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?