On Friday, Code 46 submitted a reconsideration petition in Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008). In case you would like to read it, I’ve posted the reconsideration petition here.
A government-filed reconsideration petition is the standard first step in beseeching the SG to take a military justice case to the Supremes, so I think it’s a safe bet that Code 46 will be advocating a cert petition in Denedo. (Of course, that would have been a safe bet even without the reconsideration petition.)
Notice that at least one claim in the recon petition appears to be legally incorrect. The government writes that “neither Appellate Government Counsel nor the Courts of Criminal Appeals have authority to issue a subpoena.” Petition for Reconsideration at 22. CAAF disagrees. CAAF has observed, albeit in dicta, that the Courts of Criminal Appeals are empowered to “issue a subpoena.” United States v. Lewis, 42 M.J. 1, 5 (C.A.A.F. 1995). In support of that proposition, CAAF cited Article 47(a)(1), which provides that individuals not subject to the UCMJ may be subpoenaed “to appear as a witness before a court-martial, military commission, court of inquiry, or any other military court or board.”