22 July 2007

Extraordinary Writs

In his discussion of the CAAF's jurisdiction over Colonel Murphy's case, CAAFlog notes that CAAF would have jurisdiction to intervene under a concept federal courts have recognized in applying the All Writs Act--potential appellate jurisdiction. In other words, the court has jurisdiction to consider the extraordinary writ if the case might come before it in the future.

in 1990 Article 69(d) was amended to provide that a TJAG could refer a case he was required to review under Article 69, UCMJ, to his CCA. And if the CCA reviewed it, the CAAF would have jurisdiction to review it under Article 67(a)(3)--"all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review." See also Article 67(c). Thus, there is the slightest possibility that a case such as Lt Ziemniak's--where no punitive discharge or confinement could be adjudge--might wind up before CAAF.

In light of Clinton v. Goldsmith, and the limited statutory jurisdiction of the CAAF, I am not sure CAAF has "potential appellate jurisdiction." And until the Supreme Court rules on it, if ever, it is still an open question. But even if we were to assume that CAAF did have potential appellate jurisdiction, the possibility of a case reaching CAAF through an Article 69(d) review is so remote, I still doubt the CAAF would have the power to intervene.

Of course, that sets up another question--if CAAF doesn't have power to intervene in a case such as Ziemniak, or in the Murphy case, would a federal district court? And why would anyone want a federal district court, as opposed to some court familiar with Article 32 investigations and courts-martial to be the writ authority?


John O'Connor said...

I agree with your suggestion that nobody would really want a federal district court getting involved in writs relating to courts-martial. And I doubt that a federal district court would get involved in such matters in light of the Supreme Court's admonition (was it in Schlesinger v. Councilman?) that federal ocurts ought to let military justice matters run their course.

Let me throw out my hypothesis on how things should be: no court has the power to intervene in an ongoing Article 32 investigation. The time for court involvement is after referral. An aggrieved accused can move for a new Article 32 before the MJ, and then take up a writ if that is denied. Or, the accused can pursue relief through regular appeal if it comes to that.

It strikes me as ironic that CAAF held when I was a TC that an MJ couldn't be involved in as mundane a matter as granting continuances of Article 32 hearings because (as the court correctly noted) the case wasn't referred to a court yet, but that the CAAF could inject itself into an Article 32 on the basis that the case might, if several contingenices occurred, be within CAAF's jurisdiction. It seems to me that the course of "appeal" when an accused is aggrieved by what's happening at an ongoing Article 32 is to go to the convening authority and make his case. If he gets no relief from the CA, then the next recourse (other than things like Article 136 complaints and Congrints) is to go to the MJ after referral.

No Man said...

Don't forget that an accused has a right to petition CCA for review of an adverse Art. 69 review, or so says ACCA. Dew v. United States, 48 M.J. 639, 645-47 (A. Ct. Crim. App. 1998); but see Dukes v. Smith, 34 M.J. 803, 806 (N.M.C.M.R. 1991). I think Dew is the better reasoned, but who am I.

Sacramentum said...

If Dew was ever good law, I think Clinton v. Goldsmith demolished the reasoning in the case.

Dew received a sentence in a GCM that did not require TJAG to send it to the ACCA. It was reviewed in TJAG's office, found to be legally sufficient, and affirmed. Article 69(a), UCMJ. In an extraordinary writ, Dew asked the ACCA to order TJAG to send her case to the ACCA for review under Article 69(d).

The ACCA found jurisdiction under the All Writs Act because, although they never acquired appellate jurisdiction, hearing the writ was in aid of their statutory jurisdiction. The ACCA also claimed potential jurisdiction because TJAG might refer the case to them, even though he had specifically declined to do so, and the ACCA claimed they had supervisory jurisdiction as the highest court in the Army system.

I think it's pretty difficult to sustain any of these arguments in light of Clinton v. Goldsmith.

Note: Dew pled guilty to bad check offenses. She wanted TJAG and the ACCA to find her plea improvident because of the gambling defense in United States v. Allbery.

On 15 October, the CAAF will hear argument in the case of United States v. Esteban Falcon, No. 07-0105/NA. Case Summary: SPCM conviction for making and uttering bad checks and stealing mail matter. Granted issue is as follows: where the Courts of Criminal Appeals are split on whether the Wallace-Allbery gambler’s defense applies to worthless check offenses, did the lower court err when it held that the defense applies only to offenses under Article 134, UCMJ, but not under Article 123a, UCMJ. The specified issue is whether the military judge erred in accepting Appellant’s guilty pleas to violating Article 123a, UCMJ without resolving whether Appellant had a partial mental responsibility defense as a result of his diagnosis as a pathological gambler.