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.]