Tuesday, September 04, 2007

Still more proof that H.R. 3174 is a good idea

Whoever prepares CA's actions for the 1st Cavalry Division appears to have made the same clerical error twice. And because of that, Specialist Kevin P. Stoeser will be able to do something that only a small percentage of those convicted by court-martial are allowed to do: ask the Supreme Court to invoke its statutory certiorari jurisdiction to review his case.

In today's daily journal update, CAAF grants Stoeser's petition for the apparent purpose of spanking all those below who approved and affirmed a reprimand in Stoeser's case even though a reprimand wasn't part of the adjudged sentence. United States v. Stoeser, __ M.J. ___, No. 07-0344/AR (C.A.A.F. Aug. 31, 2007). This is all the more embarrassing because ACCA had previously set aside the first CA's action (which also approved the apparently nonexistent reprimand) on other grounds and sent it back for a second CA's action. United States v. Stoeser, No. ARMY 20030596 (A. Ct. Crim. App. May 31, 2006).

So now the door is open for Stoeser to file a cert petition. Is this a rational system, where a scrivener's error leads to a right to seek cert -- a right that is sometimes denied to those raising serious issues in their supplements?

The passage of H.R. 3174 would bring greater rationality to the system. Of course, even without a legislative fix, CAAF already has the ability to drastically improve the current system. Why shouldn't CAAF simply adopt a policy of granting every case in which the supp raises an issue? CAAF could then, if it wished, summarily affirm in many of the cases where it would deny the petition today. But then every servicemember seeking review of an issue arising from his or her court-martial would have a civilian court rule on the merits of the case -- and could, like any other defendant in any other criminal proceeding in the United States, seek cert.


Anonymous said...

Article 67a provides an effective way for the military justice system to insulate itself from further appellate oversight.

It maintains CAAF's position as the "supreme court" of military justice, because CAAF can effectively control what issues are subject to Supreme Court cert.

It eases the gov't's workload, because it doesn't have to respond to numerous marginal cert petitions.

Amend Article 67a, and you take power away from vested interests. That's a good thing, but also explains why the vested interests might be opposed.

Anonymous said...

I can't believe CAAF has declined to review U.S. v. King, where CAAF had an opportunity to address the definition of "before the enemy" (for the purposes of a cowardice before the enemy charge) for the first time since Vietnam. In King, the appellant was charged with cowardice before the enemy for refusing to go on a convoy, while inside a warehouse, inside Al Asad Air Base, in Iraq months after formal combat operations ceased.

Anonymous said...

Nice suggestion for judicial nullification of the legal process set forth by statute. Not.

CAAFlog said...

How would that be judicial nullification? Congress has authorized CAAF to grant review for good cause shown. 10 U.S.C. 867(a)(3). It would hardly be an unreasonable exercise of that statutorily granted discretion to consider the assignment of an error good cause.