SG's time to reply to Rodriguez cert petition extended

The Supremes have extended the deadline for the SG to file a response to the Rodriguez cert petition, No. 08-1465, which we discussed here, until 4 August. The SG initially waived the United States' right to respond to the cert petition (as the SG routinely does in response to military justice cert petitions), but the Supremes called for a response, as we noted here.

Flyspecking Denedo

The current Supreme Court term began with the Court wrestling with the implications of a military justice statute it had previously overlooked. See Kennedy v. Louisiana, 129 S. Ct. 1 (2008). How well did the Supremes understand the military justice system in Denedo? The answer appears to be pretty well, but not perfectly.

Let's start with the majority opinion.

The first inaccuracy seems to arise from imprecise use of language rather than a lack of understanding of the system. Justice Kennedy's opinion for the Court explains, "In exchange for his plea the convening authority referred respondent's case to a special court-martial, §819, which, at the time, could not impose a sentence greater than six months' confinement." Denedo, slip op. at 2. Of course, even before the National Defense Authorization Act for Fiscal Year 2000 increased the length of confinement that a special court-martial could adjudge, special courts-martial could (and often did) impose sentences greater than six months' confinement -- in a case with an enlisted accused, they could impose a sentence of six months' confinement, plus a bad-conduct discharge, plus forfeiture of 2/3 pay per month for 6 months, plus reduction to pay grade E-1.

Second, in discussing Clinton v. Goldsmith, the Denedo majority opinion states: "Following [Major Goldsmith's] conviction, Congress enacted a statute authorizing the President to drop convicted officers from the rolls of the Armed Forces." Denedo, slip op. at 7. Actually, authorization to drop convicted officers from the rolls existed long before Maj Goldsmith's conviction; in fact, section 10 of the UCMJ as enacted in 1950 provided that "the President may at any time drop from the rolls of any armed force any officer who has been absent without authority from his place of duty for a period of three months or more, or who, having been found guilty by the civil authorities of any offense, is finally sentenced to confinement in a Federal or State penitentiary or correctional institution." 81 P.L. 506, § 10; 64 Stat. 107, 146. What the National Defense Authorization Act for Fiscal Year 1996, 110 Stat. 325, actually did was expand the grounds for dropping an officer from the rolls to include confinement for at least six months resulting from a court-martial conviction.

Third, the Denedo majority opinion rather obviously mischaracterizes what happened in Clinton v. Goldsmith. The Denedo majority opinion states, "Goldsmith sought extraordinary relief as authorized by the All Writs Act to enjoin the President from removing him from the rolls. The AFCCA denied relief, but the CAAF granted it." Denedo, slip op. at 7. In fact, Maj Goldsmith never petitioned AFCCA to enjoin the President from dropping him from the rolls. It's strange that the Denedo majority would make this mistake, because Justice Souter's opinion for the Court in Clinton v. Goldsmith emphasizes this point:

Goldsmith did not immediately contest the proposal to drop him, but rather petitioned the Air Force Court of Criminal Appeals for extraordinary relief under the All Writs Act, 28 U.S.C. § 1651(a), to redress the unrelated alleged interruption of his HIV medication during his incarceration. The Court of Criminal Appeals ruled that it lacked jurisdiction to act, and it was in Goldsmith's appeal from that determination that he took the first steps to raise the issue now before us, an entirely new claim that the Air Force's action to drop him from the rolls was unconstitutional.

526 U.S. 529, 532-33 (1999).

Fourth, the Denedo majority doesn't seem to understand the distinction between the court-martial and the convening authority. The majority quotes Article 67(c)'s language that CAAF has authority over "matters of law" connected to "the findings and sentence as approved by the convening authority . . . ." Denedo, slip op. at 10. Explaining how that provision is satisfied in this case, the majority opinion states, "Respondent's Sixth Amendment claim presents a 'matte[r] of law' with respect to the [guilty] findings . . . as approved by the [special court-martial] . . . ." Id. (all alterations except final ellipsis in original). So the Court substituted "as approved by the [special court-martial]" for "as approved by the convening authority." But, of course, it isn't the special court-martial that approves its own findings and sentence. Rather, it's the convening authority--in Denedo's case the Commanding Officer of USS JOHN F. KENNEDY--who approves the sentence (and who sometimes acts on the findings).

The dissent also got a couple of little things wrong. First, Chief Justice Roberts' dissenting opinion states, "The CCAs provide direct, record-based review of court-martial judgments, but they may only review cases referred by the judge advocate general, who in turn refers only those cases in which specific sentences are imposed. 10 U.S.C. §§866(b), (c)." Denedo dissent, slip op. at 3. But a Judge Advocate General doesn't refer only cases resulting in a specific sentence. Rather, a Judge Advocate General can -- and, as AFCCA's recent decision in United States v. Harvey demonstrates, sometimes does -- refer cases with lesser sentences to a CCA under the authority granted by Congress in Article 69(d)(1).

The other minor glitch in the dissent occurs in its discussion of DuBay hearings. The dissenting opinion states, "Instead, the CCAs will have to resort to the procedures invented by United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), under which a new convening authority will refer a case to a new court-martial, and task various military personnel who have no prior familiarity with the case to conduct an out-of-court evidentiary hearing on the merits of the petitioner's claim." Denedo dissent, slip op. at 10. First, of course, DuBay hearings aren't necessarily sent to a "new convening authority"; the case is often remanded to the same convening authority who convened the original court-martial. Nor is the case necessarily referred to a new court-martial. I can't think of a time when I've seen a new court-martial created to handle a DuBay hearing. Has anyone else? Finally, I have no idea what the dissent means by "an out-of-court evidentiary hearing." The whole point of a DuBay hearing is to have an in-court evidentiary hearing.

These errors are all minor; overall, the Court did a good job dealing with our rather idiosyncratic system. Still, it's striking how many even small errors are in a decision of an institution with the stature and brainpower of the Supreme Court.

SG's deadline extended in Wuterich

SCOTUS has extended the SG's deadline for filing a response to the Wuterich v. United States cert petition, No. 08-1133, until 5 August 2009. [Familiar disclaimer: I'm petitioner's counsel of record in Wuterich.]

SG waives response in Stephens

The Solicitor General has waived the United States' right to respond to the cert petition in Stephens v. United States, No. 08-1514. [DISCLAIMER: I'm petitioner's counsel of record in the case.]

BREAKING NEWS: Supremes call for response in Rodriguez v. United States

The Supremes have called for a response from the SG to the cert petition in Rodriguez v. United States, No. 08-1465. (Yes, that Rodriguez.)

Gene Fidell's analysis of H.R. 569

Here's a link to Gene Fidell's testimony for the House Judiciary Committee's Subcommittee on Courts and Competition Policy on H.R. 569, the Equal Justice for Our Military Act.

H.R. 569 hearing highlights

Yesterday's hearing on H.R. 569, the Equal Justice for Our Military Act, was what civics books teach us the legislative process should be like. We were in the House Judiciary Committee's hearing room, a majestic forum with a soaring ceiling, an enormous depiction of an eagle dominating one wall, and an imposing dais separating the subcommittee's members and counsel from the witnesses. But despite the very formal surroundings and the different roles of the various participants, the hearing had the feel of a small group of lawyers reasoning together in search of a just result. The experience called to mind Isaiah 1:18.

During his opening remarks, Chairman Hank Johnson (D-Ga.) noted that no witness for the Administration would appear at the hearing, though a DOD witness had been scheduled to testify before the hearing date was rescheduled. Chairman Johnson observed, "[W]hile I was initially disappointed that the Administration was not able to send a witness, I take it as a sign that the Obama Administration is taking a hard look at the legislation and will ultimately take a different position regarding the legislation than the previous Administration." (DOD had opposed an identical bill during the last Congress.)

During his opening remarks, Ranking Member Howard Coble (R-N.C.) followed up on Chairman Johnson's comments about the absence of any witness to provide the Administration's views: "[I]t's regrettable . . . that while today's hearing marks the first real legislative review of this legislation, the Administration has refused to send a witness to testify, and I think this is a mistake." He then added, in a humorous manner, that "it appears to me that the Administration has chosen to go AWOL on this matter today." Then, not so humorously, Rep. Coble added, "This marks the second time in 90 days that the Administration has been missing in action before this subcommittee, in a hearing where members are reviewing proposals that relate directly to our servicemembers." (I assume that the previous occasion he was referring to was a hearing on H.R. 1478, the Carmelo Rodriguez Military Medical Accountability Act of 2009.) Resuming his jocular tone, he continued that General Altenburg and I "can probably tell us the range of penalties the UCMJ prescribes for failure to report for duty, if you'll pardon my inserting a little humor in this. But unfortunately, the civilian employees of the Office of Management and Budget and the Department of Justice are not subject to the UCMJ's disciplinary provisions." Then again becoming serious, he concluded, "[W]e need to insist that the Administration does, in fact, take seriously its obligation to respond to our requests for information. This is particularly true when matters before this subcommittee and the full committee, for that matter, directly impact the rights of servicemembers, their resources and requirements of our armed services, and the administration of our judicial system."

One of the key issues at the hearing was what the bill was likely to cost. Responding to a question from Chairman Johnson, I expressed the view that under the bill, there wouldn't be a large increase in the number of cert petitions filed by counsel as opposed to those filed pro se. I noted that even if the number of cert petitions filed by counsel doubled under the bill, the increased printing costs would likely be only around $15,000. General Altenburg expressed concern that Congress should scrutinize how the bill would affect the various services' JAG Corps, which are already "stretched quite a bit based on the contingencies that we address around the world, both combat and otherwise."

Responding to another question from the Chairman, General Altenburg and I agreed that, in General Altenburg's words, "a collateral attack is not a substitute for a direct petition to the Supreme Court." But, General Altenburg added, the percentage of cert petitions that actually result in a grant on direct appeal is extremely small.

In response to a question from Ranking Member Coble, General Altenburg emphasized that he didn't think the bill's passage would harm good order and discipline: "I dissociate myself with anyone who has stated that to give this right to soldiers, to military people would, in some way, undermine discipline or undermine authority or lower discipline or harm the military. I don't believe any of those things. . . . It would in no way harm the military. My sole concern is the lawyer resource issue. That's my sole concern, and the fact that we don't really know what it's going to take and how many people are going to take advantage of this."

An interesting exchange between Ranking Member Coble and General Altenburg followed. Rep. Coble asked General Altenburg to respond to what Rep. Coble characterized as the "powerful equitable argument" that "it is inappropriate to deprive members of the U.S. military of the same right to Supreme Court access that their civilian counterparts and even alien unlawful enemy combatants enjoy." General Altenburg, who previously served as the Appointing Authority for the Military Commissions system, responded that it was necessary to provide Supreme Court review of commission cases because the commission system "wasn't done very well in terms of the way it was conceived" and the commission system remains "immature." Supreme Court review in the regular military justice system, on the other hand, was less important becuase "our appellate system in the military is very well developed and has matured over the years."

Ranking Member Coble ended his questions by asking General Altenburg what suggestions he would offer to make a system like that proposed by H.R. 569 work. General Altenburg replied by emphasizing that Congress should "make sure that the services have the resources to do this." He added, "If that issue was addressed, if we were able to discern rather than guess, but to discern this is what the likely costs are in terms of resources, and the Congress were to approve those resources, I don't have an objection. I think it would work."

Chairman Johnson then recognized Rep. Charlie Gonzalez (D-Tex.). Rep. Gonzalez emphasized that under current law, the two parties to a court-martial have disparate access to the Supreme Court. The United States can open the door to the Supreme Court through a certificate of review filed by a Judge Advocate General at CAAF. But in a non-capital case, the accused generally must convince CAAF to exercise its discretionary review authority for the case to become eligible for Supreme Court review. Rep. Gonzalez observed that one of the two parties has "an inferior right . . . as far as seeking Supreme Court review." He continued, "[W}hen it's all said and done, what is available to one party is not available to the other, and I think that's what causes us the discomfort and . . . that's what this act would balance and bring a more just result to the whole process."

And with that, the hearing ended, followed by cordial exchanges between the witnesses and the subcommittee's members and staff.

We probably all feel cynical about our system of government at times. This hearing was a cure for such cynicism. Regardless of whether H.R. 569 or some amended version of the bill ultimately becomes law, the bill's sponsor and a congressional subcommittee devoted a substantial amount of time before during and after the hearing to try to promote justice in a prudent manner. They devoted this time to make sure that our nation's servicemembers are treated fairly. The hearing didn't attract crowds; the expansive seating area was almost empty. But these Members of Congress and their staff members weren't there to showboat; they were there to see whether the law could be improved. Chief Justice Marshall famously wrote that the United States has "a government of laws, and not of men." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). It was uplifting to see honorable men and women at work drafting those laws.

The mystery of the hearing

The most intriguing question to arise during the House hearing on H.R. 569, the Equal Justice for Our Military Act, was never answered: what is the Administration's position on the bill? Chairman Hank Johnson (D-Ga. 4) observed that when the hearing was originally scheduled, DOD was sending a witness to testify. But when the hearing was moved to 11 June, no DOD witness was provided. Chairman Johnson expressed his hope that this signaled that the Administration would not oppose the bill, as the Bush Administration did last year. Ranking Member Howard Coble (R-N.C. 6) castigated the Administration for failing to send a witness. He humorously accused the Administration of being AWOL and rhetorically inquired about the penalty for failure to go to one's appointed place of duty. He also mentioned another recent incident in which the Administration had declined to send a witness to take a position on a bill.

A transcript of the hearing should be available on Friday. If so, I'll post the excerpts that deal with this still unsolved mystery.

New military cert petition filed

The Supremes have docketed a cert petition in Stephens v. United States, No. 08-1514, seeking review of this CAAF opinion. 67 M.J. 233. The QP is: "May a criminal defendant be sentenced more harshly due to the emotional stress that his accuser experienced as a result of the defendant exercising his constitutional rights to plead not guilty and to confront his accuser?" The full cert petition is available here. [DISCLAIMER: I'm petitioner's counsel of record.]

Rodriguez cert petition distributed for conference this Term

Yesterday the SCOTUS clerk's office distributed the cert petition in Rodriguez v. United States, No. 08-1465 (yes, that Rodriguez) for the 25 June conference. Now the watch begins to see if the petition will prompt a call for response from the SG.

SCOTUSblog on Denedo

Here's a link to SCOTUSblog's short synopsis of Denedo.

Any Respect For Military Justice After Denedo?

As commenters have noted, CJ Roberts was not kind to the system. But, I much prefer actual metrics. To the scorcards!

If you ask any other corner of the internet other than the posts below this one, military justice is still the Rodney Dangerfield of court systems.

By my informal count, after yesterday's opinion there we're exactly 4 articles about Denedo (in the headline) at any major national, regional, or city media outlet. Last night at 10 PM, there were exactly zero, so that's an improvement.

By my informal count, CAAFlog now has 6 posts headlining Denedo. I guess we are 50% more enlightened.

Potential problems pish-posh: a rebuttal to the Kabul Klipper

The Kabul Klipper writes below about concerns that yesterday's SCOTUS opinion in United States v. Denedo will clip military appellate courts' wings by limiting their authority to issue pre-appellate extraordinary relief. I disagree with my learned colleague. As the Kabul Klipper himself acknowledges in his post, Denedo looks backwards for jurisdiction because coram nobis is a backward-looking writ. It don't think the opinion speaks to authority to issue writs of mandamus or prohibition; nor do I think military appellate courts will interpret the opinion aas precluding them from doing so.

An appellate court's authority to issue such a writ is typically thought of as existing if a case potentially falls within the appellate court's appellate jurisdiction. See, e.g., FTC v. Dean Foods Co., 384 U.S. 597, 603-04 (1966). Here's how the D.C. Circuit put it in a 2004 opinion: "Once there has been a proceeding of some kind instituted before an agency or court that might lead to an appeal, it makes sense to speak of the matter as being 'within [our] appellate jurisdiction' -- however prospective or potential that jurisdiction might be." In re Tennant, 359 F.3d 523, 529 (D.C. Cir. 2004). The author of those words? Then-Judge Roberts.

Potential problems for potential jurisdiction

So it's decided. Military courts of appeal have jurisdiction to issue writs of error coram nobis under the All Writs Act. While that may give a spark of hope to appellants (can anyone now be said to be a "former appellant?") hoping to re-relitigate their convictions, I think the reasoning--if not the holding--of Denedo may serve to curtail extraordinary writ practice in military courts, especially those writ petitions that have the most potential to succeed or advance justice in a case.

Successful extraordinary writs are so rare that it's difficult to talk about a "typical" successful extraordinary writ. But if there is such a thing, it probably involves a scenario in which a convening authority or judge has done something (or refused to do something) resulting in prejudice to some fundamental right in a way that can't be easily corrected in the normal course of appellate review. Likely issues that come to mind involve right to counsel issues, some discovery issues (like preventing destruction of evidence) and issues relating to the right to a speedy public trial.

Consider United States v. Schmidt, 60 M.J. 1 (C.A.A.F. 2004), in which the government required an accused to clear through the government those classified matters he wanted to discuss with this counsel. The accused filed an extraordinary writ to permit the accused to discuss these matters with counsel in confidence, the denial of which was vacated by CAAF. But by what authority?

In United States v. King, 53 M.J. 219 (C.A.A.F. 2000) (mem.), Judge Sullivan wrote in his concurring opinion that military appellate courts' writ authority under the All Writs Act included the power "to supervise proceedings and provide relief under the Uniform Code of Military Justice." This supervisory power isn't dependent on an appellate court's jurisdiction over any particular case; neither King nor Schmidt qualified for review under Articles 66 or 67. The accuseds' cases hadn't even been referred yet. But CAAF, according to Judge Sullivan, had the authority to supervise Article 32 proceedings simply because they are, as Judge Sullivan put it, "part of the Uniform Code of Military Justice." Id.

A slightly less expansive view of military appellate courts' jurisdiction was articulated by CMA in United States v. Snyder, 40 C.M.R. 192 (C.M.A. 1969). In Snyder, CMA held that its jurisdiction did not extend to all proceedings under the UCMJ. Where a case had no potential to be reviewed under Article 66 or 67, military courts lacked jurisdiction to issue writs.

The Denedo Court's rationale for permitting extraordinary writs (or at least coram nobis) undercuts both views of when a writ is in aid of a court's jurisdiction. The Court acknowledges that military courts can issue writs, and that the All Writs Act is the source of that authority. The harder question is whether the case--not the writ--is within the court's jurisdiction. In the case of coram nobis, it's pretty easy for the majority lash writ issuing authority to the statutory authority by which the appeals court heard the case in the first instance. Everyone agrees CCA had jurisdiction to hear the case under Article 66; the power to issue the writs in aid of the court's jurisdiction is coextensive with the jurisdiction. And while fixing the power to issue writs so firmly to the fact that a case had once satisfied Article 66 may shore up coram nobis, it erodes the rationale for writs more commonly filed before a case satisfies the jurisdictional requirements of Article 66.

Judge Sullivan's unfettered-supervisor-of-all-UCMJ-proceedings theory of writ authority is clearly inconsistent with Denedo. For that matter, it was probably inconsistent with Goldsmith, too, so maybe I shouldn't rush to declare it dead. But what about cases that fall into an appellate court's potential jurisdiction? Those cases form the bulk of the meaningful writ petitions. The Denedo Court's statement that "to issue respondent a writ of coram nobis on remand, the NMCCA must have had statutory subject-matter jurisdiction over respondent's original judgment of conviction" indicates that potential jurisdiction cases may be by the boards, too. If a CCA must have subject matter jurisdiction over a case without reference to the All Writs Act in order to issue a writ, no case will qualify for a writ until after the convening authority's action.

I can imagine counter arguments: Of course the Court would look retrospectively, not prospectively, at the CCA's jurisdiction in a coram nobis case. The court either had jurisdiction or it didn't. Perhaps if this were a pretrial petition for a writ of mandamus the Court would have found a prospective, rather than a belated extension of CCA's jurisdiction. Some of the logic in Denedo can be found in Snyder. The Snyder court, too, found that writs are issued "in aid of the exercise of our jurisdiction over cases properly before us," and then had no apparent qualms about tacking on the words "or which may come here eventually." [Emphasis in original; Lexis won't give me the page number, sorry.] But over and over again, the Denedo Court returns to the fact that Denedo's case had already cleared the Article 66 wicket as the actual basis for jurisdiction. In short, there is no such thing as extraordinary writ jurisdiction at CCA; only Article 66 jurisdiction, which, when achieved, entails the possibility of writs in aid of that jurisdiction. So if you want your writ petition to have potential, your jurisdiction may have to be actual.

From a policy standpoint (yeah, I know, that's different from a legal standpoint), that's too bad. If I had to pick one writ to jettison to save the others, it would be coram nobis. From what I've seen it is mostly used as a petition for reconsideration way out of time. Mandamus and prohibition, on the other hand, are occasionally used to cure a fundamental problem that threatens to work a substantial injustice. Sometimes they further judicial economy. It's a shame that in going so far to save coram nobis the Court may have gutted the rationale for more useful writs.

Some initial thoughts about United States v. Denedo

1. We will now have to start monitoring Thomas and other sources to look for a proposed statutory fix to Denedo. I assume that DOD will propose legislation to clearly preclude military appellate courts from exercising jurisdiction over cases after the later of conclusion of direct appeal or the closing of the two-year window for petitions for new trial.

2. Even if Denedo's effect on military appellate courts' jurisdiction is eliminated by statute, Denedo will continue to have a profound effect on the military justice system. CAAFlog pronounced last year the Year of Jurisdiction because of the frequency with which fundamental jurisdictional issues arose in the military justice system. And we saw that those jurisdictional challenges were almost always resolved in a way that maximized military courts' jurisdiction. I found those opinions frustrating because I viewed military justice jurisdictional issues through the same prism that Chief Justice Roberts employed in analyzing Denedo. I now have to recalibrate my internal jurisdiction meter to account for Denedo with its far broader interpretation of jurisdiction than I believed the law to provide.

3. I wouldn't look for Denedo to spell success for Rodriguez. Denedo treats military justice fora much like the Article III courts. But in the Article III courts, Bowles v. Russell is the controlling law. And that controlling law, if imported into the military justice system, supports Rodriguez. Rodriguez presents a viable challenge only if the military is treated differently. And Denedo hurts rather than helps that cause.

4. As a matter of logic, the Denedo dissent seems to me to have the far better argument. How, then, do we explain the majority opinion carrying the day? (Of course, one way to explain it may be that I'm wrong.) I'm fascinated by one particular sentence in the majority opinion: "On respondent’s account, his attorney--an alcoholic who was not sober during the course of the special court-martial proceeding--erroneously assured him that '"if he agreed to plead guilty at a special-court-martial he would avoid any risk of deportation."'" Denedo, slip op. at 2-3. The drunk attorney seems to have precisely nothing to do with the issue of whether NMCCA has jurisdiction to grant coram nobis relief. Why is this allegation mentioned in the opinion? Note the contrast with Chief Justice Robert's dissent's rejoinder: "You’re in the Army now" (an odd retort not merely because of this case's naval origins, but also because the whole point of this case is that Denedo no longer is in the military). At oral argument, there was considerable discussion of whether Denedo had anywhere else to turn if he couldn't seek coram nobis relief within the military justice system. (Think Richard Gere in Officer and a Gentleman: "I got nowhere else to go; I got nowhere else to go.") Did the majority reach to find jurisdiction out of an equitable urge to provide some safety valve for unjust convictions? Or am I wearing blinders that prevent me from seeing the convincing logical rationale for the majority's position?

SCOTUS's Denedo decision part III -- the dissent

Chief Justice Roberts wrote for the four dissenting justices. The dissent's central argument is that coram nobis isn't an extension of the original court's jurisdiction even in an Article III context, much less an Article I context.

In the dissent's view, Article 76 is the terminal point of the military appellate courts' jurisdiction, subject only to the possibility of further proceedings under Article 73 if Article 76 finality attaches before two years have elapsed from the convening authority's action.

Coram nobis, in the dissent's view, is unavailable post-finality because military appellate courts no longer have any jurisdiction left to aid.

The dissent mocks the majority for basing its conclusion that coram nobis is an extension of the original court's jurisdiction on a footnote, which the dissent calls "Morgan's hitherto obscure footnote." The dissent argues that Morgan's footnote 4 doesn't actually support the proposition for which the majority cites it. Then, reaching a crescendo, the dissent argues that even if Morgan could support an extension of jurisdiction for coram nobis purposes in an Article III context, no such conclusion is possible in the military justice system's Article I context. "The military justice system," argues the dissent, "is the last place courts should go about finding 'extensions' of jurisdiction beyond that conferred by statute."

The dissent then argues that Articles 73 and 76 clearly forbid military appellate courts from exercising jurisdiction after the later of conclusion of direct appeals or the closing of the two-year petition for new trial window.

While the dissent recognizes that limiting a servicemember to these forms of relief may seem harsh, "'You're in the Army now' is a sufficient answer to such concerns." (I'll just briefly mention that that retort seems out of place in this case based on a former Sailor's petition for extraordinary relief.) Alluding to the history of the military justice system, which didn't even have an appellate court until the 1950s, Chief Justice Roberts also observes that by comparison, the relief available under Article 73 seems "positively extravagant." Concluding his analysis of Articles 73 and 76, Chief Justice Roberts writes, "To the extent the CCAs or the CAAF could be deemed to have some inherent continuing authority to issue writs of coram nobis, Articles 73 and 76 extinguish it."

The dissent then takes up the government's argument that as a practical matter, coram nobis relief is unavailable in the military justice system because the court-martial where the error allegedly occurred no longer exists. The dissent rejects the notion that CAAF and the CCAs can serve as substitute fora for coram nobis relief, reasoning that "those courts are not equipped to handle the kind of factfinding necessary to resolve claims that might be brought on coram nobis." The dissent then takes a swipe at DuBay hearings, referring to "the procedures invented by United States v. DuBay." The dissent then notes that even if concerns with the military justice system's ability to actually provide coram nobis relief don't go to jurisdiction, it may be that the system is incapable of ever actually granting such relief.

SCOTUS's Denedo decision part II

Blogger ate my earlier Denedo analysis and now I have to recreate it in parts.

The majority proceeded to review and reject two of the government's arguments. The government argued, and the defense agreed, that Article 76 prevents military appellate courts from granting extraordinary relief after direct appeals are complete. Article 76, as quoted by the majority, provides:

The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States . . . .

The use of ellipses is interesting, because the quotation omits a portion of Article 76 that the dissent uses to devastating effect: "subject only to action upon a petition for new trial as provided in section 873 of this title (article 73) and to action by the Secretary concerned or provided in section 874 of this title (Article 74), and the authority of the President."

The majority characterizes Article 76 as "codifying] the common-law rule that respects the finality of judgments." Denedo, slip op. at 11. The majority reasons, "Just as the rules of finality did not jurisdictionally bar the court in Morgan from examining its earlier judgment, neither does the principle of finality bar the NMCCA from doing so here." Id. Not that my views matter, but to me this is the majority's weakest point. The majority previously indicated that whether a court has authority to allow it to issue extraordinary relief is a question of congressional intent. And here's a statute that seems to be expressing Congress's intent not to do so. The majority escapes the implications of that intent by analogizing the statute to a common law rule. But just as a rule-based deadline can be waived under Bowles v. Russell 551 U. S. 205 (2007), but a statutory deadline cannot, in this context it seems to matter that Denedo concerns a statute-based rule of finality while United States v. Morgan did not. See United States v. Morgan, 346 U.S. 502 (1954). The majority presents Article 76 as a brake on the exercise of coram nobis relief rather than as a jurisdictional bar to such relief post-finality.

The majority then rejects the government's argument that coram nobis is unavailable in the military justice system because at common law, coram nobis is obtained from the court whose judgment is being questioned and in military practice that court -- the court-martial -- no longer exists. The majority quickly dismisses the argument, reasoning that this challenge "speaks to the scope of the writ, not the NMCCA's jurisdiction to issue it. The CAAF rejected the former argument. Only the latter one is before us." Denedo, slip op. at 12.

The majority then emphasized the importance to the military justice system of allowing its courts to correct errors. The Denedo majority called its holding "of central importance for military courts." Id.

SCOTUS's Denedo decision (Pt. I)

As everyone who reads this blog already knows, the Supreme Court today affirmed the Court of Appeals for the Armed Forces' Denedo decision by a 5-4 vote. Justice Kennedy wrote for the majority. Since Justice Stevens was the senior justice in the majority, he would have assigned the opinion to Justice Kennedy.

The justices agreed 9-0 that the Supreme Court had statutory certiorari jurisdiction to decide the appeal. The central question for that purpose was whether an order from CAAF sending the case back to NMCCA constituted "relief." The Court held that it did. Observing that the statute providing it with cert jurisdiction over CAAF's cases doesn't define the word, "relief," the Court turned to the Black's Law Dictionary definition and concluded that a remand order falls within the term's meaning. United States v. Denedo, __ U.S. __, No. 08–267, slip op. at 4-5 (June 8, 2009).

Having dispensed with the challenge to its own jurisdiction, the majority proceeded to address "whether an Article I military appellate court has jurisdiction to entertain a petition for a writ of error coram nobis to challenge its earlier, and final, decision affirming a criminal conviction." Id., slip op. at 1.

The Court observed that jurisdiction doesn't flow from the All Writs Act; rather, a court's power to issue a writ is "contingent on that court's subject-matter jurisdiction over the case or controversy." Id., slip op. at 7. Whether a court enjoys such subject-matter jurisdiction is within Congress's control.

The Court found that the jurisdiction to provide coram nobis relief is predicated on "the original proceeding during which the error allegedly transpired." Id., slip op. at 8. Because coram nobis relief is a further step in a criminal appeal, "NMCCA's jurisdiction to issue the writ derives from the earlier jurisdiction it exercised to hear and determine the validity of the conviction on direct review." Id., slip op. at 9. The Court concluded that since NMCCA had jurisdiction over the petition for a writ of error coram nobis, so too did CAAF. Id.,, slip op. at 10. The writ appeal presented questions of law that were within CAAF's statutory jurisdiction to decide. Id.

Denedo Released, Affirmed

Here is a link to today's SCOTUS decision in United States v. Denedo, No. 08-267, affirming (5-4) CAAF's holding that former servicemembers may seek coram nobis review of their convictions after their appeals are final. SCOTUS finds that the ability to seek review derives from the All Writs Act and Art. 66, UCMJ and is not trumped by Art. 73 or 76. More analysis tonight from CAAFlog.

Rodriguez cert petition

I've posted the Rodriguez cert petition here. The QP is: "Whether the Court of Appeals for the Armed Forces misapplied this Court's jurisdictional decision in Bowles v. Russell, 551 U.S. 205 (2007), thereby denying Petitioner servicemember his statutory right to appeal his court-martial conviction." The cert petition doesn't discuss the interesting jurisdictional issue that the case presents; rather, it simply asserts that "[t]he jurisdiction of this Court is invoked under 28 U.S.C. § 1259(3)." Cert petition at 1.