CAAF specifies major jurisdictional issue and requests amicus briefs

Today's daily journal update included two very important orders that CAAF issued yesterday, granting review of two petitions in which the accused asked CAAF to further review a CCA ruling in an Article 62 government appeal. CAAF questions whether it has jurisdiction in such cases, an issue we previously discussed here. One of the granted cases is from the Army and one from the Navy-Marine Corps. CAAF issued an extremely truncated simultaneous briefing schedule for the specified issues and invited amicus briefs from the Air Force and Coast Guard appellate shops. Oral argument will be held on both the substantive and jurisdictional issues on 14 November before what is sure to be a packed house on E Street.

It isn't apparent to me under the orders when, if ever, the parties are supposed to file their briefs on the merits. Can any of the parties shed light on that? Have substantive briefs already been filed on the merits?

Here are the granted issues and orders, both of which were issued yesterday:

No. 07-6004/AR. U.S. v. Eric LOPEZ de VICTORIA. CCA 20061248. On consideration of the petition for grant of review of the decision of the Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2000), said petition is hereby granted on the following issue raised by Appellant and modified by the Court:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THE NOVEMBER 2003 CONGRESSIONAL AMENDMENT TO ARTICLE 43(b) OF THE UCMJ APPLIES RETROACTIVELY TO OFFENSES COMMITTED BEFORE THE EFFECTIVE DATE OF THE AMENDMENT THAT WERE NOT TIME-BARRED AS OF THAT DATE, BUT THAT WERE TIME-BARRED UNDER THE PREVIOUS STATUTE OF LIMITATIONS WHEN RECEIVED BY THE OFFICER EXERCISING SUMMARY COURT-MARTIAL JURISDICTION.

and the following issue specified by the Court:

WHETHER AND HOW THIS COURT HAS STATUTORY AUTHORITY TO EXERCISE JURISDICTION OVER INTERLOCUTORY APPEALS UNDER EITHER ARTICLE 67(a)(2) OR (3), UCMJ, 10 U.S.C. § 867(a)(2), (3) (2000), FROM DECISIONS OF THE COURTS OF CRIMINAL APPEALS UNDER ARTICLE 62, UCMJ, 10 U.S.C. § 862 (2000), AND WHETHER, AS A MATTER OF LAW, THIS COURT'S DECISION IN UNITED STATES v. TUCKER, 20 M.J. 52, 53 (C.M.A. 1985), SHOULD BE OVERTURNED.

Appellant and Appellee shall file briefs under Rule 25 on the specified issue no later than October 19, 2007. Reply briefs shall be filed no later than 5 days after the filing of the opposing party's brief.

The government and defense appellate divisions of the Air Force and the Coast Guard are invited to file amicus curiae briefs on the specified issue under Rule 26 no later than October 19, 2007.

Requests for enlargements of time will not be granted in the absence of extraordinary circumstances.

The above-entitled action shall be called for hearing at 9:00 a.m. on the 14th day of November, 2007. Each side will be allotted 30 minutes to present oral argument. The hearing will cover both the assigned and specified issues.

No. 07-6005/NA. U.S. v. Joshua M. MICHAEL. CCA 200700120. On consideration of the petition for grant of review of the decision of the Navy-Marine Corps Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2000), said petition is hereby granted on the following issue raised by the Appellant:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRONEOUSLY LIMITED THIS COURT'S HOLDING IN UNITED STATES v. CONKLIN, 63 M.J. 333 (C.A.A.F. 2006), BY FINDING THAT "IT APPEARS THE MILITARY JUDGE APPLIED AN ERRONEOUS STANDARD OF REASONABLENESS" IN SUPPRESSING THE SEARCH OF APPELLANT’S LAPTOP COMPUTER.

and the following issue specified by the Court:

WHETHER AND HOW THIS COURT HAS STATUTORY AUTHORITY TO EXERCISE JURISDICTION OVER INTERLOCUTORY APPEALS UNDER EITHER ARTICLE 67(a)(2) OR (3), UCMJ, 10 U.S.C. § 867(a)(2), (3) (2000), FROM DECISIONS OF THE COURTS OF CRIMINAL APPEALS UNDER ARTICLE 62, UCMJ, 10 U.S.C. § 862 (2000), AND WHETHER, AS A MATTER OF LAW, THIS COURT'S DECISION IN UNITED STATES v. TUCKER, 20 M.J. 52, 53 (C.M.A. 1985), SHOULD BE OVERTURNED.

Appellant and Appellee shall file briefs under Rule 25 on the specified issue no later than October 19, 2007. Reply briefs shall be filed no later than 5 days after the filing of the opposing party's brief.

The government and defense appellate divisions of the Air Force and the Coast Guard are invited to file amicus curiae briefs on the specified issue under Rule 26 no later than October 19, 2007.

Requests for enlargements of time will not be granted in the absence of extraordinary circumstances.

The above-entitled action will be called for hearing on the 14th day of November, 2007. This hearing will commence immediately following the hearing in United States v. Lopez de Victoria, 07-6004/AR. Each side will be allotted 30 minutes to present oral argument. The hearing will cover both the assigned and specified issues.

Foerster cert petition

We previously discussed the Supreme Court's request that the Solicitor General respond to the cert petition in Foerster v. United States, No. 07-359. Here is a link to the cert petition that resulted in that request. Please note that I butchered some formatting and pagination to make it all one file -- the original is much more pretty. But it should be fairly evident by now that at CAAFlog, we care about substance, NOT style.

Merely obtaining a request that the SG respond to the cert petition is quite a feat. I haven't yet been able to locate a precise stat for how often that occurs, but I can offer a rather bizarre proxy for that stat to at least demonstrate that it is rare. According to a recent book review by Professor David R. Stras of the University of Minnesota Law School, the percentage of cert pool memoranda "calling for a response or the views of the Solicitor General, among others," dropped "from 7.7% of the certiorari docket during October Terms 1984 and 1985 to 5.7% for October Terms 1991 and 1992." David R. Stras, Book Review Essay, 85 Tex. L. Rev. 947, 991 (2007). That doesn't tell us what the percentage of actual requests was then or now, but it does suggest that such requests are uncommon.

I'll keep digging to see if I can discover any stats for how often such requests are actually made (rather than how often the cert pool recommends such requests to those justices who participate in the cert pool) and how often cert is granted in cases where the Court has requested a response from the SG.

MEJA expansion

How is it possible that that No Man hasn't posted an announcement that the House of Representatives passed H.R. 2740 this afternoon on a 389-30 vote? Here's a good write-up from Juris.

Harrow distributed for conference

The military cert petition in Harrow v. United States, No. 07-404, has been distributed for the 26 October 2007 conference.

Bye, Bye Expanded Art. 2, Hello Expanded MEJA

Well my fascination with expanded UCMJ jurisdiction may be short lived. The House either has passed or likely will pass early tomorrow HR 2740, the "MEJA Expansion and Enforcement Act of 2007," see House floor summary for today here. HR 2740 will expand the coverage of the Military Extraterritorial Jurisdiction Act to cover all contractors "while employed under a contract (or subcontract at any tier) awarded by any department or agency of the United States, where the work under such contract is carried out in an area, or in close proximity to an area (as designated by the Department of Defense), where the Armed Forces is conducting a contingency operation." See House Report here.

I would imagine that, with this expansion of MEJA, the application of the UCMJ to contractors will be moot, particularly because the bill also provides for establishment of Theater Investigative Units of the FBI for each contingency operation. In light of the flame spraying of Blackwater USA by the House Oversight Committee, here, I would imagine the bill will be fast tracked along with a Senate companion, S.674.

CAAF splits over mental responsibility in summary disposition

Today's daily journal update includes a 3-2 split over a mental responsibility issue. United States v. Mancillas, __ M.J. ___, No. 07-0302/MC (C.A.A.F. Oct. 2, 2007). While the per curiam order isn't signed, the process of elimination tells us it was joined by Chief Judge Effron, Judge Baker, and Judge Stucky. Judge Ryan, joined by Judge Erdmann, dissented.

Because the decision is a summary disposition, one must read the opinion below to get a real feel for the dispute at NMCCA. United States v. Mancillas, No. NMCCA 200401950 (N-M. Ct. Crim. App. Dec. 18, 2006).

PFC Mancillas has had a long series of mental health evaluations. Here's a summary:

1. 18 October 2002: Navy psychologist at Camp Pendleton determines he was mentally competent to stand trial and "accountable for his actions." The psychologist determines Mancillas suffered from a Major Depressive Disorder, that he was responding well to medication, and that "[t]his condition did not render him unable to appreciate the nature and quality or wrongfulness of his conduct at the time of the alleged criminal conduct."

NMCCA tells us that "[b]ased upon inconsistencies in the 18 October 2002 R.C.M. 706 report, and the fact that a psychiatrist was not involved in the R.C.M. 706 board, the appellant requested and received a second R.C.M. 706 evaluation." Mancillas, slip op. at 2.

2. 26 November 2002: Division Psychiatrist, 1stMarDiv issues report concluding that: (1) Mancillas did not suffer from a major mood or thought disorder at the time of the offenses; (2) that he had the capacity to "understand his actions at the time of the offenses;" (3) that his then-current state prevented an accurate determination of his competency to stand trial; and (4) Mancillas's symptoms at that time were "of questionable veracity and may represent malingered mental illness."

The Division Psychiatrist recommended considering "placing the defendant in a facility where he can be closely observed to more accurately determine competency and whether his symptoms represent a major thought disorder, a decompensated personality disorder, or malingered mental illness to avoid trial."

3. 24 December 2002: one-member R.C.M. 706 board concludes that Mancillas suffered from a Psychotic Disorder Not Otherwise Specified (DSM IV 298.9) and a Personality Disorder Not Otherwise Specified, with Antisocial and Paranoid Features (DSM IV 301.9), that he did "not have sufficient mental capacity to understand the nature of the proceedings," and that he was "unable to conduct himself or cooperate intelligently in his defense."

The board was unable to assess Mancillas's "mental state" and "mental responsibility" at the time of the alleged offenses. The report's author "strongly recommend[ed] that PFC Mancillas be admitted to an appropriate inpatient facility for further evaluation and treatment. I further recommend that projective psychological testing be performed to more fully evaluate the presence and/or extent of his psychotic symptoms. Antipsychotic medication may be helpful in restoring his mental capacity."

4. 27 August 2003: Federal Medical Center, Butner, North Carolina, where Mancillas had been treated for several months, concludes that he "is able to understand the nature and consequences of the proceedings against him and to assist properly in his own defense."

CAAF's per curiam summary disposition indicates: "On November 6, 2003, Appellant entered pleas of guilty to certain offenses and was found guilty in accordance with his pleas. No resolution of the apparent issue of Appellant's mental responsibility appears in the record."

5. 4 April 2007: A sanity board evaluating Mancillas after NMCCA affirmed his findings and sentence concluded that he was "unable to appreciate and differentiate between right and wrong” at the time of the offenses."

A majority at CAAF concludes that "it appears there may be an issue relating to Appellant's mental responsibility at the time of the alleged offenses that has not been fully considered and addressed by the United States Navy-Marine Corps Court of Criminal Appeals." The majority remands the case to the Navy-Marine Corps Court and orders it to consider the following issues "and such other issues as may be raised by Appellant concerning his mental condition":

I. WHETHER THE LOWER COURT ERRED BY NOT RESOLVING WHETHER APPELLANT HAD THE MENTAL CAPACITY FOR THE OFFENSES CHARGED PURSUANT TO RULE FOR COURT COURTS-MARTIAL 706.

II. WHETHER THE LOWER COURT ABUSED ITS DISCRETION BY DENYING APPELLANT’S REQUEST FOR A MENTAL COMPETENCY HEARING UNDER R.C.M. 706 AND BY FINDING APPELLANT MENTALLY COMPETENT TO STAND TRIAL WITHOUT PROPER DOCUMENTATION.

III. WHETHER THE LOWER COURT ERRED BY FINDING THAT APPELLANT’S TRIAL DEFENSE COUNSEL WAS EFFECTIVE AS SHE DID NOT PLACE ON THE RECORD THE MEDICAL DOCUMENTATION OF COMPETENCY CERTIFICATION AND DID NOT ENSURE THAT APPELLANT WAS MENTALLY COMPETENT AT THE TIME THE OFFENSES WERE COMMITTED

Judge Ryan's dissent disagrees "with the Court's characterization of the record." She writes that the "706 boards were conducted to ensure that [Mancillas] was competent to stand trial." His "mental responsibility at the time of the offenses was never in question and, to the extent it was reviewed in the course of the R.C.M. 706 boards, the record reflects that . . . the second board concluded 'that (1) the appellant did not suffer from a major mood or thought disorder at the time of the offenses; (2) that he had the capacity 'to understand the nature of his actions at the time of the offenses . . . .' . . . The results were 'inconclusive' only with respect to Appellant's competency to stand trial. And it was that issue that the third board reviewed, and that issue that was fully and finally resolved by the Federal Medical Center. That mental responsibility was never an issue is further confirmed by the fact that Appellant raised only the issue of his competency to stand trial in his initial appeal to the Court of Criminal Appeals." Judge Ryan concludes, "I am not persuaded that a fourth sanity board conducted forty-one months after trial merits further consideration by the Court of Criminal Appeals."

I hope our many NAMARA readers will keep us informed of this case's continued progress on remand.

H.R. 3174 update

This is odd. Today on Thomas.LOC.Gov, an entry showed up indicating that H.R. 3174, which would expand the Supreme Court's statutory cert jurisdiction over military justice cases, was referred to the Subcommittee on Courts, the Internet, and Intellectual Property on 10 September. I have no idea why that information took almost a month to show up on the web site. Here's the latest.

Links posted for this week's oral arguments

Here's a link to yesterday's oral arguments in Denedo and Medina. And here is a link already to today's oral arguments in Parrish and Brown.

And here is JO'C's analysis of the Denedo argument that he posted in a comment earlier today:

John O'Connor said...

I just listened to oral argument in Denedo. While it's inherently dicey to predict an outcome based on the tenor of oral argument, I didn't hear three votes for the exercise of writ jurisdiction here. My suspicion is that the court will dismiss the writ petition, with the real issue being whether the court does so without prejudice so that Denedo can come back if an Article III court finds that it lacks jurisdiction over the petition.

Of course, in my mind, that proposition has it exactly backwards, as the CAAF (with its very narrow jurisdiction) should not be the residuum court, the one that will exercise jurisdiction if another court won't. I believe that an Article III court would have jurisdiction over the writ and, again in my mind, the CAAF has no place expanding its own powers if, for whatever reason, an Article III court erroneously concludes that it lacks jurisdiction.

Tue Oct 02, 02:23:00 PM EDT

One final thought for the opening day of the term

Today's Denedo argument has generated a great deal of excitement -- and not all of it over Judge Erdmann's whiskers. But here's a thought: if CAAF issues the requested writ, the SG could (and very well might) seek a cert petition from the Supremes. If CAAF denies the requested extraordinary relief, Denedo couldn't seek a cert petition to review that ruling. Such a legal regime isn't irrational. If the government were to lose, it would have nowhere to turn but to the Supremes, while if Denedo were to lose, he could institute a collateral challenge with the civilian federal judiciary. Nevertheless, a system in which either party could seek cert certainly seems more equitable than the current system. H.R. 3174 would establish such parity.

End of term stats

CAAF's end of term stats are out -- they are included in the 28 September daily docket.

To me, the most interesting statistic is the number of petitions filed. While the number is lower than last year's it is still well above the recent average. Here are the numbers for this year and the previous five terms

2007: 937 petitions filed
2006: 1,006 petitions filed
2005: 779 petitions filed
2004: 802 petitions filed
2003: 694 petitions filed
2002: 974 petitions filed

So over the previous five terms, the mean number of petitions filed was 851, compared to 937 for the just completed term.