Monday, December 10, 2007

New CAAF opinion

CAAF has posted a per curiam opinion in United States v. Wright, __ M.J. ___, No. 07-0412/AR (C.A.A.F. Dec. 10, 2007) (per curiam). Here's a link.

19 comments:

John O'Connor said...

Who voted to grant review of THAT?

K. Wright said...

Obviously an important issue needing the Court's attention. Not sure about your confusion here, JOC.

Captain America said...

This decision is like a Sunday school lesson. Good morality, but hardly black letter law. I wonder if the law-and-order types who think that this decision making "false suggestion" a crime was right down the middle of the fairway are as gung-ho in their support of "false suggestions" made by President Bush, Dick Cheney, Donald Rumsfeld, Alberto Gonzales, etc.?

John O'Connor said...

Captain America, I think you've reverted back to sickly Steve Rogers on this one (look it up).

The most important fact in this case is that the accused pleaded guilty and admitted that, in context, what he said was false (and I think he was well justified in making that admission). Nobody made him plead guilty. If he had chosen to plead not guilty, he would have been free to argue that, in context, what he said wasn't false. In light of his guilty plea, I think it's an easy call that there is no basis for disturbing the accused's voluntary guilty plea. The notion that falsity depends on context hardly strikes me as novel.

Personally, I think the CAAF spent TOO much time on this case. It doesn't even really deserve the "written in crayon on a cocktail napkin" treatment that it got here.

C. Point said...

I agree. Frankly, CAAF spends too much time on almost ALL of their defense driven, borderline frivolous appeals. They should probably just churn out a couple of token merits opinions per term and dispense with the rest by summary affirmances. Don't you agree, Mr. O'Connor?

John O'Connor said...

c. point,

You lose your credibility when you take anyone who might disagree with you on a given issue and try to make them into a caricature.

I do think that THIS case borders on frivilous. And you know what, the fact that the CAAF appears to have taken about 45 seconds to dispose of the case suggests that I'm not alone.

W. Y. Daddy said...

If CAAF did think this was borderline frivolous, why even waste the time on a per curiam opinion? Why not just recognize it was improvidently granted and summarily affirm? Result the same - yes. But, time was wasted nonetheless.

captain america said...

Actually, JOC, I do not disagree with your bottom line conclusion (that the facts here are enough to ratify a guilty plea). I was being whimsically obnoxious by pointing out that the underlying legal theory, that "false suggestions" are lies, is not so strong. At least no more than the government should be able to arrest you if your name is not really john o'connor.

I think one reason that CAAF may grant cases like these is to make sure MJs are aware that CAAF is out there looking over their shoulders and will double check the factual basis of these guilty pleas to make sure they don't devolve into speed dating rituals.

Guert Gansevoort said...

I am with JOC on this one. I don't think that I have ever seen a case decided thirteen days after it was argued. That speaks directly to the merit of the case. CAAF sometimes grants frivolous issues.

Captain America said...

Guert,

You're right most of the time. (But should CAAF should write a nasty opinion excoriating itself for taking the issue and then sanction itself?)

But I disagree that this was a frivolous issue. Appeals courts sometimes speak on simple issues and make plain statements of the law that are not intellectually stimulating. Is it likely that this case will be cited by the service courts? Yes, of course. Similar issues will arise quite frequently. So CAAF is doing its job.

In addition, take a broader look at "false official statement" jurisprudence. The crime has expanded well beyond its original intent, and I think CAAF will start to draw some boundaries. I think we have some foreshadowing here. CAAF is going to start a trend of warnings that a "false official statement" is not just a fun add-on charge for prosecutors.

Phil Cave said...

Prosecutors/SJA's typically add on "fun charges" (read frivolous in context) when they have a slew of other - usually much more serious charges. Captain America is right that law school pleading can be a time waster. It would be good if CAAF would step in and delineate some restraints, rather than broadening the meaning and application of statutes. So I would like to think Captain America is right about what CAAF may be doing.
On "this was a guilty plea." It wouldn't be the first time that an accused has been required to plead to silly little charges in order to get a PTA on some really serious stuff. To me frivolous charging starts at the prosecution/SJA level, CAAF merely closes the loop.

P. Lemonjello said...

Let's not just throw around the word frivolous here like it doesn't have special meaning for lawyers - it does. In fact, aren't frivolous appeals sanctionable? If so, is this really a frivolous issue, and CAAF just decided to be nice and not bring the pain? Or, is it just above frivolous, but not worthy of the Court's time? If it's the second option, why grant, argue, and write at all. Why not grant, oops we shouldn't have granted, and short form it?

No Man said...

An enlightened Super Hero filled discussion. Where is big daddy when you need him?

I just had to add something on the over use of the word frivolous. The word connotes that counsel should not have raised the issue, which I hope no one above intended. Some appellate counsel wrote a brief on this issue that sufficiently caught the attention of enough CAAF judges to be granted. A lot of other CAAF supps written at the same time were not granted review. That was either one hell of a well written supp, or maybe, just maybe, this issue want so frivilous as the comments above would suggest. Let's just change the phrasing to the issue did not prevail and counsel did his/her job. Nothing frivilous about that. I suggest that this is also a change NMCCA should recognize in the phrasing of their opinions.

No Man said...

Lemonjello:

You had me at "Let's"

Anonymous said...

This was, admittedly, not the most complex or controversial issue. But CAAF would not have granted on the issue if they thought it was "frivolous." They get hundreds of petitions a year, and grant on only very few. They have better things to do with their time.

big daddy longstroke said...

Someone called?

Socrates said...

Let me offer my frivolous objection to the frivolous use of the term frivolous. Let us all frolic in frivolity. Because frivolously using the term frivolous makes ME feel so non-frivolous.

"Counsel, your argument is so full of 'friv'! Its not full of "marv" - because then it would be marvelous. Instead, it is frivolous."

When I stutter, I say: fri-fri-fri-fri - frivolous.

When I get annoyed at other people - I call them "frivles" - people who are fulled with friv and utter frivolities.

Using the term frivolous is a frivolous shield against employing simple reason. It is the grown-ups way of saying: "Just because" to his child's persistent questioning, "why, why, why?" The problem is that the "why?" is simultaneously both the most frivolous question and the most profound question.

But all of the above was idle frivolousness. We will ALL one day die - and the great cosmic nothingness will devour and eternally erase all that we held and loved and hoped for and dreamed of. That's because - in the end - it is WE who are frivolous.

Anonymous said...

Socrates, I think you are full of poop

Guert Gansevoort said...

I must admit that frivolous is too harsh of a word, with legal and ethical implications, that laymen like myself cast about too frequently. This opinion may have been necessary, at least in the minds of two judges, to illuminate some very shallow recess of the Court's jurisprudence.