Wednesday, April 25, 2007

Oral Argument in United States v. Wilson

Yesterday's oral argument in Wilson, a short one regarding the meaning of a CA's action, reminded me of why arguments are so much fun. Taking a relatively boring issue, Maj Rick Belliss did his best to spice it up. The argument was about whether the NMCCA erred by affirming a dishonorable discharge that the CA had not clearly approved or disapproved. Maj Belliss started out with an analogy regarding the different meanings of football to different cultures, arguing that the specific words mean different things to individual subsets of people. He linked this up by arguing in the military justice world, you approve a sentence by saying you approve it. And if you don't say it, you didn't do it.

Judge Ryan asks the first question. She starts off with, "can I ask a couple of questions?" Deadpan, Maj Belliss replies, "absolutely."

There was a very interesting exchange regarding an affidavit by the CA explaining himself. Judge Stucky asked Maj Belliss about the affidavit. But back on 1 Feb 2007, CAAF denied the government's motion to attach an affidavit. As Maj Belliss started to respond, Judge Baker jumped in asking if the affidavit was even before them. CJ Effron then jumped in with an unrelated question.

The argument was a great example of every case can be interesting and counsel should never shortchange an argument. BZ to Maj Belliss in what I believe is his first oral argument.


Anonymous said...

And why exactly is an SJA from Navy Region Mussolini listening to all these arguments? Don't you have some destitute E-1 to prosecute for trumped up offenses under Art. 134?

In any event it appears it will take Judge Ryan a little time to get accustomed to the role of inquisitor. But, good to see she is active and engaged and not lobbing softballs at counsel for the sake of seeming interested or dispassionate, not that any former CAAF Judge or Chief Judge has ever done that.

Jason Grover said...

I needed a break from my study of Apprendi and its effect on tides.

Anonymous said...

I am not surprised that MAJ Bellis had an auspicious debut at CAAF. He is an extremely intelligent and competent attorney. You will never get any indifference or laziness from anything he works on.

John O'Connor said...

With all due respect to the denizens of Code 45, this case is exactly what's wrong with the military justice system. Nobody could say with a straight face that the convening authority actually intended to disapprove the DD here. I assume the kid got his walking papers because he was getting the Duck Dinner and has been plying his trade as someone on appellate leave for some time now. Yet, we take up appellate resouces with a parlor trick of an argument, trying to take a CA action that was probably drafted by a moron and to capitalize on that fact to get a result that nobody intended.

And at the end of the day, the MOST that could possibly come from this is a remand so that some CA can fix the language the give the kid the DD that everyone always intended and believed him to have.

Again, this is a good use of appellate resouces such that contested cases should languish behind it in the appellate pipeline?

And all of this is without regard to the quality of the accused's appellate counsel, who I realize is doing exactly what the broken system encourages him to do.

Jason Grover said...

Mr. O'Connor,
I agree generally with your thoughts, this whole case is a bit silly and the CA never thought he was disapproving a DD. But isn't there value to a system that insists on things being done correctly? And isn't one of CAAF's roles to ensure that things are done correctly. While military lawyers are not nuclear engineers, we do have a level of precision to our work. There is something to Appellant's argument that words have meanings. It doesn't seem like too much to ask to have properly drafted CA's actions; ones where some time was spent on them.

John O'Connor said...

I agree that the quality of post-trial processing is embarrassing. It seems to me that half of the problem with ambiguous CA actions concerns how to craft wording to reflect the CA's obligation to take action on a punitive discharge but his inability to order it executed. It seems to me that an effort should be made to streamline the CA action to make it easier to reflect the CA's true intent. Maybe something along the lines of a form that is filled out that separates eaxch type of punishment and then has a line where the CA takes action on that punishment, with a kicker at the end that says something like "and all approved punishments, with the ezxception of any approved punitive discharge, are ordered executed."

But the fact that there ought to be precision in the process hardly, in my view, justifies a system that expends litigation resources on a CA's action where everybody knows what the intent is.