Comments on: H.R. 569 hearing highlights

By: Dwight Sullivan

Dwight Sullivan — Sat, 13 Jun 2009 19:59:32 +0000

If there's an issue that the United States really cares about that it loses at the CCA level, it can give itself quite an insurance policy through JAG certification. That insurance policy is that it will either win at CAAF or have the opportunity to seek Supreme Court review.

In a non-capital case, if there's an issue that the defense really cares about, it has no means to open the door to EITHER CAAF or SCOTUS. A law that opens the door to SCOTUS where CAAF denies review thus makes the system less inequitable — though true equality would be provided by giving the defense an equal opportunity to open the door to CAAF as well. (Longtime CAAFlog readers know that I would solve this problem by eliminating the CCAs and having all appeals as of right be heard by CAAF — which would mirror the federal civilian criminal system.)

By: John O'Connor

John O'Connor — Sat, 13 Jun 2009 17:13:57 +0000

And before you say it, I assume the door has been closed to cert a lot more often for accuseds than for the Government over the last five yars.

An interesting, but ultimately worthless, uestion is whether the door is opened more often for cert, as a percentage, for the government when it loses at the CCA or for the accused when he or she loses at the CCA. I assume the percentage is probably higher for the Government (though 4 cases a year isn't very many). The stat is ultimately worthless because the Government is generally only before the CCA on issues it won below, meaning that its argument is at least colorable enough to convince a military judge. The accused, by contrast, is up on issues he or she lost. So, on baklance (and every case is different), you would expect the Government to have stronger arguments at the CCA if for no other reason than one person has already looed at them and said the Government was right. So looking at a percentage for cert "door opening" would be skewed by cases where the accused had no colorable issues whatsoever, such as submissions "on the merits."

By: John O'Connor

John O'Connor — Sat, 13 Jun 2009 17:05:51 +0000

The point isn't really who sought certification from the JAG. The point is that the JAG opens the door for cert for whomever loses a case certified to CAAF, just as the CAAF opens the door to cert for whomever loses a case for which CAAF has granted review. In both cases (presumably with CAAF and certainly with the JAG) the door is opened for a cert petition without knowing who will be the losing party on the merits at CAAF. That is the larger point that makes it not so simple to say that JAG certification (usually where the Government lost below) does not open the door for cert only for the Government.

If we're going to Moneyball this, I suggest that the door has been oopened for cert, through all pocesses, for the accused a lot more often than for the Government over the last five years.

By: Dwight Sullivan

Dwight Sullivan — Sat, 13 Jun 2009 16:54:13 +0000

JO'C, I've crunched the numbers and here's what they show. Over the last five years, the four Judge Advocates General have certified 23 cases to CAAF. In 22 of those 23 cases, the government lost at the CCA level and was the appellant at CAAF. The one exception is Neal. In that case, interestingly, BOTH the government and the defense requested certification — the government no doubt acting on the highly rational theory that it is best to have CAAF render a quick decision concerning the new Article 120's constitutionality, whatever that decision may be.

Obviously different people will suggest different implications arising from these numbers, but it's probably helpful for everyone to have these stats.

By: John O'Connor

John O'Connor — Sat, 13 Jun 2009 13:40:05 +0000

The idea that an accused has an "inferior" right to open the door to Supreme Court review is a little trickier than Rep Gonzalez suggests. It is true that the JAG can guarantee a right to file a cert petition (more or less) by certifying a case to CAAF. That is sometimes (though not usually) done at the request of the accused. But the larger point is that when the JAG certifies, he or she is opening up Supreme Court review for the CASE, not for the Government, as the JAG does not know who will win at the CAAF, and whomever loses (accused or Government) had had the door to a cert petition opened for him, her, or it.

The different ways that CAAF gets cases (petition vs. certification) has never mioved the needle much for me on this bill. In either case, some person or body must be convinced the case should be heard by CAAF. I also suspect that in cases involving potentially cert worthy issues, there is a small likelihood that the case won't get to CAAF (and I would bet that skittish JAGs are more likely to refuse certification of a cert worthy case than the CAAF is likely to deny a petition for review.

Again, that doesn't mean that thinking this bill is wothwhile on a symobolic basis is crazy, but I just don't really buy the "inferiority" argument as adding much to the equation.