Fidell on the 4-judge petition norm

9/10/2021

Link here:

"By refusing to call upon one of its eight senior judges to fill out the bench for cases on the petition docket, CAAF is making the unfair military appellate system Congress has put in place even more unfair."

Attorney

9/10/2021 05:42:15 pm

With utmost respect to Gene, his article proves too much. What good does it do to require 5 judges to participate in the grant process where a majority of petitions are either merits or Grostefon? FWIW, it has been my experience that CAAF generally grants petitions that follow their "good cause" criteria and even sometimes where the case is merely about error correction.

Gene Fidell

9/10/2021 07:56:17 pm

Dear "Attorney," thank you for your respect, but it would be easier to evaluate your FWIW experience if you did not hide behind a pseudonym. Don't you believe a GI convicted by a court-martial who can articulate an issue, either as an assignment of error or as a Grostefon, deserves the same right to ask the Supreme Court to review her case as a federal or state criminal defendant has?

Attorney

9/10/2021 09:23:41 pm

Well, now you're arguing something different. I was focusing on your specific criticism of CAAF in not calling on a senior judge to review petitions. My point is that, in practice, it seems immaterial that only four judges vote on a petition where most cases sent to CAAF in the first place were deemed insufficiently important by an attorney as to be worth writing a supplement.

As to your argument about how this is unfair vis-a-vis SCOTUS, let's be real: we are describing a situation in which one active CAAF judge voted "yes," three others voted "no," and a senior judge would have voted "yes" AND SCOTUS would have taken the case otherwise.

I feel confident in going out on a limb and guessing there are few cases like this. And even if there was one such case every decade (probably a liberal estimate), I'm not sure the costs of allowing appellants to flood SCOTUS with frivolous Grostefon petitions -- and likely dilute the significance of relatively rare military cert petitions by making them commonplace in the process -- will better serve GIs in the long run.

Brenner

9/10/2021 10:03:32 pm

You say “majority” and “most,” but Fidell counts 12/25. One more issue in one more case would force you to use different words. Don’t you think 12/25 is a lot?

Pseudonym

9/10/2021 11:20:07 pm

Don’t knock the pseudonyms, it’s the only way you’ll get real discussion from Active duty JAGs. We don’t have the same freedom as tenured professors.

Anon

9/11/2021 11:46:54 am

Can you explain this? Obviously you cant speak contemptuous words, but legal commentary???

Is it that

1. All extracurricular legal commentary is discouraged?
or
2. All commentary critical of government or judges is discouraged?
and
3. What kind of discouragement are we talking about?

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Fidell on the 4-judge petition norm

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