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Since things are slow in the summer we can indulge in some minutiae. Today this appeared on the DJ: "No. 20-0321/NA. In Re Decker B. Jordan, Petitioner. CCA 201100621. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, it is ordered that the petition is dismissed for lack of jurisdiction." Google reveals that Decker Jordan was sentenced to 30 years for child rape in 2011. Case here. CAAF denied review in 2013. 72 M.J. 403. Here is another filing from last year: "Miscellaneous Docket - Summary Disposition Notice is hereby given that a petition for 39(A) Evidentiary Hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (C.M.A. 1967) and R.C.M. 1102(b)(2) & (d), which this Court construed as a petition for extraordinary relief was filed under Rule 27(a) on July 30, 2019, and placed on the docket on the 1st day of August, 2019. On consideration thereof, it is ordered that the petition is dismissed for lack of jurisdiction on this date. Jordan v. United States, 79 M.J. 215 (C.A.A.F. 2019)" I am guessing this is a prisoner complaining about prison conditions. If so, he should be filing a habeas in D. Kan., not a mandamus petition at CAAF. It would be good, if future resources (from Congress) allow, for all these dockets to be publicly available and online. This would facilitate external study of the system. For example, it would be interesting to know if the military courts are inundated with pro se prisoner petitions as are the other circuit courts. I suspect that this is not such a big problem given the small number of military prisoners. Consider this pie chart (note the military prisoner slice on the bottom right):  Brenner FissellEIC 8/4/2020 10:56:20 am
Once again we see the lack of meaningful post conviction relief for service members.
Cloudesley Shovell
8/4/2020 12:09:26 pm
The law ebbs and flows. These days the military courts seem content to recognize the clear Article I limits to their jurisdiction. It was not always so, and things may change in the future. But for now we happy warriors in the battlefield of jurisdiction can enjoy our small victories.
Brenner M. Fissell
8/4/2020 02:59:38 pm
Bill--is that a criticism of the habeas system/maze, or of the fact that military courts don't have habeas-like powers over conditions of confinement claims? 8/4/2020 03:34:49 pm
It is more a criticism of the habeas maze. I have filed in Federal Court, only to have the government argue that we have to exhaust in military courts, only to have military courts tell me they lack jurisdiction. I would love to see Congress act.
Don Rehkopf
8/5/2020 12:27:28 pm
I agree with Bill - and he and I have discussed this at length. There are numerous sub-issues surrounding all of this, e.g., the Jordan mandamus case is easily explained by Article 76's "finality" provision and CAAF's narrow interpretation of exceptions per extraordinary relief actions. That is compounded by the USDC in Kansas's broad interpretation of "exhaustion" requirements and both collided in the on-going capital litigation of former Private Gray. This was the topic of a recent law review article: Cauley, Stuck Between a CAAF and a Hard Place: The Coram Nobis Petition of Private Ronald Gray and the Weakening of Military Justice, 95 N.C. L. Rev. 995 (2019); available at: https://scholarship.law.unc.edu/nclr/vol97/iss4/6 . While I agree that the lack of transparency, i.e., the unavailability of pleadings at CAAF is a contributing factor to some of the confusion [why that is an issue remains a mystery as well], one of the issues in the Jordan case was obtaining DNA testing of certain evidence - which MIGHT explain the mandamus issue, but who knows? As anyone doing military post-conviction cases can attest to, it is virtually impossible to obtain post-conviction DNA testing within the military justice system as there is simply no procedural device available, forcing one into federal court under the habeas statute [2241], which in turn triggers the government's rote "failure to exhaust" arguments. It is clear, both from the legislative history as well as SCOTUS precedents, that CAAF's current approach to "finality" is far too restrictive - but, unless counsel seeking "extraordinary" relief post-direct appeals articulates why a particular case warrants such relief, CAAF will continue to deny that it has jurisdiction, and of course, justice be damned. Comments are closed.
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