Friday, September 14, 2007

Running a yellow

There's an old joke that goes, "Contrary to popular belief, a yellow light doesn't mean, 'Speed up; the next one's red.'"

Please Shepardize United States v. Usry, 9 M.J. 701 (N.C.M.R. 1980). What is the first thing you see? Right, a yellow triangle at the top. Then what is the very first thing you see under "Citing Decisions"? "Criticized by: United States v. Baier, 60 M.J. 382, 2005 CAAF LEXIS 1 (C.A.A.F. 2005) 60 M.J. 382 p.385." If you were a CCA judge, don't you think you would look up a CAAF case criticizing Usry before citing it? Of course you would. So how can it be that Judge Per Curiam of the Navy-Marine Corps Court relied on Usry in United States v. Mitchell, No. NMCCA 200600998 (N-M. Ct. Crim. App. March 29, 2007) (per curiam)? (Mitchell is another case that is available on NKO, but not on NMCCA's web site, so I've reproduced it on CAAFlog's web page.) My question isn't a rhetorical one. Are some NMCCA decisions issued without Shepardizing the authorities they cite?

If so, at least we know that CAAF Shepardizes the opinions that the CCAs cite. Just as CAAF summarily reversed NMCCA's decision in United States v. Ryan, No. NMCCA 200401577 (N-M. Ct. Crim. App. March 29, 2007), for relying on the discredited Usry analysis, now CAAF has summarily reversed Mitchell -- which NMCCA decided on the same day as Ryan. United States v. Mitchell, __ M.J. ___, No. 07-0602/NA (C.A.A.F. Sept. 13, 2007) (summary disposition). When we discussed Ryan here, a perceptive commentator noted that NMCCA had made the same mistake in many cases. So Ryan and Mitchell are probably the first in a longer line of summary reversals.


Mike "No Man" Navarre said...

Not to mix apples and oranges, or in this case separate blog posts, but doesn't CCA's injection of totally unnecessary delay warrant some meaningful relief? If NMCCA really wanted to revive Usry they need to explain why. If this is just sloppy draftsmanship . . . Capts Ashby and (?) would likely have the biggest need here. Citation to Usrt in their cases will further delay cases that are going to be a decade old before they reach CAAF. What is meaningful relief in Ashby where there was no real punishment imposed in the first place? Set aside the conviction?

John O'Connor said...

So the No Man jurisprudence would be that when CAAF reverses the CCA, it not only reverses but then should go through another analysis as to whether the CCA error was "stupid," and then to assign relief if it was based on delay, without regard to mundane concepts such as guilt or innoncence or whether the sentence adjudged and appoved was actually appropriate. Talk about handing a random set of accuseds a lottery ticket.

Guert Gansevoort said...

How can the citation to Usry be anything other than red? In Baier, C.A.A.F. called the standard used by N-MCCA in Usry a "weed in our garden of jurisprudence. We will now pull it up by its roots." Given that C.A.A.F. rejected N-MCCA's continued use of Usry nearly two years ago, it is shameful that the judges of that Court continue to apply that decision to current cases.

Rest assured that the N-MCCA's repeated use of Usry is nothing more than poor draftsmanship. But it is an error that has been repeated again and again since Baier was decided. See, e.g, U.S. v. Ashley, 64 M.J. 178 (C.A.A.F. 2006). And it raises serious doubts as to whether sailors and Marines are receiving their statutory right to appeal. If the military judges assigned to the N-MCCA are not even aware of the state of the law as they review cases, sailors and Marines are not only not getting meaningful relief where it is warranted, they are not getting their appeal of right.

As disgraceful as this is, I agree with JOC that this is an issue for TJAG of the Navy, and not for CAAF to craft some judicially created prize scheme. That is unless, as in Ashby, Schweitzer, and Ashley, the appellate delay results in a denial of due process as set forth in Toohey II.

It is worth noting that in Ashley, the N-MCCA recognized its error in citing Usry, found that nine years of appellate delay on a single spec larceny conviction was a violation of due process, and set aside her $2500 fine. I would not call that the lottery JOC, but maybe church hall bingo.

Dwight Sullivan said...


I'm glad to see you're alive and well, or dead and well, as the case may be.