Tuesday, June 09, 2009

Any Respect For Military Justice After Denedo?

As commenters have noted, CJ Roberts was not kind to the system. But, I much prefer actual metrics. To the scorcards!

If you ask any other corner of the internet other than the posts below this one, military justice is still the Rodney Dangerfield of court systems.

By my informal count, after yesterday's opinion there we're exactly 4 articles about Denedo (in the headline) at any major national, regional, or city media outlet. Last night at 10 PM, there were exactly zero, so that's an improvement.

By my informal count, CAAFlog now has 6 posts headlining Denedo. I guess we are 50% more enlightened.


Bridget said...

Question: What was the last military justice case in which the accused prevailed before the USSC?

Anonymous said...

United States v. Custer?

Anonymous said...

For the taxpayer it is a very expensive misperception. Military Justice according to Justice Roberts is rough, fast, and very cheap. But for anyone with any real world experience, military justice is very expensive and thorough. The lowliest service member gets more resources devoted to the administration of justice in their individual case: Good defense, good trial counsel, good military judge, and the chance at clemency with a convening authority (far better odds than clemency with the governor) and mandatory appellant review, than any other civillian criminal defendant. (Except for the white collar/drug king-pins that those Ivy league lawyers defend).

Maybe The President has something here about appointing S.C. Justices with real life experience!

John Gregory said...

The military justice system is robust indeed, with extensive due process protections for the accused.

It seems fair to say that the tone of the concurring/dissenting comments in Denedo regarding the military court system are more reflective of the attitude Article III courts used to take towards military courts in the days of Reid and O'Callahan.

Based on this perception,

1. Is it possible that something is causing the federal Article III judiciary to lose the confidence in the military court system that was reflected in decisions like Solario? (For instance, the arguable necessity of the W.D. Washington Fed. Dist. Ct. to act on ACCA/CAAF's oversight of a double jeopardy issue not too long ago).

2. If a SCOTUS majority were to definitively adopt the position that "the powers of Article III courts are [not] necessarily appropriate for military courts," (CJ Roberts) might that have implications for capital litigation? Some of the issues currently litigated in military capital trials arguably would be precluded if military jurisdiction were narrowly construed -- limited in the sense of being held strictly to the written procedures (RCM's) and statutory language. If this were so, it seems that military capital cases could raise questions of equal protection that have been avoided so far.

These are just some of my personal thoughts and do not reflect any position of the Army JAG Corps.

-John Gregory

Dwight Sullivan said...

Bridget, I believe the last favorable ruling from the Supremes on a military cert petition was in O'Connor v. United States, 535 U.S. 1014 (2002), which was GVRed for further consideration in light of Ashcroft. I believe that the only pre-Denedo military justice case to actually be orally argued at the Supremes and result in a ruling favorable to the accused was Ryder v. United States, 515 U.S. 177 (1995).

Bridget said...

Thanks Dwight, we have some remarkable agreement on the board about the dissent in Denedo, which rivaled the the most cynical writings of Justice Douglas in his day.

Anonymous said...

What does this all mean for Denedo? Does he stay or deported?