United States v. Lane will certainly rank as one of CAAF’s most significant opinions from the 2006 term. The opinion relied on the Constitution’s “Incompatability Clause,” U.S. Const. art. I, § 6. cl. 2, to hold that a Member of Congress may not serve on a Court of Criminal Appeals in his capacity as a reserve officer. The majority opinion will no doubt receive thorough analysis. It may even generate a cert petition from the Solicitor General. But I was particularly struck by a portion of the dissent. Judge Crawford wrote: “If relief is to be granted, it should be granted prospectively and not to all cases on direct review. Griffith v. Kentucky, 479 U.S. 314, 321-22 (1987).” (dissent at 13). The dissent further supports its argument for prospective application with citations to three pre-Griffith Supreme Court decisions in civil cases.
Griffith, however, stands for precisely the opposite conclusion. Here is the holding in Griffith: “We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” 479 U.S. at 328.
The dissent accuses the Lane majority of ignoring precedent. But it is the dissent that ignores clear precedent when arguing for prosepective application of the majority’s holding. Curiously, the dissent cites the very precedent that it ignores.
Posted by Dwight Sullivan (The opinions expressed are my personal opinions. I do not purport to be speaking for any other entity or individual.)