Blogger ate my earlier Denedo analysis and now I have to recreate it in parts.

The majority proceeded to review and reject two of the government’s arguments. The government argued, and the defense agreed, that Article 76 prevents military appellate courts from granting extraordinary relief after direct appeals are complete. Article 76, as quoted by the majority, provides:

The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States . . . .

The use of ellipses is interesting, because the quotation omits a portion of Article 76 that the dissent uses to devastating effect: “subject only to action upon a petition for new trial as provided in section 873 of this title (article 73) and to action by the Secretary concerned or provided in section 874 of this title (Article 74), and the authority of the President.”

The majority characterizes Article 76 as “codifying] the common-law rule that respects the finality of judgments.” Denedo, slip op. at 11. The majority reasons, “Just as the rules of finality did not jurisdictionally bar the court in Morgan from examining its earlier judgment, neither does the principle of finality bar the NMCCA from doing so here.” Id. Not that my views matter, but to me this is the majority’s weakest point. The majority previously indicated that whether a court has authority to allow it to issue extraordinary relief is a question of congressional intent. And here’s a statute that seems to be expressing Congress’s intent not to do so. The majority escapes the implications of that intent by analogizing the statute to a common law rule. But just as a rule-based deadline can be waived under Bowles v. Russell 551 U. S. 205 (2007), but a statutory deadline cannot, in this context it seems to matter that Denedo concerns a statute-based rule of finality while United States v. Morgan did not. See United States v. Morgan, 346 U.S. 502 (1954). The majority presents Article 76 as a brake on the exercise of coram nobis relief rather than as a jurisdictional bar to such relief post-finality.

The majority then rejects the government’s argument that coram nobis is unavailable in the military justice system because at common law, coram nobis is obtained from the court whose judgment is being questioned and in military practice that court — the court-martial — no longer exists. The majority quickly dismisses the argument, reasoning that this challenge “speaks to the scope of the writ, not the NMCCA’s jurisdiction to issue it. The CAAF rejected the former argument. Only the latter one is before us.” Denedo, slip op. at 12.

The majority then emphasized the importance to the military justice system of allowing its courts to correct errors. The Denedo majority called its holding “of central importance for military courts.” Id.

Comments are closed.