Wednesday, April 15, 2009

Motion to extend time to file certificate of review in Neal

The No Man previously discussed NMCCA's en banc opinion unanimously rejecting a constitutional challenge to the new Article 120. United States v. Neal, __ M.J. ___, No. NMCCA 200800746 (N-M. Ct. Crim. App. March 31, 2009) (en banc).

Today's CAAF daily journal online update included notice of a motion for enlargement of time for the Judge Advocate General of the Navy to file a certificate of review in the case. United States v. Neal, __ M.J. ___, No. 09-5004/NA (C.A.A.F. Apr. 14, 2009). The notice doesn't indicate whether Code 45 or Code 46 filed the enlargement request. Could someone in the know fill in that detail for us?

It's unusual but hardly unprecedented for a Judge Advocate General to certify to CAAF a case that the government won at the CCA level. One of the most famous military justice cases of all time -- United States v. Tempia, 16 C.M.A. 629, 37 C.M.R. 249 (1967) -- was certified to CMA by the Judge Advocate General of the Air Force after the government had prevailed before an Air Force Board of Review. A more recent example is United States v. Rodriguez, 60 M.J. 87 (C.A.A.F. 2004)--the infamous "Latin movie" case--which the Judge Advocate General of the Navy certified to CAAF after the government had prevailed before NMCCA.

There would seem to be a firm rationale for the Judge Advocate General of the Navy to certify this case, to expedite a final determination of the new Article 120's constitutionality. Of course, this case wouldn't resolve every constitutional challenge to Article 120, but more certainty is better than less certainty.


Cloudesley Shovell said...

I would assume this is the gov't--defense has sixty days, and they cannot get an enlargement.

The obvious issue is whether certifying issues to resolve other constitutional questions surrounding Art. 120 would result in (1) an advisory opinion, or (2) problems with the constitutional avoidance doctrine.

Dwight Sullivan said...

Sir Cloudesley, while the defense has 60 days to file a PETITION, if the defense were asking the JAG to certify, it would still be a 30-day deadline for certification. So in cases where the defense is seeking JAG certification, it might be advisable for the defense to seek an enlargement of the 30-day certification period.

Anonymous said...

It is the Government that has requested an enlargement.

Toussaint-Guillaume Picquet de la Motte said...

I have seen the defense request JAG cert if they've missed the 60 day window but here they haven't. It could be a decision to try and force CAAF to look at this (though I doubt CAAF would deny a petition). Sometimes from the gov't position you don't really care what the rule is under the statute but you really just want finality and clarity so you can inform the field. This could be a gov't cert trying to get some clarity.

Dwight Sullivan said...

No doubt, Admiral. But as an appellate defense counsel, I've requested JAG certification of cases even before filing a petition for grant of review. If JAG certifies, CAAF MUST consider the case. So obviously I'm better off as a defense counsel having JAG certify than filing a petition.

This seems like a case in which it would be appropriate for the defense to ask JAG to certify. The notice of the request for enlargement didn't indicate which party had requested the enlargement. It seemed just as likely that it would be the defense seeking certification as that it would be the government. And, hence, it seemed just as likely that it would be the defense seeking an enlargement of the certification period.

This morning we had a post indicating that it was the government -- and that's understandable for the reasons that you give. But there's an important practice point here for appellate defense counsel -- they can, and in appropriate cases should, immediately ask JAG to certify cases where the CCA ruled for the government. And where defense counsel do so, it would probably be a good idea to simultaneously ask CAAF to extend the certification window to provide sufficient time for the certification request to work through the OJAG bureaucracy.

Anonymous said...

Bureaucracy, surely you jest.