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.)

7 Responses to “United States v. Lane”

  1. Jason Grover says:

    Lane was certainly a fun and interesting case, but I disagree with the thought that it will be one of the most significant opinions of the term. Lane was a one-of-kind situation, presenting a novel constitutional issue. But consider some of the other cases that have come or are coming:

    Moreno- will have much longer impact on military justice

    Anthrax cases- still to come, but could hold that the entire DoD program was improper

    Haney- Can appellate counsel be IAC for asking for enlargements

    Quintanilla- Death sentence set aside

    Loving- perhaps the entire RCM 1004 system set aside

    Long- privacy interest in gov email

    Magyari- some business records could be testimonial

    Lane doesn’t come close to being one of the most siginificant opinions of the term.

  2. CAAFlog says:

    Since the Military Justice Act of 1983 extended the Supreme Court’s certiorari jurisdiction to include decisions by the Court of Appeals for the Armed Forces, I believe there have been only 10 cases in which the Supremes have heard oral argument to review a CAAF decision. Lane may well be the 11th. That would be a sufficient, but not necessary, condition to qualify as “significant.”

  3. Jason Grover says:

    Does that mean McKeel is the other most significant case from this term? (http://www.supremecourtus.gov/docket/06-58.htm)

  4. Mary Hall says:

    Ironic that Lane comes out just as TIME does a 2-page profile on Lindsey Graham.

  5. gene fidell says:

    Just a short post to congratulate Dwight Sullivan on taking the initiative with CAAFLog in time for the end of one CAAF Term and the beginning of another. There has long been a need for a high-calibre military justice blog. NIMJ is happy to provide a link on the website, and we look forward to a useful exchange of views through this additional medium. BZ!

  6. Marcus Fulton says:

    What are the politics of the government asking for cert in Lane?
    Seems like the administration would have some opinion regarding raising the visibility of this issue. My first guess is that no one in the executive branch would want to draw additional attention to Sen. Graham’s JAG affiliation no matter what the context.

    Any better guesses?

  7. Jason Grover says:

    Very true. Additionally, there are no real long-term negative consequences here for the government. So you can’t put a Senator on a CCA. Big deal. The case doesn’t establish horribly negative precedent for the government that needs to be corrected. I believe that the USAF might be intersted in approaching the SG, but I cannot believe the SG would actually petition the Supreme Court.