Wednesday, August 01, 2007

The Pro Se and the In Forma Pauperis (with apologies to Mark Twain)

The Supreme Court's web site posted a new cert petition today. United States v. Monette, No. 07-5623. Guess which service it arises from. Here's a hint: it's a pro se petition.

The pro se cert petition was actually filed on 21 May 2007, but was apparently only recently docketed, as indicated by the SG's 30 August reply date (which will, no doubt, be waived long before then).

Let's look at Monette's history, shall we?

Chief Warrant Officer 2 Monette pled guilty to and was convicted of 16 -- count 'em, 16 -- specifications of violating Article 134: 4 indecent acts with a child; 2 indecent liberties with a child; 2 kidnappings; 4 violations of the CPPA; 1 inducing female under 12 into producing child porn; 1 making, shipping or transporting child porn; and 1 knowingly receiving child porn. Judge Trimble sentenced him to a dismissal, confinement for 10 years, and total forfeitures. The CA wiped out the forfeitures but approved the remainder of the sentence.

ACCA originally reviewed Monette in an opinion issued on 16 March 2005. United States v. Monette, No. ARMY 20020088 (A. Ct. Crim. App. March 16, 2005). ACCA held that under CAAF precedent applying Ashcroft v. Free Speech Coalition, 535 U.S. 234, 258 (2002), it couldn't affirm the convictions under Article 134(3) for 5 of the specs involving child pornography, but held that it could affirm findings of guilty under Article 134(1) and (2) instead.

Over Judge Crawford's dissent, CAAF disagreed. United States v. Monette, 63 M.J. 426 (C.A.A.F. 2006) (summary disposition). CAAF set aside the findings of guilty to those 5 specs and authorized either a rehearing on those specs or dismissal of those specs followed by reassessment of the sentence or a rehearing on the sentence based on the remaining findings of guilty.

On remand, ACCA chose to dismiss those 5 specs and reassess the sentence. United States v. Monette, No. ARMY 20020088, slip op. at 3 (A. Ct. Crim. App. July 25, 2006).

In choosing to reassess rather than order a rehearing, ACCA made the obligatory citation to the abomination of military law (United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986)), and then reasoned: "Due to the egregiousness of appellant’s conduct, we are secure in our position that the military judge would have imposed a sentence of a certain magnitude had appellant pleaded guilty to, and been convicted of, only the remaining charges and specifications." Id., slip op. at 4. ACCA then somehow purported to divine that even without the 5 child pornography specs it set aside, the military judge would have imposed a sentence of at least a dismissal and confinement for 9 years and 10 months, id., slip op. at 5 -- 2 months less than he actually adjudged. How ACCA knew that the military judge imposed no more than 2 months of confinement for the 5 child pornography specs, I have no idea.

When an accused thinks he has the power to "read [people's] minds," it's taken as a sign of mental disorder. See United States v. Clark, 62 M.J. 195, 196 (C.A.A.F. 2005). But when military appellate judges think they can read the trial judge's mind, it's called "reassessment" rather than crazy talk. I can only assume that Judge Trimble and ACCA are part of the Psychic Friends Network.

After ACCA demonstrated its psychic powers, in keeping with its policy that it will open the door to the Supreme Court by granting review in a case that it previously remanded, CAAF granted Monette's petition and summarily affirmed. United States v. Monette, 64 M.J. 440 (C.A.A.F. 2007) (summary disposition).

The next time Monette's case pops up on the radar screen is when he filed his pro se petition at the Supremes.

Now I'm not suggesting that a cert-petition-length version of my screed against Sales would have a prayer of being granted -- of course it wouldn't -- but would it be frivolous to file a cert petition attacking ACCA's reasoning? What if we applied CAPT Philpott's $10,000 test to such a cert petition? I suppose that if I were in private practice and Monette dumped $10,000 on my desk to file a cert petition in his case, first I'd wonder how he got out of Leavenworth. Then I would advise him to save his money, letting him know that there is about at 0.001% chance that the Supremes would grant cert in his case. But what if Monette then told me that Ruppert Murdoch just bought his controlling share of the Psychic Friends Network for $5 billion, money is no object, and that he wanted to take that 1-in-100,000 chance? Would I feel like I could ethically seek cert on his behalf without offending the Supreme Court's rule against frivolous filings? You bet. Well, fortunately for everyone at the USDB, they are represented by lawyers paid by an employer with pockets even deeper than Mr. Murdoch's. So the answer to CAPT Philpott's $10,000 test is: file a cert petition. What is the justification for the opposite answer?

1 comment:

John O'Connor said...

If Monette had gotten himself out of USDB, and also had sold stock to Rupert Murdoch for $5 billion, I guess I would ask him why he would feel it so important to file a long-shot cert petition to try to get rid of his dismissal. So it wouldn't affect his future employment prospects?

Like I have intimated before, my only conclusion is that Army DAD has tons and tons of cases where it wants to seek cert, but CAAF just keeps denying review in them. So watch out if Rep. Davis's bill gets enacted.