Here is some HUGE news. Today I learned that on 15 August 2007, the Navy-Marine Corps Court of Criminal Appeals — are you sitting down? — ordered a summary court-martial stayed to consider a petition for extraordinary relief in the case. Olson v. United States, No. NMCM 200700631. No, that’s not a typo and I didn’t mean SPCM — a SUMMARY court-martial. Wow!
The Navy-Marine Corps Appellate Government Division is (of course) arguing that NMCCA has no power to issue a writ in a summary court-martial case, citing among other authorities Clinton v. Goldsmith, 526 U.S. 529, 534 (1999) (though Appellate Government erroneously cited that decision as United States v. Goldsmith).
But there’s a huge different between Goldsmith and Olson. The order dropping Major Goldsmith from the rolls could NEVER fall within CAAF’s appellate jurisdiction, but any ultimate summary court-martial conviction of 1stSgt Olson could. As Eugene Fidell the Sagacious sagaciously explains in his invaluable Guide to the Rules of Practice and Procedures for the United States Court of Appeals for the Armed Forces 20, 27 (12th ed. 2006):
The Court’s jurisdiction over “nonreviewable” (subjurisdictional) courts-martial (i.e., general and special courts-martial in which there is no punitive discharge and summary courts-martial, none of which are subject to automatic review by a Court of Criminal Appeals) changed dramatically in 1989. Now, any such case that is referred to a Court of Criminal Appeals may thereafter be certified to the Court of Appeals. UCMJ art. 69(d), 10 U.S.C. § 869(d) (2000).
. . . .
Section 1302 of the National Defense Authorization Act for Fiscal Years 1990 and 1991, Pub. L. No. 101-189, § 1302(a), 103 Stat. 1576 (1989) . . . repealed the sentence of Article 69(a) which had permitted subjurisdictional general courts-martial to be reviewed by the Court of Appeals only pursuant to a second certification. Second, it provided that non-bad-conduct-discharge special courts-martial and summary courts-martial can also be referred to a Court of Criminal Appeals. UCMJ arts. 69(b), (d), 10 U.S.C. § 869(b), (d) (2000). Such cases are therefore now also potentially subject to review by the Court of Appeals either by certificate for review or on petition by the accused. Congress’s view in enacting this legislation was that “[t]he purposes of the [Code] would be better served if such review were conducted under a jurisdictional statute as opposed to the ad hoc procedures of the All Writs Act.” S. Rep. No. 101-81, at 173 (1989).
. . . .
The nettlesome area of the Court’s jurisdiction was much narrowed by the 1989 amendment to Article 69, discussed above. By subjecting subjurisdictional courts-martial to the prospect of referral to a Court of [Criminal Appeals], Congress brought them within the Court of Appeals’ potential appellate jurisdiction and hence seemingly within its reach under the All Writs Act, see FTC v. Dean Foods Co., 384 U.S. 597, 603-04 (1966), although the language quoted above from the Senate Report suggests that expansion of access to the Courts of [Criminal Appeals] and Court of Appeals was intended to reduce reliance on the extraordinary writ process. S. Rep. No. 101-81, at 173 (1989).
I see that Olson is pending before Panel No. 3. Anyone out there know which judges are on that panel?