Tuesday, March 18, 2008

New military cert petition

Be vigilant, Kabul Klipper, LCDR Brian Mizer is trying to rustle your Golden CAAF.

LCDR Mizer is counsel of record in the recently filed cert petition in Pack v. United States, No. 07-1176. The petition seeks review of CAAF's opinion in United States v. Pack, 65 M.J. 381 (C.A.A.F. 2007).

Here's the QP:
Whether this Court should decide the unsettled question of federal law presented to the Court of Appeals for the Armed Forces in the case at bar; namely, if Crawford v. Washington, 541 U.S. 36 (2004) implicitly overruled Maryland v. Craig, 497 U.S. 836 (1990) and made it violative of an accused’s Sixth Amendment right to confrontation when an accused does not meet his accuser face-to-face at trial.

18 comments:

Bradley said...

That QP made my head hurt. Don't get me wrong, I wish LCDR Mizer the best. But Damn! Did he really just use the nounified-verb "violative?"

And isn't "Whether this Court should decide the unsettled question of federal law presented to the Court of Appeals for the Armed Forces in the case at bar" just another way of saying, "The question presented is . . .?"

Anonymous said...

I agree. Great issue, but the wording is a touch too ornate. Written like a trembling servant approaching the throne. (Your majesties) Still hope he gets the grant, because this area of law is truly unsettled.

Anonymous said...

No one who knows Mizer would ever consider him a "trembling servant" in-person, before a court, or in writing. Do not mistake his style of expression on the page for meekness.

Anonymous said...

Last anon, the good qualities of LCDR Mizer's QP greatly outweigh the ornateness ("question at bar" and "violative"). He finishes strong and direct: "when an accused does not meet his accuser face-to-face at trial." I love the descriptive, real-world, granular language here.

Nelson's Right Eye said...

How amusing - Anonymous responds to Anonymous. This pseudonym is more popular on blogs than the name "George" in the Foreman household. Too bad you can't number yourselves like "Thing One" and "Thing Two."

Brian Mizer said...

Many thanks to LT Kate Kadlec for all of her work on this and on the pleadings below.

Thing One said...

The Supreme Court has already passed on the opportunity to "clarify" this issue three times (See United States v. Giordano, 442 F.3d 30 (2nd Cir. 2006) (cert. denied Giordano v. United States, 2007 U.S. LEXIS 2187); United States v. Kappell, 418 F.3d 550 (6th Cir. 2005) (cert. denied Kappell v. United States, 126 S.Ct. 1651 (2006))Ahmed v. United States, 856 A.2d 560 (D.C. 2004) (cert. denied Ahmed v. United States, 125 S. Ct. 1719 (2005); , but maybe the fourth time's a charm...

Jason Grover said...

Bradley and Anons,
You miss the point- if Mizer had said, "the question presented is" he misses the chance to say at the beginning, probably the only part anybody is going to read, that this case presents an unsettled federal question. Not such a fan of "case at bar," but absolutely critical for a military appellant to quickly establish his petition is about more than his own court-martial. Nice job Mizer.

Anonymous said...

Violative?! Case at bar?! I would expect more from someone who "has stood in the well at CAAF 19 times." LCDR Mizer, I don't think anyone needs to remind you of Rule # 76: "No excuses. Play like a champion." After snaking your name onto the Simon decision, a case where true legal-issue writing genius was displayed by LTs Lokey and McWilliams, I think you'd know better.

Anonymous said...

Jason, good point. "Unsettled" is a critical and necessary term in this QP.

brian mizer said...

Thing One,

You are going to have to help me out. While United States v. Giordano, 442 F. 3d 30 (2nd Cir. 2006), involves child molestation and testimony via closed-circuit television, the issues raised in Mayor Giordano's appeal involved the Commerce Clause and recusal of the district court judge. Is your point that the Supreme Court denied cert on an issue not raised by the appellant or addressed by the lower courts? Did Giordano even raise the issue in his cert petition before the Court denied it?

The Sixth Circuit at least remotely addressed the issue in United States v. Kappell, 418 F. 3d 550 (6th Cir. 2006), but the court resolved the issue under plain error analysis because Kappell "acquiesced" in allowing the minor children to testify remotely at trial. Id. at 554. "There was no plain error here." Id.

Unlike these cases, Gunnery Sergeant Pack objected to MP's remote testimony on Sixth Amendment grounds from the beginning and maintained this objection throughout the appellate process.

That being said, I am fully aware of the statistical improbability of a successful petition for cerorari at the Supreme Court. I also agree that we could have done better with the QP. But I believe that this will be this first time that the Court will be presented with a federal case where this question has been preserved for review, presented on appeal, and addressed by a federal court of appeals.

HuskerLover said...

This petition is just screaming for the help of a truly impressive legal genius...it is unfortunate that the incomparable LT Richard McWilliams has left active duty.

Anonymous said...

Let's remember the bottom line ... what did Gunny Pack do? And does he belong in prison or not?

Too often we in the defense bar focus on dissecting procedure, because we don't want to contemplate the reality of what our client did.

Anonymous said...

Burn him! He is a witch!

CAAFlog said...

Huh? It is most certainly not a defense counsel's job to remember what the client allegedly did and determine if he belongs in prison. The point of this cert petition is that the court-martial didn't follow the Sixth Amendment in determining whether he actually did what he was convicted of. If not, then there should be a "redo" in which the government's presentation of evidence is properly limited by the Sixth Amendment. Only then will there have been a constitutionally compliant determination of what Gunnery Sergeant Pack actually did. It isn't a defense counsel's job to supplant the jury and determine whether the client is guilty and, if so, what punishment he or she deserves.

CAAFlog said...

Sorry for the serial post, but I'm chagrined that a member of "the defense bar" could actually write what anonymous posted. (No wonder it was posted anonymously. Would you want to be represented by a defense counsel with that attitude?) Focusing on procedure isn't a defense counsel avoidance technique. Establishing procedural errors is how one wins a case on appeal -- and it is certainly the only method to obtain a cert petition. The Supreme Court isn't in the business of deciding whether someone was rightly or wrongly convicted. Rather, the Supremes decide broad constitutional, statutory and regulatory questions. The Pack cert petition raises such a broach constitutional question and thus has a better chance (though still not a great chance) of being granted than do most military cert petitions.

It is the SG's routine practice to waive the filing of an opposition to military cert petitions. The Supremes on occasion ask the SG to file a reply to a particularly interesting cert petition. I think this cert petition has a good chance of producing such a request and making the conference discuss list. If the QP were something like, "Was Gunnery Sergeant Pack wrongly convicted because the alleged victim's testimony was too unbelievable to constitute proof beyond a reasonable doubt?", it would certainly be denied without a second look.

So the appellate defense counsel in this case aren't displaying psychological avoidance symptoms; they are displaying good advocacy.

Paul T said...

Ok, since we're trying this case in the court of public opinion...
Pack was able to cross-examine the witness, he had contemporaneous and private communication with counsel, the jury was able to see and evaulate the witness' demeanor. The only thing left to make it complete "confrontation" is the ability of the defendant to intimidate the witness with his or her presence. A factor in trial litigation that is completely appropriate for adults embroiled in criminal accusations. But it is NOT appropriate for the judicial system to ignore its responsibility to protect children and allow the defendant the intimidation factor against a child under 14 who has been traumatized by rape.
Remember the circumstances under which CCTV is approved are very narrow - young children, probably under 14 but not exact; rape, molestation and violence victims, not theft or even victims of "bullies."

I also hope LCDR Mizer wins his petition, so the Supreme Court will tell him I was right and he was wrong! No, I should be professional (unlike that horribly misguided prosecutor pretending to be a defense attorney). I was one of the "undeserving" students that got to argue the case. BTW, to make you feel better CAAFlog, they put the brief assignment in our laps two weeks before it was due and then went on Fall Break! WTFO! And this was not the first experience for either of us.
But it was far and away the best experience of law school. Thanks to the CAAF and all those supportive JAGs for a great experience!
PS I'm to report to ODS sometime in August, wish me luck on the bar.

CAAFlog said...

Paul T,

I was filled with horror when I looked at the list of counsel in Pack. Did the University of Indiana School of Law really appear as amicus curiae for BOTH the government and the defense in Pack?