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Tuesday, December 02, 2008
Gray's counsel oppose U.S. motion to reconsider stay of execution
Here's a link to a brief filed by Ronald Gray's counsel opposing the United States' motion to reconsider the U.S. District Court for the District of Kansas's order staying Gray's execution and appointing counsel to represent him on a habeas challenge to his military death sentence. Gray v. Gray, No. 08-3289-RDR (D. Kan. Nov. 26, 2008) (order).
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4 comments:
IN the "All Roads Lead to Denedo" category:
Gray's counsel asserts - under federal law - the so-called 1 year rule for the initial Habeas to be filed.
But, in the Legislative History of the UCMJ in 1949, death penalty cases were discussed extensively vis-a-vis Article 76, and the consensus seemed to be that the Presidential "action" triggered a capital Accused's Art. 73 rights. Yes, I know that's a strained reading of the verbage in Art. 73, but the Congressional Debate [at least in the House Armed Service Subcommittee] focused on capital cases. Now, I'm not sure that -- considering the language of Art. 73 -- I'd even make that argument today, except perhaps to discuss it in the historical context, but it was fairly clear that "finality" for Art. 76, purposes (1) could not be before Presidential action; and (2) could not "suspend" the right to collateral "habeas" review.
As they say, "stay tuned...."
Quick FYI on the players in this case. Tom Luedke is a former Marine JA and Judge Rogers was George McGovern's Bombadier in WW II. Surprised to see he's still on the bench.
I forget which case it is, but it's been made pretty clear in case law that neither Art. 76 nor Art. 73 operates to suspend the writ of habeas corpus.
The case was Gusik v. Schilder, 340 U.S. 128 (1950). See also Schlesinger v. Councilman, 420 US 738 (1975).
Art. 76 does not operate to prevent an Art. III court from reviewing an otherwise final court-martial on petition for habeas corpus.
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