Here’s the QP:

Does the decision of the Court of Appeals for the Armed Forces (CAAF) violate this Court’s holding in Mesarosh v. United States by disregarding its governing principles that post-trial information can so discredit the credibility of a principal government witness that it undermines the integrity of the judicial process?

The full cert petition is here.

[Disclosure:  I'm one of Airman Prather's appellate defense counsel, though my work on the case has consisted largely of carrying Maj Dave Bennett's briefcase into the oral argument at CAAF.]

The amicus brief is good.  You should read it.  It starts with a straightforward statutory construction argument that SCOTUS has jurisdiction over cases in which CAAF has granted review–not issues.  We gave some treatment to this issue here.  Beyond the straight-stick construction argument, though, are some interesting subplots. 

It doesn’t make sense from a judicial economy perspective, NIMJ argues, for appellants who win a remand at CAAF to face the possibility that they’ll lose the opportunity to seek certiorari after the remand.  That incentivizes the practice of seeking certiorari immediately after an appellant wins a remand; hardly a good use of anyone’s time.   

Also, NIMJ again takes up the 2010 change in  CAAF Rule 21(b)(5), in which CAAF began requiring petitioners in previously granted and remanded cases to specify to CAAF what issues the petitioner would seek certiorari on at the Supreme Court.  That’s right–you now have to tell CAAF what you’re going to appeal to the Supreme Court when you ask CAAF to once again grant review.  And under the Solicitor General’s (and, apparently, CAAF’s) view of Supreme Court jurisdiction, CAAF can pre-screen your issues to see if you should be allowed to trouble its superior court with them.

NIMJ’s colorful brief calls CAAF’s “boardinghouse reach” (Google it–it’s quite evocative) into the Supreme Court’s jurisdiction nonsense, and goads the justices (or at least some sleepy clerk in the cert pool) with the specter of a lower court fashioning its own rules with a view towards narrowing the statutory jurisdiction of the Supreme Court.  In case a reader unfamiliar with military appellate practice might suspect that CAAF is doing them a favor by sparing them from a flood of military petitions, NIMJ helpfully–perhaps wryly–points out that CAAF is producing about one opinion per judge per month.  Nothing to get too worried over.

The Solicitor General has already waived his right to respond.  We’ll see if the Supreme Court’s interest is piqued enough for them to order a response.

Are statements to police investigating a crime per se nontestimonial for purposes of the Confrontation Clause if made by a person alleged to be a coconspirator of the accused?

Diamond also presents an interesting jurisdictional issue.  CAAF had previously granted Diamond’s petition for review and remanded the case to ACCA.  United States v. Diamond, 67 M.J. 247 (C.A.A.F. 2009) (summary disposition).  Upon remand, ACCA affirmed.  Then, on 19 October 2010, CAAF denied Diamond’s petitoin for review.  CAAF subsequently dismissed a petition to reconsider.  Do the Supremes have jurisdiction in such a case?

Whether the analysis used by the United States Court of Appeals for the Armed Forces to test for due process violations arising from excessive appellate delay contradicts this Court’s decisions in Strickland v. Washington, Ake v. Oklahoma, and United States v. Bagley, and the tests used by a vast majority of the circuits, by testing for prejudice twice: first, in determining whether a due process violation exists; and second, in determining whether such violation was harmless beyond a reasonable doubt.

The Supremes haven’t granted plenary review of a servicemember’s cert petition under 28 U.S.C. § 1259 since 8 November 1996, when it granted the cert petition in Edmond v. United States, 519 U.S. 977 (1996).  (The Supremes did GVR one military cert petition since then — O’Connor, which was GVRed for further consideration in light of Ashcroft v. Free Speech Coalition.  O’Connor v. United States, 535 U.S. 1014 (2002).) 

Since granting review in Edmond, by my count, the Supremes have denied 238 servicemembers’ cert petitions.

The total number of military cert petitions filed under 28 U.S.C. § 1259 since the right was first established in 1983 has been, by my count, 979.  There have been 9 plenary grants, six upon petition by a servicemember (Solorio, Weiss, Davis, Ryder, Edmond, Loving) and the most recent three upon petition by the SG (Scheffer, Clinton v. Goldsmith, Denedo).  There have been 5 GVRs upon petition by an accused (Goodson v. United States, 471 U.S. 1063 (1985);  Jordan v. United States, 498 U.S. 1009 (1990);  Carpenter v. United States, 515 U.S. 1138 (1995); Clark v. United States, 515 U.S. 1138 (1995) (GVRing six CAAF decisions); and O’Connor) and one GVR upon petition by the SG.  United States v. Mobley, 523 U.S. 1056 (1998) (GVRing three CAAF decisions for further consideration in light of Scheffer).

It appears that in the entire history of SCOTUS review of CMA/CAAF decisions, only one servicemember has received an actual sentence reduction as the result of petitioning for cert:  Specialist Four Goodson, who got rid of his BCD (but not the other portions of his sentence) as the result of his GVR from SCOTUS for further consideration in light of Smith v. Illinois, 469 U.S. 91 (1984).

The Supreme Court has not granted full review to a convicted service member’s petition for a writ of certiorari in 14 years. Have they become second-class petitioners?

Not necessarily, said retired Col. Dwight Sullivan, a judge advocate in the Marine Corps Reserve, who keeps a close watch on the data. But the numbers are curious.

. . . The justices have granted full review in nine cases, and granted, vacated and remanded in five others, he added.

“The best predictor by far of whether review will be granted is whether the solicitor general is seeking cert,” said Sullivan. “The solicitor general has sought cert only three times, and it was granted in all three.”