Wednesday, June 11, 2008

Government seeks extension of deadline for the Navy JAG to certify Wheeler

We previously discussed NMCCA's published opinion in United States v. Wheeler, 66 M.J. 590 (N-M. Ct. Crim. App. 2008), where the court invalidated a portion of Military Rule of Evidence 707's ban on evidence that an accused took a polygraph. The defense wanted to present evidence of the polygraph examinations and interrogating agents' use of those examinations and their results to argue that Petty Officer Wheeler's subsequent confession was false. The military judge, citing Rule 707, excluded the evidence. NMCCA reversed, finding that the accused's constitutional right to present a defense trumped that application of Rule 707.

Monday's CAAF daily journal includes an entry noting that "a motion for enlargement of time to file a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed by the United States under Rule 30 on this date." United States v. Wheeler, __ M.J. ___, No. 08-5007/NA (C.A.A.F. June 9, 2008).


Anonymous said...

A very slow week at CAAF when enlargements are the topic du jour.

egn said...

Anon 6:02 -
An unnecessary swipe, really. The seeking of an extension at CAAF is an indicator (or confirmation, rather) that the Government will not let the NMCCA's decision rest.

Anonymous said...

Not really an unecessary swipe. It is a comment upon, as you clearly stated, something that is obvious. When we are restating the obvious then it seems to me to be a slow week.

Cloudesley Shovell said...

Where does CAAF get the power to set a time limit on cases certified to it by the JAGs? Review of JAG-certified cases is mandatory, and there is no time limit in Article 67.

H Lime said...

Very nice, Cloudesley. Perhaps we give too much deference to Art 144, UCMJ, when it's little more than leave to create rules of judicial administration. BZ.


Anonymous said...

Fair enough. But Wheeler's rights are in play as well. Wheeler has a right to finality that must be weighed against the Government's right to dither. It seems that Wheeler is in an analagous posture, albeit at the appellate stage, as one who makes a speedy trial motion. So saying that there is no time limit on Article 67 is a bit like saying there is no time limit in life. True enough; but useless information.

Anonymous said...

Finality? There is no finality at a court-martial. (See generally, Denedo v. United States)

Cloudesley Shovell said...

Well, someone beat me to the punch re: no finality after Denedo.

To answer the concerns about the accused's interests in finality versus gov't "dithering"--by statute, accused's have 60 days to petition CAAF. CAAF routinely extends that, and has even ordered the gov't to "undo" validly executed discharges after an accused has filed an untimely petition to CAAF. On the other hand, CAAF's rules purport to limit the JAGs to only 30 days to certify a case to CAAF. Based on what? It's a number literally pulled out of thin air.

If Wheeler's (and others') interest in finality is so important, does that interest in finality also apply to the government, or is it OK that CAAF has written the 60-day time limit for petitions right out of the statute? Finality is not a one-way street, despite CAAF's efforts to make it so.

Bill Buckner said...

I don't necessarily disagree. Perhaps 30 days is too tight. But I am not persuaded by your implication that no statutory limit constrains the court from imposing its own procedural rule.

So do you disagree with CAAF imposing a deadline even in theory?

(This would be a problem. What if a new JAG, years later, decides to challenge now precedential military case. That's just bad social policy for everybody. See, for example, the Supreme Court's reasoning for maintaining the Miranda rule: social expectation.)

Finally, I would need to see some numbers on how many CAAF petitions were permitted past the 60 day window and what the reasons were before I could buy-off on your drive-by argument. If its a small number and the reasons are unique, then on-balance, the defense side of the bar is obeying both the 60-day statute and the court's rule of 60-days. For your equitable argument to work, you would have to demonstrate that when the JAG asked for more time, CAAF denied the JAG. I doubt this has happened or will happen.

Anonymous said...

It's not a small number, it happens on a weekly basis. The 60 days is imposed by Congress yet CAAF believes it can waive that despite Supreme Court case law to the contrary. Where SCOTUS has said courts have flexibility is with internal rules (i.e., the 30 day JAG window). So, despite these rules not leading to a benefit to the accused it seems clear that the 60 day window is statutory and must be followed by CAAF and the 30 day window is not and may be waived by CAAF. Why would CAAF allow and appellant to file outside of 60 days (regardless of good cause shown - which is NOT part of the rule) and not allow the JAG extra time to file WITH good cause shown? Makes absolutely no sense. And, Cloudesley's comment was not a drive by! It is born out by the facts. I get frustrated when comments such as that are made.

Bill Buckner said...

Hey, I'm sorry I called it a "drive-by" argument. I respect this debate. My criticism was not menat to be a mean-spirited put-down. What I mean is that I need to see numbers. I simply don't believe you when you just assert that the 60-day timelimit is ignored regularly. I need some proof.

And maybe I missed something: are you saying that the JAG is asking for more time and CAAF is saying, "no, too bad, our time limits are immutable"? If that is the case, then I do not support that kind of draconian stance.

Anonymous said...

We will have to wait to see it CAAF allows the JAG extra time which I am pretty sure they will. I agree that over arching concerns should not allow the JAGs to certify issues that are stale but it does seem that a technical read of the rules may allow that. Finally this argument may be addresses as CAAF on Friday specified the 60 day issue in United States v. Rodreguez (07-0900/NA). This is a 2 part specified case w/the specified issue being the 60 day requirement in light of Bowles v. Russell, 127 S.Ct. 2360 (2007). So our debate may expand from here to criticizing CAAF's decision!

Cloudesley Shovell said...

Bill B--good point about the numbers. I don't know if anyone has specifically kept track of the number of times CAAF has ignored the 60-day statutory limitation to benefit an accused. Same goes for JAG certifications--I doubt that CAAF has ever denied a JAG an extension of time under its rules.

Because service JAGs can essentially order CAAF to hear a case, CAAF likely created the rule to assert some dominance over the JAGs. CAAF no doubt sees itself as the "supreme military law of the land" and doesn't like the fact that they have to do what JAGs tell them to do when it comes to cases certified by a service JAG under Art. 67(a)(2). Heck, I think any court in CAAF's position would do the same thing in an attempt to establish dominance. (See, e.g., Marbury v. Madison).

I also agree that there should be a statutory time limit for JAG certification. 60 days is reasonable, and mirrors the time limit for the accused. I would also clarify the statute to make it abundantly clear that statutory time limits are jurisdictional, not procedural.

Jason Grover said...

The government (at least Code 46, the Navy-Marine Corps Appellate Government Division) has been arguing for years that the statutory timelines are jurisdictional. But CAAF has for years rejected that argument. See United States v. Byrd, 53 M.J. 35, 38 (2000); United States v. Engle, 28 M.J. 299 (CMA 1989). I don't have cites to government motions off the top of my head, but when I was in Code 45 whenever an Appellant attempted to petition CAAF out of time the government generally responded by moving to dismiss based on a jurisdictional argument that CAAF had no jurisdiction as the case was petitioned out of time. CAAF denied the vast majority of those motions or dismissed because good cause was not shown, not because the clock was jurisdictional.

Cloudesley Shovell said...


I completely agree with you that CAAF has construed the 60-day time period to not be jurisdictional. Nonetheless, it is this time period that the gov't is required to rely upon before carrying discharges into execution. Art. 71(c)(1)(A).

As soon as that 60 days is up, the gov't gets to carry the discharge into execution. Once the gov't has done so, "the proceedings, findings, and sentences of courts-martial" become final and conclusive, and are binding upon "all departments, courts, agencies, and officers of the United States".

CAAF has nonetheless taken cases for review despite the fact that an accused's discharge was duly executed, making the proceedings, findings, and sentence binding upon all courts, which clearly includes CAAF. Where does CAAF get the power to decide it gets to exclude itself from the binding finality of Art. 76? Congressional inaction? That's like saying you haven't committed a crime if nobody catches you.

I also note that CAAF's habit of broadly construing jurisdiction works against the accused as well. See US v. Hart, 66 MJ 273 (2008). That decision is awful for the same reasons that other let's-construe-jurisdiction-broadly cases are awful. Instead of strictly construing the statutes against jurisdiction, as required, CAAF bent over backwards to broadly construe a pay statute as giving the gov't authority to revoke a validly-issued DD-214. Ugh.