Monday, March 24, 2008

Navy-Marine Corps Appellate Government seeks reconsideration in Denedo

On Friday, Code 46 submitted a reconsideration petition in Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008). In case you would like to read it, I've posted the reconsideration petition here.

A government-filed reconsideration petition is the standard first step in beseeching the SG to take a military justice case to the Supremes, so I think it's a safe bet that Code 46 will be advocating a cert petition in Denedo. (Of course, that would have been a safe bet even without the reconsideration petition.)

Notice that at least one claim in the recon petition appears to be legally incorrect. The government writes that "neither Appellate Government Counsel nor the Courts of Criminal Appeals have authority to issue a subpoena." Petition for Reconsideration at 22. CAAF disagrees. CAAF has observed, albeit in dicta, that the Courts of Criminal Appeals are empowered to "issue[] a subpoena." United States v. Lewis, 42 M.J. 1, 5 (C.A.A.F. 1995). In support of that proposition, CAAF cited Article 47(a)(1), which provides that individuals not subject to the UCMJ may be subpoenaed "to appear as a witness before a court-martial, military commission, court of inquiry, or any other military court or board."


H Lime said...

If CAAF is alleged to have expanded its own jurisdiction, you're surely tipping your hat as to your own . . . generous ... bent if you read Article 47's "duly issued subpoenas" as an endorsement that subpoenas appearing in the subsequent list of courts are in fact "duly" issued. I read it as a prerequisite--ie, see the regs first--before one can be guilty of an offense before the United States under Art 47(a)(3).

As I read it, Art 47 remedies the refusal to appear or testify. Art 46 gives to the President the power to prescribe regulations for the production of evidence, including the regulations for compelling the production of evidence. The President in RCM 703 tells us who can issue subpoenas: trial counsel, as I recall.

You'll notice that Art 47, moreover, appears in the "Trial Procedure" section of the UCMJ. I'd like to see the Federal Courts' take on that reading of Art 47 as a grant of subpoena power. Dicta and the trees in Dolly Sods point in the right direction about as often as a broken clock.

MajGen Stanley

Anonymous said...

Denedo cries out for Supreme Court review.

Anonymous said...

Article 47 does not grant any court the power to issue a subpoena. Article 46 does. Art. 46 references only "trial counsel, defense counsel, and the court-martial". It also says that process shall be similar to that in courts of the United States having criminal jurisdiction.

Art. 47 deals only with refusing to appear and testify. Before anyone can be considered to have refused to appear and testify, they must be tendered fees and mileage. Where in the UCMJ, the RCM, the MCM, or the JAGMAN does anyone ever contemplate NMCCA calling witnesses to testify? Where does Article 66 contemplate NMCCA calling witnesses for testimony? Where does NMCCA get the money?

Any suggestion by CAAF in US v. Lewis that either CAAF or the CCAs have the power to issue subpoenas is woven out of whole cloth, and is a product of CAAF's delusions, not anything in the UCMJ.