Vice Admiral vice Rear Admiral

My Naval Justice School classmate formerly Rear Admiral MacDonald is now Vice Admiral MacDonald.

Supreme update

My understanding is that the Supreme Court Clerk's office has given petitioner's counsel in Ryan v. United States 60 days to fix some formatting problems with the original cert petition. So it probably won't be docketed anytime soon. We previously discussed Ryan extensively here.

Here, belatedly, is a link to the cert petition in Thomas v. United States, No. 08-117, which we previously noted here.

We are now just three days away from the Acting SG's deadline for filing his response to the cert petition in Stevenson v. United States, No. 07-1397. Unfortunately, I'll be on vacation on Monday.

Here's a link to the web page where I expect the SG's response to show up once it's filed. Perhaps once it's up, someone can post a direct link to the response.

New published NMCCA opinion - Harris

NMCCA issued an important published opinion yesterday that was posted on NKO today: United States v. Harris, __ M.J. ___, No. NMCCA 200401897 (N-M. Ct. Crim. App. Jul. 31, 2008). [Note that the comments included in the opinion are in the version posted on NKO; they appear to have been made by the Court's Clerk, Mr. Troidl, whose initials are RHT.]

NAMARA alumni will be interested in the opinion's discussion of the recusal issue, but the opinion is far more important for its treatment of the Crawford issue.

I'll post more about it tonight or over the weekend.

Gray's federal habeas representation

The President's approval of Gray's death sentence highlights the importance of a never-used portion of AR 27-10 (16 Nov 2005):

13–12. Habeas corpus representation
Military prisoners sentenced to death by a court-martial, who seek to file in Federal civilian courts post-conviction habeas corpus petitions, will, upon request to The Judge Advocate General, be detailed military counsel by The Judge Advocate General to assist counsel appointed by the District Court or individually retained for representation in such proceedings and any appeals therefrom. See UCMJ, Art. 70(e). This right exists irrespective of any decision by the accused Soldier to hire civilian counsel at his own expense for such representation.

S.2052 Equal Justice . . . Act: Held Over

A well placed source informs me that S.2052, the Equal Justice for United States Military Personnel Act of 2007, was held over today in the Senate Judiciary Committee. The bill, as discussed previously on CAAFlog here and here, co-sponsored by Senators Arlen Specter and Russ Feingold, will give the Supreme Court certiorari jurisdiction over CAAF cases where an appellant was denied review or denied a petition for extraordinary relief. It will likely come up for consideration after the August recess. Here is a link to the remarks of Senator Feinstein on the bill's introduction last year.

CAAF and representation at the Supremes

In 2006, Staff Sergeant Lovett filed a pro se petition for writ of mandamus at CAAF, asking CAAF to order the Judge Advocate General of the Air Force to provide him with counsel to represent him before the Supreme Court in challenging CAAF's affirmance of his court-martial conviction and 14-year sentence. Lovett v. United States, 64 M.J. 232 (C.A.A.F. 2006). CAAF granted the requested writ without dissent. CAAF ruled:

The Uniform Code of Military Justice provides: "Appellate defense counsel shall represent the accused before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court . . . when requested by the accused . . . ." Article 70(c)(1), UCMJ, 10 U.S.C. § 870(c)(1) (2000). Petitioner's case is not final as a matter of law. See Article 71(c), UCMJ, 10 U.S.C. § 871(c) (2000). The immediate question before us is not whether counsel must file any particular matter in the course of representing a servicemember, but whether counsel may discontinue such representation before the case is final as a matter of law. Nothing in the record of the present case established a basis for counsel to sever the lawyer-client relationship. Accordingly, it is ordered that the Judge Advocate General of the Air Force shall provide appellate defense counsel to represent Petitioner for the purposes of review of his court-martial under Article 67a, UCMJ, 10 U.S.C. § 867a (2000).

Id. at 232-33. We discussed that ruling here.

Appellate defense counsel subsequently filed a cert petition on SSgt Lovett's behalf, which the Supremes denied. Lovett v. United States, 127 S. Ct. 1333 (2007). We previously discussed that cert petition here.

So a servicemember in Cpl Ryan's position could probably obtain appellate representation by filing a pro se petition for extraordinary relief at CAAF. The sticky wicket is that a servicemember in Cpl Ryan's position probably wouldn't know without a lawyer's advice that he or she could obtain representation by filing a pro se petition for extraordinary relief at CAAF.

Cert petition challenges military appellate defense shops' failure to represent clients before the Supremes

The last several days, we've been having a discussion on CAAFlog about military appellate defense shops' responsibilities when their clients want to seek cert from the Supremes. Given the heavy concentration of current and former appellate defense counsel among CAAFlog's writers and readers, it's a topic the resurfaces from time to time. See, e.g., here, here, here, and here.

You know that old expression about everyone complaining about the weather but no one ever doing anything about it? Well LT Darrin W.S. MacKinnon, JAGC, USNR, has just tried to do something about the problem of military appellate defense counsel declining to file cert petitions in apparently non-frivolous cases. Here's the QP in Ryan v. United States, a cert petition that I understand has been filed at, but not yet docketed by, the Supreme Court:

Whether a military defense counsel's refusal to honor a military servicemember's request to appeal his case to the Supreme Court effectively denies him that right under the UCMJ, and, whether that refusal to appeal constitutes ineffective assistance of counsel?

The full text of the petition, which is well worth reading, is here.

Thomas cert petition QP

Here's the QP in the Thomas cert petition:

Whether a court of appeals abuses its discretion when, after a majority of charges are reversed due to constitutional error, it fails to remand a case to the trial court for resentencing and instead imposes the exact same sentence?

I'll provide a link to the whole cert petition tomorrow.

Number of military executions in the UCMJ era

A spate of media reports about the military death penalty has followed President Bush's approval of the death sentence in United States v. Gray. And many of the articles I read today included inaccuracies. I won't attempt to correct them all, but one inaccuracy involved the number of military executions during the UCMJ era. I will provide that information, since a question about that number has been raised in a more scholarly setting.

In his recent article, Time to Kill: Euthanizing the Requirement for Presidential Approval of Military Death Sentences to Restore Finality of Legal Review, MAJ Toman writes:

Since the approval of the UCMJ in 1950, ten service members have been tried and executed. The last Soldier was executed in 1961. See Captain Cody Weston, United States v. Loving: The Resurrection of Military Capital Punishment, 77 OR. L. REV. 365, 369–70 (1998) (citing Cynthia Swarthout Conners, The Death Penalty in Military Courts: Constitutionally Imposed?, 30 UCLA L. REV. 366, 369 n.18 (1982)). But see DWIGHT H. SULLIVAN, EXECUTIVE BRANCH CONSIDERATIONS OF MILITARY DEATH SENTENCES 137 (2002) (stating the number as twelve executions and fourteen commutations based on a memorandum from Attorney General Robert F. Kennedy in 1961); EUGENE FIDELL, EVOLVING MILITARY JUSTICE (2002).

195 Mil. L. Rev. 1, 7 n.14 (2008).

The military has actually executed 12 servicemembers since President Truman signed the UCMJ into law on 5 May 1950, though what MAJ Toman wrote is literally true because 2 of the 12 were tried before 5 May 1950. In May 1949, three Air Force general courts-martial convicted Private Herman Dennis, Staff Sergeant Robert Burns, and Private Calvin Dennis of rape and premeditated murder and sentenced each to death. An Air Force Board of Review affirmed all three death sentences. United States v. Dennis, 4 C.M.R.(A.F.) 872 (1949); United States v. Burns, 4 C.M.R.(A.F.) 907 (1950); United States v. Dennis, 4 C.M.R.(A.F.) 930 (1949). The Judicial Council affirmed the three death sentences as well. Dennis, 4 C.M.R.(A.F.) 888-904 (1950); Burns, 4 C.M.R.(A.F.) 923-27 (1950); Dennis, 4 C.M.R.(A.F.) 943-53 (1950). In 1951, President Truman approved two of the death sentences and commuted the third. Dennis, 4 C.M.R.(A.F.) at 907 (1951) (approving death sentence); Burns, 4 C.M.R.(A.F.) at 930 (1951) (approving death sentence); Dennis, 4 C.M.R.(A.F.) 956 (1951) (commuting death sentence). Habeas litigation in the two approved cases ultimately went to the Supreme Court, which denied relief. Burns v. Wilson, 346 U.S. 137 (1953). The two Airmen were hanged at Northwest Military Air Field, Guam, on 28 January 1954. See Airmen Hanged in Guam, N.Y. Times, Jan. 28, 1954, at 7.

Those two executions were in addition to the 10 executions of Soldiers convicted under the UCMJ. (O'Brien - 1954; Beverly - 1955; Suttles - 1955; Riggins - 1955; Edwards - 1957; Moore - 1957; Ranson - 1957; Thomas - 1958; Day - 1959; Bennett - 1961).

So there have been 12 executions of servicemembers in the UCMJ era, though only 10 of those 12 were tried under the UCMJ, the other two having been tried under the Elston Act.

Full text of 2008 MCM amendments

An alert reader provides us with this link to Executive Order 13468 of July 24, 2008, complete with the actual text of the 2008 MCM amendments.

Thanks to Executive Order 13468, the 2008 edition of the MCM that we waited three years for will become obsolete on 23 August. This raises two questions. First, the obvious one: when will the new version of the MCM -- which was supposed to be an annual Manual -- be published?

Now for the other question. When woolly mammoths roamed North America and I was a first lieutenant, the Manual for Courts-Martial was a big burgundy three-ringed binder. Every time the President would change the Manual, GPO would print up a bunch of replacement pages and we would remove the old obsolete pages from the three-ringed binder and insert the new pages. In many ways the old-style Manual was awful. The binder's rings never seemed to line up and pages would constantly tear out. But at least I always had a reasonably up-to-date Manual -- unlike modern-day military lawyers who practiced for three years using a 2005 MCM that was already OBE when it was published. So here's my question: why doesn't TJAGLCS take a break from launching sophomoric jibes at the Navy and prepare an electronic version of the 2008 MCM that deletes the obsolete provisions and incorporates the new provisions from Executive Order 13468? Wouldn't that be really helpful to every military justice practitioner? It doesn't have to be TJAGLCS -- I'd be happy if anyone did it. Well, anyone other than whoever designed the new extremely user unfriendly electronic Military Judges' Benchbook that we can't get authorization to load onto our office computers.