No certification in Walker

The Judge Advocate General of the Navy let the certification deadline pass for the Navy-Marine Corps Court's opinion in the capital appeal of United States v. Walker, 66 M.J. 721 (N-M. Ct. Crim. App. 2008), without certifying it to CAAF. Nor did Code 46 ask NMCCA to reconsider.

Cert petition filed in Adams

My erstwhile colleague Tony "The Tiger" Ortiz is counsel of record in a cert petition that the Supremes have docketed. Adams v. United States, No. 08-170. The petition seeks review of CAAF's decision at 66 M.J. 255.

Here's the QP:

In McClaughry v. Deming, 186 U.S. 49 (1902), this Court recognized the importance of statutory construction of a court-martial as an essential component for jurisdiction, stressing that a court-martial may only have jurisdiction if it is convened and constituted in entire conformity with the provisions of the statute. Here, the final convening order unequivocally states that the general court-martial would be constituted with only the five members listed on the final order. However, members on prior orders were seated in the court-martial in direct violation of 10 U.S.C. § 825 and Rule for Courts-Martial 504. Does a court-martial have jurisdiction when members of the court-martial panel were not properly constituted to the court by the final convening order?

Here's a link to the full petition.

The JAG Corps strikes back

Last year, Commander Glenn Sulmasy of the Coast Guard Academy's faculty and Professor John Yoo of Boalt Hall's faculty published a provocative article called Challenges to Civilian Control of the Military: A Rational Choice Approach to the War on Terror, 54 UCLA L. Rev. 1815 (2007). The article basically argued that the balance of power between judge advocates and civilian U.S. government officials had gotten out of whack and that the civilian officials need to put the judge advocates back in their subordinate place (I'm paraphrasing).

The UCLA Law Review, which published the Sulmasy & Yoo piece, has now published a rebuttal written by Lieutenant Colonel Michael L. Kramer, JA, U.S. Army, and Professor Michael N. Scmitt of the Naval War College's faculty: Lawyers on Horseback? Thoughts on Judge Advocates and Civil-Military Relations, 55 UCLA L. Rev. 1407 (2008). Here's a link. They conclude: "Ultimately, Commander Sulmasy and Professors Yoo's arguments must be turned on their heads. Judge advocates do not corrupt civilian control over the military, they inform it. Uniformed lawyers act as honest interlocutors in the process."

Ask and ye shall receive

Here's the new link to the Coast Guard Court's site. Thanks, Hell Roarer!

The Year of Jurisdiction cont'

ACCA has issued a fascinating unpublished opinion deciding a pair of competing petitions for extraordinary relief. United States v. Reinert & Gipson v. McCoy, Nos. ARMY MISC 20071195 & ARMY MISC 20071343 (A. Ct. Crim. App. Aug. 7, 2008). (I'm not exactly sure why an appellate court would issue a 17-page opinion but not publish it, but that's what ACCA did. That said, the opinion was in some ways sloppy -- for example, referring to Goldsmith v. Clinton, 526 U.S. 529 (1999), rather than Clinton v. Goldsmith, referring to "the principle jurisdictional question" instead of "the principal jurisdictional question," and entirely skirting the concept of potential appellate jurisdiction. Was such sloppiness the reason for not publishing it or was the sloppiness actually a product of the decision not to publish? Perhaps if it had been published, the opinion would have been cleaner.)

A military judge gave an accused credit for illegal pretrial punishment. He then directed the government to provide training to prevent repeated incidents of illegal pretrial punishment and announced that he would award the accused an additional five says of confinement credit if the government failed to certify that it had done so. The command took corrective action regarding the particular NCOs who had illegally punished the accused, but declined to provide the ordered general training. The judge then awarded the additional five days of credit. The SJA balked at actually providing the credit and the government filed a petition for extraordinary relief asking ACCA to hold that the military judge had no power to award the additional credit for violation of his ordered training regimen. The accused filed a counter-petition for extraordinary relief asking ACCA to direct the command to proceed with the post-trial processing.

ACCA first held that the requested relief didn't fall within its Article 62 appellate jurisdiction. It then indicated that it sure didn't look like it had jurisdiction to issue writs at the government's behest where the case fell outside of Article 62's jurisdictional limitations. But, ACCA held, it was bound by CAAF precedent to hold that it did have such jurisdiction, so it would proceed to consider the government's petition.

ACCA then indicated that the military judge had no power to order general training to prevent illegal pretrial punishment and that he erred by awarding five days of additional confinement credit when the government failed to comply with his ultra vires order.

The decision is worth the read and raises interesting questions for future cases. But after reading it, I had one specific line of questions. It isn't clear to me precisely when Private Gipson was sentenced, but the adjudged confinement was for seven months. The military judge awarded 20 days of uncontested illegal pretrial confinement credit. He awarded the disputed five days on 24 September 2007. The government sought extraordinary relief on 26 October 2007 and ACCA held oral argument on 19 December 2007. Then, more than seven months later, ACCA issued the requested relief. So obviously by the time ACCA ruled, PVT Gipson either had or hadn't been released from confinement five days early. Which was it? If he wasn't, what is the authority for failing to release a Soldier from post-trial confinement in accordance with the military judge's orders simply because the CA hadn't yet acted? Presumably in almost all special court-martial cases in which Allen credit, Suzuki credit, Adcock credit, or other forms of credit are granted, the CA hasn't acted by the time the credit should kick in. Is there any legal support for the proposition that such credit doesn't apply until ordered by the CA? And if PVT Gipson had been released five days early, why wasn't the case moot? Perhaps one of our duo of Army lurkers could shed some light on those issues.

Should we put CGCCA judges' pictures on milk cartons?

My link to the Coast Guard Court's web site has gone belly up, as has the link from CAAF's web site. I tried a few searches and couldn't find a new web address. Does anyone know what's become of the Coast Guard Court's online presence?

CAAF senior judge appearance

Today's WaPo Book World includes the following item in the Literary Caldendar:

14 | THURSDAY

12:30 P.M. Eugene Sullivan reads from and signs his new political thriller, The Report to the Judiciary, at Barnes & Noble-Metro Center, 555 12th St. NW, 202-347-0176.

ACCA Affirms 4th A. Exclusionary Rule . . . Ruling

Trying to do this all by BlackBerry, so bear with me. According to our growing horde of Army lurkers (there are now apparently 2), ACCA affirmed a military judge's exclusion of an accused's statements under the 4th Amendment exclusionary rule. See United States v. Martinez, Army Misc. 2008032 (A. Ct. Crim. App. Aug 5, 2008). I know I initially read the first 2 pages of the op. and thought that 4th Amendment was a typo, it is not. Holding is based on an illegal apprehension. In any event the Art. 62 appeal affirmed the MJ and returned the case for trial, which apparently is another of the Iraq based courts martial. See New York Times coverage here.

CAAF grants review to determine the effect of a PTA's waiver of all waivable motions on multiplicity/UMC issues on appeal

Again without having actually eyeballed the order, I understand that CAAF yesterday granted review of the something like the following issue:

WHETHER THE LOWER COURT ERRED WHEN IT FOUND THAT A PROVISION IN APPELLANT'S PRETRIAL AGREEMENT TO "WAIVE ALL WAIVABLE MOTIONS" WAS AN EXPRESS WAIVER THAT BARS APPELLANT FROM ASSERTING ANY CLAIMS OF MULTIPLICITY OR UNREASONABLE MULTIPLICATION OF CHARGES ON APPEAL.

United States v. Gladue, __ M.J. ___, No. 08-0452/AF (C.A.A.F. Aug. 7, 2008) (order).

AFCCA's opinion in the case is published at 65 M.J. 903 (A.F. Ct. Crim. App. 2008).

CAAF remand in Adcock-type case

I have returned to the land of 24-hour Internet access.

I haven't eyeballed the order myself, but I understand that yesterday CAAF remanded a case to AFCCA for further consideration in light of Adcock. My understanding is that CAAF granted Staff Sergeant Williams' petition to review the following issue: "WHETHER THE AFCCA ERRED IN NOT CONSIDERING THIS COURT'S DECISION IN US V. ADCOCK, 65 M.J. 18 (CAAF 2007), THAT KNOWING VIOLATION OF SERVICE REGULATIONS DESIGNED TO PROTECT THE RIGHTS OF SERVICEMEMBERS CAN AMOUNT TO AN ABUSE OF DISCRETION WARRANTING CREDIT UNDER R.C.M. 305(k)." United States v. Williams, __ M.J. ___, No. 08-0339/AF (C.A.A.F. Aug. 7, 2008) (summary disposition). I further understand the CAAF summarily set aside the Air Force Court's decision and remanded the case for a new appeal. Id.

AFCCA's original decision in the case is available here. United States v. Williams, No. ACM 36679 (A.F. Ct. Crim. App. Dec. 19, 2007).