ACCA has issued a fascinating unpublished opinion deciding a pair of competing petitions for extraordinary relief.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.