Tuesday, July 22, 2008

Acting SG seeks still more time in Denedo

The Acting SG has asked Chief Justice Roberts for an extension until 1 September (which is actually Labor Day, so the extension would run until 2 September) to file a cert petition in Denedo. No. 07A1027.


Anonymous said...

Is that good or bad for Denedo?

Anonymous said...

Bad, since at least the SG is considering a petition. And if the SG (aka "The 9th Justice" files a petition it looks more likely that the court will look at the case.

So it's bad because he won at CAAF and the Gov. is looking to take that victory away.


Tony Cossio

Anonymous said...

He lost at NMCCA so didn't Denedo take the victory away from the government?

Anonymous said...

To say that asking SCOTUS to check CAAF's authority is taking away a victory is a bit misplaced. If SCOTUS says CAAF was wrong how did Denedo ever have a victory? And if SCOTUS refuses to review the case or sides with Denedo isn't that validation of his position? Why be scared of SCOTUS review if CAAF was right?

John O'Connor said...

Because winning is always better than possibly losing.

Anonymous said...

In light of the Supreme Court's recent debacle with the UCMJ they may not want to tread upon this case. Or maybe Justice Kennedy's new law clerks will have a better go with this one!

Anonymous said...

If the SG does not seek cert, or the SG does and the SCT does not grant it, it does not mean anyone thinks CAAF was right. How many cases or petitions where the court below got it wrong do you think there are each year? Nor, if cert is granted, does it mean the SCT thinks CAAF got it wrong.

Tony Cossio said...

ANON 7:46, that doesn't make any sense.

The question was "Is that good or bad for Denedo?"

Its bad for Denedo because he won the last round.

To take your falacious arguement and apply it to, let's say sports and playoffs, the New England Patriots should be the 2008 superbowl champions because they won their division, the AFC, and had a perfect regular season record.

In the game of life, its not how you start, its how you finish. And right now Denedo is on top.

Now, putting that simplistic logic aside, the government prevailing at any lower court at any branch of service is like the coach's son making the team - The outcome was already decided in advance.

When you Government hacks cheer and pat yourselves on the back for "winning" a petition on a hack court were the Judges were put there by an uber prosecutor known as the TJAG it brings a smile to my face, the real opinion that matters is CAAFs, not some kangaroo court of yes-men and rubber stampers.

"Winning" in a game that, if you play on the right team (the Gov), you have a 95%+ victory rate is hardley something to pat yourself on the back on.

Anonymous said...

And although I believe the civilian courts should generally keep their noses out of the UCMJ (or in it when it fails to cite the military death penalty for rape), this is an important case because it deals with Jurisdiction of a service member who has been discharged. Like Clinton v. Goldsmith, the Court must be reined in when it oversteps its boundaries.

Although I will say I agree with CAAF in Denedo.

- TC

Anonymous said...

Appointed by the JAG or appointed by the President. And, accused don't need to petition the "hack" court. Ad your numbers are wrong. And you don't factor in the number of government "wins" are as a result of guilty plea cases.

TC said...

"And, accused don't need to petition the "hack" court"

I'm not sure were that is from, you can't go straight to CAAF, pass go, and collect $200 dollars. You have to crawl before you walk.

"Ad your numbers are wrong. And you don't factor in the number of government "wins" are as a result of guilty plea cases."

No they are not, I have a great memory and if I remember correctly it was CAAFLog that cited I believe a 96% affirm rate (again if my memory fails me, forgive me).

But let me look at the numbers myself, which I will grab from CAAF's website (annual reports):

Let's take the ARMY, since it's the first one that pops up. ARMY:

GCM 772/809 = 95.4 %

BCD 610/625 = 97.6 %

NONBCD 10/10 = 100 %

SUMMARY 1223/1228 = 99.5 %

Total Conviction percentage for 2007 : 2616/2672 = 97.9 %

That's just the Army, I needed go any further. The numbers are correct, it's usually been 95% and up in any given year, and the affirm rate quoted by a CAAFlog contributor (I would search for it if I wasn't lazy - it was the thread concerning whether to get rid of the lower court all together) is correct also.

So, the numbers are correct and you are wrong. You are especially wrong to bring up guilty pleas, for one the prosecutor's overcharging is a huge factor, second the conviction rate is so high to scare anyone from pleading their innocence, and third the fact is with the Jury-rigged (pun intended) system it is easy to attain both points one and two. Fourth, many of these "charges" (Failing a Drug Test) would never see the light of day in a Civilian court room, even if they could.

When you do on occasion get a judge that stands up to the machine, they are easily replaced. The Judge who dismissed my case found his way off the bench. I've seen this machine at work, and its product of show trials are something that would make Stalin blush. All we need are more modern day Walter Duranty's to tell us how fair these show-trials are.

To sum up, if you have a problem with the numbers, it’s in your arithmetic. If you are an ambulance chaser or hack yourself, I suggest learning to calculate statistics other than your 30%.

Any other numbers that need to be included (retrials, etc) are so few that they bare no importance to the overall conviction rate which is only surpassed by communist and fascist countries.

Christopher Mathews said...

I think the point of the 2202 Anon post was that there is no need to petition the CCAs, which were earlier described as "hack" courts.

Tony Cossio said...

Ahhh, I found it:

http://caaflog.blogspot.com/2008/04/revised-military-justice-appellate.html :

@Tue Apr 15, 07:39:00 AM EDT

CAAFlog said...
Super G,

Statistics indicate that the CCAs rule against the accused about 96% of the time. I have no real fear that CAAF wouldn't grant relief in the great majority of the 4% of cases in which the CCAs grant relief.

Of course, if we added a fourth court to the system, it might grant some relief that a servicemember wouldn't receive from one of the three courts that could review his or her case today. Redundancy for the sake of possibly increasing reversals can't be a justification for a court (or, in the case of the CCAs, FOUR COURTS), because it would be a never-ending game. If four levels of review are good, five would be better; if five is good, then seven would be great, etc.

We know that CAAF provides gold standard review. If it continued its current practices, there would be little chance that an accused who deserves relief would obtain it from the CCAs, but not from CAAF.

Historically, there have been proposals to fold military justice appeals into some other court's jurisprudence -- the Fourth Circuit has been a suggested recipient. I think that would be awful. For a variety of reasons, doing so would likely result in almost no relief and a lack of real oversight. CAAF provides such oversight by judges who are immersed in military law. It is a specialized court in an area of the law where a specialized court is needed. But A specialized court is needed, no five specialized courts.


Oh....What a good memory I have.

...and I am sorry if I offended you Judge Matthews or anyone else...But the system is what it is. I see Anon's point, although not going through a CCA first is not prudent. A small chance is better than no chance.

Anonymous said...

[*Mathews]...I forgot to leave that extra "T" out, I don't want the Spelling/Grammar Gestapo to get me.

Christopher Mathews said...

I'm not particularly offended by the extra consonant: we all have our little crosses to bear. As it happens, mine is shaped like, well, a little cross.

But on to the main point: statistical analysis of conviction rates and grants of relief on appeal, while interesting, don't necessarily established that the system is rigged. A perfect system, that committed no errors and thus convicted only the guilty, would have a 100% conviction rate and a 0% rate of appellate relief. Its very perfection could be cited as statistical evidence of corruption.

I'm not, of course, suggesting that the military justice system is perfect: no justice system is, or likely ever will be.

Anonymous said...

I see, that is a good arguement. Likewise a lower conviction rate does not make the system more just.

Prehaps my own and others experiances has prejudiced my views.

I made a statistical syllogism, to be specific a near Converse Accident or "a dicto secundum quid ad dictum simpliciter" :)

CCW said...

My own experience, for what its worth, is this: If you have an open and shut case, i.e. pretty blatant or clear error, clearly dictated by direct, on-point CAAF precedent, you can get relief at the CCAs. The other instance where I've seen CCAs take appropriate action is in the area of the death penalty (because I think the judges, while being largely government hacks, probably draw a moral line at results-oriented judging when it comes to someone getting the needle in the arm).

When it comes to anything remotely questionable (i.e. stuff subject to the abuse of discretion standard, undecided questions of law, etc), the accused's best and only recourse is CAAF. And, even CAAF decisions post Stucky and Ryan seem to me to have a bit (we can argue how much) of a pro-government tint. Crawford wasn't the greatest, but at least she was what I'd consider the only "government hack" on the court during her tenure.

Now, the purpose of the military justice system isn't necessarily to make sure that the innocent go free and that the guilty are punished. It is to preserve good order and discipline. So, in that respect, viewed through the lens of if the Man wants to see you discharged/in the brig/etc because you are messing with his good order and discipline, I suppose the system works.

If you believe that good order and discipline includes doling out justice, punishing the guilty, freeing the innocent and most importantly determining the truth, then I'd say the system doesn't work -- it is broke and it needs some revisions (lets try putting into practice some more of the Cox Commission recommendations, for instance).

However, the politics of the matter are that it won't be fixed, unless you have mass injustice that is shoved into the public eye and psyche such as was the case during and post World War II, which led to the enactment of the UCMJ.

But lets not pretend that CCA's are fair or impartial in the meantime. Or that there isn't results-oriented judging occurring.

And, so that no one accuses me of having it out for the CCAs, I'm also not saying that the CCAs are the only ones who do this. You can take any state where you have elected judges, who run on a tough-on-crime platform, and you'll likewise see plenty of results-oriented judging.

Anonymous said...


well said

Anonymous said...

Same with federal appeals courts. And courts too have adgendas..there may be better jurists on circuit courts of appeals but there is still a great deal of political favoritism in that arena as well. And courts too have agendas...compare the 4th and 9th circuits.

Anonymous said...

Don't the civilian courts have similar conviction and affirmation rates? My old memory is as bad as any, but something rolling around in the brain seems recall similar numbers in civilian courts.

Tony Cossio said...

I agree, a great post from CCW. It is easy to pick out bad apples on district courts/cca's. I am more curious based on your experience what courts are the better of the bunch, and what characteristics can be emulated from them.

"Cox Commission recommendations"

Yes, I agree, unfortunately there are real hacks against them. I once did a report on the paper written by then LtCl. Essex and Major Pickle (now LtCl. Pickle, I believe I saw her name as the IO in the front gate episode (were two pilots were facing court martial for pulling a gun on a road raged-crazed civilian).

Anyways, reading "A reply to the report of the commission on the 50th anniversary of the Uniform Code of Military Justice : "the Cox Commission" - May 2001 - 50th anniversary of the Uniform Code of Justice" is enough to make you want to barf.

Of course, the biggest status quo cheerleaders have to come from the scandalous boys in blue. You would expect a group that contains such fine and ethical men like Fiscus and Murphy to boast how fair the different spanks for different ranks system is.

But statements like how merciful the CA is with his power to vacate a sentence makes me squirm. Because I seem to remember three cases, one on Hurlburt Field, were the convening authority used his "merciful" powers to vacate a sentence in order to retry the accused (the Gov. did not get the sentence they wanted so they made up charges that the accused "perjured" himself while pleading guilty, which he was acquitted of).

Also the CA can use his power as a way to circumvent appellant review or appropriate relief (like shortening a sentence already served, but keeping the BCD).

Anyways, I can go on with multiple examples of how the system is jacked up. From the Command Level and up. The point is it definitely needs improvement, not more hacks writing about how perfect it is.

What's really jacked is how different services do their courts and referral of charges, and how certain offenses are treated differently in different branches, but that is a discussion for later.

Anonymous said...

I believe the federal numbers are very similar, if I remember off hand around 95% for Capital Crimes and I think around 85% for burglarly, assualt. I'd have to look it up really quick.....

Oh, I was pretty damn close, I'm reading an article of 84% and less for bench trials....


"Why are Federal Judges so Acquittal Prone?

University of Illinois College of Law

Washington University Law Quarterly, Vol. 83, p. 151, 2005
Illinois Public Law Research Paper No. 05-15

Federal criminal defendants almost always prefer a jury trial to a bench trial, but it is unclear why. Statistically, federal judges are significantly more likely to acquit than a jury is - over a recent 14 year period, for example, the jury trial conviction rate was 84%, while the bench conviction rate was a mere 55%. Moreover, while the conviction rate for juries has remained nearly constant for many years, the judicial conviction rate has fallen steadily since the late 1980s. This Article presents the first systematic attempt to explain this "conviction gap." Using original compilations of government records for over 75,000 federal criminal trials, the Article explores a variety of stories that might explain why judges and juries behave so differently. It concludes that some, but not all, of the gap can be explained by the differences in case types that are directed toward judges. It also hypothesizes, however, that alterations in the federal sentencing scheme, which changed dramatically in the 80s and 90s, may well have affected the way judges evaluate the government's evidence in bench trials. The latter conclusion may have significant implications for the changes in federal sentencing that are likely to occur over the next several years."

Anonymous said...

In federal court a jury trial is mandatory unless the US Attorney consents to a bench trial. With those acquittal numbers DoJ rarely consents to a bench trial.