Thursday, September 20, 2007

Puttin' on the writs

Here is some HUGE news. Today I learned that on 15 August 2007, the Navy-Marine Corps Court of Criminal Appeals -- are you sitting down? -- ordered a summary court-martial stayed to consider a petition for extraordinary relief in the case. Olson v. United States, No. NMCM 200700631. No, that's not a typo and I didn't mean SPCM -- a SUMMARY court-martial. Wow!

The Navy-Marine Corps Appellate Government Division is (of course) arguing that NMCCA has no power to issue a writ in a summary court-martial case, citing among other authorities Clinton v. Goldsmith, 526 U.S. 529, 534 (1999) (though Appellate Government erroneously cited that decision as United States v. Goldsmith).

But there's a huge different between Goldsmith and Olson. The order dropping Major Goldsmith from the rolls could NEVER fall within CAAF's appellate jurisdiction, but any ultimate summary court-martial conviction of 1stSgt Olson could. As Eugene Fidell the Sagacious sagaciously explains in his invaluable Guide to the Rules of Practice and Procedures for the United States Court of Appeals for the Armed Forces 20, 27 (12th ed. 2006):

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. Now, any such case that is referred to a Court of Criminal Appeals may thereafter be certified to the Court of Appeals. UCMJ art. 69(d), 10 U.S.C. § 869(d) (2000).

. . . .

Section 1302 of the National Defense Authorization Act for Fiscal Years 1990 and 1991, Pub. L. No. 101-189, § 1302(a), 103 Stat. 1576 (1989) . . . repealed the sentence of Article 69(a) which had permitted subjurisdictional general courts-martial to be reviewed by the Court of Appeals only pursuant to a second certification. Second, it provided that non-bad-conduct-discharge special courts-martial and summary courts-martial can also be referred to a Court of Criminal Appeals. UCMJ arts. 69(b), (d), 10 U.S.C. § 869(b), (d) (2000). Such cases are therefore now also potentially subject to review by the Court of Appeals either by certificate for review or on petition by the accused. Congress's view in enacting this legislation was that "[t]he purposes of the [Code] would be better served if such review were conducted under a jurisdictional statute as opposed to the ad hoc procedures of the All Writs Act." S. Rep. No. 101-81, at 173 (1989).

. . . .

The nettlesome area of the Court’s jurisdiction was much narrowed by the 1989 amendment to Article 69, discussed above. By subjecting subjurisdictional courts-martial to the prospect of referral to a Court of [Criminal Appeals], Congress brought them within the Court of Appeals’ potential appellate jurisdiction and hence seemingly within its reach under the All Writs Act, see FTC v. Dean Foods Co., 384 U.S. 597, 603-04 (1966), although the language quoted above from the Senate Report suggests that expansion of access to the Courts of [Criminal Appeals] and Court of Appeals was intended to reduce reliance on the extraordinary writ process. S. Rep. No. 101-81, at 173 (1989).

I see that Olson is pending before Panel No. 3. Anyone out there know which judges are on that panel?


John O'Connor said...

After the Supremes decided Clinton v. Goldsmith, Gary Solis and another author whose name escapes me penned a short piece in the Military Law Review about the need for the judiciary to police the judiciary sometimes when they forget the scope of their powers. Hopefully, a Clinton v. Goldsmith-style slap-down will be forthcoming.

The notion that NMCCA can be protecting its jurisdiction when it HAS NO JURISDICTION whatsoever unless the JAG takes what I assume is basically an unprecedented step of forwarding a summary court-martial record to the NMCCA strikes me as ludicrous and but another case of judicial self-aggrandizement. Or, as Prof. Solis put it, basically acting as if you're an Article III court in the hope that it will somenhow become true. I sort of wish the JAG would issue the ultimate rebuke, an affidavit that says "boys, there is no circumstance under God's green earth in which I would forward this case to you for review, so (unless I die) there is no way you could ever have jurisdiction over it."

Phil Cave said...

I think DHS can give us the name of at least one case a TJAG forwarded for 69(d) review, in the early 90's

John O'Connor said...
This comment has been removed by the author.
John O'Connor said...

If so, that seems the exception that proves the point.

I wonder what would happen if the CA surveyed the situation and decided that he need not follow this stay order because this random Article I court in Washington, D.C., has no jurisdiction over the SCM and, therefore, no power to stop it. As I recall it, it is a defense to contempt that the court issuing the order had no jurisdiction over you.

Would this be a bad idea (assuming the NMCCA gets to the merits of the writ quickly)? Probably so. But that would be no more a case of brinkmanship than three captains (and/or colonels) sitting in the NMCCA deciding that they are now the general overseer of SCM practice in the Navy and Marine Corps.

I also wonder how this has happened given the accused's absolute right to refuse a SCM. If I am the CA, I start wondering whether the accused's wants the SCM or not. Maybe he wants a forum with more regularized process, given his apparent refusal to proceed with the SCM.

Anonymous said...


I assume you'll be in attendance at oral argument on 01 October for Denedo v. United States, since that case goes directly to the extent of military courts' jurisdiction in writ cases, at least as it pertains to finality pursuant to Articles 71 and 76.
Loving v. US, 62 MJ 235 (2005) answered that question in the context of a death penalty case (as I'm sure you well know). Denedo now presents the question that the Court expressly declined to answer in footnote 61 of Loving, 62 M.J. at 245--does CAAF have jurisdiction after a case is final under Article 76?

By the way, check into another exwrit recently filed pro se at NMCCA. Echols v. US., No. 9801059. Petitioner has filed previous writs, persistently claiming that the military had no jurisdiction over him at his original court-martial. Previous writs were denied. Did NMCCA exercise jurisdiction in this most recent filing? Of course they did! This despite the fact that the DD-214 petitioner claims proves he was discharged formed the basis of a charge (and conviction) at the court-martial for falsifying the DD-214. Apparently no claim is so outlandish, or so stale, that will not fire up the court's indignation.

Phil Cave said...

Anyone have a copy of the NMCCA decision? Not on NKO.