We don’t know everything about United States v. Sauk, the case in which the Air Force Court of Criminal Appeals (AFCCA) held an en banc oral argument last week to determine if the Government counsel should be held in contempt for failing to respond to a post-trial discovery order issued by the AFCCA. But I think we know enough to conclude that the Government’s position is untenable.

Note: I use the pronoun “we” because this post is based on the CCA’s initial opinion, its oral argument order, the oral argument audio, and other matters of public record. I have no other knowledge of the Sauk case and I have not discussed it with any of the counsel involved.

Here are the facts as we know them.

The appellant was convicted in 2013, by a general court-martial composed of members with enlisted representation, of involuntary manslaughter, aggravated assault, assault, and negligent homicide, all in connection with the death of the appellant’s infant son. The appellant was sentenced to confinement for five years, reduction to E-1, and a bad-conduct discharge.

In an opinion dated January 20, 2015 (available here), a three-judge panel of the AFCCA rejected numerous assignments of error (including assertions of factual and legal insufficiency) but it dismissed the aggravated assault, assault, and negligent homicide charges on the basis that they were charged in the alternative, citing United States v. Elespuru, 73 M.J. 326 (C.A.A.F. 2014) (CAAFlog case page). The panel then approved the adjudged sentence.

Two days later, the appellant moved to compel post-trial discovery on the basis that a report released by the Department of Defense Inspector General (available here) found significant deficiencies in military criminal investigations of child death cases. The appellant’s motion sought production of documents related to the organizations that investigated the death of his son.

The Government opposed the appellant’s motion for post-trial discovery. The Government also sought reconsideration of the AFCCA’s dismissal of the aggravated assault, assault, and negligent homicide charges.

On February 2, 2015, the AFCCA granted the appellant’s motion for post-trial discovery in part, ordering the Government to disclose whether the appellant was referenced in investigations returned to Air Force investigators. The Government was to comply no later than February 17, 2015. The AFCCA did not act – and still has not acted – on the Government’s request for reconsideration of the dismissal of the offenses charged in the alternative.

The Government sought reconsideration and en banc consideration of the AFCCA’s discovery order. The AFCCA denied that request, notifying the parties of that denial on February 13, 2015. It then extended the deadline for the Government to comply with the order to February 20, 2015.

On February 20, 2015, the Government did not comply with the AFCCA’s order. Rather, it informed the AFCCA that it was considering asking the Judge Advocate General of the Air Force to certify the case to CAAF pursuant to the authority granted by Article 67(a)(2). The appellant responded by asking the AFCCA to set aside the conviction based on the Government’s refusal to comply with the AFCCA’s order. The AFCCA then ordered the Government to show cause by March 3, 2015, why the appellant’s request to set aside the conviction should not be granted.

The Government responded to the show cause order by again asserting that the Judge Advocate General of the Air Force could certify the case, and it claimed that it was allowed 60 days to pursue that certification (a claim that is apparently based on the 60-day deadline in CAAF’s Rule 19(b)(3)). The Government also renewed its previously-denied request for reconsideration of the post-trial discovery order.

Then, on March 6, 2015, the AFCCA issued an order (available here) scheduling oral argument to determine whether the case should be dismissed or whether the Government counsel should be held in contempt. The order provided the above-detailed procedural history of the case.

The argument was held on March 10, 2015. The argument was exclusively a presentation by Government counsel, as the appellant’s counsel elected to make no argument.

But the Government’s presentation was astonishing.

The oral argument began with an announcement from the bench that the Government complied with the AFCCA’s production order the day before the argument, by filing “two declarations that are responsive to the post-trial discovery order, indicating the appellant’s investigation was not one which DoD IG found contained significant deficiencies.” A 27 second clip of that announcement is available here.

Government counsel then took the podium, and insisted that “the United States has never intended to convey any disrespect or contempt to this court in this case or in any case.” Rather, Government counsel styled the issue as one of mere “professional disagreement” with the AFCCA, and he noted that over the past eight years the Judge Advocate General of the Air Force had certified approximately 26 cases to CAAF, representing “roughly about 1% of this court’s actions.” A 1 minute and 19 second clip of that statement is available here.

Yet the claim of only a 1% certification rate is awfully misleading. A significant number of the AFCCA’s actions in a given year are summary affirmations after an appellant asserted no errors (these are known as “merits” decisions, because they were submitted for review “on the merits”). Consider, for example, calendar year 2011: The AFCCA’s website shows 280 actions that year, consisting of 6 published decisions, 83 unpublished decisions, 36 orders, 4 Article 62 appeals, and 151 merits cases. So, in 2011, a majority (53.9%) of the AFCCA’s actions were merits affirmations, for which it’s hard to see any basis whatsoever for “professional disagreement” by the Government.

Moreover, in any given year the Government wins (that is, its position prevails) in the overwhelming majority of cases decided by the AFCCA on substantive grounds, and meaningful relief for an individual appellant is rare. It’s hard to see any basis whatsoever for “professional disagreement” by the Government when the Government gets what it wants.

But issues of arithmetic aside, while Government counsel styled the Government’s position in Sauk as merely a “professional disagreement” with the AFCCA, the reality is that the Government’s position is one of pure hubris.

Government counsel asserted that:

Your honor, I respectfully submit that this court has to recognize the statutory authority provided by Congress and as implemented by CAAF’s 60-day rule in – in functioning of this court’s authority. That is the law, and that’s all we ever sought to do here was really assert the law. We were never intending any nefarious conduct. We were open and upfront with the court, telling the court in a timely manner what we were doing. But our view is this court has to take into account TJAG’s statutory authority. And it’s not limited by any caselaw to any particular kind of case or posture of the case. There’s no such limitation present in the law.

A 41 second clip of this statement is available here (it began about 10 minutes and 45 seconds into the argument recording).

The Government’s position thus amounts to a claim that the AFCCA cannot order the Government to do something without allowing the Government a 60-day period to seek certification by the JAG.

There are three fundamental flaws with this position.

The first fundamental flaw is that it contravenes “the basic proposition that all orders and judgments of courts must be complied with promptly.” Maness v. Meyers, 419 U.S. 449, 458 (1975). In Maness, the Supreme Court explained that:

If a person to whom a court directs an order believes that order is incorrect, the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal. Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect.

Id. And the Court highlighted that:

We have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court’s order to produce prior to any review of that order and resistance to that order, with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal.

Id. at 460 (quoting United States v. Ryan, 402 U.S. 530, 532-533 (1971)) (emphasis added).

Of course, the certification power is unique to military justice, while the precedent discussed above implicates the separate jurisdiction of the federal courts to entertain appeals of interlocutory or final decisions of the district courts. See 28 U.S.C. §§ 1291, 1292. But there is nothing about the basic proposition stated in Maness – a proposition that is “generally recognized in the trial of criminal cases in the United States district courts” (see Article 36(a)) – that is unworkable in the context of certification. Put simply, absent a stay or other relief, the Government has the duty to comply promptly with an order from any court, including the AFCCA, and the Government’s refusal to comply promptly in Sauk rightly risked a finding of contempt.

Yet the unique nature of certification raises the second fundamental flaw in the Government’s position.

CAAF’s rule providing for a 60-day period for certification is anomalous. Article 67 states that CAAF “shall review the record” in all cases certified by a JAG, and it puts no time limit on a JAG’s decision to certify. Further, CAAF’s judge-made time limit for certification stands in stark contrast to the 60-day statutory time limit on an individual appellant’s petition for review by CAAF under Article 67(b)  – a limit that CAAF held is jurisdictional in United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009).

CAAF’s 60-day rule has been the subject of scrutiny from the beginning. See Robert Mummey, Judicial Limitations Upon a Statutory Right: The Power of the Judge Advocate General to Certify Under Article 67(b)(2), 12 Mil. L. Rev. 193 (1961) (available here). But whether or not the rule is appropriate, it is plenty flexible, as CAAF granted an extension of time to file a certificate of review as recently as 2012 (in an Air Force case, coincidentally). Since the 60-rule for certifications is not a binding deadline on CAAF, it can hardly be said to impose the binding period of suspension on actions of the Courts of Criminal Appeals that the Government seeks in Sauk. Put differently, Congress created the right to certify, but it did not create any timeline (minimum or maximum) on the exercise of that right.

There’s also absolutely nothing that prevents a JAG from certifying a case to CAAF in less than 60 days. In fact, such diligence would be entirely consistent with the Supreme Court’s emphasis on “the necessity for expedition in the administration of the criminal law.” Maness, 419 U.S. at 460. Yet the Government was downright lackadaisical in its approach in Sauk. The AFCCA’s oral argument order reveals that:

on the date by which the court had ordered it to provide post-trial discovery, the government filed a “motion for leave to file response.” The government’s motion expressed its disagreement with this court’s post-trial discovery order and indicated the government was considering “whether to accept this Court’s decision or to pursue it further by way of certification to our superior Court.”

(emphases added). Assuming this means what it says, then the Government didn’t actually ask the JAG to certify Sauk to CAAF before it failed to comply with the AFCCA’s order. Rather, the Government merely “indicated” to the AFCCA that it was “considering” whether to “pursue” certification.

Of course, certification is not the exclusive province of the Government; there is nothing that prevents an individual appellant from seeking certification. The AFCCA highlighted this fact during the oral argument:

Judge: TJAG certification is not the exclusive province of the Government. Of course the defense can seek TJAG certification of an issue. So is it the Government’s position that if we issue an order to appellate defense then likewise the appellate defense need not comply with that order for a period of 60 days?

Gov’t Counsel: I can’t create a rule for the Government and a rule for the defense your honor. I cannot. That’s simply not a logical position for me to take.

Judge: So if we grant the defense an enlargement of 15 days to file a brief instead of the 30 requested, the appellate defense can take 60 days to file its brief because it has that period to consider whether it’s going to seek TJAG certification of that issue?

Gov’t Counsel: I suppose that’s theoretically possibly but, with respect, highly, highly impractical that anybody would request a TJAG certificate of review under those circumstances. Could it theoretically be done? I have to maintain yes, but it’s really difficult for me to envision that scenario ever playing out.

A 63 second clip of this exchange is available here (it began about 13 minutes and 45 seconds into the argument recording).

Here the Government’s hubris is really on display. Certifications by the Judge Advocate General of the Air Force are so lopsided in favor of the Government that last year I was compelled to write about the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force. Undoubtedly, it is “really difficult” for Government counsel to envision an appellate defense counsel seeking certification of a denial of an enlargement of time because he – and everyone else – knows that such a request will be denied.

The third fundamental flaw in the Government’s position was exposed by this exchange at the oral argument:

Judge: The Government has now submitted what we believe are responsive affidavits or declarations to the discovery order. In the Government’s position, is there anything that now keeps this court from issuing a decision under Article 66 in this matter?

Gov’t Counsel: No your honor. We’re here to say that by our decision in admitting these documents the appellate discovery issue is now mooted.

A 23 second clip of this exchange is available here (it began about 27 minutes and 40 seconds into the argument recording).

We see from this exchange that when faced with the slightest measure of real opposition from the AFCCA, the Government folded like a cheap suit.

Rule 3.1 of the Air Force Rules of Professional Conduct comes to mind:

Rule 3.1. MERITORIOUS CLAIMS AND CONTENTIONS

(a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the accused in a criminal proceeding, or the respondent in a proceeding that could result in incarceration or discharge, may nevertheless so defend the proceeding as to require that every element of the case be established.

(b) A lawyer does not violate this rule by raising issues in good faith reliance upon court precedent.

Now to be clear, I do not think the actions of Government counsel in this case were unethical. Rather, I think that they were unwise.

But the standard for meritorious claims and contentions provides a valuable metric by which we can evaluate the Government’s position. I think it’s reasonable to expect that the Government would pursue a meritorious claim with more tenacity than shown in Sauk.

Let’s also not lose sight of what’s at stake. The appellant was convicted of causing the death of his infant son, but he maintains his innocence. The Government’s own review discovered “significant deficiencies” in military criminal child death investigations, including “key evidence not being collected, crime scenes not examined, and witness or subject interviews not conducted or not thorough.” Memorandum of the Deputy Inspector General dated Dec. 22, 2014. The appellant sought to determine if those deficiencies affected the investigation that led to his conviction. In response, the Government stonewalled.

It stonewalled when it could have so easily acknowledged, as it belatedly did, that the Inspector General did not find significant deficiencies in the investigation into the death of the appellant’s son. This is a fact so favorable to the Government that any other litigant in the same position would rush to disclose it, regardless of the stage of the proceedings.

Talk about snatching defeat from the jaws of victory. Is it any wonder that the chorus of voices criticizing the military justice system only grows louder each year?

The proper response to the Government’s position in Sauk is a difficult question. So far, the AFCCA’s response has been little more than saber noise. Whether the AFCCA or some other authority will (or should) do more is a question that undoubtedly requires a lot of reflection and soul-searching.

But I think one thing is certain:

People simply cannot have the luxury of knowing that they have a right to contest the correctness of the judge’s order in deciding whether to willfully disobey it. That is an awesome act and it sets in train awesome responsibilities. Court orders have to be obeyed until they are reversed or set aside in an orderly fashion.

Southern Railway Co. v. Lanham, 408 F.2d 348, 350 (5th Cir. 1969) (Brown, C. J., dissenting from denial of rehearing en banc).

39 Responses to “The Government’s untenable position in Sauk”

  1. Former DC says:

    Interesting situation.  Good analysis.
    Four things come to mind:
    1)  I would respectfully disagree with the implication that there is no set of circumstances wherein a litigant might refuse to comply with a court order.  I could envision, say, an order that required a defense counsel to testify against his client using A/C privileged information, that I would refuse to comply with, at least until I had exhausted all appeals.  As a side note, in some systems, because of the severe limits on interlocutory appeals, the only way to get such an issue reviewed is to get oneself held in contempt, because that may be immediately appealed, and thus, the underlying issue reviewed.  But, those are very rare and extreme cases, presenting a problem far different in scale to the situation here.  This brings me to my second point:
    2) What was so hard here that kept the Government from responding?  If this case wasn’t one that had concerns with the investigation, then why not say so up front?  I can only guess that there is a concern about creating a precedent, but it would seem to be a very weak precedent, at best.  I cannot off the top of my head recall a case where a court in a non-FOIA context considered the release of a negative reply as precedent that an appropriate affirmative reply was necessary.  If the Government really had that concern, I would have expected a “Glomar” reply (i.e., “we can neither confirm nor deny…”), and then litigation of the sufficiency of that response.  The Government appears to have been paralyzed here – WHY????
    3)  With all due respect to my colleagues in the Government unit, this is one of those cases where I would have expected that the uniformed boss-man himself to have shown up an argued personally.  Clearly, whatever the reason, there is an underlying policy decision at play here.  Under such circumstances, the situation calls for an appearance from the top.  It saddens me that this was not the case.
    4)  Finally, I am reminded of a phrase I heard from someone who used to work at SPACECOM and used to regularly brief the General there, often on bad news.  He said, “it is very difficult to decapitate someone who comes in the door with his head under his arm.”  This seems appropriate.  I know it is hard sometimes for those who represent the Government to recognize that there are situations where they do not reign supreme (I do not intend this observation as an insult; it is simple psychology that when one has such power, one tends to feel it – history is replete with examples).  But this case clearly was one where humility was called for.  It was obvious that the AFCCA was ticked off and probably was not going to like whatever was said.  To quote a movie from our Navy brethren:  They had “a serious weed up [their] a** and a legitimate gripe.  Always a dangerous combination.”  It would seem to me that the thing to do was to come in and beg forgiveness, citing a misunderstanding of the situation and a delay from seeking assistance from the IG and others in ascertaining the necessary facts, combined with a confession of a leadership failure (of the speaker, of course), to keep on top of the necessary reply.  The certification issue should never have been mentioned.  Had such a mea culpa been given, I would have expected a tongue lashing from the bench followed by a short written order reprimanding the Government and granting Defense no further relief.  Now, because the Government got up on their high horse and took an obviously untenable position, I would expect rather more of a strong response from the AFCCA.
    One final thought:  I note that Defense applied Napoleon’s Third Rule of Armed Combat:  “When the enemy is in the process of destroying himself, don’t interfere.”

  2. stewie says:

    It seems obvious they were consciously and actively trying to set a precedent.  Why I do not know. Is there another case where they intend/intended to deploy this option?  Why not wait for that case, assuming better facts?  It feels a lot like this was a case of someone being hit by the good idea fairy, someone else said, hey yeah, that make sense, and no one came along to say, whoa, wait a minute (or that someone was quickly drowned out).

  3. JustAnotherADC says:

    I don’t think Mr. Spillman has argued that “there is no set of circumstances wherein a litigant might refuse to comply with a court order.” The point here is that the government did not attempt the most obvious way to respect the court’s order while considering its options for certification, e.g., the government could have requested a “stay” of the court’s discovery order for the sixty day period in CAAF’s rules, or however much time the government needed to consider whether to appeal.

    Although the government disclaimed the ability to request a stay based on that term not being mentioned in the AFCCA’s rules, the Supreme Court reports are replete with parties filing applications to stay rulings with which they disagree. See, e.g., Strange v. Searcy, 134 S. Ct. 940 (2015) (denying the Alabama Attorney General’s request to stay a federal injunction preventing him from enforcing Alabama marriage laws defining marriage as between one man and one woman).

  4. (Former) ArmyTC says:

    I have to hope that the issue here was pushback on release from the IG (anyone on the Army side who has tried to get an IG investigation to initiate adverse action or answer any sort of request for information should know what I’m talking about). The cynic side of me says that this was probably hubris at a higher level though.

  5. Zachary D Spilman says:

    You mention the lack of provisions for a stay in the AFCCA’s rules JustAnotherADC. This was discussed during the oral argument. But I think it’s a red herring.

    The lack of an express rule authorizing stays of orders does not equate to license to simply disobey an order. Put differently, asking for a stay of an order when the rules don’t provide for one (or – of note – prohibit it) is undeniably preferable to simply violating the order outright.

    Had the Government initially asked for a stay of the order, and the AFCCA denied that request simply because the rules don’t explicitly provide for a stay of orders, we’d be in a very different situation. In fact, I think it fair to say that under that hypothetical the hubris would be on the part of the AFCCA.

    I’ll also note the provisions of Rule 23.3(c) of the AFCCA’s Rules of Practice and Procedure (August 13, 2014)

    (c) Motion to Stay Proceedings. A motion to stay proceedings may be submitted when appropriate. See, for example, Rule 20.1.

    It’s slicing the bologna awfully thin to say that the Government could not have submitted a motion to stay the proceedings in Sauk pending a decision on certification.

  6. JustAnotherADC says:

    Fair point. I hadn’t reviewed the rules on this issue, I was just relying on the assertion on the audio that a “stay” is not provided for at AFCCA. The fact that a stay is provided for, I think, underscores my overriding argument–the government should have requested a stay in order to preserve the appearance of respecting the court’s order while respectfully disagreeing with it.

  7. Zachary D Spilman says:

    Agreed, JustAnotherADC.

  8. Former DC says:

    @The Silver Fox:  Respectfully, how is this moot?  Sure, the response has been given (albeit late), but the refusal to follow the court’s order still occurred and needs dealt with, if for no other reason than to preserve the integrity of the system.  I don’t see that part as moot.
    @(Former) ArmyTC:  If it was the IG, why not throw them to the wolves?  I.e., “The undersigned has made a diligent effort to obtain the ordered information, but because of the intransigence of a different unit the undersigned has no control over, the undersigned has been unable to obtain the information in order to comply.”  Nasty, true, but the first rule is always CYA.
    @Zack:  Couldn’t a motion for appropriate relief have done the trick, especially if it was listed as for expedited consideration?

  9. The Silver Fox says:

    Once the information is disclosed, my guess is that CAAF would say the issue is moot in the event the TJAG elected to certify the issue.

  10. Don Rehkopf says:

    I totally agree with Zach on the point that the “stay” issue is a blatant “red herring” if not an affirmative misrepresentation.  As Zach correctly points out, AF CCA’s own Rules recognize and provide for a stay “when appropriate.” Certainly counsel for the government knew that. Furthermore, in the context of pretrial Extraordinary Writs, anyone who has ever filed one on behalf of an accused quickly learns to also attach a stay request with the Writ Petition.
     
    But, hypothetically, let’s assume that government counsel in good faith either didn’t know or “forgot” about the AF CCA “stay” Rule, there is (and has been for a long time) the All Writs Act, 28 USC sec. 1651(a), which likewise provides a proper vehicle for a stay:
     

    The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
     

    That fact and process simply had to be known by government counsel [whoever was calling the shots (if anyone) here], based upon the extensive litigation in LRM v. Kastenberg, 72 M.J. 364 (CAAF 2013), where the AWA was the main topic.
     
    @ FormerDC – yes, a Motion for Appropriate Relief would work. I’ve filed plenty of them in the various CCA’s generally over discovery issues that came to light post CA action.

  11. Dwight Sullivan says:

    [Insert Standard Disclaimer Here:  The views I express below are offered in my individual capacity and should not be imputed to the Department of Defense or anyone or anything else.]
    Greetings from an undisclosed location in the Shenandoah Valley.
    Without expressing any opinion on the ultimate merits of either party’s position in Sauk, the analysis above is incomplete without a consideration of CAAF’s case law holding that the CCAs’ final decisions are inchoate pending either certification or the relevant Judge Advocate General’s decision not to certify the case.  The classic enunciation of this position was in CAAF’s 1997 Miller opinion [note that CAAF’s rules established a 30-day, rather than 60-day, certification deadline at the time]:
    If the Judge Advocate General immediately decides not to pursue a case any further, there must be immediate notice to the convening authority of the opinion of the Court of Criminal Appeals and immediate direction to release an accused or conduct a hearing under RCM 305, Manual, supra, on pretrial confinement.  United States v. Turner, 47 MJ 348 (1997). This reflects Article 66(e), which reads:
     
    The Judge Advocate General shall, unless there is to be further action by the President, the Secretary concerned, the Court of Appeals for the Armed Forces, or the Supreme Court, instruct the convening authority to take action in accordance with the decision of the Court of Criminal Appeals.
     
    If there is not such an immediate decision, there will be a 30–day period during which the Judge Advocate General is considering whether to accept the lower court’s opinion or to pursue it further by way of a motion for reconsideration or certification to this Court. During such period, an accused remains in confinement because the opinion below is inchoate. This reflects Article 66(e), which does not require the Judge Advocate General to provide the convening authority with notification and instructions to release the accused or conduct an RCM 305 hearing “unless” there will not be further consideration by other authorities—a formulation which implies, for instance, that the 30 days that Congress gave the Judge Advocate General to decide whether to certify a case is a reasonable period of time to withhold this release instruction.
     
    After considering the matter, if the Judge Advocate General decides to certify a case to this Court, an accused’s interest in the favorable decision of the court below (even if inchoate) requires either that the accused be released in accordance with that decision or a hearing on continued confinement be conducted under RCM 305. 
     
    [end quote]
     
    United States v. Miller, 47 M.J. 352, 361-62 (C.A.A.F. 1997).
     

  12. stewie says:

    But this wasn’t a final decision was it? It was a discovery order.  It feels like an apples to oranges comparison.

  13. Dwight Sullivan says:

    Stewie, as I said, I wasn’t expressing any opinion on the ultimate merits of the parties’ positions.  But Miller is directly relevant to portions of the analysis above, such as the universality of “‘the basic proposition that all orders and judgments of courts must be complied with promptly.’  Maness v. Meyers, 419 U.S. 449, 458 (1975).”  Miller establishes that CCA final decisions are inchoate and need not be complied with before certain posts are passed.  There is an interesting legal discussion to be had about the extent to which Miller applies to interlocutory orders.  But the discussion above doesn’t engage in that analysis.

  14. anon says:

    I’ve never heard a party characterize a court’s ruling as just a “professional disagreement” in open court before.…
     
    I’ve taken legal positions that have subsequently has been unsuccessful in court, but I’ve never thought of them as “professional disagreements” with the court.   While I had thought my position or motion was good at the time, based on the court’s subsequent ruling it was by definition, “an incorrect statement or application of the law!”  And I was what’s commonly called the “losing party.”   True, I may console myself by saying that a different judge would have ruled in my favor, but the fact is that for that case the judge’s ruling is the Law of the Case and the losing position is, well, not the law.  (Until and unless, of course, I get a higher appellate court to agree with me).
     

  15. Phil Cave says:

    @SF.  May I take this opportunity to agree with you.  The issue is moot once they turned over the discovery or something that was sufficiently responsive.  To certify (and I still don’t believe there’s authority to certify this issue) means merely to ask for an advisory opinion; which for regular prudential reasons CAAF could – in suitable language – tell the Gov to pack sand.

  16. Zachary D Spilman says:

    I don’t agree that Article 66(e) and Miller are relevant to this discussion Dwight, for a few reasons.

    First, Article 66(e) states, in pertinent part:

    The Judge Advocate General shall, unless there is to be further action by the President, the Secretary concerned, the Court of Appeals for the Armed Forces, or the Supreme Court, instruct the convening authority to take action in accordance with the decision of the Court of Criminal Appeals.

    (emphases added). Article 66(e) is not implicated by the AFCCA’s order in Sauk because (1) the AFCCA didn’t issue a “decision,” and (2) the order to provide information to the appellant required no action by the convening authority.

    Next, I must take exception to your quote from Miller, as you omitted what I think is an essential paragraph:

    The decisions of this Court and the court below are “not self-executing.” United States v. Kraffa, 11 MJ 453, 455 (CMA 1981) (holding that “[a] decision of the Court of Military Review, however, is not self-executing. The court issues no mandate, but its decision is forwarded to the convening authority for further action. “); United States v. Tanner, 3 MJ 924, 926 (ACMR 1977) (holding that “[n]either the decisions nor the opinions of appellate courts, however, are self-executing; cases must be returned to those lower levels where officials and parties can be ordered to implement the court’s judgment”). The Judicial Branch is not an executive arm but depends on the Judge Advocate General and lower officials to execute its orders.

    Miller, 47 M.J. at 361. Notably, in Miller, “the [Air Force] Court of Criminal Appeals held that its decisions are self-executing and final although not accompanied by a mandate.” Id. at 360-361 (emphasis added). CAAF explained why that holding was wrong, and today the AFCCA’s rules explicitly acknowledge that its decisions are not self-executing:

    Rule 18.3. Effective Date of Decision. Decisions of this Court are not self-executing. Normally, decisions of this Court become final when the time period for requesting reconsideration has expired and neither of the parties has timely filed to have the issue heard by CAAF.

    Finally, the delay implicated by the inchoate nature of a CCA/CAAF decision is transitory, even if the JAG does certify the case:

    In Miller, we recognized that appellants have an interest in a favorable inchoate decision of the CCA that would result in an appellant’s release from confinement, but that interest only becomes sufficiently weighty to warrant action when the Judge Advocate General decided on a course of action to pursue (appeal or abide by the CCA decision) or the thirty-day period for appeal had passed.

    United States v. Kreutzer, 70 M.J. 444, 447 (C.A.A.F. 2012) (emphasis added). See also Miller, 47 M.J. at 362 (“if the Judge Advocate General decides to certify a case to this Court, an accused’s interest in the favorable decision of the court below (even if inchoate) requires either that the accused be released in accordance with that decision”). 

    I’ll also note that if Miller were analogous, then one would expect that the appellant in Sauk would be entitled to production of the ordered discovery even if the JAG decided to certify.

  17. Don Rehkopf says:

    An “Order” is presumed to be lawful and if it directed to someone who has a duty to obey it, you disobey it at your peril unless it is a patently illegal order.  I think it’s that simple here.  And when the person(s) on the receiving end of an order opt to not comply while they cogitate on whether to seek TJAG certification without also seeking a temporary stay of the orders enforcement, they do so also at their peril.
     
    And if anyone thinks all of this is confusing, check out Chapter 6, of the Federal Judicial Center’s Jurisdiction Primer in U.S. Courts of Appeal Here.

  18. The Silver Fox says:

    “Ignored the order? … We follow orders, son. We follow orders or people die. It’s that simple. Are we clear?”But, seriously,

  19. Advocaat says:

    No one has talked about the TJAG in the room, who would never certify such a specious issue–anyone with ears knows how that former circuit defense counsel feels about the government’s obligation to fulfill discovery requirements/orders.  I take JAJG at its word that it “considered” requesting certification but there’s a 3-star reason the division had the good sense not to, and I find the debate about TJAG certification in this case to be more than hollow because it would never happen.  And I like Speculationville so much I’ll go one step further and posit the only reason JAJG finally complied with AFCCA’s order was because it received appropriate direction from AFLOA or TJAG’s office, and righting that wrong will spare counsel from contempt.

  20. Dwight Sullivan says:

    [Insert Standard Disclaimer Here:  The views I express below are offered in my individual capacity and should not be imputed to the Department of Defense or anyone or anything else.]
    Zack, Miller is not merely relevant to AFCCA’s consideration of Saulk, but central to it.  Upon considering JAJG’s position in Saulk, one might have reasonably inferred that JAJG was relying on Miller.  Since reading your comment, I have confirmed that that is the case.  In fact, at least two government filings in Saulk have discussed Miller.  Thus, the central issue for AFCCA to decide is whether Miller governs.  There may well be good reasons to distinguish it in the interlocutory order context.  But Miller’s applicability must be considered in any analysis of Saulk. 
    From your comment:  “I must take exception to your quote from Miller, as you omitted what I think is an essential paragraph . . . .”  No; no you need not take exception.  Miller takes up 11 pages in West’s Military Justice Reporter.  I accurately quoted a portion of that opinion without omitting anything from it.  I didn’t quote other vast portions of the opinion. The portion of the opinion that you quote does not prevent Miller from contradicting the original post’s position that JAJG was wrong in claiming a 60-day inchoate period because that position”contravenes ‘the basic proposition that all orders and judgments of courts must be complied with promptly.’ Maness v. Meyers, 419 U.S. 449, 458 (1975).”  The original post continued, “But there is nothing about the basic proposition stated in Maness – a proposition that is ‘generally recognized in the trial of criminal cases in the United States district courts’ (see Article 36(a)) – that is unworkable in the context of certification. Put simply, absent a stay or other relief, the Government has the duty to comply promptly with an order from any court, including the AFCCA, and the Government’s refusal to comply promptly in Sauk rightly risked a finding of contempt.”  That analysis is inconsistent with Miller, which does treat CCA final decisions differently in light of the certification authority of the Judge Advocates General.  To take just one example, an order from AFCCA dismissing a government’s Article 62 appeal would be subject to certification to CAAF.  In such a scenario, Miller and its progeny would have to be analyzed to determine whether they precluded giving legal effect to that order before the certification deadline had passed.  Again, perhaps Miller doesn’t apply in the interlocutory order context at issue in Saulk.  But, if so, it isn’t because the general rule concerning the effect given to U.S. district court opinions applies wholesale to CCA decisions.

  21. Dwight Sullivan says:

    [Insert Standard Disclaimer Here:  The views I express below are offered in my individual capacity and should not be imputed to the Department of Defense or anyone or anything else.]
    Whoops — Sauk, not Saulk.

  22. stewie says:

    “Again, perhaps Miller doesn’t apply in the interlocutory order context at issue in Saulk.”
     
    But, again, isn’t that the point? Which is why Miller feels like a non sequitur to some degree to me.  It can be exactly as you say it is, but if it doesn’t apply to an interlocutory order then it’s relevance is somewhat…subdued.
     
    Also, despite your disclaimer, I’m going to impute your typo of Sauk as being offered in your official capacity.

  23. Passing By says:

    Anyone else getting a Star Wars vibe here (minus the whole good v. evil thing)?
    “I’ve been waiting for you, Dwight. We meet again, at last. The circle is now complete. When you left CAAFLOG, I was but the learner; now I am the master.” 
    “Only a master of exception, Zack.”

  24. Zachary D Spilman says:

    Of course I didn’t mean to imply that you were hiding the ball Dwight. But I do think that the language from Miller about decisions not being self-executing – that is, that CAAF and the CCAs “depend[] on the Judge Advocate General and lower officials to execute [their] orders,” 47 M.J. at 361 – is crucial, because it shows that Miller is about how the courts’ decisions are executed.

    The root of the issue in Sauk, by contrast, is about how the courts arrive at their decisions.

    The authority for the language in Miller about inchoate decisions is Article 66(e). See also United States v. Kraffa, 11 M.J. 453, 455 (C.M.A. 1981) (“The court issues no mandate, but its decision is forwarded to the convening authority for further action.”). As discussed in my comment above, Article 66(e) is not implicated by the AFCCA’s order in Sauk because (1) the AFCCA didn’t issue a “decision,” and (2) the order to provide information to the appellant required no action by the convening authority.

    If the Government’s rationale for not obeying the AFCCA’s order or requesting delay in Sauk is Miller and Article 66(e), then “untenable” becomes an awfully nice adjective for the Government’s position.

    You give some examples. One is:

    To take just one example, an order from AFCCA dismissing a government’s Article 62 appeal would be subject to certification to CAAF.  In such a scenario, Miller and its progeny would have to be analyzed to determine whether they precluded giving legal effect to that order before the certification deadline had passed.

    A few points in response. First, dismissal of an Article 62 appeal would clearly be a decision within the meaning of Article 66(e), and also clearly requires Article 66(e) action by the JAG and convening authority (the record would have to be returned for further proceedings). A post-trial discovery order, by contrast, does neither. Second, even if dismissal had second-order effects (for example, the trial judge continued to do what the Government was trying to stop), success on certification would undo those effects. See, e.g., United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010) (military judge dismissed the charge, and then dismissed the members and adjourned the court-martial; CAAF reversed and ordered further proceedings). A post-trial discovery order is no different. Finally, the “legal effect” of dismissal of an appeal is continuation of the trial proceedings. The discovery order in Sauk is a wholly different issue. 

    I can’t help but be astonished that we’re having this debate over an order for post-trial discovery (of potentially exculpatory/favorable information!), not a ruling dismissing a case or even one actually holding counsel in contempt. Had the AFCCA done either of those things, then I could see how it wouldn’t be the end of the story. But the court did something far less dispositive.

    Moreover, if the order didn’t have legal effect when issued, what other orders suffer from the same impotency? For instance, could the Government have skipped the oral argument on the basis that it might seek certification of the scheduling order? What about orders involving the time for filing of briefs? Or page limits? Or allowing substitution of counsel (something I assume you did when you left AF appellate defense – was every granted order suspended for 60 days in case the JAG decided to certify your departure to CAAF?)?

  25. Dwight Sullivan says:

    [Insert Standard Disclaimer Here:  The views I express below are offered in my individual capacity and should not be imputed to the Department of Defense or anyone or anything else.]
     
    Zack, the final two paragraphs in your comment above (whether this was intended or not) might be read to suggest that I have taken a position on whether a CCA’s interlocutory order is self-executing or inchoate.  I’ve taken no such position.  My only position — and one supported by the Article 62 dismissal order hypothetical I offered — is that the first rationale offered by the original post isn’t a proper basis for resolving the issue in Sauk.  Regardless of the law in the Article III courts, military case law refutes the notion that “absent a stay or other relief, the Government has the duty to comply promptly with an order from any court, including the AFCCA . . . .”  At least some orders of a CCA need not be complied with pending a recon or certification decision, and the existence of any order by a CCA that need not be promptly complied with absent a stay or other relief refutes the first proposition offered above.  The central issue in Sauk is whether AFCCA’s discovery order was such an order (an issue on which I offer no public opinion).  JAJG expressly discussed Miller in its March 9 motion to submit documents and its February 20 motion for leave to file a response.  That reliance by JAJG makes it appropriate for AFCCA to resolve whether Miller applies to the situation at hand.  

  26. Zachary D Spilman says:

    And I don’t agree with your assertion that “military case law refutes the notion that ‘absent a stay or other relief, the Government has the duty to comply promptly with an order from any court, including the AFCCA . . . .'”

    Decisions of the AFCCA are not self-executing and do not take effect immediately, pursuant to the AFCCA’s own Rule 18.3 (quoted above) and the provisions of Article 66(e) (as applied by Miller). 

    But orders of the AFCCA – such as scheduling orders, briefing orders, orders involving counsel, and orders to produce documents – are a totally different matter. The AFCCA has the authority to issue an order, and the Government does not “have the luxury of knowing that they have a right to contest the correctness of the [AFCCA’s] order in deciding whether to willfully disobey it.” Southern Railway Co., 408 F.2d at 350.

    As SCOTUS said in Maness:

    If a person to whom a court directs an order believes that order is incorrect, the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal. Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect.

    419 U.S. at 458.

    You also write that the Air Force Appellate Government Division’s (JAJG) reliance on Miller “makes it appropriate for AFCCA to resolve whether Miller applies to the situation at hand.” I’m not implying that you’re taking a position on this issue, but I think it’s awfully hard to imagine that the AFCCA will adopt the Government’s untenable rationale.

  27. stewie says:

    Ugh, you had to bring up the lesser trilogy.  Babu, you are not sweet in this instance. Not sweet at all.

  28. Phil Cave says:

    I took the position the other day, and haven’t changed, that Miller doesn’t answer the mail, because I am still hung up on the point that TJAG can’t certify this type of issue.  If the government continues to object, then a writ was the path.
     
    Miller was a case that was “reviewed” in accordance with Art. 67(a)(1).  What the government was objecting to and certifying in Miller was the consequences of the review – release him and let him fade away.

    On May 7, 1996, the Court of Criminal Appeals set aside the findings of guilty of pandering and instead affirmed findings of guilty . . . ; and reassessed the sentence to a dishonorable discharge, 4 years’ confinement, and reduction to the lowest enlisted grade. 44 M.J. 549, 555-57, 566.

     
    Miller then filed an extraordinary writ in the Air Force Court of Criminal Appeals alleging illegal continued confinement.
    United States v. Miller, 47 M.J. 352, 355, 1997 CAAF LEXIS 96, 2 (C.A.A.F. 1997)
     
    As sometimes happens there were cross feelings, I mean cross filings, the who sued who and for what gets a little convoluted.  But, it was a “reviewed” case.
    Perhaps Dwight’s choice of “refute” is a little strong, maybe not.  But he correctly, IMHO, sets out that the military jurisprudence on when a CCA actions is really, really, really final is murky at best.
     
    So, when all is said and done, “did you learn anything.”
     
    So, it’s a pity I suppose they mooted it (h/t to SF) by playing ball.  Does AFCCA even have to write on this now?  Would that not also be an advisory opinion?

  29. Dwight Sullivan says:

    [Insert Standard Disclaimer Here:  The views I express below are offered in my individual capacity and should not be imputed to the Department of Defense or anyone or anything else.]
     
    Zack wrote that he doesn’t agree with the assertion that “military case law refutes the notion that ‘absent a stay or other relief, the Government has the duty to comply promptly with an order from any court, including the AFCCA . . . .’”  My point was that at least some orders are subject to certification — the Article 62 dismissal order hypothetical presented one such case.  There can be little doubt that a CCA’s order dismissing an Article 62 appeal on jurisdictional grounds would be subject to certification.  Cf. LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAF reviewing petition for extraordinary relief pursuant to certification after AFCCA ruled it was without jurisdiction to hear the case).  Miller would seem to apply to such a certification.  So the purported distinction between orders and final decisions offered by the 10:46 p.m. comment above breaks down in some instances.  There may be some — perhaps even many or most — orders that aren’t subject to certification (again, a proposition about which I offer no public opinion).  But the existence of any order that is subject to treatment as inchoate under Miller demonstrates that mere invocation of Maness v. Meyers is insufficient to resolve the issue.  A court must take the additional step of determining whether a particular order is or is not to be treated as inchoate under Miller — which is, again, the sole point I’ve been trying to advance.
     
    AFCCA’s internal rules do not provide a source of authority to resolve the issue.  NMCCA doesn’t appear to have an internal rule similar to AFCCA Internal Rule 18.3; nor does the Coast Guard Court.  If a comparable provision is in the Army’s internal rules — which don’t seem to be susceptible to word searches — it isn’t in any obvious location.  Surely AFCCA’s orders don’t have a different effect than those of the other CCAs because it alone has an internal rule acknowledging Miller‘s holding.  See also United States v. Gilley, 59 M.J. 245, 247 (C.A.A.F. 2004) (“CCA Rule 26 authorizes the Courts of Criminal Appeals to create ‘internal’ court rules. The dictionary defines ‘internal’ in pertinent part as ‘existing or situated within the limits.’ Merriam–Webster Unabridged Dictionary 1180 (1986). Thus, CCA Rule 26 authorizes the Courts of Criminal Appeals to create rules applying to entities ‘existing or situated within [each court’s] limits.’ By contrast, a rule governing filings or briefs, such as AFCCA Rule 2.2, applies to entities external to the court, i.e., the parties.”).

  30. Dwight Sullivan says:

    [Insert Standard Disclaimer Here:  The views I express below are offered in my individual capacity and should not be imputed to the Department of Defense or anyone or anything else.]
     
    Phil “My Liege” Cave, without expressing any public opinion on whether AFCCA’s March 6 order is moot, CMA/CAAF case law suggests that an Article I court isn’t subject to Article III’s “cases” or “controversies” requirement from which the prohibition against advisory opinions springs at the federal level.  See generally United States v. Chisholm, 59 M.J. 151, 152 (C.A.A.F. 2003) (per curiam).  Nevertheless, “Courts established under Article I of the Constitution, such as this Court, generally adhere to the prohibition on advisory opinions as a prudential matter.”  Id.  CAAF does not always adhere to that prudential limitation, however.  For example, in United States v. Wilson, 73 M.J. 404 (C.A.A.F. 2014), CAAF answered a certified issue where the answer to the issue couldn’t have affected the parties; the defense would have received no relief regardless of how the certified issue was answered.
     
    AFCCA also offered an interesting analysis of the applicability of the cases or controversies requirements to Article I courts in United States v. Lane (yes, My Liege, that Lane).  United States v. Lane, 60 M.J. 781, 786 (A.F. Ct. Crim. App. 2004) (per curiam), rev’d, 64 M.J. 1 (C.A.A.F. 2006).

  31. Zachary D Spilman says:

    Here’s why I disagree with the premise that “the purported distinction between orders and final decisions offered by the 10:46 p.m. comment above breaks down in some instances.”

    There is a meaningful and relevant distinction between orders and decisions: Execution. As I wrote in my 7:27 p.m. comment, Miller is about how the courts’ decisions are executed, while the root of the issue in Sauk is about how the courts arrive at their decisions. If there won’t be any action under Article 66(e) (that is, if the JAG doesn’t have to “instruct the convening authority to take action in accordance with the decision”), then Miller and the inchoate nature of a decision isn’t implicated. 

    Kastenberg was clearly a decision requiring Article 66(e) action. The AFCCA denied a petition for mandamus and vacated its own stay of the court-martial. That record must be returned to the convening authority for further trial proceedings. Miller was unquestionably implicated in Kastenberg (though the AFCCA’s Rule 18.3, quoted in my 3:23 p.m. comment, was equally applicable).

    But Sauk is wholly distinguishable. As I wrote in my 3:23 p.m. comment, the order in Sauk wasn’t a “decision,” and it required no action by the convening authority.

    Had the AFCCA dismissed the charge is Sauk because of the Government’s refusal to obey the order, that would be a decision that would be inchoate until the time for certification passed. Yet requiring that the Government risk such dismissal is the entire point of the “must comply promptly” language in Maness, and there’s nothing about such risk that is impracticable in the military justice context (see my reference to Article 36(a) in the post).

    The Government’s apparent Miller argument (that you acknowledge but clearly haven’t formed any opinion about) would allow it (and any other party) to avoid any such risk. It would also end the ability of a CCA to issue orders of any significance. Besides being an incredibly novel proposition, the Government’s argument would eviscerate the ability of a CCA to exercise control over the proceedings, and it would engender contempt for the court. Finally, it would read Article 66(e) selectively, eliminating the operative language about a JAG instructing a convening authority to take action in accordance with a decision. 

    I think the notion that Miller prohibits the AFCCA from ordering a party to answer a simple question without giving that party 60 days to pursue an appeal of the order is nonsensical. Miller applies to decisions that require execution. If a CCA issues an order, a party disobeys it, and the CCA issues a decision based on that disobedience, that’s when Miller applies.

  32. Dwight Sullivan says:

    [Insert Standard Disclaimer Here:  The views I express below are offered in my individual capacity and should not be imputed to the Department of Defense or anyone or anything else.]
     
    Zack, your analysis above confirms my point rather than refuting it.  I said there are some orders to which Miller applies but I’m taking no public position on whether the AFCCA’s Sauk order is one of them.  In your comment above, you appear to reply that Miller applies to LRM.  Look at AFCCA’s April 2, 2013 disposition in LRM — it is captioned as an “ORDER.”
     
    Thus, your position on LRM supports my point that the order/final decision dichotomy breaks down in some instances — LRM  is such an instance, as your comment above recognizes.  You then opine that Sauk isn’t an order to which Miller applies — which, if correct, is not inconsistent with my point.

  33. Zachary D Spilman says:

    Look at AFCCA’s April 2, 2013 disposition in LRM — it is captioned as an “ORDER.”

    Form over substance.

  34. Don Rehkopf says:

    MOOTNESS:  The case is technically not moot.  The “discovery” portion of it may be moot in the sense that the government belatedly turned it over per the Court Order.  But, that still leaves the two underlying issues, i.e., (1) the violation of the Order in the context of not complying with its timing requirement, and thus, whether or not any sanctions are still appropriate; and (2) is the matter capable of repetition, viz., based upon the government’s strained (to be charitable) stance on the certification provision as impliedly staying the Order – something that is most likely to repeat itself absent a ruling by the AF CCA.  See generally, Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 (1974).
     
    SCOTUS has suggested another reason potentially applicable here as to why the case is not moot.  As the Court noted, there is a:
     

    . . . distinction between the definitive mootness of a case or controversy, which ousts the jurisdiction of the federal courts and requires dismissal of the case, and a judgment in favor of a party at an intermediate stage of litigation, which does not in all cases terminate the right to appeal. [emphasis added]
     

    Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326, 335 (1980).  Now admittedly, that was in the context of an Article III, action, but the concept is certainly applicable here.

  35. The Silver Fox says:

    Isn’t the professional disagreement present here in this thread evidence that no party was acting in bad faith?  Can we cut out the calls to burn government counsel at the stake yet?  Discuss.

  36. Don Rehkopf says:

    @ SF – the “professional disagreement” here really has nothing to do with the underlying issue, i.e., the violation of a rather direct and clear court order. In most states, the Grievance Committee would already be scheduling a hearing as to whether or not such conduct warranted a sanction, and the government’s “argument” could be tendered as a matter in mitigation. Cf. the matter of Earl Partington, Esq., HERE.  Defense Counsel do not get the benefit of the doubt which you seem to be implying should be given to the government counsel.
     
    The aggravating factor here – aside from just ignoring the Court Order – was that there were other alternatives available, e.g., submitting the Court Ordered IG Report to the Court for an in camera inspection as to relevance; seeking a stay, etc., that the government made no effort to utilize.  Unless you practice in other CCA’s, you can’t appreciate the difficulties of practicing in the AF CCA on behalf of the Accused / Appellant these days, and regardless of whether Dwight or Zach are correct in their technical legal analysis, JAJG has lost sight of its duty to seek justice, not convictions.  Here, they also seem to have forgotten that they are Officers of the Court.
     
    Were they acting in “bad faith?”  Who knows but them, but who cares but the AF CCA Judges? Again, that’s a potential matter in mitigation. The simple facts remain – they did not comply with the Court Order on or before the date specified, and only complied after the Court issued a “show cause” order as to why they shouldn’t be held in contempt — and I’m not talking about the counsel who were no longer associated with the case. The onus is clearly on the senior lawyer assigned to a given case and that plainly did not happen here.

  37. wowzers says:

    To answer The Silver Fox’s questions
    1. No. Only one party’s actions are in question here. Those actions are a clear refusal to comply with a court’s order, no cert prior to further action, no request for a stay pending decision to cert or not. The discovery request was a 10 minute endeavor. Govt counsel wasted weeks of time without suitable reason, only to come back with disingenuous statistics and logic that amounts to a 5yr old wanting his way or he’ll take his ball and go home. If govt counsel needs numerous bites at the apple to show it’s on firm ground, then the ABA or another organization needs to get involved and help determine why there is so much incompetence on the govt side that it cannot comply with a ten minute discovery requirement or accurately state its position contrary to that requirement in a timely fashion. There have been about the same number of court issuances devoted to their actions pending a discovery failure as for the rest of the case. It would also be interesting to see how the govt.’s actions promote fair, effective, or efficient proceedings in military justice. 
    2. No.