Potential problems for potential jurisdiction

So it's decided. Military courts of appeal have jurisdiction to issue writs of error coram nobis under the All Writs Act. While that may give a spark of hope to appellants (can anyone now be said to be a "former appellant?") hoping to re-relitigate their convictions, I think the reasoning--if not the holding--of Denedo may serve to curtail extraordinary writ practice in military courts, especially those writ petitions that have the most potential to succeed or advance justice in a case.

Successful extraordinary writs are so rare that it's difficult to talk about a "typical" successful extraordinary writ. But if there is such a thing, it probably involves a scenario in which a convening authority or judge has done something (or refused to do something) resulting in prejudice to some fundamental right in a way that can't be easily corrected in the normal course of appellate review. Likely issues that come to mind involve right to counsel issues, some discovery issues (like preventing destruction of evidence) and issues relating to the right to a speedy public trial.

Consider United States v. Schmidt, 60 M.J. 1 (C.A.A.F. 2004), in which the government required an accused to clear through the government those classified matters he wanted to discuss with this counsel. The accused filed an extraordinary writ to permit the accused to discuss these matters with counsel in confidence, the denial of which was vacated by CAAF. But by what authority?

In United States v. King, 53 M.J. 219 (C.A.A.F. 2000) (mem.), Judge Sullivan wrote in his concurring opinion that military appellate courts' writ authority under the All Writs Act included the power "to supervise proceedings and provide relief under the Uniform Code of Military Justice." This supervisory power isn't dependent on an appellate court's jurisdiction over any particular case; neither King nor Schmidt qualified for review under Articles 66 or 67. The accuseds' cases hadn't even been referred yet. But CAAF, according to Judge Sullivan, had the authority to supervise Article 32 proceedings simply because they are, as Judge Sullivan put it, "part of the Uniform Code of Military Justice." Id.

A slightly less expansive view of military appellate courts' jurisdiction was articulated by CMA in United States v. Snyder, 40 C.M.R. 192 (C.M.A. 1969). In Snyder, CMA held that its jurisdiction did not extend to all proceedings under the UCMJ. Where a case had no potential to be reviewed under Article 66 or 67, military courts lacked jurisdiction to issue writs.

The Denedo Court's rationale for permitting extraordinary writs (or at least coram nobis) undercuts both views of when a writ is in aid of a court's jurisdiction. The Court acknowledges that military courts can issue writs, and that the All Writs Act is the source of that authority. The harder question is whether the case--not the writ--is within the court's jurisdiction. In the case of coram nobis, it's pretty easy for the majority lash writ issuing authority to the statutory authority by which the appeals court heard the case in the first instance. Everyone agrees CCA had jurisdiction to hear the case under Article 66; the power to issue the writs in aid of the court's jurisdiction is coextensive with the jurisdiction. And while fixing the power to issue writs so firmly to the fact that a case had once satisfied Article 66 may shore up coram nobis, it erodes the rationale for writs more commonly filed before a case satisfies the jurisdictional requirements of Article 66.

Judge Sullivan's unfettered-supervisor-of-all-UCMJ-proceedings theory of writ authority is clearly inconsistent with Denedo. For that matter, it was probably inconsistent with Goldsmith, too, so maybe I shouldn't rush to declare it dead. But what about cases that fall into an appellate court's potential jurisdiction? Those cases form the bulk of the meaningful writ petitions. The Denedo Court's statement that "to issue respondent a writ of coram nobis on remand, the NMCCA must have had statutory subject-matter jurisdiction over respondent's original judgment of conviction" indicates that potential jurisdiction cases may be by the boards, too. If a CCA must have subject matter jurisdiction over a case without reference to the All Writs Act in order to issue a writ, no case will qualify for a writ until after the convening authority's action.

I can imagine counter arguments: Of course the Court would look retrospectively, not prospectively, at the CCA's jurisdiction in a coram nobis case. The court either had jurisdiction or it didn't. Perhaps if this were a pretrial petition for a writ of mandamus the Court would have found a prospective, rather than a belated extension of CCA's jurisdiction. Some of the logic in Denedo can be found in Snyder. The Snyder court, too, found that writs are issued "in aid of the exercise of our jurisdiction over cases properly before us," and then had no apparent qualms about tacking on the words "or which may come here eventually." [Emphasis in original; Lexis won't give me the page number, sorry.] But over and over again, the Denedo Court returns to the fact that Denedo's case had already cleared the Article 66 wicket as the actual basis for jurisdiction. In short, there is no such thing as extraordinary writ jurisdiction at CCA; only Article 66 jurisdiction, which, when achieved, entails the possibility of writs in aid of that jurisdiction. So if you want your writ petition to have potential, your jurisdiction may have to be actual.

From a policy standpoint (yeah, I know, that's different from a legal standpoint), that's too bad. If I had to pick one writ to jettison to save the others, it would be coram nobis. From what I've seen it is mostly used as a petition for reconsideration way out of time. Mandamus and prohibition, on the other hand, are occasionally used to cure a fundamental problem that threatens to work a substantial injustice. Sometimes they further judicial economy. It's a shame that in going so far to save coram nobis the Court may have gutted the rationale for more useful writs.