1. We will now have to start monitoring Thomas and other sources to look for a proposed statutory fix to Denedo. I assume that DOD will propose legislation to clearly preclude military appellate courts from exercising jurisdiction over cases after the later of conclusion of direct appeal or the closing of the two-year window for petitions for new trial.

2. Even if Denedo‘s effect on military appellate courts’ jurisdiction is eliminated by statute, Denedo will continue to have a profound effect on the military justice system. CAAFlog pronounced last year the Year of Jurisdiction because of the frequency with which fundamental jurisdictional issues arose in the military justice system. And we saw that those jurisdictional challenges were almost always resolved in a way that maximized military courts’ jurisdiction. I found those opinions frustrating because I viewed military justice jurisdictional issues through the same prism that Chief Justice Roberts employed in analyzing Denedo. I now have to recalibrate my internal jurisdiction meter to account for Denedo with its far broader interpretation of jurisdiction than I believed the law to provide.

3. I wouldn’t look for Denedo to spell success for Rodriguez. Denedo treats military justice fora much like the Article III courts. But in the Article III courts, Bowles v. Russell is the controlling law. And that controlling law, if imported into the military justice system, supports Rodriguez. Rodriguez presents a viable challenge only if the military is treated differently. And Denedo hurts rather than helps that cause.

4. As a matter of logic, the Denedo dissent seems to me to have the far better argument. How, then, do we explain the majority opinion carrying the day? (Of course, one way to explain it may be that I’m wrong.) I’m fascinated by one particular sentence in the majority opinion: “On respondent’s account, his attorney–an alcoholic who was not sober during the course of the special court-martial proceeding–erroneously assured him that ‘”if he agreed to plead guilty at a special-court-martial he would avoid any risk of deportation.”‘” Denedo, slip op. at 2-3. The drunk attorney seems to have precisely nothing to do with the issue of whether NMCCA has jurisdiction to grant coram nobis relief. Why is this allegation mentioned in the opinion? Note the contrast with Chief Justice Robert’s dissent’s rejoinder: “You’re in the Army now” (an odd retort not merely because of this case’s naval origins, but also because the whole point of this case is that Denedo no longer is in the military). At oral argument, there was considerable discussion of whether Denedo had anywhere else to turn if he couldn’t seek coram nobis relief within the military justice system. (Think Richard Gere in Officer and a Gentleman: “I got nowhere else to go; I got nowhere else to go.”) Did the majority reach to find jurisdiction out of an equitable urge to provide some safety valve for unjust convictions? Or am I wearing blinders that prevent me from seeing the convincing logical rationale for the majority’s position?

12 Responses to “Some initial thoughts about United States v. Denedo”

  1. Dahlgren's Leg says:

    With court so fractured of late, I wonder how much of this outcome is simply driven by the liberal wing's desire to provide relief to an aggrieved individual, and the conservative wing's countervailing aims.

    I know that's a cynical view of the law, but 5-4 does make me wonder.

    Also, what's the impact of Denedo on the bill to expand SCOTUS jurisdiction over the military?

    Finally, I lost a lot of respect for the CJ in light of his denigration of the MJ justice system. I can also imagine his clerks and he sitting around smugly coming up with that "you're in the Army line" and feeling very proud of themselves.

  2. Anonymous says:

    I think you are not wearing blinders, as Kennedy himself acknowledges that the unavailability of other remedies supports the coram nobis power to protect a court's integrity. It is not clear to me why you find that less compelling than a Mr. Spock "logical" rationale. The life of the law has not been logic…

  3. Norbert Basil MacLean III says:

    Back in June of 2008 I wrote commentary in the Legal Times calling Judge Ryan's dissent well reasoned. That commentary can be found here. After careful thought, I did not believe under the current language of the law that military courts had the jurisdiction to review a case that was final absent directly challenging the actual jurisdiction of the court-martial itself (i.e. there was a fatal jurisdictional defect in the creation of the court-martial not known at the time it was convened). However, I believed that a legislative fix was warranted to provide ex-servicemembers like Denedo an avenue for redress and have argued to give the military boards of correction back their jurisdiction by repealing 10 U.S.C. 1552(f). I think for situations like Denedo's the military courts should not be used to redress such grievances because the court-martial is final and the ex-servicemember is no longer in the military.

    DoD may try to lobby Congress to shut the door that the Supreme Court has now opened to ex-servicemembers. If Congress, by statute, closes off military courts to error coram nobis proceedings where the case is final under the UCMJ, I strongly believe that Congress should provide another avenue for redress. I don't believe that an ex-servicemember should be left in the lurch in situations like Denedo's case. Assuming arguendo that Congress shuts the door, I still believe that a military appellate court would (and should) have jurisdiction to vacate a court-martial that was improperly convened in the first instance without regard to whether the case is final or not (that was not the situation in Denedo's case).

  4. Anonymous says:

    I agree with Dahlgren. It seems like Roberts would have no problem allowing UCI, or even eliminating the military appellate courts altogether. If you wanted due process, you shouldn't have joined the military.

  5. Mike "No Man" Navarre says:


    After reading your comments I wondered aloud: So when did you come to this revelation about limited CAAF and NMCCA writ jurisdiction, before or after you filed a writ of error coram nobis at NMCCA eight years after finality of your court martial, and then AFTER failing to get a writ in the MilJus system applied for relief at the COFC? See US v. NBM, 454 F.3d 1334.

  6. Norbert Basil MacLean III says:


    I filed a writ, through counsel, alleging a fatal jurisdictional defect in the creation of the court-martial. See generally U.S. v. Nix, 40 MJ 6 (CMA 1994). Eight years after the Navy was "sitting on it so it would go away!!!" – documentation of a meritorious UCMJ art. 138 complaint against the special court-martial convening authority who recommended the general court-martial surfaced.

    The special court-martial convening authority occupies an essential position in a general court-martial proceeding – one that should be excerised without bias or prejudice.

    The special court-martial convening authority in my general court-martial recommended my general court-martial over contrary findings of the IO after I had filed a meritorious UCMJ article 138 complaint against the special court-martial ocnvening authority. NMCCA's non-published opinion completely fails to address Nix as it applies to my case. Documentary evidence of the meritorious 138 complaint did not become available to my attorneys for almost a decade. We believed it, but couldn't prove it or show it until evidence became available.

    My above comment states that in cases where there is a fatal jurisdictional defect in the creation of the court-martial itself (which was not alleged in Denedo) that military courts should have the jurisdiction to correct the error.

    Denedo never alleged that the court-martial did not have jurisdiction to try him – rather that his lawyer was a drunk and provided ineffective assistance of counsel. That is very different from alleging that the actual court-martial itself was defectively convened in the first place.


  7. Mike "No Man" Navarre says:


    Thank you for the clarification. I think you unwittingly have agreed with me on an issue in the Denedo opinion.

    The key paragraph of Denedo states:

    We hold that Article I military courts have jurisdiction to entertain coram nobis petitions to consider allegations that an earlier judgment of conviction was flawed in a fundamental respect.

    The "fundamental flaw" language is nothing new, just a regurgitation of post-Morgan case law. Essentially you are arguing that the writ of error coram nobis should be limited in the miltiary to cases where the writ of error coram nobis is warranted.

    Now that's not the part I agree with, in fact I disagree that it is even possible with the current legislative scheme to split the baby that way. That is, if you say there is no coram nobis than well there is no coram nobis.

    However, what I think may happen in practice is that wiley NMCCA and CAAF judges will limit what is a "fundamental flaw" in the military. The one way top do that is to increase the burden of proof to essentially require a jurisdictional flaw. One could argue that because the MilJus system is a tool for good order and discipline that vests near absolute discretion in the convening authority to approve findigns and sentence, that the only thing that can rise to the level of a fundamental flaw is a jurisdictional defect. Where in the civilian courts fundamental defects have been found in a variety of settings, including IAC, I suspect wiley judges will be on the prowl to limit this current jurisdiction until Congress takes action. But see Tillman v. United States, 32 M.J. 962, 965 (A.C.M.R. 1991) ("The present-day scope of coram nobis is broad enough to encompass not only errors of fact that affect the validity or regularity of legal proceedings, but in addition, legal errors of a constitutional or fundamental proportion.") (internal citation omitted).

  8. Cloudesley Shovell says:

    In regards your 4th paragraph, it would truly be unjust if the Supreme Court ruling turned on the idea that Denedo's counsel "was not sober during the course of the special court-martial proceeding."

    Nowhere does Denedo allege that his counsel was actually drunk during any court proceeding, only that he was an alcoholic who was later disbarred (but since readmitted to practice). Being an alcoholic and actually being drunk during a session of court are two different things.

    "Did the majority reach to find jurisdiction out of an equitable urge to provide some safety valve for unjust convictions?" Apparently so. Nowhere in the court's opinion does one encounter the a citation to the legal rule that jurisidiction be strictly construed. The dissent discusses the limited nature of court-martial jurisdiction, but never cites the requirement to strictly construe that jurisdiction.

    The conclusion I reached after reading the opinion a couple times is that neither the majority nor the dissent put much effort into this case.

    By the way, I agree completely with what NBM said in his June 9 0213 comment.

  9. Anonymous says:

    I'm with D.'s leg and Anon 0720. As a matter of statutory interpretation, reasonable minds can differ and, fundamentally, the dissent seems to offer the stronger argument. In tone, however, I find it extremely offensive — from its reliance on cases religiously cited by the most virulent opponents of the military justice system (Reid v. Covert, Toth v. Quarles, etc.) to its infelicitous quip, "You're in the Army now", which seems so misplaced as to have been included only as an allusion to the 1940s era service comedy of the same name. The dissent simply reinforces the worst caricatures of military justice, and with no obvious need to so, given the facts of the case (e.g. Wouldn't Solorio have been enough to address Congress' plenary authority and the deference owed its exercise?)

    If the apparent contempt with which the dissent treats this military justice case represents the Justices' honest views of the system as a whole, then I think the government has a bigger problem on hand than simply convincing Congress to "fix" Denedo.

  10. Anonymous says:

    Concur, with the above post. As I posted yesterday, the dissent is the better position and it should have been an extremely boring opinion to read. While putting in all those rhetorical flourishes makes for more interesting reading, it seems to show a low opinion for the high quality of justice that the modern military justice system provides.

    A better line of argument would be a historical discussion of the modern changes made by the UCMJ and how this provides a service member with far more judicial review than the average civilian defendant would very get. They could also note the free defense attorney at trial and appellant level regardless of the financial resources of the accused. And, thus, Coram Nobis was not needed to further and equitable justice interests and the jurisdiction should be strictly construed.

    (But I wonder how many ivory league clerks have served in the military and just based their view of military justice on stereotypes).

  11. Bridget says:

    The only two member of SCOTUS to have worn the uniform are Kennedy and Stevens. In general, though not a veteran, Ginsburg may the most knowledgeable member of the court in military law and justice, and not necessarily "liberal" as I am certain Atty Sullivan can confirm.

    Why are military courts different than other Article I courts? Well, for example, they are the courts that adjudicate crimes. [The other Art I courts do so only indirectly, ie, contempt powers.]

    Pragmatism seems a part of this discussion as well. Don't we want the military courts adjudicating military matters whenever possible-rather than Art III courts where the judges are likely to have the same misconceptions of this system that the dissent presents in Denedo?

    Isn't it wise for the military courts to have the tool of the common law writs?

    The most shocking part of this decision is the dissent. It confirms Prof. Mazur's theory that our officials, elected or appointed, don't know much about the military.

  12. Anonymous says:

    Mr. Maclean makes a good point. If you are convicted after a contested case, and years later UCI is discovered, you ought to be able to go back to the military courts or the JAG.