Military justice blogs are to blogs
as military music is to music.
Comments Off Today’s CAAF daily journal update included an order indicating that Senior Judge Effron will participate in CAAF’s determination of the writ appeal filed by Julian Assange and Wiki____s. Assange v. United States. __ M.J. __, Misc. No. 12-8008 (C.A.A.F. Jan. 5, 2012). The No Man previously discussed the writ appeal here. The writ appeal petition is available here.
Judge Matthew J. Perry served as a judge on the Court of Military Appeals from February 1976 through September 1979, when he left the court to become a United States District Judge in South Carolina. By the time of his death in July 2011, the Columbia, South Carolina federal courthouse in which he worked as a senior judge was named for him.
The Court of Appeals for the Armed Forces will hold a memorial session in honor of Judge Perry next Thursday, 12 January, at 1100. The memorial session is open to the public. The keynote speaker will be South Carolina Supreme Court Chief Justice Jean Hoefer Toal.
In addition to serving as a judge for 35 years, Judge Perry is remembered as a leading advocate in the legal battle for civil rights. As noted by the Courthouse News Service here, he litigated cases that led to the integration of South Carolina beaches, parks, restaurants, public schools, and Clemson University. Clemson later hired him to represent the university in connection with NCAA rules violations. That’s an example of what this article calls his ability to make “friends of his enemies even as he compelled resistant whites to open public parks and university classrooms to black South Carolinians.”
Judge Perry served in the Army from 1942 to 1946.
Comments Off Monday’s CAAF daily journal indicates that Senior Judge Effron will sit with CAAF to hear the four cases being argued next week.
An alert reader called our attention to this post on the Main Justice blog about the status of Kevin Ohlson’s nomination to CAAF. According to the post, “his nomination is almost certain to be held over to the next session of Congress that begins in January.” The post explains that votes on his nomination will probably await the conclusion of congressional investigations of the Bureau of Alcohol, Tobacco, Firearms and Explosives’ Operation Fast and Furious.
Comments Off SASC held a hearing on four nominations on Thursday, including Kevin Ohlson’s nomination to be a judge on CAAF. Here’s a link to a video of the hearing. As 54:00 in the video, Chairman Levin asked Mr. Ohlson for his views on whether military appellants should have the right to petition the Supremes for certiorari even if CAAF denied review; he responded that he believed they should be able to do so. Immediately after that exchange, Ranking Member McCain engaged in contentious questioning of Mr. Ohlson concerning Operation Fast and Furious. At 70:45 on the video, Senator Cornyn also questioned Mr. Ohlson about Operation Fast and Furious.
Any reports from CAAF’s passing the gavel ceremony? I was unable to attend. I heard that the new Chief Judge spoke glowingly about blogs that cover the Court.
Reminder that the Passing the Gavel Ceremony at CAAF, see here for reservation information, is this Tuesday, Sep. 27, 2011 at 1:00 pm at the Court. Any word who will be filling the spot to be held by Kevin Ohlson while his confirmation is pending?
H/t MMM
As reported below, the White House announced yesterday, here, nominated Kevin A. Ohlson to be a judge on the United States Court of Appeals for the Armed Forces. Mr. Ohlson’s bio is contained on the announcement page. He is currently serving as the Chief of the newly created Professional Misconduct Review Unit in the Department of Justice. His nomination, if confirmed, will add a fourth former judge advocate to the court.
I note that the page also has the nomination for Army General Counsel, who is also a former judge advocate, Brad Carsonis (“an associate professor of business law at the University of Tulsa, where he is also Director of the National Energy Policy Institute”).
H/t LTC Bobby Don
Comments Off Kevin A. Ohlson, Nominee for Judge, United States Court of Appeals for the Armed Forces
Kevin A. Ohlson is the Chief of the Professional Misconduct Review Unit in the Department of Justice. From 2009 to January 2011, he was Chief of Staff and Counselor to United States Attorney General Eric Holder. From 2007 to 2009, he was the Director of the Executive Office for Immigration Review (EOIR), where he had previously served as Deputy Director from 2002 to 2007. From 2001 to 2002, he was a member of the Board of Immigration Appeals. From 1997 to 2001, Mr. Ohlson was Chief of Staff to the Deputy Attorney General. Prior to that, he served as an Assistant U.S. Attorney for the District of Columbia. In 1990, while serving as an Assistant U.S. Attorney, he was recalled to active duty service in the United States Army and was awarded the Bronze Star for his actions during the Persian Gulf War. At the conclusion of his military service, Mr. Ohlson resumed his duties as an Assistant U.S. Attorney. Mr. Ohlson was commissioned as an officer in the United States Army in 1986 and served as a judge advocate and paratrooper. He holds a B.A. from Washington and Jefferson College and a J.D. from the University of Virginia School of Law.
It occurred to me today to wonder about the 3-2 opinions during CAAF’s September 2009 term.
There were 10 3-2 opinions. Here’s the most striking thing about them: Judge Stucky voted for the government in all 10 cases. Here’s the next most striking statistic: Judge Erdmann voted for the government in only 1 of the 10: Lloyd, in which he was the senior judge in the majority and assigned the opinion to himself. Judge Baker was the second most likely to support the government in 3-2 opinions, with 7. Judge Ryan was next with 6. Chief Judge Effron was fourth with 4.
The most likely line-up in the majority was a tie. Each of the following combinations produced 3 of the 10 3-2 majorities: Chief Judge Effron, Judge Baker, and Judge Stucky (Neal, Clayton, Ferguson); and Judge Baker, Judge Stucky, and Judge Ryan (Cowgill, Smith, Ayala). No other 3-2 line-up occurred more than once.
And here’s the breakdown of how often each judge was on the winning side of a 3-2 split:
1. Judge Stucky: 8
2. Judge Baker: 7
3. Chief Judge Effron: 6
Judge Ryan: 6
5. Judge Erdmann: 3
I thought it would be interesting to place the CAAF judges on a continuum based solely on how often they voted for the Government during the September 2009 term. Here’s what I found:
1. Judge Stucky: 31
2. Judge Baker: 27
Judge Ryan: 27
4. Chief Judge Effron: 24
5. Judge Erdmann: 22
The mean was 26.2. (Obviously both the median and the mode were 27.)
Our illustrious leader recently suggested that he’d be interested in my reaction to CAAF’s decision granting Adcock credit in United States v. Williams. In the tradition of (now-retired) judicial independence, I find I disagree with both the majority and the dissent.
On the merits, I’m inclined to side with the dissent. I think AFCCA made the right call: Adcock requires a military judge to consider a servicemember’s complaints about abuse of discretion by pretrial confinement authorities and to determine whether they warrant a grant of additional confinement credit, but does not require that the military judge actually grant relief. The Air Force court found that the “award of additional confinement credit was clearly a matter within the sound discretion of the military judge and he did not abuse his discretion in refusing” to award it. On the facts as related in the opinion, I agree.
That said, I think Judge Stucky’s dissent is laden with more trepidation than the case warrants. I don’t believe that the majority has “created an automatic right” to credit “for even the slightest deviation from regulatory compliance.” They merely decided the question presented differently than he or I would have. Adcock has proven to be something of a judicial Rorshach test: reasonable people will see different things in it. As those familiar with the case (or the breakdown of the Air Force court panels when it was decided) know, it started as a 2-1 panel decision favoring award of credit. Given the significance of the issue presented, the Air Force court considered the case en banc, which led to the published 5-4 decision against granting credit. CAAF reversed, by a 3-2 margin. It’s not surprising that it would be the inspiration for another close call.
Concerns that the majority holding will “encourage[] appellants to look for and litigate perceived infractions of confinement regulations,” no matter how small, don’t particularly move me. The government writes its regulations and ought to be easily able to defend its compliance with them. In general, I expect that confinement officials will follow the service regulation. If they’re unable to do so, I expect the government will change the regulation, as it did in the wake of Adcock and in the wake of a similar Army court decision. The situation that presented itself in Adcock – in which the local confinement officials and at least one legal office with oversight responsibilities rejected the servicemember’s request for relief after calculating that the cost of violating the regulation was one they were prepared to accept — will, I hope, remain quite rare.
When Adcock first appeared, we wondered here whether the tsunami of litigation the dissent warned of would actually follow. Two and a half years later, I don’t have the sense that there has been much of a ripple, other than to make some officials actually read and follow their own regs. Even though I would have ruled differently in Williams, I don’t see it as a cataclysmic event, either.
Comments Off CAAF today held a moving memorial ceremony to honor Judge Robinson O. Everett. Following Chief Judge Effron’s introductory remarks, Air Force Deputy Judge Advocate General Major General Charles Dunlap Jr. spoke, highlighting Judge Everett’s Air Force service and his work with professional organizations. Then Bob Mueller spoke from his dual perspectives as a former student of Judge Everett’s at Duke Law and as the former chief commissioner in Chief Judge Everett’s chambers. Finally, Judge Walter T. Cox III spoke, living up to his reputation as the military justice system’s raconteur in chief. He painted a loving portrait of Judge Everett while reviewing some of the challenges that arose during Chief Everett’s tenure as CMA’s Chief Judge.
Both those who were there and those who missed it will be happy to know that Chief Judge Effron announced that the proceedings will be published in the Military Justice Reporter, along with excerpts from other memorial ceremonies in Judge Everett’s honor.
I’m very sad to report that Judge Robinson O. Everett passed away today. He was 81. His biography is available here. Judge Everett was a great man, a great jurist, and a great educator. He made a huge contribution to military justice throughout his long legal career. His service as Chief Judge of the Court of Military Appeals elevated the court’s stature immeasurably. He also greatly influenced the development of the UCMJ when he served as a counsel to the Senate Judiciary Committee’s Subcommittee on Constitutional Rights under the direction of Senator Sam Ervin. Judge Everett’s work with the committee led to the passage of the Military Justice Act of 1968, which created the position of military judge and elevated the status of the Boards of Review to true courts. Probably no one in history has done more to influence the military’s judiciary than Judge Everett.
I had the opportunity to meet him when I was a law student and was amazed by how gracious he was and how willing he was to spend time and share insights with a lowly Marine Corps lieutenant/law student. Over the years, I came to see that such graciousness was the hallmark of his interaction with everyone he encountered. His passing creates an unfillable void in the military justice community and in the hearts of all those who knew him.
I stumbled across something interesting today. The counsel who argued for the government in United States v. Lyons, 33 M.J. 88 (C.M.A. 1991), was Major Scott Stucky. It appears to be the only case he argued to CMA/CAAF. And, yes, he won.
