Monday, June 08, 2009

Denedo Released, Affirmed

Here is a link to today's SCOTUS decision in United States v. Denedo, No. 08-267, affirming (5-4) CAAF's holding that former servicemembers may seek coram nobis review of their convictions after their appeals are final. SCOTUS finds that the ability to seek review derives from the All Writs Act and Art. 66, UCMJ and is not trumped by Art. 73 or 76. More analysis tonight from CAAFlog.


Socrates said...

I think my prediction of March 14 held true: “Ironically, when the dust settles, Denedo might be most remembered not for the MILJUS or immigration collateral, but for defining the term "relief."” The Supreme Court rejected respondent’s “parsimonious” (excessively sparing or frugal) construction of the word “relief.” It now means “any redress or benefit provided by a court.” For non-military lawyers, this little nugget from Denedo will be the most cited.

Cossio said...

And yet on Yahoo! the biggest Military Supreme Court news is....A rejection for review of "don't ask don't tell". Wow.

That's right, not important jurisdictional issues presented in Denedo, but whether men who like other men have a "right" to thrust themselves into a platoon, shower and shave with normal men who like girls.

I can't stand this doped out society.

H Lime said...

I think the decision is of somewhat broader import--Denedo will be cited by Art I courts in the future as endorsement of the disputed concept that they can review their own decisions regardless of Congress' language attempting to curtail their ability to do so. The one underexamined line of argument in Denedo was that Art I-Art III divide, and that divide is now greatly blurred.

Denedo is also the most significant endorsement--"evah"--of the CAAF's mission of refashioning military justice in Article III garb. CMA's past and tentative dicta examining the possible boundaries of such powers is now supplanted by clear precedent from the Supremes.

Though doubtless it's true the "relief" holding will the be most frequently cited, if only because it's a threshhold matter in so many cases.


Anonymous said...


You should make your rabid homophobia the topic of your law school application essay.

Southern Defense Lawyer said...


Thanks for your input. I too found it interesting that a denial of a grant of cert was front page news on, however, the public seems to care about DADT much more than jurisdictional issues.

So, the "news" here as I see it is this: the Supreme Court denied cert in a case, jurisdiction blah blah blah, and Cossio doesn't want to shower with homosexuals.

Now, back to our daily musings.

Socrates said...

I think what Cossio was trying to say, by weaving these two stories together, is that he maintains jurisdiction over his rearside, and would thus deny homosexuals any "relief."

But seriously, to the topic at hand - H Lime makes a great point about the I / III divide. I think the concept of how similar or different I vs. III courts should be implicitly underlies the majority and minority opinions.

After reading Roberts dissent, I am more convinced than ever that we need Congress to revisit military justice legislation. Roberts is a smart man, and he strictly interprets the law and history. Roberts reading of military courts as being hastily assembled, jerry-rigged, 19th century sideshows to an ongoing battle (with cannons and muskets), needs serious updating. The dissent would have us walking the planks. But thats not the court's fault - this is Congress' job.

The nature of military service has FUNDAMENTALLY changed since these bedrock principles were laid out. We have an all volunteer force, a peacetime standing army, a bureacratic machine, better leadership, high technology, etc., a whole host of factors that make the "quick and rough military justice" argument unfit for today.

Dew_Process said...

But, the dissent also perpetuates the illusion that "aggrieved" military members can collaterally attack their conviction in an Article III, Court. Even bona fide habeas cases where the Petitioner remains in custody, get the minimalistic, deferential "review." If you're not in custody, then it's unlikely that any Art. III Court will even hear the case.

I agree, Congress needs to create either a mechanism for jurisdictional review, or amend the federal habeas statute to allow real collateral attacks in Art. III Courts.

lancaster said...

Justice Roberts view of the mil justice sytems needs alittle updating. No wander he never bothered to research military law in the gray case before ruling against the government.
This result continues the evolution of mil law and good for service members for they are part of a system that could be full of errors but one I believe strives to evolve and be better.

Anonymous said...

So (1) the lack of jurisdiction argument was meritless and (2) it was a split decision to affirm, NOT Goldsmith. Not many people on this blog got this one right.

Anonymous said...

A "jurisdictional" time bar will not survive very long after today's ruling either.

Anonymous said...

I thought the dissent had the better reasoning based on the way the MJ system is currently organized...

BTW: What happened to the United States v. Nerad post. Was it deleted?

Anonymous said...

If Chief Justice Roberts had written the same opinion for the majority of the Court, I'm not sure the government would have wanted to "win". I think it would have set back the reputation of the military justice system 50 years. Evidently the dissent believes modern courts-martial "rough", "summary", "speedy", and "stern" -- more concerned with discipline than justice -- and therefore altogether undeserving of the powers of civilian courts. It really is too absurd to think that Congress could ever have intended such a thing.

Anonymous said...

“We have repeatedly held that Federal practice applies to courts-martial procedures if not incompatible with military law or with the special requirements of the military establishment.” United States v. Knudson, 16 C.M.R. 161, 164 (CMA 1954) [citing, United States v. Fisher, 15 C.M.R. 152 (CMA 1954)].

As the Legislative History of the UCMJ clearly shows, Congress (as ANON 1717 notes) intended just the opposite - due process, fair trials and no UCI. That intent is well documented, to include the seminal history of the Court by Professor Jonathan Lurie, Arming Military Justice: The Origins of The United States Court of Military Appeals, 1775-1950 (1992).

Anonymous said...

Justice Roberts would have done well to have toned down some of his more colorful words. I think it would have made his correct position go over better.

Anonymous said...

Concur, and was it really necessary to appear to endorse the some of the most uncomplimentary views of the military justice system set forth in Reid v. Covert and Toth v. Quarles?

H Lime said...

Anon 533 pm: you selectively cite from Lurie. Lurie's most recent edition lays out the long struggle involving the JAGs, the CAAF, and Congress and the various committees that vied for power. Even though some of Lurie's conclusions themselves are internally inconsistent, he does a fine job laying out enough miljus history to counter the argument you just made, that the outcome here was a foregone conclusion because the Code is supposed to provide "due process". The truth is, the Code has always provided due process with a "difference."

Anon 517's claims of absurdity are misguided for the same reasons CAPT Rolph, formerly of CCA, so eloquently described in one of his opinions: where reasonable legal minds can differ, there isn't an abuse of discretion. The government and dissent here hardly took an absurd position, any more than Congress' intent was as monolithic as you seem to think it was.



Anonymous said...

I agree with anon 3:37.
How do we now reconcile Rodriguez' 60 day hard cap as a jurisdictional limit with the never ending no finality of the majority opinion here in Denedo? Hmm- looks like a jurisdictional game of pickle to me.

Cossio said...

"You should make your rabid homophobia the topic of your law school application essay."

No dummy, the LSAT gives you dull senarios, mine was planning a camping trip (whether Linda should plan it herself or hire a company).

"I think what Cossio was trying to say, by weaving these two stories together, is that he maintains jurisdiction over his rearside, and would thus deny homosexuals any "relief."


I agree, Congress needs to create either a mechanism for jurisdictional review, or amend the federal habeas statute to allow real collateral attacks in Art. III Courts.

Two words: Lindsey Graham

Anyone can float to him these wonderful ideas?

I like Roberts, Scalia, and co. But I agree he seems not to concern himself with military law. His tone in oral arguement was also indictive of his views.


Oh, let's look at some of the predictions at:

And the winners were:

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.

Wed Mar 25, 10:44:00 PM EDT


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.

Thu Mar 26, 07:25:00 PM EDT


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...

Thu Mar 26, 11:22:00 PM EDT

Anonymous said...

I predicted this long ago...5-4 affirming...I am smart.

Anonymous said...

Someone once wrote about how you cannot intelligibly argue or decide questions of military criminal law without understanding history. This case addresses the evolving and progressive competency of military justice, including standing appellate courts and a civilian court of appeal. Roberts first decided he would dissent and made only a passing attempt at understanding history, apart from pulling phrases like "You're in the Army, now!" to justify denying justice.

Anonymous said...


A law school application essay is different from the LSAT. It's the perfect place for you to take a stand against gays. Obviously demonstrating your homophobia on the LSAT is preposterous. Try to slip in that "who-know-who" brain teaser as well, that's a classic.

Anonymous said...

No the LSAT has an essay portion that is sent to law schools. I'm sure some homophobia theme could be worked into it. Also, the usual insults that Cossio calls people he diagrees with on the blog should be worked into his essay. That will really impress potential law schools.

This blog should really be renamed the CAAF-COSSIO blog since he seems to take over most comment strings.

BTW: How did the LSAT go?

Dahlgren's Leg said...

I'm curious about how Denedo impacts the proposed bill to expand SCOTUS jurisdiction, which Congress is holding hearings on this Thursday.

egn said...

Wow, Dahlgren's Leg - that is a moniker of a Code 45 alum if I've ever seen one.

Cossio said...

LSAT went pretty good. A bit more challenging than I anticipated.

The difficult part for me was the first section, the "if-then-statments".

One question had Five Dinosaur toys, three different colors, and a bunch of conditions to factor in.

I found the gears in my brain turning as I pondered; muave stegosaur, green tryrannosaurs, green ultrasaurus, yellow velociraptor, muave lambeosaurous.

Anyways. I think it was more of the shock - I have not taken a timed test in a while.

The rest of the sections were cake.

I couldn't help but look at the other bafoons and wonder if they had the mental capacity to be anything other than a low-grade public defender. You know, some guys you can just look at and tell they are lost.

I didn't work any homophobia into my written portion, though I did think about working in "shmendrick" or "shyster".

Although the senario of Motels and Camping trips would have afforded me plenty of opprotunity.

Also I do not believe the stance against allowing homosexuals to be openly gay in a situation where you have to shower --- I mean come on! The Privacy issue is right there and nobody picks it up.

How would females like it if guys showered with them? Maybe it should be like Starshiptroopers were we have co-ed barracks and showers.

Anonymous said...

Cossio, watch out! There's a gay right behind you who is about to pounce on you! Run!

Cossio said...

Again, you are taking my comments about don't ask don't tell as an extreme.

Common sense would dictate that having a man who is openly attracted to other men in the same area were they shower and live in is bad for unit cohesion.

However, I understand that most of you lawyers have no idea what it is like to actually be in combat, so your ignorance is forgiven.

I have served with men who were gay/bi sexual (although I didn't find out until they were out of the service). It matters not to me, however for other people it does. We should not force bad ideas onto our fighting men and women for the sake of being PC. You talk about rights, but what about the right to privacy?

Anonymous said...

Great point. The right to privacy provides servicemembers with a shower room free of homosexuals. Good luck in law school.

Anonymous said...

Cossio's right. Until you've deployed to a combat zone, you can't possibly understand what life is like in the showers there.

Anonymous said...

Cossio, You do realize that under the current don't ask/don't tell policy the shower rooms could—right now and when you were on active duty—be filled with homosexuals. Potentially everyone in there could be one. So I’d of thought that you would actually want the policy changed to allow gay people to serve openly because at least, from your perspective, you would know who was who.

I, for one, am for the Starship troopers model. Its common in France and at European hostels to have shared dorms and shared bathrooms. It really isn't a big deal even for 18-24 year olds if you have an ounce of maturity or if you’re a sophisticated European.

Anonymous said...

"I have served with men who were gay/bi sexual (although I didn't find out until they were out of the service)."

So let me make sure I have this straight. It isn't that the problem is actually having gays and bi-sexuals taking showers with you, because as you seem to concede, that's already happened.

The problem is knowing that gays and bi-sexuals are taking showers with you?

No doubt, it's the knowing that changes it from a dude just trying to get clean to a dude lusting after the fruit of your looms.

And having deployed myself, I do wonder where are these communal showers you speak of anymore? I assume there may be a handful left, but my year in Iraq I never saw one, and I was in tiny FOBs and large bases.

Is there something you'd like to share with us Cossio?

Anonymous said...

He never said they were communal showers. I guess he wants to be sure that he only invites straight men to shower in his stall.

lancaster said...

Its funny how homophobic Cossio seems. If he is indeed a fighting man, why would he care if the guy next to him was wearing pink shorts or not? Cossio is no fighting man, just a pretender while some fighting men may bat an eye at a dude they thought was alittle different. I can assure you when going into an LZ all we would care about is can Joe Schuck shoot straight and can he raise hell if need be. Cossio do me a favor when finished with law school go chase a few ambulances and leave the honorable men and women gay or straight alone. I never cared who the dude next to me was bumping. As long as he or she can shoot he or she could go to war with me anytime. I have never seen an American flag on a fighting man that said Gay, Straight, African, chinese, Arab, Italian American or otherwise. It simply says AMERICAN for me thats all I need to know.

Anonymous said...

Cossio isn't a fighting man. He was in the Air Force and spent a large chunk of his time in confinement...Where you know, he lived on the edge everytime he dropped the soap in the shower.

dreadnaught said...

Not to come to defense of Cossio, but, his comments about homosexuality are not without high-level support. It was not that long ago that Gen Pace, the 16th Chairman of the Joint Chiefs of Staff, opined about homosexuals in the military,

"I believe that homosexual acts between individuals are immoral and that we should not condone immoral acts," Pace said in the audio recording of the interview posted on the Tribune's Web site. "I do not believe that the armed forces of the United States are well served by a saying through our policies that it's OK to be immoral in any way."

egn said...

Just because a high level official supports a position it doesn't make it right. The statement that homosexuality is immoral is a very subjective one.

What provides the standards of right and wrong for an official of the Department of Defense? Is it the law? Is it the Bible? Or some other personal code of conduct not embodied in writing? In the case of Gen Pace, it appears that he used religion as a standard when he spoke of immorality. And while that's appropriate for him in her personal capacity, and may even heavily inform his decision-making process in his official capacity, those statement had no place in the public arena.

As far as public ethics, as codified by law, is concerned, the most you can say is that homosexuality is amoral. It is neither right nor wrong; it simply is.

(This comment thread has certainly strayed far from the original post topic. So, how about them Yankees?)

Anonymous said...

No doubt one could find countless comments from high-level officials opposing blacks in the military, women in the military, abolition, etc. That doesn't make the beliefs either correct or moral.

Cossio said...
This comment has been removed by a blog administrator.
Cossio said...


Many civilizations recognized homosexually as wrong - this was before the Bible. Of course I recognize others approve of homosexuality and even child molestation in the past but the point is our morals do not come from the Bible but from us.

Homosexuality is against natures design - that is to procreate and pass your traits down to the next generation.

I am sure most lawyers on this blog cannot fathom the damage being done from their openess to a behavior which is determental to society, the low birth rates in America and Euroupe, the institution of marriage being eroded, the spread of STD's - all due to you people's openess and stupidity.

The Bible's "rules" of unclean animals, sexual purity, and morality had not only a religious connatation, but an underlining scientific and common sense reasoning.

What would happen to the ancient Isrealites if they watered down marriage, allow for sexual impurity, and ate "unclean" foods?

Well they would have ended up like the canaanites, babylonians, etc. That is why these rules are in place, they are built in for our benefit.

It doesn't seem you people much grasp common sense. Which is why our society is the way it is. That's a shame.

Cossio said...
This comment has been removed by a blog administrator.
Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...

"Yes. Let me ask you a question stupid. Let's say you took your son or daughter to church or even the boy/girl scouts. You meet the people in charge but then you come to find out that they have a criminal background for molestation - does that bother you now stupid?"

I just want to clarify this, you are comparing something which is a heinous crime with something that is perfectly legal (child molestation versus merely being gay) and you want to go to LAW school?

"What would happen to the ancient Isrealites if they watered down marriage, allow for sexual impurity, and ate "unclean" foods?"

I dunno, they would have been the Greeks? Or the Romans? Those guys had a bit of a run.

"Our morals do not come from the Bible but from us. Homosexuality is against natures design."

Have a special insight into nature's design do you? Have a special background in answering a question most scientist don't even know yet, whether homosexuality is biologically or genetically based? Your first sentence is fine, but your second sentence seems to forget that your first sentence even exists.

As for possible "natural" reasons for homosexuality. Easy, how about as a population break. If it is so "un-natural" then why is homosexuality so prevalent in the animal kingdom?

"So of course I doubt you people would realize that every society that has lived on its excesses, from Ancient Rome, Greece, Babylon, Israel, Technotitlan, and soon the US have all met similar ends."

Every ancient society, excesses (whatever that means) or not met similar ends. They ceased to exist in their ancient forms and took modern ones. Rome perished not because of "excesses" but because they were in part simply too big for the ancient world splitting into East and West and because of the Germanic tribes. Still Rome survived almost 500 years, almost 1500 years when you include Eastern Rome. Yeah, those excesses really do make short work of an empire.

Finally interesting that you ascribe part of Rome's fall to a decline in values given that Christianity was made the official religion in Western Rome about 100 years before it's collapse.

I mostly think your comments are so over the top that you must be playing an online character or role. It's one thing to be against gays in the military, it's another to come across so clearly fearful of "teh gay" getting on you and infecting you.

Anonymous said...

The UCMJ punishes sodomy, which many straight and gay men have been convicted of. Thus homosexual acts are illegal.

Now before you tie yourself up in gordoan knots, consider that we in the military punish drug use, a crime not normally found in the states, and people recieve a federal conviction, serious jailtime, and a punitive discharge.

I don't expect a minor league lawyer like yourself to understand that in the military we punish things which are not crimes in the civilian sector in order to "preserve good order and discipline", so I forgive your ignorance if you think openly gay service members would not cause a disruption.

Likewise your comments about Christianity and the roman empire contain obvious flaws, false premises, and faulty conclusions they warrant no debate from me. Although I consider your comments about fallen empires bringing better civilizations in some sort of Darwinian way interesting, it actually refutes your premise that Rome fell as a result of Christianity as, according to your own inane logic, it evolved.

- tc

Anonymous said...


I'd like to offer you a piece of sincere advice. This is really meant to be helpful, I'm not being sarcastic. Your venemous tone and tendency to call people stupid will not serve you well in the future. In both law school as well as the legal profession generally, civilized debate is crucial. If you continue to attack your opponent personally, rather than attack his or her argument, you will lose credibility and you will burn important bridges. Try not taking things so personally, and try not making things so personal. Again, I say this with complete sincerity.

Anonymous said...

You are correct, I apologize for my venemous remarks, however those who I insult have always insulted me first (I.e. Gay Shower innuedo).

I will strive to keep my comments more civil.


Anonymous said...

I've not personally attacked you at all, but your positions, which are so over the top as to be comical.

Again, it is one thing to be against gays, it's another to have the vehement attitude you have.

As for sodomy, a couple of points. You can be gay and not commit sodomy, and you can be straight and commit it on a daily basis, and after the now not too recent Lawrence v. Texas decision, well, the only sodomy convictions you are likely to see will involve some inappropriate relationship (senior-subordinate or adulterous). You aren't going to see anyone solely convicted of sodomy merely because they are gay (or straight) doing it consensually with their of age, non-married partner.

I truly hope you get some perspective. You seem to be very strongly Christian but you seem more focused on what's "wrong" and not enough on what's "right" like hate the sinner, love the sin, judge not lest ye be judged and the Golden Rule.

Anonymous said...

Can we return to an intelligent discussion of Denedo please, and not Mr. Cossio's personal issues.

Leave that up to the Character and Fitness Committee, which hopefully is not composed of any gay lawyers, for his sake.

Anonymous said...

I vote we ignore cossio, all who agree send 123

Anonymous said...

Denedo? What the hell are you talking about? I thought this blog was a daily journal about this cool guy who keeps it real!

Also, what does 123 mean? I've really got to start checking out these blogs before I start getting into them.

Mike "No Man" Navarre said...


I tried to be nice the other day, but I have just about had it with the personal attacks. Confine yourself to relevant comments and not personal attacks or I will ban you from commenting (that does for others that feel the need to do the same or engage in personal attacks on Cossio).

And for those that think they are so smart, don't think we can't track your IP address if we really wanted to.

Cossio said...


Can I still refer to the JAJG as "shmendriks" or would that constitute a personal attack.

They do, after all, meet the definition.