Wednesday, March 25, 2009

Denedo argument recap Pt II

Following Mr. Shah's observation that the UCMJ didn't limit or extinguish coram nobis rights, but rather provided some coram nobis-type of relief within the military justice system for the first time, Justice Ginsburg introduced a new topic that would reappear later in the argument. She suggested that coram nobis relief doesn't require an independent grant of jurisdiction but rather jurisdictionally rests on the original criminal conviction. Justice Kennedy picked up the point, asking whether coram nobis requires an independent source of jurisdiction and then answering that question himself: "I should think not." When Mr. Shah sought to swat that argument with Clinton v. Goldmsith, Justice Kennedy swatted back, saying that the "source of jurisdiction" for coram nobis relief is the jurisdiction that the court previously asserted.

Justice Breyer then joined the conversation. Mr. Shah had clerked for Justice Breyer, and it was obvious that there was a warmth between the two. Justice Breyer repeatedly thrust at Mr. Shah, but they were good-natured thrusts that suggested this was merely the latest in a long history of verbal sparring between the two. Justice Breyer offered a hypothetical in which there's a transcription error in a court-martial record that suggests the accused was convicted of a more serious offense than was actually the case. Mr. Shah began to parry with, "If he is still within custody --" Justice Breyer refined his hypo to specify that the accused was no longer in confinement when the mistake was discovered. Mr. Shah then began to catalog the avenues available for collateral relief for six years. Justice Breyer responded predictably, but nevertheless to great laughter from the bench and the gallery, "No, this is 7 years." Mr. Shah returned to his up-a-creed-without-a-paddle response he had previously given to Justice Ginsburg and Justice Stevens. An exchange followed in which Mr. Shah tried to suggest how unusual such a scenario would be and Justice Breyer seemed to suggest how awful such a scenario would be.

Justice Souter then returned to the question of whether previous jurisdiction provides current jurisdiction for coram nobis purposes -- the Clinton v. Goldsmith question. Mr. Shah again answered that Congress indicated it didn't intend to provide coram nobis relief in the military beyond Article 73's petition for new trial procedures. He argued, "We know that Congress intended to occupy the field when it passed Article 73."

Mr. Freedus then argued for Denedo. Just two sentences into his argument, Justice Scalia pounced. Mr. Freedus began his argument by saying, "Because they are courts, appellate military courts must have coram nobis power to protect the integrity of their judgments." Justice Scalia responded: "What do you mean, 'they must'? Do you think it's unconstitutional to deprive them of that?" And with that, Justice Scalia and Chief Justice Roberts proceeded to beat Mr. Freedus about the head and shoulders for several fruitless minutes over the question of whether it would be unconstitutional to deprive military courts of coram nobis power. Justice Stevens tried to assist, asking, "Are you contending that the result you seek is constitutionally compelled? I didn't think you were." Mr. Freedus replied, "we aren't. . . . I was more responding to the Chief Justice's --" But Justice Scalia wouldn't allow the Good Samaritan's intervention. He interjected, "And you were saying it is. Just say, 'No, it's no constitutionally compelled' and I'll be happy." Mr. Freedus wisely responded, "No, Your Honor." Justice Kennedy then tried to come to Mr. Freedus rescue, suggesting, "You might say that there is a lurking constitutional question and that we out to interpret the statute to avoid a constitutional concern." Mr. Freedus responded, to widespread mirth, "I think, Your Honor, that's the best answer that I should have given." The Chief Justice, however, was immune to that argument's charm. He responded, "I don't like it very much," and he and Justice Scalia resumed the beating, with Justice Scalia emphasizing that no coram nobis relief was available to servicemembers for 200 years.

Justice Ginsburg was finally able to extricate Mr. Freedus by asking him to explain the basis for coram nobis jurisdiction. Following Mr. Freedus's answer, he and Justice Breyer engaged in a lengthy exchange that included discussion of the kinds of claims that can be advanced through a petition for a writ of error coram nobis.

Justice Breyer than introduced another key point: if a former servicemember who has been discharged wins coram nobis relief, can he ever be retried? And if not, isn't that essentially a windfall? Chief Justice Roberts was dissatisfied with the first answer to this question and pressed the point. Mr. Freedus then offered an analogy that seemed to satisfy Justice Breyer, who vigorously nodded his head as if he were a Green Bag Justice Breyer bobblehead after Mr. Freedus answered that "there is a classic distinction between the habeas and the coram nobis petitioner." He noted that a successful federal coram nobis petitioner wins relief "long after a statute of limitations had expired," they might also be immune to further prosecution.

Justice Breyer then revisited the issue of whether IAC is a proper subject for coram nobis relief. Mr. Freedus responded by referring to a Fifth Circuit case (United States v. Castro, 26 F.3d 557 (5th Cir. 1994)) and an unpublished Ninth Circuit case (Kwan) indicating that coram nobis relief is available for IAC claims. Justice Ginsburg asked if any military courts had granted coram nobis relief for IAC. Mr. Freedus responded that other than this case, he didn't know of any military cases where coram nobis relief was sought for IAC. A discussion of the frequency of military coram nobis petitions followed. Mr. Freedus summed it up by observing that "they are rarer than hen's teeth."

Following a discussion of the availability of habeas relief within the military justice system, Chief Justice Roberts observed, "The problem with your position is that it would dramatically expand the jurisdiction of the military system. It would sort of follow everybody they've dealt with around for their life." Mr. Freedus was forced to agree with Chief Justice Roberts' observation that "[a]t any time somebody is out of the military system, whose judgment is supposedly final under the provisions that Congress has established, he could come back and knock on the door 20 years later and say, ' I want to review my conviction.'"

Justice Kennedy and Mr. Freedus than had an exchange in which Mr. Freedus explained DuBay hearings to the Court and, without mentioning the case by name, explained the Ginn framework for deciding when DuBay hearings are required. During his rebuttal, Mr. Shah would make a mistake when addressing the DuBay hearing, incorrectly saying that a DuBay hearing requires the convening of a new court-martial.

When Justice Ginsburg asked whether the Supremes have ever held that military courts have habeas jurisdiction, Mr. Freedus answered yes, citing Noyd v. Bond, 395 U.S. 683 (1969). Chief Justice Roberts countered that Noyd concerned a habeas petitioner who was still in the military. An arcane discussion of footnote 11 of Clinton v. Goldsmith followed.

When Mr. Freedus then tried to rely on DOD General Counsel Taft's 1983 testimony to a House committee concerning the availability of coram nobis relief in the military justice system, Chief Justice Roberts responded: "this is at a hearing. This isn't a Member of Congress, obviously, that we're talking about. It's not even a single Member of Congress." Never in the argument did anyone point out that the UCMJ legislative history concerning Article 73 that Mr. Shah repeatedly invoked was a quotation from DOD Assistant General Counsel Felix Larkin at a House committee hearing. See Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcomm. of the H. Comm. on Armed Forces, 81st Cong. 1211 (1949).

An unenlightening exchange between Chief Justice Roberts and Mr. Freedus followed concerning whether the legislative history of the Military Justice Act of 1983 contemplated that coram nobis relief would remain available after the servicemember was discharged.

Returning to the question of whether Denedo could ever be retried if he won coram nobis relief, Mr. Freedus suggested that "if there were a personal jurisdiction loophole here, like there was for the MEJA, the Military Extraterritorial Jurisdiction Act, Congress could fix it in a heartbeat." Mr. Freedus then reemphasized the small number of coram nobis cases within the military justice system, which led Chief Justice Roberts to ask, "You don't think that if you prevail in this case, we're going to see a lot more coram nobis petitions than we did before?"

Following Mr. Freedus's answer, Mr. Shah arose for three minutes of rebuttal. Justice Scalia started by asking whether a discharged servicemember who won wins a reversal of his conviction can be retried by the military. Mr. Shah responded, "Not if he has passed his enlistment period, no, Your Honor. The government's view is they would not be able to retry him."

Mr. Shah then set out to make four brief points. He ran out of time after the third, but in sharp contrast to the practice of Chief Justice Rehnquist, Chief Justice Roberts suggested, "Why don't you briefly make your fourth point." He did and then it was over.

The opinion will be out sometime before July.

[DISCLAIMER: I am counsel of record on a cert petition that endorses the SG's position in Denedo.]

37 comments:

Anonymous said...

The government admitted that no further relief is available. This foolishly takes away the Goldsmith rationale for depriving CAAF's jurisdiction (his claims, in any case, may be raised in federal court - J. Souter).

I think it goes 5-4 for CAAF. Five, including Kennedy, care that there's no further relief and will find coram nobis as a matter to do justice. Four don't care.

Dwight Sullivan said...

Anon 2244: (a) that wasn't Goldsmith's rationale for finding a lack of jurisdiction; and (b) "foolishly"? What would you have had the United States' counsel say?

Anonymous said...

7-0-2. Seven for government's position. Two concurring (suggesting to Congress that it may wish to provide such an avenue of relief in the future).

Anonymous said...

I think one of the issues in this case is that the justices, counsel, and others seem to perceive the issue in relation to similarly situated civilians and that misses one crucial point, that the military society is very distinct. It is one that you are not born into, that you must voluntary join (at least now), that at some time you will leave (voluntarily or otherwise). Contrast that with being part of the larger society of humans subject to the laws of the United States. Absent leaving (and then maybe) or death, you are always part of that society. As Congress understood the window of time for a person’s membership in the military society is very discrete, so it wisely sought to create boundaries upon the extent of the relationship. Some involve the commencement of the membership, others when it ceases to exist. Others sought to define when the military no longer has an interest in a criminal case and should no longer be burdened with any incidental matters that may arise from the case.

Now if one presume (and I think there is ample support for this) that the primary purpose of the UCMJ is for a tool to maintain good order and discipline to assist a commander in accomplishing a mission, at some point in time the military has absolute no interest in the case. Thus, the primary purpose also supports limiting collateral attacks years later by the ex-service member.

Cloudesley Shovell said...

Anon 659am hits the nail on the head.

Another fix (I believe I've mentioned this before) is to confine the consequences of a court-martial conviction to the military. If the misconduct is serious enough to warrant collateral consequences of a criminal conviction out in society, then society should seek a conviction through the federal Art. III courts or state courts.

NBM3 said...

Anon 0659: What about the modern day trends where a court-martial conviction bears a lifetime of civil disabilities? Pre-9/11 ex-service members who had a summary, special or general court-martial conviction when, let’s say, they were 18 - 22 years old were still had a good chance to obtain decent employment, apply for colleges or trade schools, professional licenses, etc. Post 9/11 these convictions are being treated like a federal felony conviction right out of U.S. District Court. I'm for the good order and discipline argument but the modern day trend has changed with very serious civil disabilities. Are you saying if there was a fundamental error not known at the time of the conviction that the ex-servicemember should be left bereft without any remedy in law if this discovery was made six years after the discharge?

Anon 0649: I tend to agree. After reading Judge Ryan's well reasoned dissent, all the briefs and the transcript of oral argument - I do not believe Congress gave the military courts jurisdiction to correct the error Denedo alleges. No matter how distasteful that sounds to me: there is just no jurisdiciton.

I believe that Congress should (and rather needs) to look at this situation and also review the UCMJ. The last time the UCMJ had a thorough up-and-down review was a quarter century ago. Servicemembers, the public, and the system itself, deserves Congress (every decade or so) hold a hearing, conduct some oversight and make necessary amendments to the Code.

Recently in my other home country of Australia, the Parliament appointed a panel of senior retired military officers (flag rank), civilian judges and military law scholars to review its justice system and report back to Parliament with recommendations for changes. After changes were made the panel reviewed the progress. Australia has one of the most modern military justice systems with equal access to the High Court of Australia (the equivalent of SCOTUS) and this modern system hasn’t negatively affected a commander’s implementation of good order and discipline.
Now I’ve been to few of the Code Committee public meetings at CAAF – I’m sorry but that’s a joke. In fact, one year a CAAF judge was even wondering why the CAAF judges were on the Code committee to begin with. I can also tell you I was at a meeting on the Hill when the GOP had majority status and the counsel to HASC didn’t even know what a Code Committee report was. Congress should appoint an outside panel, on the lines of NIMJ’s Cox Commission. Give the panel or commission subpoena power and adequately fund it. This panel should be comprised of senior retired flag officers (three and four star), retired (or senior status) CAAF judges, senior status federal district court or appellate judges, civilian military law scholars and at least one senior retired enlisted (retired E-9 or a former service enlisted advisor, i.e. MCPON, Sergeant Major of the Army, etc.) The panel could then review the UCMJ, hold public hearings, take sworn testimony, issue subpoenas (if need be), and then issue a formal report to Congress with recommendations for reform. Such a report could later be used to measure the progress of any changes and also be used in future Congresses.

Anonymous said...

Cloudesley Shovell,

Many statutes, not just the UCMJ would have to be amended to accomplish that.

This is just off the cuff, but what about a statute that confers ex-military members, whose military appeals are final, with the ability to bring coram nobis writs to a federal appellate court? Obviously if the petitioner is successful, the military cannot do anything about it, but at that time the military has no real criminal justice interest. I could also see an attempt by petitioner to pursue potential back pay, etc. through additional court action, when successful.

Can anyone who knows more about the facts of the Denedo case (and who would not violate AC privilege) game-out what would happen if Denedo had the opportunity to file his writ with the DC Appellate Court for example?

NIMJ said...

NBM3,

The Cox Commission has reconvened and will hold a public hearing early this summer. In the mean time, feel free to send any comments/recommendations to coxcommission@wcl.american.edu for consideration.

Cloudesley Shovell said...

Anon 949am--

Re: collateral consequences, at least at the federal level, one statute would fix it, but I acknowledge that actually implementing the fix (esp. with regard to state collateral consequences) might be hard. I stand by the general proposition, however, that court-martial findings, as a class, should not be considered a criminal conviction for collateral consequence purposes.

I also completely agree that expressly giving a certain court jurisdiction over post-finality challenges to courts-martial is a good idea. It might also be a good idea to limit that court's reviewing power (in the event of some fundamental error) to expunging the findings and sentence, and ordering the military to upgrade the discharge. I would leave it to the military to decide whether to restore the person to military service or not, since deciding who gets to be in the military is an executive/commander-in-chief function, not a court function, esp. on a collateral claim. Gotta balance the competing interests in the individual's rights vs. good order and discipline and regulation of the armed forces.

Dew_Process said...

Since at least 1954, the then CMA tried to clarify its jurisdiction on prerogative writs. After Morgan was decided by SCOTUS, that ended that discussion.

In 1956, one SGT James O'Callahan was charged inter alia with attempted rape. Thereafter, he was convicted, sentenced to a DD & 10 years. Conviction aff'd upon appeal, DD ordered executed.

Just before his sentence was to expire, FORMER SGT O'Callahan, petitioned then CMA for extraordinary relief in the form of Coram Nobis. So, we have a now civilian 10 years out, seeking Coram Nobis. The CMA opinion is at 37 CMR 188 (CMA 1967). The Court denied on the merits, not on jurisdictional grounds. The Government never contended that CMA didn't have jurisdiction.

That might without more, be just a blip in military justice history, but there's more. He filed for habeas relief in the federal district court - denied, and aff'd upon appeal. He then petitioned SCOTUS, who granted cert.

The Court's opinion was the infamous, O'Callahan v. Parker, 395 U.S. 258 (1969), the prosecutor's nightmare until overruled in Solorio.

As I recall, there was also a question to the extent as to whether or not Congress had ever authorized "jurisdiction" over former Service Members - the correct answer is yes. Art. 2(a)(7), makes civilain prisoners "subject to" the UCMJ, i.e., those who've become "civilians" during their confinement.

If, as the government argued, "final" means final for jurisdictional purposes, then Kahn v. Anderson, 255 U.S. 1 (1921), needs to be overruled, because that's the basis for Art. 2(a)(7).

With due respect to Matt Freedus, who gave a great performance in the face of Scalia's grilling, I couldn't help but think of this great line from Marbury v. Madison:

"It is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury its proper redress,"

and wonder how the SG would have fared before CJ Marshall....

Anonymous said...

Except Denedo doesn't have a right.

John O'Connor said...

From reading the transcript (an admittedly unreliable exercise), I agree with Anon 2254 on the likely result being 5-4 to affirm CAAF, which I think is the wrong result. But what are you going to do.

Anonymous said...

Cloudesley,

I have been thinking about your proposal to limit collateral consequences to the term of military service and seek Art. III court jurisdiction if the case is serious enough to warrant consequences beyond the term of service.

That proposal could have some serious limitations. First, as the military often travels beyond state and federal jurisdiction, the UCMJ may provide the only jurisdiction over offenses happening abroad. Understand that a MEJA like fix could rectify that, but at present I don’t see Congress trying to extend jurisdiction for all federal offenses for military personnel regardless of location. Assuming that Congress does so enact a law and an incident arises where the military believes it serious enough to warrant future limitations on civil liberties, isn’t it up to the US Atty to proceed forward? I don’t really see those guys getting overly juiced-up for a case where a soldier stabs and robs another soldier at FOB Armpit near Kandahar, Stan. Does it become a matter of the military persuading DoJ to move a case forward to a result the military perceives as just? I understand a US Atty who feels that a case within his AOR of similar conduct with a US citizen perp and victim may cause him to proceed forward, but his interests lessen in the factual scenario provided.

I still think that providing some avenue for relief, for the very small percentage of cases that may warrant coram nobis review, outside of the military justice system would be the answer.

To that end I proposed a hypo regarding what would happen if Denedo had the right to seek coram nobis relief in an Art. III court. Although this is real rough, this is one way it may play out:

Denedo: I want to have my guilty plea set aside because my TDC committed IAC because I did not know I could be deported for the conviction.

Court: I understand you have the right to effective counsel and the right to a trial with the presumption on innocence, but we have a record before us that indicates that you did, in fact, commit the offenses which are the basis for deportation.

Denedo: But had I known the collateral consequences, I would have elected my constitutional rights to plead not guilty, have a jury trial, enjoy the presumption of innocence, and require the Govt to prove, by competent evidence, beyond a reasonable doubt that I committed the offenses.

Court: Assuming that the Govt, as in most cases when it decides to prefer charges, has competent evidence to prove you guilt beyond a reasonable doubt, wasn’t your counsel’s possible IAC harmless as you would have still been convicted?

Denedo: Only if you assume they had the evidence.

Court: Well something caused you to cut a deal, or was the TDC ineffective there as well?

Denedo: My TDC was a buffoon.

Court: And he had a criminal for a client, but that is beside the point. Regardless of the collateral consequences, you entered a pretrial agreement because, at the time, you believed it advantageous to you. That must be premised upon your belief that the Govt would probably had proven your guilt if you did not enter into a PTA. Thus, even disregarding the substantial evidence of your guilt that the Govt has provided this court, your decision to plead guilty suggests your guilt (disregarding your sworn testimony that you are in fact guilty) and therefore tells us any IAC was harmless beyond a reasonable doubt. You lose, case closed.

NBM3 said...

Repeal 10 USC § 1552(f) - problem fixed.

My understanding (and please someone correct me if I'm wrong) is that in the 1940s Congress was fed up with petitions to correct military or naval records of court-martial convictions via private relief bills. As such, when Congress passed the Legislative Reorganization Act of 1946, section 131 of the Act, banned four types of private bills which included a correction of a military or naval record. (See also House Rule XII, Clause 4) However, in the same Act, Congress provided for individual military service boards of corrections to correct the military or naval record. Essentially closing one door for redress of grievance but opening a window for another at the same time. However, in 1984 Congress shut that window when it took the correction boards jurisdiction away to take corrective action on a court-martial by passing the Miltiary Justice Act of 1983 and creating 10 U.S.C. § 1552(f). Had Congress not done this Denedo would have had an avenue to redress the grievance he now complains.

Tony Cossio said...

Anon and J.C.,

I agree 5-4, or that it could go 4-5, eitherway it'll be close.

7-0-2 is ridiculous, anyone want to do squares on the outcome?

Well, hope Denedo goes Denedo's way, because who-know-who (me) will be waiting on submitting his new petition...

Dew_Process said...

There is a reason it's referred to as the "Military Justice System." Congress, in its lengthy hearings in 1949-50, wanted to create a uniform and comprehensive "system" of military justice. There are repeated references to the then CMA as being the "Supreme Court of the Military."

And as SCOTUS has repeatedly reminded us, Article III courts just aren't equipped to deal with the complexities of military practice.

So, if one looks to Congressional "intent" [for what it's worth], Congress intended that CMA/CAAF be the "end-all" court for military justice matters.

I also totally agree with NBM3 regarding 10 USC § 1552(f). When Congress created the BCMR's, the argument certainly could be made, that they had to be aware of the problem vis-a-vis Article 76's purported limitations. But, when they shut down that avenue of relief, they created the problem Denedo exemplifies.

Either repeal 1552(f), or amend Art. 66, to include coram nobis actions.

Anonymous said...

Dew,

Ummm, the "complexities of military practice"? Really? Please enlighten us as to what this means...I'm sorry, but there ain't nothing complex about the UCMJ or the caselaw interpreting it. Hell, the amount of "law" involved is minute compared to federal law as a whole. I'm sorry, pal, but you've bitten off more than you can chew on this one...

Anonymous said...

As I said before, the military society has discreet boundaries, therefore it should also have definate limitations on appeals.

1) you don't like it, don't join; and 2) there is no reason why a military member who commits the same offense as a civilian shouldn't face the same collateral consequences. Denedo is not the right poster child for an argument that there is a need for coram nobis relief ( and neither is NBM3by the way).

NBM3 said...

Anon 2200 on 27 Mar:

“you don't like it, don't join”

Last time I checked the U.S. still had the draft on the books. Granted we haven’t used the draft since the Vietnam War but what’s to stop the draft from being used in the future? And if that happens your “you don’t like it, don’t join” argument completely lacks merit.

Care to enlighten me on why a military member who may be charged with UA (or an Article 134 offense), convicted and given a BCD of DD should be subjected to a life time of collateral consequences (e.g., in certain states he cannot vote, loss or right to bear arms, etc.) to some civilian who does not show up for work (in which case, not showing up, is not criminal)? How do you justify that? Now I agree that military justice is intended to preserve good order and discipline but in these instances shouldn’t it be confined just to the military world and not spill over as a lifetime of civil disabilities? Have you considered the post 9/11 modern day trends in how civilians now view courts-martial convictions?

Still yet if you believe all this is okay how do you reconcile the following: "Criminal defendants in the Article III judicial system have an automatic right to appeal to federal courts of appeal and then a right to petition the Supreme Court for final review. In contrast, defendants in military cases typically may not appeal their cases to the U.S. Supreme Court unless the highest military court, the CAAF, had also granted discretionary review in the case." See CRS report "Supreme Court Appellate Jurisdiction Over Military Court Cases" dated 30 Jan 2009. Here is a link: http://assets.opencrs.com/rpts/RL34697_20090130.pdf

Anonymous said...

anon 2043 - Read any of the Supremes military abstention cases and you know what DP was referring to.

Anonymous said...

a

Tony Cossio said...

Scalia's remarks about the Military Justice going fine without Corum Nobis for 200 years irked me.

Let's take the most fundemental right, the right to counsel.

I seem to remember stories of individuals being court-martialed and not being supplied a lawyer (pre UCMJ).

No one would argue that the Military Justice system "got along fine" without legal representation for 150 years.

It seems to me the point is it is a fundemental right to be able to challenge a conviction when new matters warrants it.

Chief Justice Roberts comments about someone being able to knock on the door some 20 years later was also way out of bounds.

When my writ was denied, the excuse according to afcca was because it "probably" wouldn't have mattered.

I seriously doubt a ruling in favor of Denedo will cause many accused from comming out of the wood-work and challenging their convictions 20 years later. I think this will only favor a small number of people.

Anonymous said...

But Ton it has happened and the appellant admitted as much in argument

Tony Cossio said...

What has happened? That the service went fine without Corum Nobis for 200 years?

The problem, as alluded to by earlier posts is that POST 9/11 military convictions are treated like federal convictions. Therefore you have cases like Denedo where there are serious consequences outside the military scope of justice.

Therefore it was the Government that caused this mess by increasing the consequences of an appellant post-conviction. Now it is the Government that will be held responsible for giving an appellant an avenue for redress.

The MCM's preamble explains that the purpose of military law "is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States."

LET'S TRY TO GET THE FIRST ONE (PROMOTING JUSTICE) RIGHT.

Anonymous said...

TC,

Here is the problem. Convicts like you, promoting anything. You obviously have an angle and therefore I think your input is of little value. And BTW, pre-9/11 military courts-martial convictions were treated like federal convictions, because they were, and are. Stop posting because when you do, you hurt those advocating legitimate points from the defense oriented side

Anonymous said...

TC,

Once and for all, why don't you just "man-up" and accept that you were justly punished for the offense that you committed and stop looking for a way to justify it by crying the poor victim.

Tony Cossio said...

I have a better Idea, why don't you man up and post your name instead of Anon.

"Once and for all, why don't you just "man-up" and accept that you were justly punished for the offense that you committed and stop looking for a way to justify it by crying the poor victim."

Excuse me. You obviously know nothing about my case. Or you would know that one of the offenses I was charged with was:

Article 134

Communicating a Threat, by saying "I could put you in a coma" or words to that effect.

Never happened. No evidence except for the words of SrA MHT. A man who stole $1,000 plus dollars over multiple times and LIED ABOUT IT in court along with his then girlfriend who repeated the same lies during a motion in limine. I even took a polygraph afterwards (even knowing it wasn't admissible).

During sentencing he again stated tha-----

You know what, I don't need to justify my actions to you. The fact is I was wrongfully convicted of communicating a threat, in addition there was an Article 15 and numerous LORs "made-up" right before my court-martial, which, as I have come to know now, is standard procedure.

And yes, I have other evidence over the years to refute that, it took me a long time to collect, and even risked a second-third court-martial.

Not to mention that the prosecution never fulfilled our discovery request (they would have found 4 convictions of bad checks from SrA MHT). Or maybe they did, they just didn't tell us.

And no, these aren't "dreamed up issues". I have, from day one after my court-martial, have made repeated request, raising the same issues of perjury/false statements as I did on 17 Dec 2004. Nothing has changed.

When I get the OSI report of investigation (the FOIA request was c/w 3 Dec 08....Needs legal review)I will see what conclusions were made - and see if I will file one last appeal.

And another thing, I was just joking about telling me who you are...If I guess correctly, you have referred to me as "TC" before...And at least I am man enough to use my name. Now go hide behind your desk and books.
But unlike you, I don’t like to make assumptions. So I’ll just take a look at the IP address used to post your inane comments, I take it you were using your personal computer, it is Sunday after all.…Hope you’re using XP because Vista has security holes.

As far as your comments alluding to convicts not being able to give their input….Who made you boss of the free world, and censure to the 1st Amendment?

And 2 + 2 equals 4 no matter who says it. Or are you saying my logic is flawed? Then why don't you attack the arguement, not the person---

--That's right. You said that Military Convictions were treated as "Federal Convictions" pre 9/11.

Sure. There has been no change in how Military Convictions are processed as Federal Convictions post 9/11 in FBI databases [NSOR/NCIC]....Sure.

Anonymous said...

I'm sorry, I think we have gotten off the wrong foot.

So if I understand what you are saying, I should admit I was justly punished for commiting the crimes (even though I am innocent of the communicating a threat charge) and accept the life long federal conviction and sentence of 10 plus months because at least the Government got 3 out of four right.

I should then not be bothered that the "victim" testified falsely that I caused him an economic stress when he was writing bad checks before I did anything to him. And that his story about comming clean, and the tc's similar remarks about "coming clean {about the theft]...he's an honest guy" was based of perjured and false testimony.

How about NO. I will never accept responibilty for a crime that I did not commit, or a sentence predicated on lies. Having said and admitted that I am guilty of the other offenses.

However, when the Government overcharges like this (they really didn't have to bring the "threat" charge) they need to be held accountable when new evidence surfaces 5, 10, 20 years later.

v/r

TC

Anonymous said...

OK Tony and Anon,

You have me confused. Was the case a guilty plea case? I take it the threat offense was contested. Not to throw fuel on the fire, but the below post by Tony could be argued as an implied . . .

"But unlike you, I don’t like to make assumptions. So I’ll just take a look at the IP address used to post your inane comments, I take it you were using your personal computer, it is Sunday after all.…Hope you’re using XP because Vista has security holes."

Anonymous said...

...an implied thraet?

Yes, the case was contested, pled not guilty on all offenses.

The first three charges were based on whether diverting (thru MyPay) another's direct deposit to a charity was legally larceny....or larceny of a debt. The three charges were larceny, wrongful use of a computer to commit larceny, and finally exceeding authorized access of a computer. Those charges hinged on the definition of larceny.

The final two charges (I was aquitted of one) delt with threats. Obviously if the Judge (it was a bench trial) found one threat charge lacking other facts could have pushed the other one out as well.

Anyways, I hardly post on this blog although I come here often. But this Denedo case is important to me. Its outcome will effect my decisions in the near future.

Anonymous said...

I thought you went to 2 different courts-martial? No?

Anonymous said...

The second one delt with me obtaining emails (from these witnesses and their friends). The emails contained refrences about the theft that SrA MHT made including other crimes.

A network guy claimed to find my fake website (used to phish emails) thru google and claimed to do a check and determine that others accessed my site....Baloney.

My website would not have appeared on a search engine in a matter of days (this was in 2005). The man obviously was going thru the network himself for his own purposes and saw me there and decided to be the "hero" but that's another story.

Anyways, the case was dismissed due to a speedy trial violation (article 10) were it took the government 2 months to charge me. 5 out of 6 Jags testified that they were waiting on DCFL so they can pile on more charges.

However, the judge's decision was reversed. By that time over a year had passed, nobody really wanted to try the case (still had half a dozen of other motions on the table), so they offered a no-bcd, time served PTA and to plea guilty to made-up 134 offenses. Which I happily took.

I was going to plead guilty the first time, but the Judge wouldn't let me because we raised a constitutional issue.

I ran his name in Lexis and found out that when he was a young defense counsel he got burned when a UIC issue was brought up on behalf of his client he entered a sub rosa agreement for him to plead guilty - A Bozo No No.

Anyways, about that time we filed a writ of error coram vobis which was denied. The court apparently found my guilt to be overwhelming, disregarding the threat charge which was pure hearsay.

After the denial I took the MySpace emails I collected and faxed them to OSI. Again, the SJA would not let OSI investigate. But this time I emailed their HQ using the crimebusters email hotline.....

They went ahead and conducted the investigation. I am waiting for the results.

SEE:

http://afcca.law.af.mil/content/afcca_opinions/cp/cossio-36206.pet.pdf

http://www.armfor.uscourts.gov/opinions/2007Term/06-6005.pdf

Anonymous said...

Isn't there a rule on this blog about posting unlawful threats against people who disagree with you?

But, now that I think about it, I think there are a few Federal and State laws against computer hacking.

Anonymous said...

At the federal level there is the CFAA (Computer Crime and Abuse Act).

You have to cause an "interruption" and a "loss".

The States have far better laws, I have done extensive research in the area. The following link is a great resource on such crimes:

Richmond Journal of Law and Tech.

Volume VI, Issue 5, Spring 2000

--------------------------------------------------------------------------------

The Crime of "Interruption of Computer Services to Authorized Users"
Have You Ever Heard of It?


Ohh....are you insinuating that I am "unlawfully threatning" someone by "hacking into" their computer?

Good luck with that one.

TC

Anonymous said...

OOPS....Big typo, I meant Computer Fraud and Abuse Act. Not Computer Crimes and Abuse Act. Silly me, I was getting my State's Law confused with Federal law.


Oh well. I'll just wait here until the Cyber-Gestapo comes to arrest me, I am shaking in my boots.

NBM3 said...

Back on topic.

A post on the Equal Justice for Troops blog (published by me) calls on Congress to repeal section 1552(f) and gives several reasons for a repeal. Here's a link.

The Convict Formally Known as Airman Cossio said...

Great Stuff.

I see you mirrored my arguement I made against Scalia's remarks and expanded it:

The fact that no court in a 21st century America, including the military courts, wouldn't have jurisdiction to redress a grievance is disturbing. Send troops off to fight wars, protect and defend America but shut them out of all courts was a study trend in the Bush administration. The First Amendment guarantees a right to redress. Reading the oral argument transcript of Denedo, apparently two justices -- Justices Breyer and Ginsburg -- also seemed to find the no remedy situation an awful result. But Justice Scalia noted that error coram nobis (a common law writ used to correct fundamental errors not known during the original trial) wasn't available to a military servicemember for 200 years - implying that because it's always been that way makes it okay. No, it's not okay! Was denying woman the right to vote okay for 144 years? No! Was segregation of African-Americans for approximately 180 plus years okay? No! So keeping our servicemembers or ex-servicemembers from redress of grievances is also plainly not okay - and it's unconstitutional. Had that line of thinking -- it's okay because it's always been that way -- prevailed in 1920 women wouldn't have had the right to vote. Likewise the Civil Rights Act of 1964 wouldn't have been enacted. I shudder to think of what kind of America, in the 21st century, would have resulted from that line of thinking.

It bothers me that so-called constitutionist like Scalia and Roberts are the ones batting this issue away.