The Supreme Court has docketed a cert petition in Miller v. United States, No. 09-1408.  Here’s the QP:

Whether the Army Court of Criminal Appeals abrogated petitioner’s right to a jury under the Uniform Code of Military Justice, 10 U.S.C. §§ 825 and 852, by reassessing petitioner’s sentence after significant charges were set side on appeal, rather than remanding the case for a sentence rehearing by a jury of enlisted members, as petitioner originally selected?

The cert petition in essence asks the Court to overturn Jackson v. Taylor, 353 U.S. 569 (1957).  And this will give the No Man a Chris Matthews-like thrill up the leg (that’s Chris Matthews the CNN host, not our Judge Mathews the Greatest):  the cert petition relies, in part, on Apprendi.

The main portion of the cert petition is available here.

6 Responses to “SCOTUS dockets Army cert petition”

  1. Socrates says:

    I don’t know if a civilian law analogy holds, but in the federal circuits, don’t these courts, if finding error, regularly kick cases back down to the district (trial) court for resentencing?

  2. Anon says:

    They should have checked the cites before they filed. I think Bauerbach is an ACCA case.

  3. Anonymous says:

    Interesting argument, but it’s a tough haul to see the Supreme’s biting off on it. Is the statutory right to a panel truly equivalent to the civilian/Constitutional right to a jury?

    Is Art 66 power restricted from re-assessing a sentence when they can step in and overturn the jury on findings or even in some cases change findings by exceptions and substitutions?

    Is a re-assessment truly an exercise of “original sentencing” or is it an exercise of Art 66 review of the entire court-martial?

    Isn’t what is happening here, not a usurping of the panel’s sentencing authority but simply reducing one of the findings? Is not adjusting a sentence the same as “imposing” a sentence?

    And finally, this apparently only applies to enlisted panels but not to officer panels? Do you really have a Constitutional right to an enlisted panel? I can buy you have a Constitutional right to a panel, but an enlisted panel?

    Statutory right sure, but Constitutional?

    And now I believe I’ve used up my monthly allotment of question marks.

  4. Anonymous says:

    true enough, it was a 2001 ACCA case. The cite is otherwise correct though. Stuff happens, no one is perfect, but yes you have to catch those things if you can.

  5. Anonymous says:

    This argument seems to be though that if it were an officer panel, then there would be no need to kick it back down.

    But that an enlisted panel makes a difference. I don’t know if I buy that it makes a Constitutional difference. I wonder if it would have been better to make both arguments,

    e.g. all panel cases should go back, but enlisted panel cases especially.

  6. Anonymous says:

    I find it very refreshing that defense appellate divisions have embraced the opportunity to file cert petitions to the SCT. While it is always a long shot to have the Court grant cert, hopefully this trend will continue. It is good for the justice system.