One role of the annual top-10 list is to look back over the year and connect the dots. Sometimes a trend is more visible based on a 12-month retrospective than it is over the day-to-day course of the year. Such is the case with 2012 and the military appellate courts’ robust exercise of their extraordinary writ jurisdiction.
2012 began with a writ. On 3 January 2012 — the first day that CAAF was open for business this year — it issued a writ of habeas corpus ordering Technical Sergeant Brissette’s immediate release from confinement. In re Brissette, 71 M.J. 91 (C.A.A.F. 2012). TSgt Brissette had previously been convicted of a contested Article 134 offense without a terminal element. He began to serve his sentence, which included a BCD and confinement for 13 months. But after CAAF issued its opinion in United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), the military judge set aside the conviction and dismissed the charges in a post-trial Article 39(a) session. The government appealed under Article 62; TSgt Brissette remained confined due to the automatic stay of the military judge’s order that results from the filing of an Article 62 appeal. CAAF denied a petition for extraordinary relief from TSgt Brissette challenging his confinement while AFCCA considered the Article 62 appeal. In re Brissette, 71 M.J. 1 (C.A.A.F. 2011). But even after AFCCA ruled for TSgt Brissette on 19 December 2011, the government refused to release him from confinement. TSgt Brissette’s counsel initially filed a habeas petition with AFCCA on 20 December 2011. Two days later, he filed a habeas petition with CAAF as well. CAAF ordered the government to show cause why it shouldn’t order TSgt Brissette’s release from confinement. Then, on 3 January 2012, CAAF did just that.
While CAAF would deny more petitions for extraordinary relief in 2012 than it would grant — and while it displayed initial reluctance to become involved in some of the cases in which it ultimately granted extraordinary relief — CAAF was willing, when necessary, to reach down to lower levels of the military justice system to make rudder adjustments while the case remained underway below. It appears that when CAAF sees a case heading for the rocks, it’s willing to accept a party’s invitation to briefly take the conn to put the case on a safe course, then return the wheel to the lower court. This trend is beneficial to the military justice system as a whole — it’s the proverbial ounce of prevention that spares the need for a pound of cure. But it’s all the more remarkable given the small number of non-trailer cases that CAAF has chosen to review on direct appeal in recent years. And it’s even more remarkable since, due to the failed Ohlson nomination, CAAF continues to function as a four-judge court. See In re September 2012 Term of Court, 71 M.J. 392 (C.A.A.F. 2012). While Chief Judge Baker has sometimes brought a senior judge onboard to help the court decide a pending extraordinary writ case, CAAF’s initial decision to entertain a writ requires at least 3 out of 4 votes. TSgt Brissette isn’t the only petitioner to surmount that hurdle during 2012.
In June 2012, after previously denying another petition for extraordinary relief arising from the case, CAAF stayed Article 32 proceedings in a potentially capital Air Force case. Holsey v. United States, 71 M.J. 330 (C.A.A.F. 2012) [insert familiar disclosure here]. Holsey had submitted requests for IMCs with capital experience, yet the investigating officer indicated that he would proceed with the 32 before those requests had been acted upon. Eight days later, CAAF lifted the stay, but “contingent on the convening authority’s ruling on all currently pending requests for individual military counsel.” Holsey v. United States, 71 M.J. 333 (C.A.A.F. 2012).
On 15 August, after having previously rejecting another petition for extraordinary relief arising from the case, CAAF stayed proceedings in Hasan — a case we’ll be looking at in greater depth later in the top-10 list. Hasan v. Gross, 71 M.J. 382 (C.A.A.F. 2012). On 27 August, CAAF kicked the case back to the trial judge, but directed that no order to forcibly shave MAJ Hasan could be executed until MAJ Hasan had the opportunity to seek extraordinary relief from ACCA.
On 31 August, the Navy-Marine Corps Court issued a writ of mandamus directing that the charges and specifications in an ongoing case be dismissed on personal jurisdiction grounds because the accused had been validly discharged and did not thereafter voluntarily submit to military jurisdiction. Lawanson v. United States, No. NMCCA 20100187 (N-M. Ct. Crim. App. Aug. 31, 2012). CAAF would later reject the government’s efforts to overturn that writ. United States v. Lawanson, __ M.J. __, No. 13-8007/NA (C.A.A.F. Oct. 26, 2012).
On 18 September, CAAF issued a show cause order arising from a claim of inordinate appellate delay in an Air Force case. Merritt v. United States, 71 M.J. 402 (C.A.A.F. 2012). While CAAF would later deny that petition for extraordinary relief, it granted a similar petition in Carter v. United States, __ M.J. __, No. 13-8006/AF (C.A.A.F. Nov. 27, 2012), ordering AFCCA to either decide the case within 45 days or explain why it needed more time. Continuing the trend from earlier in the year, CAAF had denied an earlier petition by Carter seeking similar relief. Carter v. United States, 71 M.J. 362 (C.A.A.F. July 13, 2012).
In October, CAAF heard oral argument in an extraordinary relief case dealing with media access to court records in the Manning court-martial case, followed by an order directing additional briefing. Center for Constitutional Rights, et al. v. United States, No. 12-8027/AR.
CAAF issued its most significant writ of the year on 3 December, when it ordered Judge Gross’s removal from the Hasan case. Hasan v. Gross, 71 M.J. 416 (C.A.A.F. 2012). That immediately resolved one issue that could have hung up a direct appeal later — and subsequently eliminated another potential appellate issue when Judge Gross’s replacement — Judge Osborn — ruled that MAJ Hasan could keep his beard for his trial.
CAAF’s extraordinary writ practice this year — while robust — occurred only reluctantly, usually after it had previously denied another request for extraordinary relief in the same case. The writs also shared another common feature — they had the apparent effect of making the military justice system function more smoothly while removing appellate issues that could have disturbed the cases’ outcome later. We’ll be watching to see whether CAAF takes a similar approach to its extraordinary relief practice in 2013.