Thursday, November 09, 2006

CAAF proposes amendments to court rules

NIMJ has posted CAAF's proposed changes to its court rules:

The deadline for comments is 1 December 2006.

Several of the proposed changes are unusually interesting. I'll post an analysis later during this long weekend.

It is now 2 hours and 11 minutes before the United States Marine Corps' 231st birthday. Semper fi!

--Dwight Sullivan


Kathleen Duignan said...

Happy 231st Birthday!

Guert Gansevoort said...

Rule 19(g) appears to be a response to United States v. Buber, which is posted on the Daily Journal for March 30, 2005. In Buber, the Defense prevailed on all but two minor offenses and rushed to the courthouse to file a petition the day before the Army Appellate Government Division was going to file a motion for reconsideration with the Army Court of Criminal Appeals. Buber then successfuly filed a writ of habeas corpus at the C.A.A.F. seeking his release from confinement because the lower court's, now final, decision left only charges for which he had already served the statutory maximum sentence. In a shocker, Judge Crawford dissented saying that the manual and the court's rules encouraged a race to the courthouse, a situation that unfortunately benefited the appellant, and that the government was denied the opportunity to convince the lower court of its error. She urged that, at the very least, the Court's rules be changed. Does the Iron Lady still govern the court, or at least the Rules Committee, from the shadows?
As it turns out, Buber's petition was not entirely a ploy to deny the government its guaranteed victory in its reconsideration motion at the Army Court of Criminal Appeals. The C.A.A.F. later granted Buber's petition to determine if the Army Court had abused its discretion when it reassessed the sentence pursuant to Sales instead of remanding the case for a rehearing as to sentence. The army court, borrowing a page from the navy court's playbook, had approved a sentence of two years confinement for the remaining false official statement charge. This time Judge Crawford joined a unanimous court in remanding the case for a new sentencing hearing.

Guert Gansevoort said...

The proposed change to Rule 19(B)(3) should be of grave concern to the defense bar. It appears to come from the Court's decision in United States v. Parker, 62 M.J. 459 (C.A.A.F. 2006), or more precisely, Judge Erdmann's dissent. In Parker, the Navy Appellate Government Division reached into its bag of dirty tricks and raised a new issue in motion to cite supplemental authorities just five days before oral argument. Amazingly, three members of the Court held that the government should win the case on the newly raised argument. Fearing an end to the much loved law of the case doctrine, Judge Erdmann penned a thoughtful dissent joined by then Chief Judge Gierke.

Judge Erdmann suggested that the government may be willing to live with an unfavorable part of decision, and not seek certification from the JAG, because it is content with favorable portions of a lower court's decision. But, because of the law of the case doctrine, if the C.A.A.F. grants an appellant's appeal of issues favorable to the Appellant, absent a well timed motion to cite supplemental authorities that ignores the law of the case doctrine, the government is stuck with the framed issue and cannot address more favorable portions of the lower court's ruling. The new rule would allow the JAG to certify issues thirty days after the Court grants an appellant's petition. This rule will not only expose the JAG certification process for the government appeal that it is, but it will allow the government to hijack grants of review that are increasingly hard to come by. Take the case of United States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006) for instance.

In Lewis, NMCCA found that outrageous conduct by the SJA and trial counsel amounted to unlawful command influence but that the UCI was harmless beyond a reasonable doubt...another NMCCA favorite way to dispose of cases. The JAG did not certify the issue and C.A.A.F. granted Appellant's petition on the narrow issue of whether the UCI in the case was harmless beyond a reasonable doubt. The Appellate Government Division, using another of its favorite tricks, argued in its brief and argument that there was not UCI, a very good argument, but one having nothing to do with the granted issue. I wonder if Lewis would have have a $150,000 and an honorable discharge today if the amended Rule 19(b) had been in effect.

The government with its vast resources and mandatory appeal in disguise should not too be able to hijack the appeals of the ten percent of petitioners who are able to convince the court to grant review. If the government has an interest in an issue it should have to convince the JAG to certify the issue long before the C.A.A.F. grants review. It is already difficult enough for appellants to convince the court to grant relief. If the government is permitted to reshape the battlefield after an appellant waits roughly eight to ten months to see if the Court will grant review of carefully crafted issues, it is only the defense bar, and their employers, that will suffer.

In the drafters analysis, the draters suggest that it is not anticipated that the change will increase the number of issues certified by TJAGs. One year from now they will have doubled. It appears that the drafters have been into Lance Corporal Lewis' stash.

gene fidell said...

First things first. Mr brother, LCDR Jay M. Fidell, USCGR (Ret)--a/k/a The Motion King--once told me that at a Birthday Ball he attended while at Naval Justice School participants were literally taking bites out of drink glasses. Is this possible?

Moving right along . . . I share Guert's concern about the effect of the amendment to Rule 19(b)(3). More fundamentally, after 55 years, has the time come for Congress to abolish certificates for review and let the government petition for review (or cross-petition) and meet the good cause test just as appellants must? Or for that matter, shouldn't Congress bite the bullet and make the Court's jurisdiction nondiscretionary, and count on the Court to dispense with argument when appropriate--and indeed, develop a procedure for summary disposition? Think of the time and effort saved in not having two rounds of briefs.

I'm also troubled by the change to Rule 19(a)(5)(C). Sorry to sound like The Grinch, but this is really paternalism run amok. Not only does the appellant get another 30 days to add a Grostefon issue (which he or she may already have done before the Supplement has been filed, by the way), but even then the Court will entertain motions for relief from that deadline.

Finally, while I don't have a problem with the new rule on amicus deadlines (and note the possibility of relief for good cause shown), the change will make it all the more important for appellate counsel and all potential amici to keep in regular contact since there will be no time to waste in preparing an amicus brief.

Marcus Fulton said...

The change to 37(c)(1) is my favorite. As a person of limited word processing ability, I've often had to choose between spending a day cramming a seven page pleading into something less than five or spending a day and a half trying to create those stupid dots ln the table of contents and table of authorities.