Monday, June 16, 2008

CAAF specifies jurisdictional issue

This is now officially the Year of Jurisdiction. Today's daily journal update included a specified issue asking whether Article 67(b)'s 60-day deadline for filing a petition for grant of review is jurisdictional. United States v. Rodriguez, __ M.J. ___, No. 07-0900/MC (C.A.A.F. June 12, 2008). CAAF also specified a second, substantive issue it presumably wouldn't rule on if it determines that the 60-day deadline is jurisdictional and that the petition in this case was filed after that deadline ran. Here are the two specified issues:

WHETHER THE MILITARY JUDGE IMPROPERLY SHIFTED THE BURDEN OF PROOF TO APPELLANT IN ASKING APPELLANT TO EXPLAIN THE VICTIM'S MOTIVES IN ACCUSING HIM OF SEXUAL ABUSE.

WHETHER THIS COURT HAS JURISDICTION TO CONSIDER APPELLANT'S UNTIMELY PETITION IN LIGHT OF BOWLES v. RUSSELL, 127 S.Ct. 2360 (2007).

(They would seem to belong in the reverse order since jurisdiction is the threshold issue, but I guess that doesn't actually matter.)

NMCCA issued its unpublished decision in the case on 17 July 2007. United States v. Rodriguez, No. NMCCA 9900997 (N-M. Ct. Crim. App. July 17, 2007). The petition for grant of review was filed on 28 September 2007. On 16 November 2007, CAAF granted the appellant's motion to file the petition out of time. United States v. Rodriguez, 65 M.J. 443 (C.A.A.F. 2007).
Posted by Dwight Sullivan at 10:23 PM

10 comments:

Anonymous said...

Mark my words. CAAF will never, ever limit its jurisdiction to the 60 day limit for petition filing - despite Bowles v. Russell. CAAF will say (1) Bowles v. Russell was just a civil case and not applicable, and (2) it has a duty to protect appellant from the ineffectiveness of military counsel.

Tue Jun 17, 06:42:00 AM EDT
Anonymous said...

Anon, you may be right.

But the cause here is not necessarily that military counsel are ineffective. Except one IAC issue: poor turnover of files accounts for some of these delays. (How many appellate counsel actually contact his or her new client when they get a file turnover?) But I think most of these delays are due to appellants moving.

Tue Jun 17, 10:37:00 AM EDT
Anonymous said...

Where does Congress mandate that CAAF protect an appellant from IAC? No such rule exists in civilian court.

Tue Jun 17, 11:38:00 AM EDT
Anonymous said...

True, Congress does not mandate such protection. The rationale could be that since servicemembers serve under stricter criminal standards than civilians, they should be afforded a slightly heightened level of procedural protection. The practical problem is probably the worldwide distribution of clients that you would not see in the smaller civilian jurisdictions.

Tue Jun 17, 11:57:00 AM EDT
Anonymous said...

Sorry, not buying an amporphous grant of power to CAAF to be the arbiter of rstrict rules imposed by Congress. Time and time again CAAF alligns themselves with civilian courts which do have strict time lines. They can not pick and choose their jurisdiction based upon such claims. Where would you have it end? Did Congress say 60 days w/a footnote that said CAAF can disregard this time limit since they know better? Certainly SCOTUS doesn't play around with their filing deadlines. And the "stricter criminal standards" are what, several things that are criminalized under the UCMJ that are not in the civilian world? Or is it the stricter standard of better self incrimination rights, free qualified counsel and automatic appeal?

Tue Jun 17, 12:33:00 PM EDT
Anonymous said...

If I recall Bowles was interpreting a time limitation that was explicit. Arguably congress has not limited the jurisdiction of CAAF through Art 67(b), merely outlined the rights of the accused to petition CAAF. Art 67(c) seems to address the limitations of CAAF's authority and jurisdiction.

Tue Jun 17, 04:31:00 PM EDT
Anonymous said...

1. (b) the accused may petition the Court of Military Appeals for review of a decision of a court of Military Review within 60 days from the earlier of -

Seems like a date certain

2, If not it makes no sense to allow an appellant to petition CAAF at any time. Then all appellants would petition after discharge to make it harder to re-court-martial.

Tue Jun 17, 07:20:00 PM EDT
Anonymous said...

This is an important debate.

But the Article 66/67 quote is not so important that Congress needs to update the actual names of the courts!

Hey, pro-government-types, heed some advice from Justice Scalia: Don't purport to speak for Congress. Congess does not give one rip one way or the other about 60 days or 90 days or a year. And, if one had to guess, in today's political climate, Congress would be more inclined to grant MORE time for review, not less.

But I love the pro-government crowd's new-found respect for Congressional power. This love for Congress, though, ends when, say, Congress issues a subpoena, or tries to provide advice and consent to the President.

Wed Jun 18, 12:27:00 PM EDT
Anonymous said...

Bill...take your advice and not speak to what Congress gives a rip about. One looks to the intent if the statute is unclear. Here it is clear. 60. Period.

Wed Jun 18, 12:46:00 PM EDT
Anonymous said...

Dear only-person-in-America who loves Congress,

No. I think I will stick to my irrefutable position that you don't know anything about what Congress intended regarding whether or not a court it created could or could not extend a deadline.

Our original Congress did not authorize a standing army or income taxes, either. Period. (But, comma, times change)

And, furthermore, lets make a bet: You call your Congressman and I'll call mine. I bet you they BOTH say, "ahh, give the servicemember a little more time." In fact, go outside and ask the public. They will say the same thing.

I think the reason you are so mad is because you realize you are clinging to a harsh, unpopular, and counterintuitive position.

By the way, I will watch your side go down in flames with this trumped-up misapplication of Parker v. Bowles.

But I love the way you end your angry little post with that "period." You sign-off like you are running out of the room after your little huff. Its cute.

Wed Jun 18, 05:37:00 PM EDT

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