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Analysis forthcoming. Here are Eugene Fidell's initial thoughts about the Gorsuch concurrence: "Justice Neil Gorsuch concurred, while noting his continuing view that the Court lacks direct appellate jurisdiction over decisions of the Court of Appeals. He wryly cites an earlier case, Ortiz v. United States, in which Justice Alito had expressed the same view in dissent. If he stands his ground, the result will be that he will never vote to grant certiorari in a CAAF case. That means a petitioner (government or defense) will need to get four votes out of eight, rather than four out of nine, for a grant. Given the Solicitor General's higher certiorari batting average, this shoe will mostly pinch the accused. [Apologies for the mixed metaphor.] So cert just got even harder--a dollop of nasty icing on the current discriminatory cert statute." 
7 Comments
DON CHRISTENSEN
12/10/2020 11:05:53 am
Just saying.
Thanks Air Force...
12/10/2020 05:48:49 pm
This is not about you...
Sua Sponte
12/11/2020 10:56:12 pm
Still upset over that U.S. v. Wilkerson ruling by the CA, huh?
CW
12/10/2020 12:53:45 pm
The Supreme Court states the "principal benefit of statutes of limitations is that typically they provide clarity..." and couches its opinion in terms of the certainty of providing clear notice regarding when an offense may be tried. The Court may have to adopt different arguments if it were to side with the government, if ACCA's decision in McPherson were to go up to the Supreme Court. McPherson relied, at least partly, on the certainty of the unambiguous language of Article 43 regarding the statute of limitations for Article 134 (indecent acts against a child) offenses in light of the 2016 amendments that removed these offenses from the list carved out for an extended period of limitations under Article 43(b)(2)(B). I wonder how CAAF will be impacted by the "slap down" it received in Briggs when it considers McPherson.
Poster
12/10/2020 05:12:00 pm
The idea of the Supreme Court not having jurisdiction over the CAAF is certainly as intriguing as is was in Ortiz. But looking at the Congressional Research Service's submission on the interpretation of statutes, it doesn't say anything about "terms of art." 12/11/2020 06:46:54 pm
Evan Lee at SCOTUSBlog has been made a temporary Brenner Elf to provide a quick overview.
LTC3Putt
3/26/2021 04:42:46 pm
So, more than a little late to this - don't read CAAFlog much now that I'm retired, but will crow a little bit about this. I prosecuted then SSG Willenbring after deciding that I could prevail on the SOL analysis. Hated that he was not going to do any time for the military rapes, committed at knifepoint, that he committed. (not sure but I believe he is still serving a civilian sentence before transferring to Leavenworth.) Very happy that SCt reversed. The world's a safer place as a result. Your comment will be posted after it is approved.
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