Here (subscription required) is an short piece from last week by Marcia Coyle at the National Law Journal about military cert. petitioners possible becoming second class petitioners–our fearless leader is quoted.  Here is one excerpt that is interesting/amusing on many levels:

The Supreme Court has not granted full review to a convicted service member’s petition for a writ of certiorari in 14 years. Have they become second-class petitioners?

Not necessarily, said retired Col. Dwight Sullivan, a judge advocate in the Marine Corps Reserve, who keeps a close watch on the data. But the numbers are curious.

. . . The justices have granted full review in nine cases, and granted, vacated and remanded in five others, he added.

“The best predictor by far of whether review will be granted is whether the solicitor general is seeking cert,” said Sullivan. “The solicitor general has sought cert only three times, and it was granted in all three.”

20 Responses to “NLJ Article on Military Cert. Cases”

  1. John O'Connor says:

    I certainly don’t claim any expertise in the area of military cert petitions, but I can think of some explanations other than “second class petitioners” that might affect the statistics.

    First, I imagine it’s more difficult to plausibly claim a circuit split in the court-martial context because many of the issues that arise as appellate issues are specific to the military justice system, which is directly reviewed by only one court of appeals. In addition, the Supreme Court has acknowledged (in Parker v. Levy, Weiss v. United States and elsewhere) that court-martial procedures need not mirror the constitutional standards required for civilian trials. As a result, even where the CAAF reaches a result that diverges from the “civilian” courts of appeals, it might reasonably be viewed as not creating an actual conflict because the applicable constitutional standards are different.

    Second, the fact that the SG has sought cert in only three cases suggests that the SG’s office might be particularly selective in its cert decisions, which should yield a higher than normal rate of acceptance. Military accuseds, on the other hand, are supposed to be given free counsel for non-frivolous cert petitions (though the practice here has been somewhat inconsistent). But free counsel can lead to more unworthy cert petitions, as an individual accused has an incentive to seek cert even where a grant ios exceedinly unlikely (including in cases where the accused would not pay for representation and the issues are sufficiently unattractive that no law firm would take the cert petition on a pro bono basis).

    Third, if I were to bet, I would imagine a lot of the Supreme Court’s criminal docket in the last 27 years has involved death penalty cases and sentencing guideline issues. Very few death penalty cases (2?) have been affirmed by CAAF as to the death penalty, and the sentencing guidelines don’t apply to courts-martial.

    Fourth, given that clear circuit splits are less likely in court-martial cases, I would think that the most attractive CAAF cases for “error correction” concern jurisdictional issues. The jurisdictional issues that I can think of over the past several years have mostly gone in favor of the accused, so complaints about the CAAF’s conception of its jurisdiction are going to come mostly from the SG’s office.

    All of this, of course, could be wrong.

  2. Dwight Sullivan says:

    To paraphrase Mark Twain, rumors of my retirement have been greatly exaggerated. I’m still a drilling reservist. Oorah!

    I’m hoping to post some historical context for the Smith cert denial later this evening.

  3. Rob M says:

    It could also be that 28 USC 1259 only allows Cert if the CAAF reviews or grants relief, and the CAAF has about a 15% grant rate for review (and a de minimis rate of granting extraordinary relief). As opposed to the hundreds or thousands of cases reviewed by Circuit Courts of Appeal or three-judge district court panels, the starting pool of cert-possible military cases is much smaller.

    It could also be that a) the SCOTUS is for some reason “uncomfortable” treading on military territory, b) is satisfied that CAAF does a good job as a second-level court of discretionary review (unlike federal district courts, tax courts, court of claims, etc. there are two levels of appellate review before the SCOTUS), and rarely needs to be reviewed.

  4. John O'Connor says:

    Agree with all that, Rob. Given the limited reach of CAAF decisions, it well could be that the Court is satisfied that CAAF decisions rarely have an impact worthy of error-correction so long as CAAF stays within its proper jurisdiction.

  5. Dew_Process says:

    JO’C – I’m not being snarky, but wouldn’t your analysis then have been cause for SCOTUS to grant in Nerad? Cf. Clinton v. Goldsmith and U.S. v. Denedo? But for the Petitioner being the accused versus the Government, the “scope of jurisdiction” arguments were the same.

  6. John O'Connor says:

    Not if you think, as I do, that Nerad was right.

  7. Dew_Process says:

    JO’C, Fair enough. Globally, in the context of the UCMJ’s legislative history as to what Congress was trying to do when it created the then CMA, you are probably right – and to some extent Denedo confirmed that.

    The other thing that Nerad had going against him at SCOTUS was abstention – why get involved when CAAF’s remand might adequately resolve the question?

  8. Dwight Sullivan says:

    So, JO’C, you believe that the phrase “The Court of Appeals for the Armed Forces shall take action only with respect to matters of law” (Art. 67(c)) can be fairly read as a “require[ment] [for CAAF] to take action in all certified cases with respect to matters of law”? United States v. Leak, 61 M.J. 234, 239 (C.A.A.F. 2005). Because that’s the reasoning that Nerad cited to depart from what seems to be the clear edict of Article 67(c) that CAAF “may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals.” In Nerad, AFCCA neither affirmed the child pornography finding nor set it aside as incorrect in law. Under Article 67(c)’s plain language, therefore, CAAF had no jurisdiction to “act . . . with respect” to it.

  9. John O'Connor says:

    Dwight, didn’t we exchange something like a dozen emails on that very subject a month ago? You can consult those (where I explained myself fully) rather than feigning surprise here. ;-)

  10. Dwight Sullivan says:

    JO’C, I don’t recall you advancing an argument in that email exchange that was consistent with Article 67’s actual language.

  11. John O'Connor says:

    Well, I guess that’s your view of my view, though (little as it might mean), the one court to consider the question agreed with me.

  12. Dwight Sullivan says:

    Yes, CAAF did agree with you. (I assume you aren’t asserting that the Supremes agreed with you that Nerad was right because it denied cert.) But, again, CAAF did so relying on an implausible interpretation of Article 67’s actual language. Consider this hypothetical. A legislature passes a statute saying that “a liquor store may be open for business only Monday through Saturday.” A liquor store is prosecuted under the statute for not opening on a Monday. Obviously the liquor store hasn’t violated the statute. Yet, for CAAF’s reasoning in Leak to be correct, one would have to conclude that that was a reasonable interpretation of the statute.

  13. John O'Connor says:

    No, I am asserting that CAAF agrees with me, as the only court to decide this issue on the merits.

    I do think that in those cases where there is no circuit split, such as Nerad, and the pitch is really error correction, one plausible explanation for the denial of cert is a sense by the Supreme Court that there was no error to correct. But that’s one of many possibilities and not one that you can hang your hat on.

  14. Dwight Sullivan says:

    J’OC, I did assume that’s what you meant — I know you are way too good a lawyer to represent a denial of cert as a ruling on the merits of a question. But I really am interested in how you can consture Article 67’s language to allow CAAF to do what it did in Nerad.

  15. Dwight Sullivan says:

    In my hypo, to line up with Article 67(c), that statute should actually read: “a liquor store shall be open for business only Monday through Saturday.” Again, unless one can reasonably read that statute as requiring that a liquor store open on Monday (an interpretation that I find implausible), then one can’t agree with Leak’s rationale.

  16. John O'Connor says:

    If it’s so obvious, why didn’t the CAAF agree with you? As I said in the dozen or so emails we exchanged on this a month ago, I read Article 67(c) as allowing CAAF to determine whether the CCA exceeded its powers as a matter of law in setting aside a finding of guilty (in that, where the CCA does not rely solely on its factfinding powers, any setting aside of a finding of guilt necessarily is set aside as “incorrect in law.”

    As I vaguely recall you conceding in our exchange of emails, your construction of Article 67 would allow the CCA to say “the findings are legally justified, but the accused delivered a wheelbarrow of cash to our chambers so we are setting aside the findings on a basis other than them being incorrect in law, and we will now move the the Cayman Islands,” and that there would be no CAAF jurisdiction to eliminate the effects of this bribed result. I don’t think that’s a reasonable construction of the statute.

    Maybe I’m wrong, but I don’t think I am (and neither does CAAF).

  17. Dwight Sullivan says:

    You wrote: “If it’s so obvious, why didn’t the CAAF agree with you?” CAAF has never issued a ruling that you thought misconstrued a statute?

    Your argument seems to be that an injustice could result by not allowing a CCA ruling to be reviewed by CAAF. Of course that’s correct — just as injustices arguably resulted during the Fletcher era when CMA opinions couldn’t be reviewed by the Supreme Court. But the possibility of such an injustice doesn’t mean that a superior court has the power to correct it. If Congress wants to eliminate the possibility of such an injustice, Congress can change the statute, just as Congress expanded the Supreme Court’s jurisdiction in 1983 to respond to perceived injustices.

    Would you agree that if a members panel came back with a findings worksheet that said the members panel found the accused not guilty and they were bribed, a Court of Criminal Appeals would have no jurisdiction to reverse the finding of not guilty?

    In Nerad, AFCCA expressly said that it was not setting aside the finding of guilty to the child pornography conviction as incorrect in law. No CAAF judge suggested that AFCCA set aside the finding of guilty as incorrect in law. Article 67(c) says that CAAF “may act only with respect to the findings . . . as affirmed or set aside as incorrect in law by the Court of Criminal Appeals.” The statute doesn’t say “as affirmed or incorrectly set aside as a matter of law,” which is how you seem to be interpeting it. Is your rationale that we should pretend that AFCCA set aside the finding of guilty as incorrect in law, even though it said it didn’t and no one thinks it did? If so, I would respond that an Article I court’s jurisdiction can’t be based on pretense. If you can find jurisdiction only by pretending that the lower court did something it didn’t do, then there’s no jurisdiction.

  18. John O'Connor says:

    Yes, I have seen CAAF construe statutes in a manner I thought incorrect (*cough* Tate *cough*), and I don’t view the fact that CAAF agreed with my view as dispositive (which is why is added “little as it might mean” when I referenced CAAF agreeing with me seven posts up. I do think that the fact that CAAF (and all five judges if I remember right) agreed with my construction of the statute does reduce the possibility that my construction is completely insane.

    I also agree that an unjust result (at least one of a nonconstitutional nature) does not create a justification for rewriting an unambiguous jurisdictional statute. But your argument assumes too much. My argument is that the absurdity that arises from your preferred construction of the statute supports the more reasonable construction I have suggested. I don’t agree that the statute unambiguously supports your construction.

    By the way, weren’t you also the proponent of the theory that CAAF lacked jurisdiction to review a CCA decision in an Article 62 appeal (with CAAF finding to the contrary)? I think maybe you’re just a jurisdictional minimalist and that worldview colors your analysis of jurisdictional questions. ;-) (for those who can’t decipher the emoticon, this last comment is tongue-in-cheek).

  19. Dwight Sullivan says:

    And we’re back to where we started, because the construction you set out above is either inconsistent with Article 67(c)’s plain language or it pretends that the CCA did something it didn’t do.

    But the situation you posit is hardly a statutory absurdity. It’s a simple fact that many judicial rulings can’t be appealed. In any given instance, something really weird could contribute to one of those unappealable decisions. But that doens’t render absurd the policy choice to make that class of decisions unappealable.

  20. John O'Connor says:

    Said with the certainty of someone who prevailed at CAAF. ;-)