07 August 2007

Colonel Murphy's Petition

Previous posts noted that Colonel Murphy had petitioned the AFCCA for extraordinary relief in the form of a writ of mandamus, that it had been denied, and a writ-appeal to the CAAF had also been denied. Some Air Force sources had suggested that Colonel Murphy wanted to disqualify the Article 32 investigating officer and all Air Force officers from conducting the investigation. I also complained that the AFCCA opinion was not posted on the AFCCA website when they post all of their opinions, even one-line opinions affirming a merits case.

Today, former Judge Mathews reported that the 13 July AFCCA opinion is now available on the AFCCA website. Thanks, Judge Mathews.

It seems my earlier post reported only part of the story. Colonel Murphy asked the AFCCA to (1) order the Article 32 IO to recuse himself and order the Air Force to appoint a non-Air Force officer to conduct the Article 32; and (2) following action on the petition, for the AFCCA to recuse itself from further participation in his case.

The AFCCA decided it had jurisdiction to consider the petition based on San Antonio Express-News v. Morrow, 44 M.J. 706, 709 (A.F. Ct. Crim. App. 1996). It is interesting that the AFCCA did not feel it necessary to discuss Clinton v. Goldsmith, 526 U.S. 529 (1999), which was decided after San Antonio Express-News. Although that case concerned the jurisdiction of the CAAF, the opinion discussed the limited nature of All Writs jurisdiction for Article I courts. It seems to me that the CCA's are somewhat similarly situated to the CAAF in terms of their jurisdiction. Regardless of what the AFCCA decided, I would have expected the opinion to have at least mentioned the case.

In the AFCCA opinion, there is no discussion of why Colonel Murphy believes the Article 32 officer should recuse himself and a non-AF officer should be appointed to conduct the investigation or why the AFCCA should recuse itself. It is most likely some sort of institutional bias against him, but I am not sure. Regardless, the AFCCA denied the petition

All in all, a pretty disappointing opinion from the AFCCA. In all fairness, the court was probably under the gun to try to get the opinion out without delaying the Articlee 32 investigation.

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