (C.A.A.F. 2006) (summary disposition) (granting mandamus petition to compel the United States "either to release Petitioner from confinement or promptly determine whether he should be held in pretrial confinement pending a rehearing") [Category 3]