CAAF today stayed NMCCA’s order for a DuBay hearing to explore alleged ex parte communications affecting a previous DuBay hearing in the capital Parker case.  United States v. Navy-Marine Corps Court of Criminal Appeals, __ M.J. ___, No. 11-8005/MC (C.A.A.F. Oct. 8, 2010).  CAAF also ordered Parker’s counsel to respond to the government’s petition for extraordinary relief no later than 22 October 2010.  Id.

We previously discussed the convoluted background for the government’s petition for extraordinary relief here.

NMCCA’s orders that the Government is challenging are available here and here.

The Government’s motion for a stay of proceedings is available here.

The Government’s petition for extraordinary relief is available here.

4 Responses to “CAAF stays NMCCA’s DuBay order in Parker; issues show cause order”

  1. Anon says:

    CAAF should summarily deny this Petition for lack of jurisdiction. The All Writs Act does not confer jurisdiction on any court, to include CAAF. While there may be anticipatory jurisdiction under Art. 67(a)(1), since this is a DP case, the government strangely doesn’t argue that basis for jurisdiction.

  2. John O'Connor says:

    I’ll have to think about that, Anon 1731. I’m no expert on writ jurisdiction, but on first blush this seems to be in the sweet spot, at least jurisdictionally.

  3. Dew_Process says:

    JO’C – the claimed basis for jurisdiction was the All Writs Act, which allows a Court to provide relief a la Denedo if there is otherwise jurisdiction [Goldsmith v. Clinton]. But, the AWA is not an independent source of jurisdiction which must be found under some other jurisdiction granting authority.

    The CAAF has anticipatory or potential jurisdiction under Article 67(a)(1) since there is a death penalty which they will ultimately hear. See, e.g., Roche, 319 U.S. 21, 25 (1943). The Petition for Extraordinary Relief only cites the AWA.

  4. John O'Connor says:

    Right, Dew. That’s what I meant. Being a death penalty case, even a jurisdictional minimalist would have to concede the potentality of the CAAF later having jurisdiction on direct review, which puts this right in the All Writs Act sweet spot. I thought maybe I was missing something.