There is an interesting new wrinkle in the Loving case. (The case now has so many interesting wrinkles that it is the shar-pei of military justice.)
Loving is a military death penalty case. In 1996, the Supreme Court used Loving as its vehicle to rule that it was constitutionally permissible for the President, rather than Congress, to establish the aggravating factors that narrow death eligibility. Loving v. United States, 517 U.S. 748 (1996). A habeas petition in the case is currently pending before CAAF.
Ever since the Supremes affirmed in 1996, the case has been eligible for presidential consideration under Article 71(a) of the UCMJ. Proceeding at a pace that makes Moreno look like a cheetah by comparison, the case was forwarded to the White House on January 23, 2006.
Under R.C.M. 1204(c)(2), once appellate review of a military death penalty case is complete, “the Judge Advocate General shall transmit the record of trial, the decision of the Court of Criminal Appeals, the decision of the Court of Appeals for the Armed Forces, and the recommendation of the Judge Advocate General to the Secretary concerned for the action of the President.”
Loving’s counsel have repeatedly sought a copy of the recommendation of The Judge Advocate General of the Army, along with the accompanying documents that the Department of Defense forwarded to the White House. Loving’s counsel have been repeatedly rebuffed.
On 26 September, Loving filed a FOIA action in the U.S. District Court for the District of Colubmia seeking these documents. The case has been assigned to the highly regarded Judge Ellen Segal Huvelle. This will be one to watch. The case number is 1:06CV01655. Loving’s counsel are Seth Watkins and Charles Schill from Steptoe & Johnson and Teresa Norris of Blume Weyble & Norris. (Teresa is Loving’s former military appellate defense counsel and saintly long-serving pro bono counsel.)
Posted by Dwight Sullivan