A new military cert petition has been filed and docketed at the Supreme Court. The case name is Daniels v. United States, No. 06-11441. But don’t click through to look at its docket entry yet because there’s a pop quiz at the end of this post.
The issue below in Daniels concerned a due process violation arising from appellate delay. See United States v. Daniels, __ M.J. ___, No. 06-0898 (C.A.A.F. Feb. 12, 2007). Appellate delay was previously the subject of a cert petition that counsel from the Navy-Marine Corps Appellate Defense Division filed on behalf of multiple clients. See Craig v. United States, 127 S. Ct. 1141 (2007) (order denying certiorari).
Here was the QP in Craig: “Whether a harmless beyond a reasonable doubt analysis applies to a violation of an appellant’s right to a speedy post-trial appeal, which is recognized as a constitutional due process right and is tested under an analysis that already includes the element of prejudice derived from Barker v. Wingo, 407 U.S. 514 (1972).”
Does anyone think that q.p. is frivolous? The fact that the Supremes denied cert certainly doesn’t make it so. The Supremes have often denied cert in one case and then, seeing that the issue has momentum, granted cert on the same issue in another case. Here’s an example that will be familiar to many military justice practitioners. In United States v. Mustafa, 22 M.J. 165 (C.M.A. 1986), CMA
examined the admissibility of blood spatter evidence and ruled that Mil. R. Evid. 702 had adopted a more liberal standard for the admissibility of novel forms of scientific evidence. Does that general issue sound familiar? Well Mustafa sought cert, which the Supremes denied over Justice White’s and Justice Brennan’s dissent. Mustafa v. United States, 479 U.S. 953 (1986). Here’s what the dissenting justices wrote:
In this case the trial court admitted, over petitioner’s objection, the testimony of a purported expert on blood spatter techniques. On appeal, the Court of Military Appeals held that the testimony in question was admissible under Military Rule of Evidence 702, which is worded identically to Federal Rule of Evidence 702. The court held that the so-called Frye test for determining the admissibility of expert testimony, see Frye v. United States, 293 F. 1013, 1014 (1923), was superseded by the 1975 enactment of the Federal Rules of Evidence. The court described Military Rule 702 as establishing a much lower threshold than Frye for determining whether a given person is an expert. This conclusion is supported by decisions interpreting Federal Rule of Evidence 702 as establishing a more flexible standard of admissibility than the Frye test. See, e.g., United States v. Downing, 753 F. 2d 1224 (CA3 1985). Other courts, however, have interpreted Federal Rule of Evidence 702 as incorporating the Frye test. Barrel of Fun, Inc. v. State Farm Fire & Casualty Co., 739 F. 2d 1028, 1031, n. 9 (CA5 1984); United States v. McBride, 786 F. 2d 45, 49 (CA2 1986). I would grant certiorari to resolve this conflict on an obviously recurring and important issue.
Mustafa v. United States, 479 U.S. 953, 953 (1986) (White, J., dissenting from denial of certiorari).
Six years later, this time joined by Justice Blackman, Justice White would again dissent to a denial of certiorari in a case raising the same general Frye test vs. Fed. R. Evid. 702 issue. Christophersen v. Allied-Signal Corp., 503 U.S. 912 (1992) (White, J., dissenting from denial of certiorari).
The Supremes denied cert in Christophersen on 2 March 1992. At the start of the Court’s next Term, it granted cert in a little case called Daubert v. Merrill Dow Pharmaceuticals, 506 U.S. 914 (1992) (order granting certiorari). (Just think of how much easier life would be if the Supremes HAD resolved this issue in Mustafa — which would have spared us all from having to decide how to pronounce “Daubert.” BTW, I was once giving a lecture on Daubert, so I called up one of Mr. Daubert’s counsel to ask. He told me it’s pronounced Dow-Bert.)
So don’t think that just because the Supremes denied the cert petition in Craig, the exact same issue in Daniels was frivolous.
So why, of why, was Daniels filed as a pro se IFP cert petition?
As best I can tell, the answer to that question concerns Sergeant Daniels’s branch of service.
Which brings us to the CAAFlog pop quiz: Without looking it up on either the Supreme Court’s or CAAF’s website, name Lloyd C. Daniels III’s branch of military service.
Extra credit will be given for accompanying your answer with an analysis of whether military appellate defense counsel should have filed Daniels’s cert petition on his behalf.