Sunday, December 21, 2008

Pass in review

2008 has been a remarkable year in military justice. We've seen some things that haven't happened for a decade, such as the Supreme Court's issuing a writ of certiorari to give plenary consideration to a CAAF decision. We've seen some things that haven't happened in my lifetime, such as the President's approval of a military death sentence. And we've seen some unprecedented things, such as elevation of the Judge Advocates General to three-star rank.

Next Sunday, in lieu of "This week in military justice," I plan to post a "This year in military justice" commentary taking a look back at the 10 biggest military justice stories of 2008. Between now and then, please post both your nominations for the top ten and your thoughts about the best criteria for defining a "big" military justice story.
Posted by Dwight Sullivan at 9:40 AM

11 comments:

Anonymous said...

Another nominee for "things that hadn't happened in my lifetime": court-martial of a civilian (A.M. Ali)

Sun Dec 21, 11:21:00 AM EST
Anonymous said...

I treat developments in capital cases as one subject as amature hour in capital litigation continues:
1) Acquittal of Martinez (I know the defense did a great job, but did Huestis single handedly lose this one?)
2)Kruezter being allowed to withdraw his guilty pleas (I've heard he has a great lead counsel)
3) Walker's findings partially getting set aside and his death sentence getting set aside (Another superstar active duty lead counsel for the defense - a former judge and high profile prosecuter)
4) Quintinella getting force fed meds so he's competent to get killed (Ditto on strong defense team)
5) Hennis still headed to trial (another judge detailed to the defense)
6) Parker still mired in appellate review
And the list goes on...

Sun Dec 21, 12:34:00 PM EST
Jason Grover said...

Criteria,
On one hand you could focus on developments that potentially affect the most people. Viewed through that lens, the Judge Advocates General might rank first as the promotions touch the entire judge advocate community. And Denedo is interesting, but an outlier with little significance for day-to-day practice (just a position, not necessarily mine).

Or you could pick "big" to mean splashy, in which case the capital case developments and Denedo rank much higher.

One nomination for #10 (definitely on the low end of the scale) is CAAF's docket. It continues to move very rapidly, suggesting the Chief Judge's style and methods are here to stay. But it does not appear CAAF is using its continued efficiency to take more cases.

I vote to make the top ten the flashiest events, as they are the most fun to talk about. A top ten list reviewing decisions involving guilty plea standards may very well touch more people, but would be much less fun to read about and discuss. Substance is over-rated, go with style.

Anon 1234- don't forget Q's and W's appellate teams were anchored by No Man and Col Sullivan. On the style point, I notice you didn't include Witt's record of trial woes. . . .

Sun Dec 21, 01:11:00 PM EST
Dew_Process said...

The Martinez total acquittal certainly belongs in the mix, as does Ali's court-martial.

If the GTMO "Military Commissions" qualify, there's almost going to have to be a "Top 100" because that was such fertile ground, e.g.,

-- BGen Hartmann's removal as Legal Advisor for command influence;

-- The meltdown in the prosecution's office;

-- Hamdan's slap on the wrist, sentence;

-- Another government loss at SCOTUS, viz., Boumediene v. Bush;

Not GTMO, but related, the SCOTUS recent cert grant in Al-Marri:

QUESTIONS PRESENTED:

Does the Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorizeand if so does the Constitution allow-the seizure and indefinite military detention of
a person lawfully residing in the United States, without criminal charge or trial, based on government assertions that the detainee conspired with al Qaeda to
engage in terrorist activities?

Then there's the Air Force's on-going saga, the disbarred Colonel Mike Murphy case, with an Army Judge - yep, you guessed it, Col Henley on loan to the USAF....

I'll cite this as important because besides an Army Judge, Dwight [wearing one of his many hats] is Murphy's appellate counsel on the government appeal that's still pending.

A "remarkable year" for sure!

Sun Dec 21, 04:20:00 PM EST
Dwight Sullivan said...

1121 Anon, I don't think there's any risk that the Ali case won't make the top-ten. (Can you imagine how the No Man would react if it didn't?) But that doesn't fall into the unprecedented-in-my-lifetime category for me. I was seven years old on 12 October 1968 when Mr. Raymond G. Averette, GS-11, was convicted by a general court-martial tried at Long Binh in South Vietnam.

Sun Dec 21, 09:59:00 PM EST
Anonymous said...

Wow, I wonder how we ever managed to survive for so long without being able to court-martial civilians.

Mon Dec 22, 10:48:00 AM EST
John O'Connor said...

Bur Averette's conviction got tossed.

Mon Dec 22, 10:54:00 AM EST
Jason Grover said...

J'OC,
Do you know why?

Mon Dec 22, 11:16:00 AM EST
John O'Connor said...

Jurisdiction. No declaration of war.

Mon Dec 22, 11:42:00 AM EST
Dew_Process said...

Latney v. Ignatius, 416 F.2d 821 (DC Cir. 1969), was a habe granted to a civilain court-martialed in Vietnam for lack of jurisdiction, and Robb v. United States, 456 F.2d 768 (Ct. Cl. 1972), was an action to recover a fine paid by civilian deceased court-martialed in Vietnam, based upon Averette.

Mon Dec 22, 05:04:00 PM EST
Mike "No Man" Navarre said...

I don't know if we officially declared last year the year of questions about military justice's ability to address civilian deaths in combat, but we certainly discussed it. This year has to be the year of CAAF's jurisdiction-possibly the year of the Orangutan (spelling?) since it has been about CAAF's reach?

Tue Dec 23, 06:45:00 PM EST

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