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Thursday, November 13, 2008
BREAKING NEWS: SG files reply in Denedo
Here's a link to the SG's reply brief in United States v. Denedo, No. 08-267.
Tuesday, November 11, 2008
Another thought about Denedo
I continue to be amused by the irony of those who would have the Supreme Court exceed its statutory cert jurisdiction to slap CAAF's hand for reaching into a forbidden jurisdictional cookie jar in Denedo. (NOTE: I'm not implying that all those who support cert in Denedo are relying on such arguments; I understand that one can argue that granting cert in Denedo would be permitted under 28 U.S.C. § 1259, though I don't buy that argument myself. But some commentators have attempted to concoct non-statutory (and non-existent) bases for the Supremes to review Denedo.)
The Supreme Court's jurisdiction to review CAAF cases is entirely a creature of statute. The statute that created that authority is the Military Justice Act of 1983, codified for current purposes at 28 U.S.C. § 1259. Unfortunately for the government in Denedo, § 1259 is highly restrictive in its jurisdictional grant. Usually these restrictions favor the government and disadvantage the accused. But in Denedo, § 1259's jurisdictional gerrymandering happens to hurt the government.
Let's compare the statute that authorizes SCOTUS review of the Article III courts of appeals' decisions with that authorizing SCOTUS review of CAAF decisions. 28 U.S.C. § 1254 provides, in relevant part: "Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree." If a similar statute applied to review of CAAF decisions, then the Supreme Court would have jurisdiction to review Denedo now, though it would have complete discretion to decline to exercise that jurisdiction for any reason, including lack of ripeness. But the statute providing SCOTUS jurisdiction over CAAF cases reads nothing like § 1254 -- and the reason it doesn't was to severely restrict military appellants' right to even seek cert. § 1259 provides:
So those who think that the United States should have a right to seek SCOTUS review of Denedo now should be getting in touch with their members of Congress to seek an amendment to § 1259 to make it read more like § 1254.
Interestingly, neither of the pending bills before Congress to expand SCOTUS's cert jurisdiction over military justice cases wouldn't bring Denedo within the Supremes' statutory cert jurisdiction. Both H.R. 3174 (which has been passed by the full House of Representatives) and S. 2052 (which has been favorably reported out of the Senate Judiciary Committee) would amend § 1259 by adding "or denied" after "granted" in subsections 3 and 4. But because relief has yet to be either granted nor denied in Denedo, SCOTUS statutory cert jurisdiction doesn't exist now and still wouldn't exist even if one of those bills were to become law.
But there's no cause for alarm unless and until § 1259 is amended to function more like § 1254. If CAAF ever were to actually affect the United States' interests by granting relief in Denedo or some similar case, then the United States would have jurisdiction under current law to seek relief from the Supremes. In essence, the current version of § 1259 elevates what would normally be the prudential consideration of ripeness into an actual jurisdictional requirement.
The Supreme Court's jurisdiction to review CAAF cases is entirely a creature of statute. The statute that created that authority is the Military Justice Act of 1983, codified for current purposes at 28 U.S.C. § 1259. Unfortunately for the government in Denedo, § 1259 is highly restrictive in its jurisdictional grant. Usually these restrictions favor the government and disadvantage the accused. But in Denedo, § 1259's jurisdictional gerrymandering happens to hurt the government.
Let's compare the statute that authorizes SCOTUS review of the Article III courts of appeals' decisions with that authorizing SCOTUS review of CAAF decisions. 28 U.S.C. § 1254 provides, in relevant part: "Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree." If a similar statute applied to review of CAAF decisions, then the Supreme Court would have jurisdiction to review Denedo now, though it would have complete discretion to decline to exercise that jurisdiction for any reason, including lack of ripeness. But the statute providing SCOTUS jurisdiction over CAAF cases reads nothing like § 1254 -- and the reason it doesn't was to severely restrict military appellants' right to even seek cert. § 1259 provides:
Decisions of the United States Court of Appeals for the Armed Forces may be reviewed by the Supreme Court by writ of certiorari in the following cases:The only basis under which Denedo could possibly qualify for review is (4), but since CAAF didn't "grant relief," as that phrase is typically construed, it doesn't fall within SCOTUS's statutory jurisdiction.
(1) Cases reviewed by the Court of Appeals for the Armed Forces under section 867(a)(1) of title 10.
(2) Cases certified to the Court of Appeals for the Armed Forces by the Judge Advocate General under section 867(a)(2) of title 10.
(3) Cases in which the Court of Appeals for the Armed Forces granted a petition for review under section 867(a)(3) of title 10.
(4) Cases, other than those described in paragraphs (1), (2), and (3) of this subsection, in which the Court of Appeals for the Armed Forces granted relief.
So those who think that the United States should have a right to seek SCOTUS review of Denedo now should be getting in touch with their members of Congress to seek an amendment to § 1259 to make it read more like § 1254.
Interestingly, neither of the pending bills before Congress to expand SCOTUS's cert jurisdiction over military justice cases wouldn't bring Denedo within the Supremes' statutory cert jurisdiction. Both H.R. 3174 (which has been passed by the full House of Representatives) and S. 2052 (which has been favorably reported out of the Senate Judiciary Committee) would amend § 1259 by adding "or denied" after "granted" in subsections 3 and 4. But because relief has yet to be either granted nor denied in Denedo, SCOTUS statutory cert jurisdiction doesn't exist now and still wouldn't exist even if one of those bills were to become law.
But there's no cause for alarm unless and until § 1259 is amended to function more like § 1254. If CAAF ever were to actually affect the United States' interests by granting relief in Denedo or some similar case, then the United States would have jurisdiction under current law to seek relief from the Supremes. In essence, the current version of § 1259 elevates what would normally be the prudential consideration of ripeness into an actual jurisdictional requirement.
Martinez Capital Court Martial Update
Here and here are the latest from the Martinez case via WRAL in Raleigh. The government rested yesterday and the defense opens its case today. Now I don't know if this was part government's strategy, but let me say this, I think it was an incredibly smooth tactical move for the government to force trial defense counsel (TDC) for an alleged killer of two Army officers to open their case on Veteran's Day. Not the aura you want as a TDC.
Monday, November 10, 2008
Cert petition in Seawell
Grant, grant, grant
Today's CAAF Daily Journal update included four grants, one of which we already discussed here. Let's note the other three.
Grant 1:
WHETHER THE ARMY COURT ERRED WHEN IT FOUND THE MILITARY JUDGE'S ERRONEOUS ADMISSIONS OF EVIDENCE HARMLESS BEYOND A REASONABLE DOUBT.
United States v. Garndinier, __ M.J. ___, No. 06-0591/AR (C.A.A.F. Nov. 6, 2008). Gardinier is making a return trip to CAAF. See United States v. Gardinier, 65 M.J. 60 (C.A.A.F. 2007). The unpublished ACCA case that this seeks to review is available here.
Grant 2:
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING A FINDING OF GUILTY OF COMMUNICATING INDECENT LANGUAGE WHERE THE STAFF JUDGE ADVOCATE'S RECOMMENDATION AND THE COURT-MARTIAL PROMULGATING ORDER STATED THE OFFENSE AS ATTEMPTED COMMUNICATION OF INDECENT LANGUAGE. SEE UNITED STATES v. DIAZ, 40 M.J. 335 (C.M.A. 1994).
United States v. Thomas, __ M.J. ___, No. 08-0738/NA (C.A.A.F. Nov. 6, 2008). NMCCA's unpublished decision isn't available on its web site, but I've posted it here. United States v. Thomas, No. NMCCA 200700858 (N-M. Ct. Crim. App. May 27, 2008).
Grant 3:
WHETHER APPELLANT'S PLEAS TO ALL CHARGES AND SPECIFICATIONS WERE IMPROVIDENT BECAUSE THE MILITARY JUDGE DID NOT EXPLAIN OR DISCUSS THE DEFENSE OF LACK OF MENTAL RESPONSIBILITY, DID NOT SATISFY HIMSELF THAT COUNSEL HAD EVALUATED THE VIABILITY OF THE DEFENSE, AND DID NOT ELICIT FACTS FROM APPELLANT THAT NEGATED THE DEFENSE.
United States v. Riddle, __ M.J. ___, No. 08-0739/AR (C.A.A.F. Nov. 6, 2008). I can't find an electronic copy of ACCA's opinion. Army Lurker, do you have it?
Grant 1:
WHETHER THE ARMY COURT ERRED WHEN IT FOUND THE MILITARY JUDGE'S ERRONEOUS ADMISSIONS OF EVIDENCE HARMLESS BEYOND A REASONABLE DOUBT.
United States v. Garndinier, __ M.J. ___, No. 06-0591/AR (C.A.A.F. Nov. 6, 2008). Gardinier is making a return trip to CAAF. See United States v. Gardinier, 65 M.J. 60 (C.A.A.F. 2007). The unpublished ACCA case that this seeks to review is available here.
Grant 2:
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING A FINDING OF GUILTY OF COMMUNICATING INDECENT LANGUAGE WHERE THE STAFF JUDGE ADVOCATE'S RECOMMENDATION AND THE COURT-MARTIAL PROMULGATING ORDER STATED THE OFFENSE AS ATTEMPTED COMMUNICATION OF INDECENT LANGUAGE. SEE UNITED STATES v. DIAZ, 40 M.J. 335 (C.M.A. 1994).
United States v. Thomas, __ M.J. ___, No. 08-0738/NA (C.A.A.F. Nov. 6, 2008). NMCCA's unpublished decision isn't available on its web site, but I've posted it here. United States v. Thomas, No. NMCCA 200700858 (N-M. Ct. Crim. App. May 27, 2008).
Grant 3:
WHETHER APPELLANT'S PLEAS TO ALL CHARGES AND SPECIFICATIONS WERE IMPROVIDENT BECAUSE THE MILITARY JUDGE DID NOT EXPLAIN OR DISCUSS THE DEFENSE OF LACK OF MENTAL RESPONSIBILITY, DID NOT SATISFY HIMSELF THAT COUNSEL HAD EVALUATED THE VIABILITY OF THE DEFENSE, AND DID NOT ELICIT FACTS FROM APPELLANT THAT NEGATED THE DEFENSE.
United States v. Riddle, __ M.J. ___, No. 08-0739/AR (C.A.A.F. Nov. 6, 2008). I can't find an electronic copy of ACCA's opinion. Army Lurker, do you have it?
Denedo distributed for conference
Today the Supremes' clerk's office distributed the SG's cert petition in Denedo for conference. (Here's the link to Denedo's docket on SCOTUS's web site.) The case will be conferenced on Tuesday, 25 November -- two days before Thanksgiving. I don't know yet whether orders are expected to be issued the following day or whether we'll have to wait until 1 December to learn anything.
While the docket indicates that the cert petition and opposition were distributed, it doesn't reflect the filing of a reply to Denedo's opp. Nor is a Denedo reply up on the SG's web site. So as of now, the SG has never addressed the jurisdictional problem in the case.
Denedo made SCOTUSblog's "Petitions to Watch" list here. I know it's never wise to bet against the SG at the cert stage, but I think that the jurisdictional and ripeness problems in the case will be sufficient to result in a cert denial. But if I'm wrong, the Kabul Klipper's Golden CAAF will soon be traveling to Code 46.
While the docket indicates that the cert petition and opposition were distributed, it doesn't reflect the filing of a reply to Denedo's opp. Nor is a Denedo reply up on the SG's web site. So as of now, the SG has never addressed the jurisdictional problem in the case.
Denedo made SCOTUSblog's "Petitions to Watch" list here. I know it's never wise to bet against the SG at the cert stage, but I think that the jurisdictional and ripeness problems in the case will be sufficient to result in a cert denial. But if I'm wrong, the Kabul Klipper's Golden CAAF will soon be traveling to Code 46.
BIG news day
Denedo was distributed for conference, CAAF's daily journal update included grants galore, and we have the full text of the Seawell cert petition.
Sunday, November 09, 2008
Army JAG Corps' military justice additional skills identifiers program
In his post here, the Super Muppet of Appellate Advocacy discussed learning of the Army's counterpart to the Navy JAG Corps' military justice career track while at this year's Crim Law New Developments Course. Apparently CAAFlog has at least one Army reader. Over our virtual transom, we received a copy of the Army JAG's policy memorandum establishing the military justice additional skills identifiers program. We've posted a copy here.
Saturday, November 08, 2008
A.F. L. Rev. APB
This past week, I believe I saw a hard copy of Volume 62 of the Air Force Law Review, but it isn't available on the Air Force JAG School's web site. Has anyone found an online version of Volume 62? And while we're discussing the Air Force JAG School's website, my home computer can't open the older volumes of the Air Force Law Review that are available here. Can anyone else open them? Is it my computer or the web site that's causing the problem?
SNAFU scuttles press coverage of Navy court-martial
Via the NIMJ web site, here's a link to an article from the Virginian-Pilot about a contested judge-alone attempted murder court-martial tried at Norfolk last week.
Proceedings began on Tuesday, when the military judge continued the case until January with the possibility of returning on the record sooner if a PTA was reached. Following the continuance, a Virginian-Pilot reporter asked a PAO to inform her of any developments in the case. Contrary to initial expectations, the case actually proceeded to trial on Wednesday. But apparently the PAO wasn't informed that the case had resumed until Friday, when the case had already resulted in a conviction and sentencing proceedings were underway. And because the PAO didn't know the case had restarted, neither did the reporters who were attempting to follow it.
Mistakes happen. But one must wonder whether a culture of insularity contributed to this mistake. After all, if public and press access to proceedings is a core value of a system, a mistake like this is less likely to occur than if public and press access is viewed as a necessary evil. And if a particular office has a close working relationship with the base PAO, it is far less likely that the office would forget to notify the PAO when plans change than if dealings with the PAO are infrequent and/or unwelcome.
Interestingly, the Tully Center for Free Speech's recent empirical study of the availability of public information about court-martial proceedings (which we discussed here) found that the Navy provided less information about court-martial proceedings than any other branch of the military.
Proceedings began on Tuesday, when the military judge continued the case until January with the possibility of returning on the record sooner if a PTA was reached. Following the continuance, a Virginian-Pilot reporter asked a PAO to inform her of any developments in the case. Contrary to initial expectations, the case actually proceeded to trial on Wednesday. But apparently the PAO wasn't informed that the case had resumed until Friday, when the case had already resulted in a conviction and sentencing proceedings were underway. And because the PAO didn't know the case had restarted, neither did the reporters who were attempting to follow it.
Mistakes happen. But one must wonder whether a culture of insularity contributed to this mistake. After all, if public and press access to proceedings is a core value of a system, a mistake like this is less likely to occur than if public and press access is viewed as a necessary evil. And if a particular office has a close working relationship with the base PAO, it is far less likely that the office would forget to notify the PAO when plans change than if dealings with the PAO are infrequent and/or unwelcome.
Interestingly, the Tully Center for Free Speech's recent empirical study of the availability of public information about court-martial proceedings (which we discussed here) found that the Navy provided less information about court-martial proceedings than any other branch of the military.
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