Murphy's law

Sacramentum has posted a fascinating piece on a new extraordinary writ that popped up on CAAF's 18 July daily journal, which was posted today.

I'm sure you will recall the recent controversy about the Air Force judge advocate colonel (and BGen select!) who had been disbarred not once, but twice. See, for example, our post, "I'm not just a JAG, I'm also a client." As Sacramentum discusses in detail here, Colonel Murphy is being court-martialed. Now his counsel are seeking extraordinary relief against the CA and the Article 32 IO.

Does our Air Force reader know who the defense counsel is/are and what the writ is about? Fitz? Fitz?

There is a conversation going on over in the Sacrementorium about whether CAAF has jurisdiction to consider such a writ. That directly implicates a recent lecture I gave -- after which I've been vacillating about whether to take the time to turn it into an article. This now gives me a push in that direction. (Plus, I'm changing jobs soon and will be unemployed for six days in between. At least that would give me something to do.)

There seems to be little question that CAAF believes it has extraordinary relief jurisdiction over Article 32 investigations. Consider, for example, United States v. Morton, 65 M.J. 2 (C.A.A.F. 2007), where CAAF granted a motion to stay proceedings in an Article 32 investigation. While CAAF ultimately denied the request for extraordinary relief, United States v. Morton, __ M.J. ___, Misc. No. 07-8009/CG (C.A.A.F. Apr. 4, 2007), merely ordering the Article 32 investigation to stop is an exercise of extraordinary relief jurisdiction. In one prominent pre-Clinton v. Goldsmith case, CAAF ordered an Article 32 investigation open to the public and press. ABC v. Powell, 47 M.J. 363 (C.A.A.F. 1997).

CAAF is almost certainly correct in believing that it has jurisdiction in such cases. The concept that appellate courts have All Writs Act power over cases falling within their potential appellate jurisdiction is well established. See, e.g., FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966) (holding that the All Writs Act permits an appellate court to grant extraordinary relief where "an appeal is not then pending but may be later perfected"). This concept seems to apply fully to military appellate courts. Consider what the Supremes said in Noyd v. Bond: "[W]e do not believe that there can be any doubt as to the power of the Court of Military Appeals to issue an emergency writ of habeas corpus in cases, like the present one, which may ultimately be reviewed by that court. A different question would, of course, arise in a case which the Court of Military Appeals is not authorized to review under the governing statutes." 395 U.S. 683, 695 n.7 (1969). The Murphy 32 certainly seems to qualify as a case that "may ultimately be reviewed by" CAAF. Ergo All Writs Act power is available.

Scramentum points unfavorably to Unger v. Ziemniak, 27 M.J. 349 (C.M.A. 1989), where CMA said it was "convinced that we have jurisdiction to grant extraordinary relief" in the case, even though under the UCMJ at the time the case never could have reached CMA on appeal. Id. at 355. But Gene Fidell's invaluable CAAF Rules Guide makes an important point. (It seems to me that Gene needs a CAAFlog nickname. Eugene Fidell the Sagacious (EFTS)?) If Unger v. Ziemniak were to arise today, it would fall within CAAF' potential appellate jurisdiction. CMA issued Unger v. Ziemniak on 27 January 1989. Ten months and a day later, the National Defense Authorization Act for Fiscal Years 1990 and 1991 was enacted. Pub. L. No. 101-189, 103 Stat. 1576 (1989). Section 1302(a) of that Act greatly expanded CMA's potential appellate jurisdiction. As EFTS explains:

The Court's jurisdiction over "nonreviewable" (subjurisdictional) courts-martial (i.e., general and special courts-martial in which there is no punitive discharge and summary courts-martial, none of which are subject to automatic review by a Court of Criminal Appeals) changed dramatically in 1989. . . . Section 1302 . . . provided that non-bad-conduct discharge special courts-martial and summary courts-martial can also be referred to a Court of Criminal Appeals. . . . Such cases are therefore now also potentially subject to review by [CAAF] either by certificate for review or on petition by the accused.

Eugene R. Fidell, Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces 20 (12th ed. 2006).

So it appears that not only is an Article 32 proceeding within CAAF's potential appellate jurisdiction, so is a summary court-martial. But despite the breadth of its jurisdiction, CAAF exercises it extremely rarely, as we reviewed here. Indeed, in my view (and, much more importantly, Judge Erdmann's view), Morton represents a case where CAAF exercised its extraordinary writ jurisdiction over Article 32s too narrowly.