Thursday, December 18, 2008

Counsel in Gray v. Gray

I hadn't noticed until today that the Army Litigation Division lawyer who is "of counsel" for the United States in the Gray v. Gray litigation is the author of Time to Kill: Euthanizing the Requirement for Presidential Approval of Military Death Sentences to Restore Finality of Legal Review, 195 Mil. L. Rev. 1 (2008).

MAJ Toman's involvement in the litigation following President Bush's approval of Ronald Gray's death sentence is interesting because one of the major themes of his article is his argument that the military death penalty has been de facto abolished by the congressional requirement that the President approve a military death sentence before it may be executed. He begins his article by arguing, "The death penalty has effectively been abolished in the military justice system." Id. at 1. He later contends, "The confluence of the executive approval requirement and executive inaction appears to create a de facto exclusion [from capital punishment] for servicemembers sentenced at court-martial." Id. at 65. He maintains that "the presidential approval requirement has become obsolete as a result of 'a long period of intentional nonenforcement and notorious disregard' and as a result of substantial improvements in legal review under the UCMJ." Id. at 70-71 (internal footnote omitted). He opines that "disuse of the approval provision nullifies the purpose of the trial courts." Id. at 78. And he proclaims that "[i]t is time for a mercy killing of Article 71(a) because it has fallen into desuetude as a result of its disjointed location in the judicial process." Id. at 8.

So much for desuetude.


Anonymous said...

If military justice scholarship is to be taken seriously, I suggest we can do better than overly-footnoted advocacy of a speedier death penalty with abundant references to Sun Tzu.

John O'Connor said...

There does seem to be a tendency for extreme over-footnoting of Military Law Review pieces, particularly pieces written as part of the LLM process.

I remember one law review editor (not for the Military Law Review) asked me to provide a cite for the proposition in one of my articles that Warren Burger succeeded Earl Warren as Chief Justice of the United States. I told her if she wanted to look for authority for that proposition, she was free to put pretty much anything she wanted in such a footnote. But I wasn't doing it.

Anonymous said...

Won't it be ironic when President Obama alows the execution to take place?

Anonymous said...

Why would that be ironic?