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Tuesday, March 11, 2008
Denedo v. United States is up on CAAF's web site
Here's a link. I have to run to a ballgame in about two minutes. I'll write more tonight in the unlikely event that no one has dissected it by then.
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20 comments:
SCOTUS will have a field day with this. Query, how does CAAF believe that the military has any ability to retry Denado since he has been discharged and no longer subject to the Code? I see this one going to the SG's Office.
Well, the opinion is 74 pages long, including dissents, so I suspect the usual commenters may defer to CAAFlog to dissect the opinion out on the front page rather than in the comments. That being said, a couple points:
Anonymous at 725pm has a good point, but US v. Davis, 63 MJ 171 (2006) is probably a good basis for continuing jurisdiction in the event of a DuBay hearing or retrial. Davis, however, was a rehearing on sentence only, and Davis was still in confinement, although discharged. Denedo has been completely severed from all military control for seven years or more.
Judge Ryan hit a lot of nails squarely on the head, and lays out a roadmap for a cert petition in her dissent. She points out a circuit split, notes the critical distinctions between Art. III and Art. I courts, states that the majority opinion "flies in the face of Supreme Court precedent" and states that, "I fear that today the majority invites the Supreme Court to issue another decision reaffirming the holdings of this line of cases [holding no jurisdiction]."
It will be interesting to see how this case develops.
I'm hard pressed to see this as anything other than a naked power grab by a Court determined to aggrandize itself and use any artifice possible to pretend that Clinton v. Goldsmith essentially applies only to . . . Clinton v. Goldsmith. I think Judge Ryan pretty much has it right on this one. Methinks the Kabul Clipper will be sending a Golden CAAF over to the SG's office. They have to seek cert on this, don't they?
I agree with the first anonymous post that SCOTUS will have a field day with this case should it reach the high court. Seems to me the right course of action would have been with the U.S. Court of Federal Claims instead of filing an extraordinary writ with the military courts. MS2 Denedo could have filed his action in the Court of Federal Claims after his discharge on May 30, 2000. That court has jurisdiction to review his case. Though there may be an issue with the six year statute of limitations and perhaps this is why MS2 Denedo chose to file in the military courts. (See generally MacLean v. United States, 454 F.3d 1334 (Fed. Cir. 2006) and MacLean v. U.S., 67 Fed.Cl. 14 (2005).) Aside, I find it interesting that had one judge of the majority voted the other way and MS2 Denedo did not prevail, the case would have been precluded from SCOTUS review under 28 USC 1259(4). The 110th Congress is still considering two bills to correct the inequity in the law: (1)the Equal Justice for Our Military Act of 2007, HR 3174 and (2)the Equal Justice for United States Military Personnel Act of 2007, S.2052. I hope the Government seeks cert. in this case. At the end of the day is the servicemember left bereft without any remedy should the Government's arguments on jurisdictional grounds be upheld by SCOTUS and the fact that the Court of Federal Claims would not have jurisdiciton based upon the six year statute of limitations?
Without addressing the decision itself, CAAF's decision highlights the need for congress to revisit Articles 60-79 and address some of the issues faced in this term. While legislative inactivity should not influence judicial interpretation, there is simply no reason why the military appellate courts should not also have writ jurisdiction of final CM's instead of the other federal courts.
To me, the number one policy reason why the CCA's writ power should be carefully limited to matters actually in aid of their jurisdiction (as opposed to the loosey-goosey anything goes of the Denedo majority) is that CCA judges have not been appointed or confirmed by the President and Congress to serve as JUDGES. While their appointment as military officers might (and should) suffice under Weiss, nobody electorally responsible to the public has decided that these judges have the qualities required of a judge, just that they (along with all other commissioned officers) have the qualities desirable in a military officer. And I don't intend that statement to be critical of the quality of CCA judges, as most of those I have known have been men and women of high character and (as best as I could tell) high technical proficiency. It's a small-d democratic legitimacy issue in my mind.
One solution could be to make the CCAs and CAAF Article III courts, but to me the solution is to leave them as Article I courts, allow them writ powers actually in aid their statutorily circumscribed jurisdiction, and to leave broader writ powers in the Article III courts.
I should add the caveat that these are my off-the-cuff thoughts on the policy issues and I reserve the right to revise them upon further thinking on the issue.
There is another solution to the continuing battle between the military courts and Art. III courts about who has the last say in courts-martial. (Besides the obvious clarification of the limited nature of court-martial jurisdiction at the appellate level).
Courts-martial exist as a tool for good order and discipline in the armed forces. That's it. Nothing else. There's been a fair degree of mission creep over the years to where courts-martial are considered just like any other criminal court. They are not.
I propose that the consequences (direct and collateral) of a court-martial conviction be strictly limited to the military environment. Confinement, loss of pay, reduction, dismissals and discharges all relate to the military (as do such collateral consequences as dropping from the rolls, loss of retirement, etc.). However, courts-martial should have no effect whatsoever on the civil side of things, federal or state. If the feds or a state with jurisdiction over the offense want to enforce collateral consequences, that civil jurisdiction can try the accused. Yes, for federal purposes this means an Art. III prosecution rather than a court-martial, but if the crime is important enough, then the feds can go to the trouble of prosecuting, and the military can administratively separate.
This is not a call for a return to the service-connection test; rather, only a call for the consequences of a court-martial conviction to extend only to military, not civil, matters.
It seems that Judge Ryan would create two classes of people seeking coram nobis relief.
Those still on active duty and/or still confined at his majesty's table, compared to those who have left active duty and/or confinement.
I agree that Congress should act and explicitly expand CAAF's jurisdiction.
Article 88, UCMJ, gives the military power to bring a civilian back onto active duty. In a sense Denedo was arguing that he in a somewhat analogous way was not legally discharged. Perhaps a bad analogy, but . . .
It also seems that the Article I court is best suited to address the underlying issues raised either through affidavits or a DuBay hearing.
That way Denedo can have his say, and his lawyers can provide their input. NMCCA can make a ruling, CAAF can then revisit, and then the loser can go to the Supremes.
And then the SG and Supremes can have their field day.
Will Denedo get a stay on his immigration proceedings pending resolution of these matters?
And we should add this to sex offender registration on the trial advice checklist.
In light of this divided opinion and in Lopez de Victoria Congress needs to act.
Agreed! When is the last time Congress had any hearings on the military justice system? Was it not the Military Justice Act of 1983?
Since when does Contempt towards officials render jurisdiction upon Denado? Face it, he's out and there is no enforcement mechanism to bring him back even voluntarily. These cases need finality as the military needs to account for end strength. The military must move these people off the rolls and replace them. Based upon this decision, Denado now is entitled to complete medical/dental care and use of military facilities. And, if he should die while on appellate leave he is entitled to have his GUILTY PLEA convition overturned and complete reinstatement including SGLI. That makes sense.
I don't think Judge Ryan distinguishes between those in confinemtn and those not; she points out Denedo's status as a civilian to show the absurdity of the majority's power grab. I see Judge Ryan as distinguishing between those who have crossed the Article 76 crossroads and those who have not. Denedo's case has crossed that line and is final, thus depriving the military courts of jurisdiction over his case. If he was still in the brig, I suspect Judeg Ryan would continue to find a lack of writ power relating to his conviction.
How is ensuring that military servicemembers receive the effective assistance of counsel in a court-martial a power grab? CAAF is not interfering with an administrative separation or maters collateral to a court-martial conviction as in Goldsmith. Instead, it is addressing a claim of ineffective assistance of counsel that came to light after Denedo's conviction was final. Congress created the CMA to sit atop the military justice system because it knew that miltary lawyers, judges, and appellate judges would sometimes fail. When that has happened in a court-martial and it is discovered after completion of appellate review, coram nobis is the appropriate remedy. If Judge Ryan's opinion is correct, then the CAAF has no power to issue writs under the all writs act.
The majority opinion in this case is perfectly reasonable. The "power grab" argument is silly; if anything, the refusal to find jurisdiction smacks of contrived conservative posturing.
CAAF finds jurisdiction quite naturally, without much reach. This case is like Goldy Locks - not too much power, not too little, but just the right amount.
It is a power grab. Follow the logical conclusion...NMCCA creates a fuller record. They orser an affidavit and force the government to track dow this DC who could be anywhere. Theythen send the case back to CAAF. CAAF finds IAC and sets aside the conviction and allows a retrial. How does the government retry MR. Denado. ITO's?
Well, it strikes me as a power grab in that it usurps the power rightfully belonging to the Article III courts. In any event, what we all think is interesting but I suspect yesterday's decision isn't the last word on the subject and we might learn more in a year or so.
Not to pop the ego balloons of those who think that military justice is somehow cutting-edge, but this opinion is so middle-of-the-road that the Supreme Court will not even consider granting cert. The Solicitor General may not even care, or may even prefer, generally, that military courts retain jurisdiction for a longer interval before other federal courts take the case.
Effective assistance of counsel is a keystone right (sorry, Gov't, for this "inconvenience"). The jurisdiction here naturally flows right out of the case.
Those who think that Judge Ryan hit the nails straight on the head are only correct because, as the saying goes, when all you have is a hammer, everything looks like a nail. Holding out the mirage of habeas relief also strikes me as an example of Judge Ryan playing 3-Court Monte: the habeaus standards are so deferential on collateral review that no relief is likely.
The SC is not taking many cases - and a circuit split is crucial and not manifest here.
The "power grab" argument is just overstating the case and assigning almost conpiratorial motives to a rather straightforward decision.
I was told that Lieutenant G. Frederick Enslin, USA has filed a writ based upon Denado. Anyone have any information about that?
I'd really like to hear CAAFlog's thoughts on this case.
The majority opinion is based upon the central theory that once a CCA has jurisdiction over a case, the CCA never loses jurisdiction (at least subject matter jursidiction). Denedo, slip. op. at 10. One must conclude from this opinion that the CCAs have appellate jurisdiction over all cases that meet the Art. 66(b) threshold, and that this appellate jurisdiction never ends (except, presumably, upon the death of the appellant).
CAAF never addresses personal jurisdiction. This is a critical difference between Article III general jurisdiction courts and Article I courts. It is well-settled that courts-martial need both personal and subject matter jurisdiction. Art. 76 finality is critical because it severs personal jurisdiction. Davis, 63 MJ 171, says there's continuing jurisdiction during the pendency of appellate proceedings despite an intervening administrative discharge, except Davis was still confined, so there was still a personal jurisdictional hook--Art. 2(a)(7). Well, what happens now? Since CCAs always have appellate jurisdiction over cases meeting the Art. 66(b) threshold, does the military now have lifetime personal jurisdiction over all those appellants? Or do the appellants themselves control jurisdiction by deciding whether to file ex-writs? Or does personal jurisdiction even matter?
Assume the case goes back for a Dubay hearing. What is the extent of personal jurisdiction over Denedo? Is his entitled to pay and allowances? Subject to all military discipline? From when is he subject to military discipline? Does it relate back? Or does it spring up anew? Or is personal jurisdiction limited to the original charges? Do we just make it up as we go along?
The case has to go back for a Dubay hearing, assuming NMCCA holds that Denedo's affidavit states a claim. His attorney is a civilian. NMCCA has no subpoena power, and the government has no way of compelling an affidavit from that attorney. It has to go back to a trial court to get compulsory process.
This decision also renders Art. 73 (new trials) a dead letter. If CCAs always have jurisdiction, there's no reason for any petitioner to ever go through the service JAG, and the 2-year limitation is completely pointless.
Finality of courts-martial and the appellate process in military courts is necessarily different than that in civilian courts because military courts depend upon special circumstances to establish personal jurisdiction. That's why Congress established time limits and finality provisions in the Code--there has to be some defined termination point due to the personal jurisdiction issue. That's why appellants are retained on appellate leave--to retain personal jurisdiction. That problem does not exist in Article III courts, which always have personal jurisdiction.
This decision is no friend of military defense counsel, particularly those licensed in jurisdictions that mandate disclosure of IAC findings. This applies to trial as well as appellate counsel. Since writs alleging IAC may be brought at any time, military (and civilian) defense counsel are going to find themselves answerable for long-forgotten cases. Since the passage of time favors the petitioner, expect a lot of perjury. Appellate defense counsel, start keeping detailed records on client contacts and your efforts in each case. Otherwise you'll be answering a lot of these post-finality IAC claims years and years later.
Those commenters asserting that this decision is no big deal and will not arouse SCOTUS interest may be correct. However, the mess this decision creates as a practical matter may well spur the services to seek Congressional correction. Frankly, Congressional clarification of military appellate court jurisdiction and the effect of finality on that jurisdiction is a better solution than yet more time-consuming litigation.
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