ACCA has issued a fascinating unpublished opinion deciding a pair of competing petitions for extraordinary relief. United States v. Reinert & Gipson v. McCoy, Nos. ARMY MISC 20071195 & ARMY MISC 20071343 (A. Ct. Crim. App. Aug. 7, 2008). (I’m not exactly sure why an appellate court would issue a 17-page opinion but not publish it, but that’s what ACCA did. That said, the opinion was in some ways sloppy — for example, referring to Goldsmith v. Clinton, 526 U.S. 529 (1999), rather than Clinton v. Goldsmith, referring to “the principle jurisdictional question” instead of “the principal jurisdictional question,” and entirely skirting the concept of potential appellate jurisdiction. Was such sloppiness the reason for not publishing it or was the sloppiness actually a product of the decision not to publish? Perhaps if it had been published, the opinion would have been cleaner.)

A military judge gave an accused credit for illegal pretrial punishment. He then directed the government to provide training to prevent repeated incidents of illegal pretrial punishment and announced that he would award the accused an additional five says of confinement credit if the government failed to certify that it had done so. The command took corrective action regarding the particular NCOs who had illegally punished the accused, but declined to provide the ordered general training. The judge then awarded the additional five days of credit. The SJA balked at actually providing the credit and the government filed a petition for extraordinary relief asking ACCA to hold that the military judge had no power to award the additional credit for violation of his ordered training regimen. The accused filed a counter-petition for extraordinary relief asking ACCA to direct the command to proceed with the post-trial processing.

ACCA first held that the requested relief didn’t fall within its Article 62 appellate jurisdiction. It then indicated that it sure didn’t look like it had jurisdiction to issue writs at the government’s behest where the case fell outside of Article 62’s jurisdictional limitations. But, ACCA held, it was bound by CAAF precedent to hold that it did have such jurisdiction, so it would proceed to consider the government’s petition.

ACCA then indicated that the military judge had no power to order general training to prevent illegal pretrial punishment and that he erred by awarding five days of additional confinement credit when the government failed to comply with his ultra vires order.

The decision is worth the read and raises interesting questions for future cases. But after reading it, I had one specific line of questions. It isn’t clear to me precisely when Private Gipson was sentenced, but the adjudged confinement was for seven months. The military judge awarded 20 days of uncontested illegal pretrial confinement credit. He awarded the disputed five days on 24 September 2007. The government sought extraordinary relief on 26 October 2007 and ACCA held oral argument on 19 December 2007. Then, more than seven months later, ACCA issued the requested relief. So obviously by the time ACCA ruled, PVT Gipson either had or hadn’t been released from confinement five days early. Which was it? If he wasn’t, what is the authority for failing to release a Soldier from post-trial confinement in accordance with the military judge’s orders simply because the CA hadn’t yet acted? Presumably in almost all special court-martial cases in which Allen credit, Suzuki credit, Adcock credit, or other forms of credit are granted, the CA hasn’t acted by the time the credit should kick in. Is there any legal support for the proposition that such credit doesn’t apply until ordered by the CA? And if PVT Gipson had been released five days early, why wasn’t the case moot? Perhaps one of our duo of Army lurkers could shed some light on those issues.

12 Responses to “The Year of Jurisdiction cont’”

  1. DB Cooper says:

    Two observations:
    (1) I like ACCA’s spiffy new website design.
    (2) This case was argued in DECEMBER! Why so long to issue the opinion?

  2. DB Cooper says:

    On an issue related to my previous post, I propose a captioning contest for the new “courtroom sketch” adorning ACCA’s new website. Here goes:

    “May it please the Court – my name is Captain Johnson, and I was born with my thumb on the wrong side of my hand . . . “


    “In this dramatic courtroom sketch, the esteemed judges of the Army Court of Criminal Appeals carefully analyze the cogent arguments of counsel in preparation for another summary affirmance”

  3. Anonymous says:

    I do like the way ACCA refers to SCOTUS as “other appellate courts”

  4. Cloudesley Shovell says:

    Blech. A perfect example of over-lawyering. Way too much litigation for a SpCM guilty plea case.

    The opinion demonstrates what a mess jurisdiction has become. Once again, time for some clear line-drawing by statutory revision.

    I agree with ACCA’s ultimate conclusion that the MJ acted ultra vires. The MJ had far superior options available to him other than trying to get the command to conduct training. First, he could have awarded a lot more credit (say, seven months). Second, he could have called a parade of witnesses, notwithstanding the gov’ts concession that credit was warranted, and embarrassed the heck out of them on the stand. First, call all the offending drill sergeants, and have them painfully detail their unprofessional conduct, etc. etc. etc. Then call everyone in the chain of command (all the way up), and embarrass the heck out of them, letting them explain how they let this sort of misconduct by drill sergeants occur, how that reflects on their leadership, etc. etc. etc.

    He could also make clear that he would sua sponte make inquiries on possible Art. 13 violations for every court-martial in the future, given the apparent scope of the problem and failure of the command to address it.

    As for the command, good grief! It was only 5 extra days. You already conceded the 20 days, and you waste all these legal resources over a lousy 5 extra days? There are TEN separate attorneys listed on the opinion, and that’s just the appellate folks. What an incredible waste of resources. All that for some barracks thief dirtbag who’s long gone on appellate leave and who everyone at the command, except the lawyers, has long since forgotten about.

  5. bill cassara says:

    Given how long it took, the accused is probably entitled to five days credit for dilatory post-trial processing.

  6. Anonymous says:

    Cloudesley–I agree that the const/benefit in this case seems skewed. A great deal of work for a small amount of time. But I am wondering if this particular MJ had a history of such actions and the government felt it was time to “check” his actions? Often such actions in cases are designed to win the war and not the battle. I look now to CAAF’s jurisdictional grab and see it as incrimental. A bit here and a bit there…what’s the big deal? But if left unchecked you wind up with an Art. III Court in an Art. I world. Not a sermon, just a thought…

  7. Publius says:

    CAAF’s so-called “jurisdictional grab” seems more than “incremental” after last term’s Denedo opinion.

  8. Anonymous says:

    The Denedo issue I agree and I hope that the case goes to SCOTUS. One would think CAAF would be happy with little oversight. When was the last time SCOTUS said they got it wrong on a Cert Petition from the accused? In my view, CAAF should feel validated that SCOTUS thinks they need little supervision and don’t grant. However, to taunt SCOTUS with Denedo after the Court slapped them with Clinton v. Goldsmith is actually funny. CAAFlog, what’s the over/under the SG files? Then any takers on action for the Cert?

  9. Cloudesley Shovell says:

    Anon at 1031–

    Excellent point that perhaps this was a small battle in a larger war. Hadn’t thought of that. Wonder if any Army readers can confirm/deny?

  10. DB Cooper says:

    I had some inside scoop on this one, and I don’t recall there being any kind of history between the MJ and the SJA office. However, I’ve seen several Army judges issue these kinds of “creative” orders over the years in response to ART 13 issues. I do agree with other posters that this harkens to the old phrase, “Be careful what you wish for . . . .” Now these judges will simply issue overly generous credit or call in the chain of command and shame them on the witness stand.

  11. Anonymous says:

    I had an MJ once tell me, after hearing a few cases where the restricted barracks were a bit zealous in their musters and requirements that he was going to judicially order the restricted barracks closed…I always chuckle when MJs actually think they are real judges. As noted, they could be so much more effective if they actually learned the MREs and RCMs rather than make outlandish claims like they invented the question mark…

  12. CAAFlog says:

    D.B., do you know whether Gipson actually served the five days at issue? If he did, do you know what authority the government used to support the proposition that it could gaff off the military judge’s order which, at the relevant time, had not been overturned?