Appellate Law

Military Justice and Art. I Court news

By S. COTUS

Two items of note.  One is from the Onion.

• The Onion Reports that:

A Pentagon spokesman said that Delacroix's cause of death?sniper fire while attempting to save an injured Iraqi boy?will be changed to AIDS in the official record.

• And speaking of collateral attacks on military things, CAAFlog reports that the (acting) Solicitor General filed a cert. petition in US v. Denedo.  On its face, this is a rather inside-baseball military justice case.  Seven years after his conviction in Art. II military courts became final (without further appeal), the petitioner asked the military courts for a writ of coram nobis, which was denied.  The C.A.A.F. reversed, and referred to the All Writs Act and granted a petitioner a writ of coram nobis, on the grounds of ineffective assistance of counsel.  The government did not like that, and argues that the Supreme Court should reverse, because Article I Courts lack the power to exercise this writ.  The CAAFlog then points out that the Supreme Court might not even have jurisdiction to review the CAAF, anyway.  What a puzzle.

In case you slept through law school, Coram Nobis is the common-law writ used to vacate judgments or orders entered in error.  Today, with a plethora of statutes and rules governing vacating judgments, its use is somewhat controversial.  We recently covered other coram nobis news here.

The All Writs Act Act, 28 U.S.C. 1651(a), provides that all courts may ?issue all writs
necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.?

The government has been looking for a good case to test this issue on.  In the past, however, they have not had sympathetic clients, as most of the cases ?involving inherent power to vacate judgment? cases coming out of Art. I Courts involved the normal kinds of misconduct by government attorneys.  Here, the petitioner is seeking to avoid his conviction so he can stay in the country.

The government argues that ?As a statutory court, the CAAF?s jurisdiction is limited
to the authority conferred by Congress.?  Further, it argues that the petitioner has some remedies, such as a habeas petition in a District Court.

A number of the cases we have dealt with analyzed Clinton v. Goldsmith, 526 U.S. 529 (1999), which reversed the granting of an injunction by the CAAF.  The Supreme Court held in Goldsmith that the All Writs Act only allows for issuance of a writ where the granting of the writ is  ?necessary? or ?appropriate.? 

So, at some level this might be a fight over what is ?necessary? or ?appropriate? or at another level, it might be an attempt to lull the Supreme Court into saying that Art. I Courts don?t have the inherent power to vacate their own judgments or that of a court over which they have jurisdiction over.

Full post as published by Appellate Law and Practice on September 02, 2008 (boomark / email).