Wednesday, March 25, 2009

Denedo argument recap Pt I

Here's my overly long report on today's Denedo argument.

First for the red carpet report. The audience for the argument included Judge Stucky and Senior Judge Crawford, who moved an attorney's admission to the Supreme Court bar.

After Justice Scalia announced the Court's opinion in Puckett v. United States and a number of counsel were admitted to the Court's bar (including CAAF Clerk Bill DeCicco's daughter and son-in-law, whose admission was moved by Mr. DeCicco), Chief Justice Roberts called the Denedo case.

The argument would be extremely engaging. All of the justices asked multiple questions except for Justice Thomas who, as usual, asked none. Chief Justice Roberts would emerge as the defense's most vehement critic. And Justice Breyer would appear to be genuinely undecided, openly wrestling with the issues the case presented throughout the argument.

As petitioner's counsel, Pratik Shah of the S.G.'s office went first.

Early in Mr. Shah's argument, Justice Ginsburg seemed to signal doubt with the U.S.'s argument that Article 76 precludes further review within the military justice system, suggesting that Article 76 "simply codified the rule that applies ordinarily in criminal cases, in civil cases, stating when a judgment becomes final for preclusion purposes." Mr. Shah responded that Gusik v. Schilder, 340 U.S. 128 (1950), and Schlesinger v. Councilman, 420 U.S. 738 (1975), indicated that Article 76 "marks the end of proceedings within the military court system."

Justice Ginsburg then introduced a theme that would continue to resonate through much of the argument: if Denedo can't get relief from CAAF, where can he get relief? Mr. Shah responded that Denedo is up a creek without a paddle: "it appears that Respondent no longer has any further remedies" to pursue.

Mr.Shah then began to discuss the military justice system's history, noting the historic limitations on review of court-martial convictions. After Mr. Shah mentioned CAAF's creation, Justice Kennedy suggested that coram nobic relief serves "to protect the integrity of the court," seeming to suggest that coram nobis power may be an inherent authority of a "court." Mr. Shah responded by emphasizing the military's interest in finality to conserve its resources.

Justice Stevens then returned to the point Justice Ginsburg raised earlier -- Denedo no longer has any avenue for relief outside the military justice system. Justice Ginsburg continued the line of inquiry, pointing out that Denedo had never been threatened with deportation during the six years that he could have launched a collateral attack outside the military justice system.

Justice Souter then asked Mr. Shah whether he agreed that under United States v. Morgan, 346 U.S. 502 (1954), a civilian defendant similarly situated to Denedo could seek coram nobic relief. Justice Souter also sought agreement that Article I courts can provide relief under the All Writs Act. And he noted DOD General Counsel William Taft IV had testified to a House committee that coram nobis relief would be available from Article I courts. (It was a very long question.) He concluded, "And if that is so, isn't the kind of most reasonable way to construe the statute, including Article 76, as allowing for this?" Mr. Shah responded that Mr. Taft's testimony wasn't from the time the UCMJ was enacted, but rather during consideration of subsequent amendments. An exchange between Mr. Shah and Justice Souter then followed concerning the Military Justice Act of 1983 and the powers of the boards of correction.

Mr. Shah then introduced the key topic of Article 73 in the UCMJ, which governs petitions for new trial. He noted that Article 73's legislative history indicated that its drafters intended Article 73 to be the extent to which coram nobis relief was available in the military justice system.

Justice Souter said that his recollection was that Article 73's legislative history didn't indicate that no coram nobis relief was available beyond Article 73. This provide one of the key moments of the oral argument. Mr. Shah saw an opening and attacked like a defensive lineman bullrushing an off-balance guard:

[T]his appears on pages 25 to 26 of the government's brief, and it says: "What we did was to combine what amounts to a writ of error coram nobis with a motion for a new trial on newly discovered evidence. We have provided for both of them and to our minds they are the only additional circumstances over and above the appeal that need a remedy.
As Justice Souter laid on the ground pulling clumps of sod out of his helmet, he responded, "Okay, I see." Mr.Shah pressed the advantage:

So I think that's conclusive on this point and provides a firm ground on which to distinguish this Court's decision in Morgan, which you referenced earlier, that applies coram nobis in the Article III system. Congress considered it for the Article I system and rejected it in the military courts.
Mr. Shah then provided another masterful response, this time answering a question from Justice Alito:

JUSTICE ALITO: Does that mean that your argument boils down to the proposition that the relevant provisions of the UCMJ were intended to eliminate coram nobis, or is there more to your argument than that?

MR. SHAH: I don't think it's to eliminate coram nobis. It was never available within the military court system.
In a further exchange with Justice Alito, he explained, "As of the enactment of the UCMJ in 1950, coram nobis relief had never been available within the military justice system." Mr. Shah then returned to Article 73, characterizing it as the only avenue for post-conviction relief within the military justice system other than direct appeals.

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