Tuesday, October 23, 2007

JO'C on CA Actions

Beloved CAAFlog contrarian commentator JO'C has published a piece in the online Journal of Military and Veteran Law. John F. O'Connor, Loose Canons: The CAAF's Flawed Approach to Construing Convening Authority Actions, 1 J. Mil. & Vet. L. 9 (2007).

JO'C's article takes issue with CAAF's recent precedent applying the literal language of CA actions to disapprove adjudged punitive discharges where it seems apparent that the CA meant to leave the discharge approved but unexecuted. JO'C criticizes CAAF's reliance on contract principles since the CA's action is not an agreement between two parties, but rather the exercise of discretion by one party. He argues that a better legal analogy is the law governing donative transfers, where instruments are construed to try to give effect to the donor's intent.

Regardless of whether you end up agreeing with JO'C's position, the article will enlighten and challenge you. It is a fine piece of scholarship that all military justice practitioners should read. (And I love the "Loose Canons" pun in the title.)

4 comments:

Anonymous said...

Very nice article. Agree that US v. Wilson, 65 MJ 140, was wrongly decided. Especially liked this clever comment:

"[T]he [CAAF] repeatedly has observed that 'the convening authority is an accused’s best hope for sentence relief.' While this observation by the CAAF was meant to convey that an accused’s best chance for sentence reduction is to convince the convening authority to grant clemency as part of his convening authority’s action, it has of late taken on a
completely different, ironic meaning. Because of the CAAF’s developing jurisprudence for construing convening authority actions, it can be said with at least some justification that an accused’s best hope for sentence relief is not that the convening authority will decide to grant clemency, but rather that drafting errors at the command level will cause the convening authority’s action to reflect approval of less of the sentence than the convening authority intended, with the CAAF only too happy to give effect to such a drafting error no matter how obvious."

Bill Cassara said...

I guess I view errors in this area in the same way I view motions to suppress. That is, if the CAAF grants relief in these cases it is meant to deter sloppy work, much in the same way that suppression of evidence does.

John O'Connor said...

Suppression of evidence is designed to deter constitutional violations, not mere sloppy work.

Bill Cassara said...

Obviously. But many constitutional volations come about as a result of sloppy work, i.e. not wanting to take a few more minutes to get a search authorization, not accurately recording a request for counsel, etc.