Saturday, August 04, 2007

All things reconsidered revisted -- again

A recent discussion thread in comments to a post suggested that the various appellate government divisions' high rate of seeking reconsideration of CAAF cases that they lose (26.3% this term) may be tied to attempting to convince the SG to seek cert. If so, the government's success rate with the SG is comparable to the success rate of its reconsideration petitions. Since the Military Justice Act of 1983 established the Supremes' statutory cert jurisdiction over CMA/CAAF's decisions, the SG has sought cert to review a CAAF decision exactly twice -- once in Clinton v. Goldsmith and once in United States v. Scheffer. The Supremes granted cert in Clinton v. Goldsmith on 2 November 1998, 525 U.S. 961 (1998) (order), so it's been about 9 years since a military appellate government division has convinced the SG to seek cert.

Interestingly, it appears that in neither Scheffer nor Goldsmith did the Air Force Appellate Government Division seek reconsideration at CAAF.

As we have seen, this term the various appellate government divisions sought reconsideration in 5 of the 19 cases they lost at CAAF. The period for seeking cert has already expired in three of those cases (McAllister, reconsideration denied 6 Feb, 64 M.J. 428 (C.A.A.F. 2007); Tate, reconsideration denied 22 Feb., 64 M.J. 441 (C.A.A.F. 2007); Brooks, reconsideration denied 21 March, 65 M.J. 12 (C.A.A.F. 2007). The two cases in which CAAF most recently denied the government's requests for reconsideration -- Gardinier and Lewis -- are still within the SG's 90-day window to seek either cert or an extension of the period for seeking cert.

1 comment:

John O'Connor said...

I remember Scheffer vividly. I prosecuted one of what I assumed was very few courts-martial in the Scheffer age where polygraphs were not per se barred (U.S. v. Tyndale, which also ended up at CAAF). Both sides had polygraph experts in a meth use case. After that case, my boss had me teach a class to the other prosecutors at Pendleton on crossing a polygraph expert. I told them rule number 1 was to try to delay the trial because the Supreme Court just HAD to reverse Scheffer, which would make the whole question moot.