Update: From the DJ

9/1/2021

"Interlocutory Orders

No. 20-0359/NA. U.S. v. Salvador Jacinto. CCA 201800325. On consideration of Appellant's and Appellee's motion to file petitions for reconsideration of this Court's decision, United States v. Jacinto, 81 M.J. __, (C.A.A.F. July 15, 2021), and the motion from Protect Our Defenders as amicus curiae filed in support of Appellee's petition for reconsideration, it is ordered that the motion of Protect Our Defenders to file an amicus curiae memorandum is denied, that Appellee's petition for reconsideration is denied, that Appellant's petition for reconsideration is denied in part and granted in part, and that pursuant to the granted portion: that footnote 13 of the subject opinion is modified to read, "Because of the standard of review, any medical or psychiatric records that were generated after the convening authority's action are not relevant for appellate review of the granted issues.""

Comment: "The Court’s refusal to accept amicus briefs filed by attorneys with an actual interest in the case while trolling for amicus briefs that would presumably be authored by law students under the direction of a faculty member is counterintuitive and unfortunate.... It risks damaging its reputation by shutting out members of the bar while not merely catering to but actively soliciting the involvement of law students. Acceptance of amicus briefs should be done as a matter of course, as it is at the Supreme Court....Historically, the Court at times went further out of its way to accommodate amici than do other appellate courts, e.g., Murray v. Haldeman, 15 M.J. 337 (C.M.A. 1983) (mem.) (special hearing arrangements), and the repeated denials of leave to would-be amici reflect an unfortunate and inexplicable shift from that general approach. As Judge Baker (joined by Chief Judge Effron) commented in dissent in Green, 68 M.J. 206, at n.*, the rules do not preclude amicus briefs that seek to inform it as to how the issue(s) presented in a case will impact “the broader and uniform application of the law, including in [the amicus’s] case.” Nor do they “indicate the standards by which this court should evaluate such a request. In that context, the courthouse door should be open, not closed.” Id. "

E. Fidell, B. Fissell, & D. Sullivan, 1 CAAF Rules Guide § 26.03 (2021).

UPDATE: Brief below. It may be that this amicus was rejected for some procedural defects.

jacinto_caaf_amicus_memorandum_re_reconsideration_20210803.pdf
File Size:	175 kb
File Type:	pdf

Download File

Lawyer

8/30/2021 06:10:04 pm

Another amicus brief bites the dust. But I suppose they had no other choice. They're too busy to read extra briefs.

Donald G Rehkopf, Jr.

8/31/2021 11:08:34 am

Once upon a time, the CAAF actually solicited amici briefs in important cases; once upon a time, the CAAF granted amici oral arguments in important cases; and once upon a time, the CAAF granted oral argument to more than one amicus party in an exceptional case . . . .

Many years ago, in a case involving a highly classified subject, but where the legal issue was the right of an appropriately "cleared" civilian counsel to have private access to his client without government monitoring, CAAF not only arranged for the oral arguments to be on C-Span, but granted both Phil Cave on behalf of the NIMJ and myself, on behalf of the NACDL, permission to participate in the oral argument. The sky did not fall, but the attorney ultimately got unrestricted access to his client - Daniel King.

Charges were ultimately withdrawn against King, proving once again, that the right to counsel can never be underestimated.

Joshua Kastenberg

8/31/2021 06:23:34 pm

A few years ago, I wrote a law review article on the influence of amicus briefs when the Solicitor General filed in the Supreme Court and why it is an unfair practice not to require the SG to adhere to the disclosure rules when every other amicus must do so. This had to do with the fact that (then) President Trump did not disclose his investments/debts in a manner that every prior president had done, and the SG – much like Charles Fahy during World War II – could have been either knowingly or unknowingly advancing a position against “the best interests of the United States.” The SG and the federal agencies are the only entity in a federal appellate court who can claim in their amicus brief “the best interest of the United States.” Of course, this standard is assumed if the government is a named party.

A court which was created by Congress to “reside” in the executive branch, ought to be more open to amicus briefs than closed. (10 U.S. Code § 941 establishes CAAF as an Art I court of course, but it resides in the DOD for “administrative purposes.”) This is because, for one of many reasons, the Constitution’s were wary of a permanent military establishment, the standing army fear was quite real.

One of my contemplated writing projects in the near future is that judges, particularly self-styled originalists sometimes become very selective in their sources. Moreover, they do not often engage in scholarly methods to achieve their desired pathway. I have a forthcoming law review article on this point. When, for instance, Judge Maggs concurred in Begani, he engaged in history writing, and his concurrence adds to historic discourse. I thoroughly respect him and his work. Yet, his concurrence in this case isn’t particularly scholarly. It is based on loose assumptions the about the founders, a diminution of the framers’ standing army fears to “valid considerations,” and tenuous analogies to furloughs. His concurrence may become an accepted version of history. Of course, he might argue that any of us are free to write books and law review articles criticizing the court.

Such an argument misses a point I believe to be important. The denial of the Protect our Defenders amicus brief or just about any denial of a scholarly amicus shields the court not only from a volume of material, it also shields the court from having to confront the possibility that scholars might educate them in a public manner on a more expansive view of historic intent and purpose, and therefore make it more difficult to achieve a judicial emplacement of a desired historic statement or version of history into the books of law. In other words, the shield enables the greater possibility of a “pockmarked pathway” of historic analysis to a desired end.

Although the early courts did not know of amicus practice (Taft as solicitor general gave amicus practice a huge push), the CAAF ought to at least consider that the early norms of constitutional law were partly predicated on the standing army fears and the distrust of a permanent military establishment. What better way to accept this norm than to open the court to greater amicus involvement

Gene Fidell link

9/1/2021 06:21:16 am

A welcoming policy towards amici is especially desirable in a forum where the same eight law offices appear in most cases.

Lone Bear

9/1/2021 11:27:07 am

I generally support amicus briefs as well, but Protect Our Defenders generally tries to politicize these issues, and they tend to make oral rather than legal arguments. It might be that the Court would welcome well-intentioned briefs, but that they haven't found much value from the Protect Our Defenders briefs.

9/1/2021 11:31:12 am

There is no evidence of that. They reject many briefs from many people.

Comments are closed.

CAAFlog

Update: From the DJ

Categories

Archives