Comments on CAAFlog would suggest that members of the defense bar comprise the lion’s share of our readership. But it seems that at least one Code 46 counsel may be a reader as well.

Yesterday, in a comment to this post about Code 46’s motion to stay the effect of NMCCA’s writ of mandamus in Lawanson, Just Sayin’ observed that the motion argued that a stay was appropriate because the government was, according to its motion, likely to prevail at trial rather than likely to prevail on its writ appeal.  Today, Code 46 filed this motion to correct errata asking to file a corrected motion for stay.  Why?

The United States hereby informs the Court that the Government, in filing its Motion for Stay of Proceedings, incorrecdtly stated its likelihood of success on the merits rather than success on the pending Writ-Appeal, and respectfully moves to submit a new motion containing the correct argument.

We’ve posted that new motion here.

12 Responses to “Code 46 moves to file corrected Lawanson motion for stay”

  1. Charlie Gittins says:

    Like I said, if the court has any integrity, they’ll apply the same standard to the original motion that they did to the Partington appeal brief.  In my opinion, Earl’s argument was well inside the lines.  The G’s in this case . . . not so much.  Let’s see some real analysis, and evaluation, by this court where it is the Government that is arguing a clearly questionable position

  2. Some DC says:

    Isn’t a Motion to Correct Errata designed to correct minor or technical issues like a misspelling or a mis-cite on a case?  Not a whole change of argument.  The government isn’t correcting errata they are filing a new motion.   THis argument went from all dead to mostly dead. There’s a big difference between mostly dead and all dead. Mostly dead is slightly alive.  With all dead, well with all dead there is only one thing you can do.   

  3. Zachary Spilman says:

    Charlie,

    I pointed out the facts as stated by the CCA, that include:

    On the morning of 1 February 2012, NCIS interviewed the petitioner. During the interview, the petitioner admitted to having sexual intercourse with NG in his barracks room, but asserted that the intercourse was consensual.

    But the government’s Motion says:

    On the morning of February 1, 2012, Petitioner reported to NCIS. (Appellate Ex. IV at 108.) After waiving his Article 31 (b) rights, Petitioner admitted that he continued to have sex with Ms. NG after she said “stop” and attempted to push him off of her.

    These factual assertions certainly appear inconsistent. However, I’m not so convinced it’s appropriate to release the professional responsibility hounds on this, especially since the unknowns in this case outweigh the knowns. 

    But this case (where NCIS conducted an interview during which the Accused made admissions) and the NMCCA’s recent action in Lucas (where NCIS conducted an interview during which the Accused made admissions, but the CCA “note[d] the agent left out or seriously mischaracterized important relevant details the Appellant provided during the interrogation.”) create an interesting contrast.

    However, I’m still unsure that any of these facts are relevant to the question of whether the petitioner was validly discharged from the Navy.

  4. Just Sayin' says:

    BOOM!
     
    And that is why I make the big bucks now.  However, I don’t know whether to be flattered that despite not being one of the anointed ones on active duty I am now, in my anonymous civilian capacity, viewed as a procedural expert such that a single comment has the power to force the government to change it’s litigation theory, or disappointed that I have inadvertently aided the enemy.  I may have to start throwing out misinformation to keep them on their toes.
    However, I think Some DC is right.  Errata is used when there is a minor scrivner’s error, misssing pages, or at worst, an inadvertent misconstruing of precedent which needs to be corrected.  This is a change to the substantive argument.
    And now one for the DC…Feres doctrine does not apply to civilians.  Your client, by being placed in limbo pending adjudication of a case over which the military has no jurisdiction could be argued as unlawful confinement. If he’s in PTC, slam dunk.  If he’s been told not to leave the area, I think you still win.

  5. Bill C says:

    A couple of cents worth:  DC should file a motion to strike the brief as out of time.  You can’t just file a brief to meet the time requirements and then say “now here is the brief I really meant to file.” 
    As for the possible Feres issue, I actually litigated a very similar issue years ago, and lost in Federal Court.  The FTCA bar is very high.
    Finally, I wonder whether there is an issue that, since he is no longer in the Navy, he is not entitled to Navy legal services?  And I wonder if the defense could use that to their advantage?

  6. Just Sayin' says:

    yeah, it’s a tough case, but I’d file it anyway just to watch Code 14 squirm.  Here’s the thing…discharge dates are not arbitrary.  If he was not facing a court-martial, got his DD-214 and then got into a car accident five minutes after leaving the base, would the government have any heartache telling him he wasn’t eligible for medical care as a civilian?  If he died in the crash would the government have any problem denying his family survivor benefits?
     

  7. OPLAW-LCDR says:

    Colonel:

    We all either are, or were, or will be, defense counsel.  It gets in your blood.  On CAAFLog, its easy to argue either way, especially for those of us not currently active in MILJUST.

  8. For The Record says:

    Having limited knowledge of this case, the debate here over the original issue in this case and the legal failures on the part of government in trying to clean us this mess is extraordinarily fun/enlightening to see. It is very similar in many ways to the conversations I have had with peers over the past few months. It’s redeeming to know that some of us AD MilJust practitioners aren’t complete fools, even if we are the only ones who know it.

    A couple points/issues:
    1. Mr. Lawanson is not in PTC. 
    2. Doesn’t the first Stay request reek of unprepared counsel? After waiting over 2 months for the decision following oral argument at NMCCA, I’d be pretty pissed if my lawyer didn’t have a well-crafted Stay request ready to go. This one smells like it was whipped up in about 30 minutes last Tuesday…..
    3. As an AD MilJust practitioner, I concur with the opinions of people here that counsel tend to conflate admissions with confessions. I leave the use of the word “confession” to to the NCIS, since that is really their (only) area of expertise.  

  9. Some DC says:

    FTR:
    Mr. Lawanson isn’t asking for a stay.  There was no 1st stay.  Here the Gov’t  asked for a stay of the proceedings following their loss on the defense ex writ.  So I am not sure why you think that Lawnson would be pissed at his counsel, he won.

  10. Another DC says:

    Some DC:
    I don’t think FTR was referencing Mr. Lawanson’s lawyer…

  11. For The Record says:

    The Government, as client, can be pissed at his/her/its counsel as well, right? Certainly, a bit of an abstract point, but a point nonetheless?

    Besides, I would find it extremely unlike me to criticize Mr. Lawanson’s attorney. He is much better at this biz than me.

  12. Just Sayin' says:

    FTR, I got your point.  and it’s a good one.