Army DAD has filed this amicus brief supporting certiorari in Smith v. United States, No .10-18.

13 Responses to “Smith amicus brief from “the appellate trenches””

  1. Anonymous says:

    Maybe counsel with more working knowledge of this case knows, but was the issue of standard of review brought up in pleadings before the CCA or CAAF [neither opinion mentions appellant arguing for de novo review]? If not, doesn’t this greatly reduces the likelihood of the Supreme Court granting on this issue?

  2. Anonymous says:

    It was discussed in the CAAF dissent so one must think it was discussed at oral argument. I would think that would differentiate it from a cert petition that raises the issue for the first time to the Supremes.

  3. Anonymous says:

    Okay . . . but I read that opinion and saw no mention of a de novo review, merely the normal abuse of discretion language in the majority and dissent. As a provicial matter, I think the Supreme Court will be concerned if the standard of review was not fully litigated at the lower appellate courts (in pleadings “this issue is reviewed ‘de novo'”).

  4. Anonymous says:

    there is a clear circuit split on this standard. Doesnt mean the Surpremes will grant this particular cert as opposed to another, but I think it highly likely this split on the proper standard of review gets reviewed by the Supreme Court sooner or later which does nothing but help this particular cert petition IMO.

    I don’t think the discriminator is going to be how deeply it was litigated at CAAF.

  5. Anonymous says:

    Hmmm. . . so hypothetically appellant argues abuse of discretion in pleadings at the CCA, abuse of discretion at the CAAF, then turns on his head and argues de novo before the Supreme Court and this is now the vehicle for resolving a clear circuit split? Not saying that happened here, but if it did put the Golden CAAF II back on the shelf.

  6. Anonymous says:

    Page 15 in the petition says appellant raised the argument to CAAF, and it cites pages 12-13 of his CAAF brief.

  7. Anonymous says:

    Do you have evidence appellant argued it was abuse of discretion at the CCA and CAAF?

    Even if so argued, the Court is not free to use the wrong legal standard simply because counsel is incorrect on the proper legal standard.

    The SC will determine whether to grant cert I believe on whether it wants to use this case or not to deal with the Circuit split.

  8. RY says:

    Any references made to the standard of review appear to be general citations for the granted issue rather than a separate issue requiring resolution. Further, it seems to me that CAAF actually applied de novo in its analysis, irrespective of what standard it cited. While there may be a split in the circuit, this case does not seem to be an attractive vehicle.

    Incidentally, with all anon comments on this post I kind of feel like I arrived at costume party and I’m the only one w/o a costume. Of course, I could really be someone else disguised as RY, but that’s a different story.

  9. Anonymous says:

    Do you mean “references made to the standard of review” in CAAF’s opinion? If so that doesn’t matter. The Supreme Court will review an issue so long as it was “pressed *or* passed upon” below (asterisks added). Otherwise courts could evade review by ignoring properly presented issues. So if appellant presented the argument, that’s enough. The petition says he did. I also expect the Supreme Court would take CAAF at its word regarding the standard it actually applied.

  10. Anonymous says:

    the standard they cited is the standard that will be used by all the service courts in future cases, not the standard you think they actually ended up using.

  11. Dew_Process says:

    Go back to the 1 August thread on Smith – the NACDL Amicus by Covington & Burling in DC, does a good job of demonstrating the practical impact between the two standards and how it effects the results.

  12. RY says:

    I understand the Supremes can review an issue “pressed or passed on” which pretty much covers anything doesn’t it? The point is that it was not argued (no, I was not referring to CAAF’s mere reference in the opinion). There was no push at CAAF about a split, there was no issue presented about the standard of review. They should have asked for reconsideration.

    I understand there is an issue here, my point is that Smith is not the vehicle because it is effectively being presented for the first time in the case at SCOTUS level. The supremes don’t take a case just because it presents a plausible issue, nor do they take every case with a split or interesting quandary.

  13. RY says:

    Oh, and the fact they applied de novo anyway goes to the prejudice question. Like CAAF, SCOTUS doesn’t often take cases to decide an issue if there’s no prejudice. Thus, I ask – if CAAF applied the right review, as it appears they did in their analysis, where’s the prejudice that makes this the right case?