Sunday, July 13, 2008

NMCCA on interpanel accord (kind of)

As previously discussed, in United States v. Dossey, 66 M.J. 619 (N-M. Ct. Crim. App. 2008) (Dossey II), a 2-1 NMCCA panel reversed its own earlier 3-0 decision about its jurisdiction to consider Article 62 appeals challenging mistrial rulings. Before Petty Officer Dossey's counsel petitioned CAAF for review, they unsuccessfully sought reconsideration en banc before NMCCA. Here's a link to NMCCA's order denying en banc recon. United States v. Dossey, NMCCA No. 200700537 (N-M. Ct. Crim. App. June 11, 2008) (en banc) (order).

While this isn't the point of this post, NMCCA first observes that "the court is unpersuaded the panel decision overrules or is inconsistent with prior precedents." Id., slip op. at 1. Any argument that Dossey II isn't inconsistent with the court's previous case law, including United States v. Pearson, 33 M.J. 777 (N.M.C.M.R. 1991), is unpersuasive. The plain language of Article 62 doesn't definitively indicate whether a mistrial ruling is susceptible to interlocutory appeal. Nor does Article 62's legislative history address that issue. Pearson and other previous Navy-Marine Corps Court decisions held that Article 62 should be construed strictly. If so, then the statute's failure to clearly bring mistrial rulings within its scope means they are excluded. Dossey II, on the other hand, read Article 62 broadly, so the statute's failure to clearly exempt mistrial rulings means they are included. The latter approach may or may not be a better approach than that of Pearson, but it is certainly an inconsistent approach.

But here's the point of this post. In the next paragraph of its en banc recon denial, NMCCA writes: "Further, the court notes that a decision to publish a case, and thereby establish a precedent, is, by long standing practice of the court, made en banc. Accord United States v. Coffin, 76 F.3d 494, 496 n.1 (2d Cir. 1996)." The cite to Coffin is followed by (with paragraph breaks omitted): "For the foregoing reasons, it is, by the Court, sitting en banc, this 11th day of June, 2008, ORDERED: That the appellee's motion for reconsideration en banc is DENIED."

Got that? Coffin is offered in support of denying reconsideration en banc. Let's look at Coffin, shall we?

Here's what the Second Circuit said in the very footnote that NMCCA cites: "Any other interpretation of Gambino would ignore our practice of not overruling circuit precedent without an in banc vote or at least a statement in the later opinion that it has been circulated to all the members of the Court and no member objects to the later decision." Coffin, 76 F.3d at 496 n.1.

I'm sure you already see the problem. Dossey II was a 2-1 decision, which means that a member of the court did "object[] to the later decision." So under Coffin itself, overruling Pearson (as well as United States v. Flores-Galarza, 40 M.J. 900 (N.M.C.M.R. 1994), and United States v. Santiago, 56 M.J. 610, (N-M. Ct. Crim. App. 2001)) would require en banc reconsideration. Yet NMCCA cites it for exactly the opposite proposition.


Mike "No Man" Navarre said...
This comment has been removed by the author.
Mike "No Man" Navarre said...

Wow, that was riddled with typos. Re-post later.

Mike "No Man" Navarre said...

It is funny how, if one does not read an entire case, one can cite something that will later be used against them. I am guessing NMCCA was citing the Coffin case as a throw in to their point that the decision to publish Dossey I (the 2-1 panel op.) was made en banc and unanimously, a proposition that really does not need a non-NMCCA case citation. Either the Court (or a court clerk) did not care about CAAFlog's quoted portion of Coffin or did not see it. I suspect the latter, as I know I have been guilty of the same thing. My current approach to such citations, drop 'em. One would not look that much dumber for not citing a case for an internal practice of the court.

Now that CAAFlog is the uber cite checker for all things military justice, maybe we can stop paying out of pocket for this blog. We have found our niche. Stay tuned for gaudy Supreme Court Brief printer ads splashed across CAAFlog.

Anonymous said...

I do not agree that this is a mere citation problem. I think some very smart judges have "doubled-down" on their bet...and have surrendered some intellectual integrity in the process.

Intellectual honesty is when one accurately describes (a) the intelletual landscape; (b) counter-positions; (c) where one stands on the intellectual landscape.

It is intellectually dishonest, whether one is a judge, an academic, a politician, or a plain person, to pretend that one takes a consensus position or non-controversial opinion, or that there are not reasonable counterviews, when that claim is not true.

Here, NMCCA is just not being candid with this issue and is simply pretending there is no real controversy. They should be charged for making a false official statement. And the court, based on the absurdly broad way this charge is upheld nowadays, will have to affirm the charge.

Anonymous said...

The author of prior post appeared to be writing while reasonably sober until the last paragraph.

Anonymous said...

...well, the last paragaraph was meant as a joke.

I do believe that the "false official statement" offense has careened out-of-control. So, the joke is: a) the court's statements are "official,"; b) they are false; hence, c) guilty.

OK, fine, not funny. Just a bit sarcastic.

But, to reiterate what I mean by intellectual honesty, it would go something like this for any issue:

"There is a diference of opinion about issue A. Most citizens/courts/etc say X. A minority of citizens/courts say Y. I take view Y because..."

This is in contrast to:

"It is obvious that X."