Two of the 13 members who signed onto the dissenting views–Congressmen Gohmert and Rooney–have served as Army judge advocates.  Congressman Rooney often touts his experience as a former law professor at West Point.

It should be immediately obvious to any past or present judge advocate that points 1-7 on pages 14-16 of the committee report aren’t addressed to the proposed expansion of Supreme Court cert jurisdiction, but rather address whether the CCAs’ Article 66 jurisdiction should be expanded to include courts-martial in which the accused isn’t sentenced to a punitive discharge or a year or more of confinement.  It should also be immediately obvious to anyone who has read the proposed Equal Justice for Our Military Act that the bill doesn’t affect the CCAs’ jurisdiction.

Here’s my serious question:  how do the names of two previous judge advocates, who should have instantly recognized that the dissenting views are seriously flawed, get included on those dissenting views?  I’m not familiar with the ways of Capitol Hill.  Does some staff member add their names without consulting the Congressmen?  Do the Congressmen authorize their names to be added without actually reading the dissenting views?  Is there another reasonable explanation that’s escaping me?

Look at pages 14-16 of the report, in which the 13 dissenting committee members set out seven arguments purportedly against the bill.  Those aren’t arguments against expanded cert jurisdiction; those are arguments against lifting the current requirement of a punitive discharge and/or a year of confinement to qualify for Article 66 appellate review.  No such lifting of the jurisdictional prerequisites for Article 66 review is included in the bill. How does it happen that these points are included in a congressional committee report when they’re irrelevant to the legislation at issue?  That strikes me as a major error.

h/t NBM3

The article says NACDL will file an amicus brief in support of the cert petition.  It also indicates that former Cadet Smith’s very high-powered legal team from Wilmer Cutler Pickering Hale and Dorr is repersenting him pro bono.

Kabul Klipper, maybe you should unbolt the Golden CAAF II from the TV set in your state room; it may be going on a cattle drive.

Here’s the QP:  “When a trial judge’s restriction on the cross-examination of a prosecution witness is challenged on appeal as a violation of the Confrontation Clause, is the standard of review de novo, as five circuits have held, or abuse of discretion, as six other circuits (and the court of appeals here) have concluded?”

The full cert petition is available here.

WHETHER PETITIONER’S FOURTH AMENDMENT RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES WAS VIOLATED WHEN A MILITARY JUDGE FOUND PROBABLE CAUSE TO SEARCH PETITIONER’S QUARTERS DESPITE A COMPLETE ABSENCE OF EVIDENCE THAT PETITIONER HAD DOWNLOADED OR POSSESSED ANY CHILD PORNOGRAPHY AND WHERE THERE WAS NO NEXUS OF ANY TYPE BETWEEN CHILD PORNOGRAPHY AND THE LOCATION SEARCHED.

We’ve uploaded the body of the cert petition here.

Whether 10 USC § 920, the newly revised statute criminalizing sexual misconduct under the Uniform Code of Military Justice, violates due process by shifting to the defense the burden of disproving an element of the government’s case.

We’ve posted the full cert petition here.

Whether the Army Court of Criminal Appeals abrogated petitioner’s right to a jury under the Uniform Code of Military Justice, 10 U.S.C. §§ 825 and 852, by reassessing petitioner’s sentence after significant charges were set side on appeal, rather than remanding the case for a sentence rehearing by a jury of enlisted members, as petitioner originally selected?

The cert petition in essence asks the Court to overturn Jackson v. Taylor, 353 U.S. 569 (1957).  And this will give the No Man a Chris Matthews-like thrill up the leg (that’s Chris Matthews the CNN host, not our Judge Mathews the Greatest):  the cert petition relies, in part, on Apprendi.

The main portion of the cert petition is available here.

Petitioner was retried by court-martial after eight years of delay attributable to the government. The court-martial found Petitioner had been prejudiced by the inability to locate material defense witnesses and the government’s destruction of all of the physical evidence in the case, some of which was potentially exculpatory. Did the lower courts comply with Barker v. Wingo, 407 U.S. 514 (1972) and Doggett v. United States, 505 U.S. 647 (1992) when, after finding constitutional error, they failed to assess whether the resulting prejudice was harmless beyond a reasonable doubt?

But it’s an odd cert petition.  CAAF DENIED Hardeman’s petition for grant of review on 12 March 2009.  United States v. Hardeman, 67 M.J. 372 (C.A.A.F. 2009).  That denial, of course, forecloses SCOTUS cert jurisdiction.  See 10 U.S.C. § 867a (2006).  Even if CAAF had granted review, Hardeman’s cert petition was way late.  He filed it on 4 September 2009 – 176 days after the denial of his petition.  The the Supremes waited from then nntil 26 March to docket it.  Odd.

We’ve posted the cert petition here.  Here are the QPs:

1.WHETHER, PRIOR TO APPLYING THE INEFFECTIVE ASSISTANCE OF COUNSEL TEST OF STRICKLAND V. fiASHINGTON, 466 U.s. 668 (1984), A COURT CONSIDERING A HABEAS PETITION MUST DETERMINE IF A PETITIONER’S CLAIM SHOULD BE EVALUATED SUBJECT TO A PRESUMPTION OF EVIDENTIARY PREJUDICE, IF PREJUDICE DUE TO THE PASSAGE OF TIME HAS BEEN ALLEGED.

2.WHETHER THE U.S. COURT OF APPEALS FOR THE ARMED FORCES CONTRAVENED THE DIRECTIVES OF BARKER v. WINGO, 407 U.s. 514 (1972) AND DOGGETT v. UNITED STATES, 505 U.s. 647 (1992) WHEN IT FAILED TO ASSESS APPROPRIATENESS OF, LET ALONE APPLY, A PRESUMPTION OF EVIDENTIARY PREJUDICE FOLLOWING MORE THAN A DECADE OF DELAY IN THE CONDUCT OF A POST-CONVICTION HEARING CONCERNING INEFFECTIVE ASSISTANCE OF COUNSEL IN PRESENTING MITIGATION EVIDENCE IN A CAPITAL SENTENCING PROCEEDING.

Here’s the Golden CAAF II at its undisclosed location.