Saturday, June 21, 2008

2008: The Year of Jurisdiction

We're not quite halfway through 2008 yet, but it is already apparent that for military justice purposes, 2008 is the Year of Jurisdiction.

There have already been six significant published military justice system appellate decisions dealing with questions of court-martial jurisdiction, CCA jurisdiction, and CAAF jurisdiction. Plus an important Supreme Court cert petition raising a jurisdictional challenge to a court-martial remains pending -- with an ultimate grant or denial of cert likely to come at the end of September.

Here's the most interesting thing: in all six significant published military justice system appellate decisions addressing jurisdictional issues, the outcome construed the relevant court's jurisdiction broadly. This may be just coincidence, it may reflect a jurisprudential philosophy, or it may be the product of a simple human trait to want to retain the option of playing.

In United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008), CAAF ruled 3-2 (Chief Judge Effron and Judge Baker dissenting) that even though the Air Force had delivered a DD214 to A1C Hart, the Air Force retained court-martial jurisdiction over him because he had not yet received a substantial portion of his final pay nor was it ready to be delivered to him.

In United States v. Adams, 66 M.J. 255 (C.A.A.F. 2008), CAAF ruled 3-2 (Judges Erdmann and Ryan dissenting) that mistakes in the court-martial convening order didn't deprive the court-martial of jurisdiction.

Probably most famously and controversially, in Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008), CAAF ruled 3-2 (Judges Stucky and Ryan dissenting) that CAAF retained jurisdiction to issue a writ of error coram nobis eight years after appellate review of a court-martial was complete.

In United States v. Lopez de Victoria, 66 M.J. 114 (C.A.A.F. 2008), CAAF ruled 3-2 (Judges Ryan and Erdmann dissenting) that CAAF had jurisdiction to review CCAs' decisions on Article 62 appeals.

In United States v. Dossey, 66 M.J. 619 (N-M. Ct. Crim. App. 2008), an NMCCA panel ruled 2-1 that it had jurisdiction to hear an Article 62 appeal of a mistrial declaration -- after the same panel had previously ruled 3-0 that it didn't.

In United States v. Wuterich, __ M.J. ___, No. NMCCA 200800183 (N-M. Ct. Crim. App. June 20, 2008), an NMCCA panel ruled 3-0 that NMCCA had jurisdiction to hear an Article 62 appeal of a motion to quash a subpoena issued to CBS News.

And in the pending cert petition in Stevenson v. United States, No. 07-1397, the issue is whether a court-martial has jurisdiction over a disabled military retiree who doesn't receive military retired pay.


Anonymous said...

Judicial activism?

Cloudesley Shovell said...

CAAFlog: I think you have vastly underestimated the sweep of the holding in Denedo.

CAAF did not hold that it (CAAF) retained jurisdiction to consider the ex-writ. Rather, it held that the CCAs have jurisdiction over all cases that meet the Article 66(b) threshold. Because Denedo's sentence included a BCD, it fell within CCA jurisdiction. Therefore, CAAF said, the CCA has jurisdiction over the case. See the slip opinion at page 10. The only reason CAAF had jurisdiction was because it was reviewing a decision of the CCA.

This is really a remarkable holding, because it basically nullifies Art. 73 (new trials), ignores Art. 76 (finality), and opens the doors of the CCAs to all manner of extremely stale claims, because now CCAs have continuing jurisdiction over all cases meeting the Art. 66(b) threshold, no matter how old, no matter how thoroughly reviewd, and no matter how final. All you need is an appellant who is still alive. Since CAAF has stated that claims of IAC are of a "fundamental" nature (despite the fact that all the precendents say only alleged jurisdictional defects are "fundamental"--see Judge Stucky's dissent), expect to see a flood of litigation alleging IAC in decades-old courts-martial.

I can see the ads in the back of Navy (Army) (Air Force) (Marine) Times now--"Clear your record! Did your defense attorney give you bad advice? Did it result in a wrongful conviction? Contact civilian counsel today--you may be entitled to relief!"

H Lime said...

Go, Cloudesley, go! Way to let the cat out of the bag. And I thought you were a defense hack that would let the decision's real impact slide past the SCOTUS deadline, enabling military law practitioners everywhere to take up arms and march into the breach after Independence Day. Alas, I misapprehended your true bent.