A few weeks ago Col Sullivan wrote about VADM Brown’s application for an extraordinary writ (as the Convening Authority) in a pending court-martial (actually, 2 pending GCMs). The case was Brown v. Tousley, Misc. Dkt. No. 001-12 (C.G. Ct. Crim. App. Nov. 1, 2011), the Respondent was the trial Military Judge, and the CGCCA dismissed the petition because there were pending motions for reconsideration at the trial level.

The issue was the military judge’s order that the cases be tried at Seattle, Washington, as opposed to Alameda, California, as specified in the convening order. (You know, Alameda. It’s where they keep the nuclear wessels).

We get the rest of the story in Brown v. Tousley II, Misc. Dkt. No. 002-12 (C.G. Ct. Crim. App., Nov 17, 2011). In orders dated 24 October and 25 October, the Respondent (the trial Military Judge) ordered that the two general courts-martial would be tried on 17 and 30 January 2012 in Seattle, WA. He also docketed pre-trial 39(a) sessions for 19 and 21 December.

On 26 October the government moved for reconsideration of the orders for trial in Seattle in each case. The Respondent informed the government that he would not rule on the motions for reconsideration until he received certain pre-trial matters, including the witness lists (deadlines: 7 & 9 Dec, and 19 & 23 Dec). On 27 October the government filed its first petition for a writ, which was denied on 1 November because of the pending motions for reconsideration.

But the convening authority was determined to get more from the CCA, so on 14 November he withdrew the motions for reconsideration, and then on 15 November he filed another petition!

The court described the petitioner’s position:

Petitioner argues that Respondent does not have the authority to order the cases to be tried in a location other than that specified in the convening order, and that his attempt to do so is a usurpation of Petitioner’s authority.

However, on 17 November the CCA again denied the petition, reasoning:

[Petitioner] has done nothing to show us that he has no other adequate means to obtain relief. The Government’s motions for reconsideration were a possible means to obtain relief; that the Government has withdrawn them does not in any way strengthen Petitioner’s position. While Petitioner might believe the motions for reconsideration were inadequate because Respondent had not ruled on them yet, Petitioner has not shown that further delay in ruling would impair whatever relief might be granted. Petitioner has also not shown that the Government gave Respondent any specific reason to expedite the rulings. Further, as far as has been shown, the Government has not yet filed its witness lists. As noted above, Respondent has indicated that his rulings on the motions for reconsideration awaited filing of witness lists. Expedited filing of witness lists would be another means toward obtaining relief.

Petitioner’s claim that the delay in ruling “interfer[es] with [his] ability to efficaciously plan for and marshal the necessary resources to carry out his statutory functions” is too vague to be persuasive.

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