tag:blogger.com,1999:blog-34853720.post1286585332380387752..comments2023-08-24T10:39:23.460-04:00Comments on CAAFlog: Acting SG sides with Code 46 and GAD against JAJGDwight Sullivanhttp://www.blogger.com/profile/11657981110237418710noreply@blogger.comBlogger11125tag:blogger.com,1999:blog-34853720.post-40067327804286802092008-08-31T09:07:00.000-04:002008-08-31T09:07:00.000-04:00In United States v. Gore (CAAF 2004) Code 46 did n...In United States v. Gore (CAAF 2004) Code 46 did not take the position that CAAF did not have jurisdiction to review NMCCA's rulings in Article 62 Appeals. Perhaps the counsel who were involved could enlighten us as to Code 46's former position?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-41098970735360189632008-08-30T23:46:00.000-04:002008-08-30T23:46:00.000-04:001608 Anon,I think you're working from an obsolete ...1608 Anon,<BR/><BR/>I think you're working from an obsolete copy of the Supremes' rules. (I'm not being snarky -- the copy of the Rules you're working from seems to precede the 2005 version, which is no longer in effect either.)<BR/><BR/>Rule 10 emphatically does not provide either sufficient or necessary conditions for obtaining a cert grant. Rule 10 itself makes that point by noting that the factors it lists are not controlling and do not "fully measur[e] the Court's discretion." <BR/><BR/>The Supremes can -- and often do -- turn down cert petitions that fall within one of the criteria set out in Rule 10, no doubt because the case isn't deemed sufficiently important. A cert petition seeking to constrain a lower court to its proper jurisdiction would seem more important if the lower court often exceeds its jurisdiction than if it does so only in one isolated incident, just as I might discipline my daughter differently if she grabbed a forbidden pre-dinner sweet on one occasion than if she did so habitually.Dwight Sullivanhttps://www.blogger.com/profile/11657981110237418710noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-50417614619447430832008-08-30T23:13:00.000-04:002008-08-30T23:13:00.000-04:00It's a Writ and the state of the law is now, as CA...It's a Writ and the state of the law is now, as CAAF interprets it that a Writ in such a case is appropriate. The government may have felt it not the case in the past but CAAF has clearly said thy will entertain such writs so why not exploit CAAF's mistake?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-11981252501498879642008-08-30T16:53:00.000-04:002008-08-30T16:53:00.000-04:00CAAFlog I apologize about getting off-topic; howev...CAAFlog I apologize about getting off-topic; however, NM GAD may want to be able to answer this: How does the original writ question to NMCCA in Harty have the "effect of dismissal" as enunciated in Will v. United States, 389 U.S. 90, 98 (1967)? If it doesn't, how does the CAAF have jurisdiction under Art 67 to review something the NMCCA couldn't under Art 66? And so, back to my original question, broad government writ petition jurisdiction in one case, but narrow prescribed for the accused?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-37924621806578342182008-08-30T16:23:00.000-04:002008-08-30T16:23:00.000-04:00Anon 03:24:00,The Government must know which rule ...Anon 03:24:00,<BR/><BR/>The Government must know which rule to apply. Does a ruling by email start the 72 hour clock for an Article 62 appeal or does a ruling made during an Article 39a session start the 72 hour clock. Appellate Government is right to raise the issue to CAAF. NMCCA will not clarify the rule. Uncertainty in the law germane to procedural rules should be clarified whenever possible. <BR/><BR/>I agree that there is nothing hypocritical with Appellate Government's decision to seek clarification from the CAAF regarding something that NMCCA refuses to clarify.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-84668682202543896492008-08-30T16:08:00.000-04:002008-08-30T16:08:00.000-04:00CAAFlog, why does the importance of the cert petit...CAAFlog, why does the importance of the cert petition depend on how many times the lower court has been wrong on related matters under SC Rule 10.1? Doesn't the issue itself need to be of significant importance and not simply "episodic?" Rice v. Sioux City Cemetery, 349 U.S. 70, 74 (1955).Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-57252791573249457342008-08-30T15:30:00.000-04:002008-08-30T15:30:00.000-04:00Again with the MJ issue...someone, anyone tell me ...Again with the MJ issue...someone, anyone tell me what do you do when a MJ refuses to follow NMCCA's directives? And when such a refusal is then approved by the same court that 2 months prior required something totally opposite? And, the government is not being hypocritical...if CAAF says that is the state of the law the government is fully within their rights to exploit CAAF's mistake.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-78520863221621975262008-08-30T15:24:00.000-04:002008-08-30T15:24:00.000-04:00Anyone else see the NM GAD's support for the cert ...Anyone else see the NM GAD's support for the cert petition in Denedo ironic in light of the recent US v. Harty, Misc. No. 08-8024/NA writ-appeal petition. So expand writ petitions for government interlocutory appeals (contrary to SC guidance to the contrary); however, adhere to a strict interpretation of writ appeal jurisprudence for an accused? Nothing worse then government hypocrisy veiled in righteousness: “The true hypocrite is the one who ceases to perceive his deception, the one who lies with sincerity.”Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-51126573023024361562008-08-30T13:11:00.000-04:002008-08-30T13:11:00.000-04:00What CAAFlog said.What CAAFlog said.John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-7773788123405621222008-08-30T12:39:00.000-04:002008-08-30T12:39:00.000-04:00It seems fair game to me, because it was in a sect...It seems fair game to me, because it was in a section about why the case is certworthy. Regardless of the merits of any individual item in the list, if a court consistently exceeds its statutory jurisdiction, then it seems to me it's more worthy of the Supremes' time to clip that court's wings than if the court does so in only one isolated incident.Dwight Sullivanhttps://www.blogger.com/profile/11657981110237418710noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-56080200387110302552008-08-30T12:26:00.000-04:002008-08-30T12:26:00.000-04:00I question the need for the SG to comment about pr...I question the need for the SG to comment about prior cases that CAAF held jurisdiction contrary to the government's position. First, the SC is posed with a limited question of jurisdiction on collateral review under Art 67, UCMJ which involves different jurisdictional issues then lopez or even loving. Second, the SG had an opportunity to file a petition in those cases and chose not to.Anonymousnoreply@blogger.com