All Gonzalez All the Time

For those too lazy to read the two Gonzalez opinions by NMCCA, that's me, here is a redline version showing the changes from the August 10 opinion, United States v. Gonzalez, No. NMCCA 200400055 (N-M. Ct. Crim. App. Aug. 10, 2006), to the August 28 opinion, United States v. Gonzalez, No. NMCCA 200400055 (N-M. Ct. Crim. App. Aug. 28, 2006).

I will let our readers draw their own conclusions about the changes.

SG waives response to pro se IFP Marine cert petition

As might be expected, the SG waived his right to respond to the pro se IFP cert petition in Phillips v. United States, No. 07-5716, which we previously discussed here. We never successfully elicited a response as to why it was filed pro se. Can anyone enlighten us?

Six Degrees of Cass Sunstein

A recent paper (available here) by Vanderbilt professors Paul Edelman and Tracey George takes the popular thought game Six Degrees of Kevin Bacon and applies it to legal scholarship. As the name of the paper ("Six Degrees of Cass Sunstein") would suggest, the authors look for co-authorship links in legal scholarship leading back to University of Chicago law professor Cass Sunstein.

The paper makes some attempt to establish its own importance, but it's actually more fun than useful. It identifies every Sunstein 1 (the 57 people who have co-authored articles or other publications directly with Cass Sunstein) and Sunstein 2 (the 768 people who have co-authored with Sunstein 1s). The authors invite readers to compute their own Sunstein number. Now I'm a legal practitioner, not an academic or scholar, but I actually have a Sunstein number: Sunstein 4, through the chain Sunstein - John Yoo or Bruce Ackerman [either one works -- and John Yoo is a very odd person to be in my Sunstein chain!] - Harold Koh - Detlev Vagts - me (through an article by Gene Fidell, Detlev Vagts and me in the December 2005 Army Lawyer).

This is the paper's authors' explanation of why they cast Cass Sunstein in the Kevin Bacon role of their game:

We sought to identify a legal scholar with characteristics that make it more likely that she or he is the central hub in the legal collaboration network . . . . We are looking, then, for a scholar who:
• actively collaborates with a range of scholars (lots of edges),
• publishes often and across fields (dispersion of vertexes and edges across academy),
• has achieved a high level of recognition (a nontrivial vertex), and
• will continue to co-author into the foreseeable future (a nondecaying vertex).

Based on those criteria, who would we cast in the Kevin Bacon/Cass Sunstein role if we wanted to play the game with military justice scholarship? Steve Saltzburg, perhaps? If so, what's your Saltzburg number?

"Above all . . ." Don't Forget Grostefon

I got a good 2 minutes or so of entertainment from a recent Air Force Times' article on post-trial options. The following was the most memorable portion of the article (available here):

If you do not take the appeal to the criminal court seriously, you might miss opportunities to improve your record. You should be in contact with your appellate attorney and explain to them your side of the case. In this way, they understand your record of trial a little more than simply reading the words on the page.

Above all, you should think hard about your Grostefon submission. The case of U.S. v. Grostefon, 12 M.J. 431 (C.M.A. 1982), essentially stands for the fact that you, as the appellant, can have the Court of Criminal Appeals consider any matter you would like it to consider. This is a personal statement from you to the Court where you set out what mistakes you believe were made in your trial. This may include matters on which you and your attorney disagree.

(emphasis added). I don't think I have ever seen Grostefon placed "above all" in any context. I guess it is good to see differing views every now and then. I clicked on the link to the article's comment (singular). I believe the commenter viewed the article about the same as me, "'Military justice is to justice what military music is to music' -George Clemenceau."

The Sacramentorium adds a blogger

The Sacramentorium now has a second blogger going by "Publius." Check out his or her first post here.

Gonzalez puzzler

I am confused.

Exactly one year ago today, on 10 August 2006 (yes, that is one year ago today), NMCCA issued an opinion marked "PUBLISH" in the case of United States v. Gonzalez, No. NMCCA 200400055 (N-M. Ct. Crim. App. Aug. 10, 2006). Something was amiss with the NMCCA-to-West Publishing pipeline at the time, as we previously discussed here and here, and the decision was never published.

If you go into NKO and access the Gonzalez opinion, you get the same version as that linked above.

Now open up the opinion marked Gonzalez, 08/10/06 on the NMCCA web site's 2006 opinions page. You get a similar, though not identical, NMCCA opinion marked unpublished and dated 28 August 2006. Huh?

If you look at Gonzalez on LEXIS, you get the 28 August unpublished version of the opinion. United States v. Gonzalez, 2006 CCA LEXIS 365 (N-M. Ct. Crim. App. Aug. 28, 2006). On WESTLAW, there are two files with Gonzalez's case number. One is the 28 August unpublished opinion linked above. United States v. Gonzalez, 2006 WL 4579686 (N-M. Ct. Crim. App. Aug. 28, 2006). The other is supposed to be the 10 August Gonzalez decision, but it indicates: "Decision intended for electronic publication only. For electronic decision, see 2007 WL 4579686." The link to 2007 WL 457986 is inoperative.

So it appears that NMCCA released a to-be-published opinion in Gonzalez on 10 August 2006, then simply released a new, slightly different, and unpublished version of the same opinion on 28 August 2006 without referencing the opinion issued 18 days earlier. It also looks like the published opinion was originally put up on NMCCA's web site, but the unpublished opinion was substituted for it sometime later, but without changing the opinion's date to cover those tracks. It also appears that only the 28 August version was sent to LEXIS, but that at some point, both versions were sent to WESTLAW.

Am I missing something? Does this make sense to anyone?

Remove Quinn-Monreal from the deserter list

A year and a day after it was released, Quinn-Monreal is finally in WESTLAW as a to-be-published opinion: United States v. Quinn-Monreal, __ M.J. ___, No. NMCCA 200401632, 2006 WL 4693348 (N-M. Ct. Crim. App. Aug. 9, 2006).

Interesting analysis of Marcum/Don't Ask, Don't Tell

A comment in the University of Pennsylvania Journal of Constitutional Law analyzes the constitutionality of Don't Ask, Don't Tell, and argues that the Supremes should rely on CAAF's opinion in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), to limit the Don't Ask, Don't Tell policy. Evangelos Kostoulas, Comment: Ask, Tell, and Be Merry: The Constitutionality of "Don't Ask, Don't Tell" Following Lawrence v. Texas and United States v. Marcum, 9 U. Pa. J. Const. L. 565 (2007).

In Marcum, CAAF applied Lawrence v. Texas, 539 U.S. 558 (2003), to the military justice system. CAAF adopted a three-part test for determining whether Lawrence applies to conduct that would otherwise violate Article 125:

First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?

Marcum, 60 M.J. at 206-07.

Before I share the Comment's conclusion with you, allow me to make two observations: (1) JO'C is a legitimate expert on the military deference doctrine; and (2) if JO'C reads this Comment, it will make him crazy.

Okay, now for the article's conclusion:

Though Congress is entitled to deference in regulating the military, the Court should not blindly accept "Don't Ask, Don't Tell" in its constitutional analysis. The Court of Appeals for the Armed Forces, which routinely must integrate the unique demands of military life, has determined that Lawrence applies in the military context when the facts of the situation satisfy a three-part test. Though the Court may lack the necessary skill to incorporate military interests in its constitutional analysis, the C.A.A.F. does not. For this reason, its holding in Marcum should be viewed by the Court as highly persuasive.

9 U. Pa. J. Const. L. at 593.

If I listen very closely, I'll bet I can hear JO'C scream when he reads this.

SG waives right to respond in Monette

As expected, the SG has waived his right to submit a response to the pro se IFP cert petition in Monette v. United States, No. 07-5623, which we previously discussed here.

More on Colonel Murphy's writ

Over at the Sacrementorium, there's a new post shedding more light on Colonel Murphy's request for extraordinary relief from the Air Force Court. Judge Mathews the Greatest posted a comment noting that the Air Force Court's opinion is now up on the court's web site. Murphy v. Smolen, Misc. Dkt. No. 2007-03 (A.F. Ct. Crim. App. July 13, 2007).

Unfortunately, the Air Force Court, like the Navy-Marine Corps Court, issues orders in extraordinary relief cases in an extremely uninformative format. For example, counsel in the case aren't listed. I'm still wondering whether Colonel Murphy hired a civilian counsel and, if so, who. Also, the judges who rejected the claim aren't listed. The initiated probably know who is on Panel 1 of the Air Force Court, but I'm uninitiated. Perhaps the most informative portion of the order is the indication that Judge Jacobson didn't participate -- I don't know who did, but at least I know of one judge who didn't. I wonder if he was unavailable or if he recused himself -- which would hardly be an unexpected event in a case involving a senior Air Force officer who spent his career as a judge advocate.