We’ve been following the Lawanson case, in which the Navy-Marine Corps Court issued a writ of mandamus dismissing the charges on personal jurisdiction grounds and then CAAF denied a government motion to stay proceedings.  Now Code 46 has filed this writ appeal, which CAAF docketed yesterday.  United States v. Lawanson, __ M.J. __, Misc. No. 13-8007/NA (C.A.A.F. Sept. 20, 2012).

12 Responses to “Lawanson: The Empire Strikes Back Part Deux”

  1. Just Sayin' says:

    just give it up. 

  2. Anon says:

    Maybe I’m missing something here, but doesn’t new rule 19(b)(2) and 22 require certification from the judge advocate general for government appeals of writs?  Also is this brief in compliance with rule 24?

  3. Dwight Sullivan says:

    It seems to me that there are multiple problems with the government’s position and I’ll probably write more about  that later.  But one response that leaps to mind when reading the government’s argument that these issues can always be addressed on direct appeal is that’s not necessarily so.  The military justice system — uniquely among American criminal justice systems, I believe — allows for many convictions with no right of appeal to a court.  What if Lawanson were to be convicted of some offense or LIO but receive a sentence of, say, 11 months’ confinement and no punitive discharge?  He would have no right to a direct appeal.  The force of the government’s argument is blunted by what I view as the biggest defect in the military’s appellate system:  the possibility (and reality) of criminal convictions for contested charges with no right of appeal.  To those who think it doesn’t matter, well, tell that to the Navy officers who were wrongly convicted based on Phillip Mills’ fraudulent DNA analysis but didn’t receive a dismissal or a year or more of confinement.

  4. Phil Cave says:

    Anon, it’s less than 14,000 words?

    It’s possible MLDHS didn’t upload the certificate?  But I agree, if there wasn’t one it may add to a Alphonse & Gaston (http://en.wikipedia.org/wiki/Alphonse_and_Gaston) flavor of the case?

  5. Dwight Sullivan says:

    My Liege, there’s a certificate of compliance on page 52 (11,550 words).

  6. Phil Cave says:


    I took the Anon reference to 19(b)(2) as the “certificate” issue.  Agreed, they’ve complied with the Rule as to page/word count, etc. 

  7. Dwight Sullivan says:

    The Government cites and discusses United States v. Labella, 15 M.J. 228 (C.M.A. 1983), in support of its argument that it is inappropriate to exercise extraordinary relief jurisdiction in a case such as this, involving a jurisdictional challenge to trial by court-martial.  But the Government doesn’t mention CMA’s later decision in United States v. Caputo, 18 M.J. 259 (C.M.A. 1984), holding that a petition for extraordinary relief is an appropriate vehicle to address a challenge to in personam jurisdiction and, in fact, ordering extraordinary relief to dismiss the charges on that basis.

    As Chief Judge Everett explained in his opinion for the Court:

    Caputo complains that the special court-martial lacked inpersonam jurisdiction to try him. We may properly consider this challenge, for, as we have observed elsewhere:

    The Supreme Court has allowed bypassing ordinary procedures for review within the military justice system when accused persons have “raised substantial arguments denying the right of the military to try them at all.”  Noyd v. Bond, 395 U.S. 683, 696 n. 8 (1969).

    Murray v. Haldeman, 16 M.J. 74, 76 (C.M.A. 1983).  A footnote to that opinion explained:

    Sometimes different rules are applied when the issue is whether a defendant may be tried at all.  Abney v.  United States, 431 U.S. 651 (1971); Menna v. New York, 423 U.S. 61 (1975); Blackledge v. Perry, 417 U.S. 21 (1974); United States v. Schaffer, 12 M.J. 425, 428 (C.M.A. 1982).   

    Id. at 76 n. 2.

    In line with these precedents, we granted extraordinary relief in Cooke v. Orser, 12 M.J. 335 (C.M.A. 1982), to a petitioner who claimed that his trial was barred by a promise of immunity. Likewise, in Wickham v. Hall, 12 M.J. 145 (C.M.A. 1981), a majority of the Court considered on its merits the petition for extraordinary relief of an accused who claimed that her receipt of an administrative discharge precluded trial by court-martial for alleged fraud in procuring the discharge.

    Caputo, 18 M.J. at 262-63.

  8. Phil Cave says:

    Ah, memories of NLSO Norva, those were good times.  Mike Labella was a good judge.  His problem was he didn’t always buy prosecution kool-aid, and was one of the judges more inclined to grant a service-connection motion.
    BLUF: “the All Writs Act is meant to be used only in the exceptional case where there is clear abuse of discretion or “usurpation of judicial power.”” 
    In Wuterich, the NMCCA cites to Labella and a 1977 case from the 2d, which in turn cites to a civil, not criminal case in the Supremes. The purpose of the cite is the “usurpation of power” phrase.
    Well, if you read the case,  SEQ CHAPTER \h \r 1Bankers Life & Casualty Co. V. Holland, Chief Judge, et al., 346 U.S. 379, you find this language:
    “The supplementary review power conferred on the courts by Congress in the All Writs Act is meant to be used only in the exceptional case where there is clear abuse of discretion or “usurpation of judicial power” of the sort held to justify the writ in De Beers Consolidated Mines v. United States, 325 U.S. 212, 217 (1945).”  
    Oops, did I see an “or?”
    In De Beers the word is used in this context:  “But when a court has no judicial power to do what it purports to do — when its action is not mere error but usurpation of power — the situation falls precisely within the allowable use of § 262.”
    So now if we go to DiStefano, cited in Wuterich and Labella, for the usurpation language, they do use it and do quote Bankers, but the court drops off the “or,” just as it appears Code 46 has done (and appears to have been done by the court in Wuterich?
    So, if a court has no jurisdiction – personal or subject matter, any exercise of a power over the person or case is a usurpation is it not?  At the risk of offending Justice Scalia (thumbs up to his book on statutory construction) and his diatribe against dictionaries, the Free (online) Dictionary has this:  “The term usurpation is also used in reference to the unlawful assumption or seizure of sovereign power, in derogation of the constitution and rights of the proper ruler.”

  9. Casual Reader says:

    I’m just a simple civilian lawyer.  What part of “lack of jurisdiction” is not clear?  It shouldn’t take 52 pages to respond to that question.

  10. Just Sayin' says:

    maybe they think if their brief is really long the court won’t recognize their arguments are bs?

  11. Charlie Gittins says:

    No, if the brief is really long, their short and lacking attention span will make it irrelevant and they will simply vote for the Government argument.  Just sayin needs to do more appeals.

  12. Just Sayin' says:

    I suppose given some of the “free thinking” intellectual titans they have on the bench these days I shouldn’t be surprised.