The CAAF daily journal for 1 July--
No. 20-0288/MC. United States, Appellant v. Michael J. Brown, Appellee. CCA 201900050.
Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date:
DID THE LOWER COURT ERR FINDING THAT IT HAD POTENTIAL JURISDICTION?
Appellee will file a brief under Rule 22(b) on or before the 9th day of July, 2020.
Here is the NMCCA Order at issue in Brown.
“Following his conviction at special court-martial, but prior to the convening authority’s action, Petitioner seeks extraordinary relief from this Court in the nature of a writ of mandamus or a writ of prohibition. Specifically, he requests that we remove the military judge, grant a mistrial, or appoint a special master to investigate allegations of unlawful command influence [UCI]. We granted Petitioner’s request to stay his court-martial proceedings and directed further briefing regarding this Court’s jurisdiction to entertain the petition and authority to grant the relief requested.3 Having considered the Petitioner’s prayer for relief and the parties’ briefs on the specified issues, we conclude we have jurisdiction to entertain the petition and further find that Petitioner has demonstrated a clear and indisputable right to a portion of the requested relief.”
Why concern for NMCCA's writ jurisdiction.
1. Brown's sentence was subjurisdictional.
2. He was tried at SPCM so he will have to seek relief under Article 69(b) when final in the field.
3. A 69(b) review may cause the TJAG to refer the case to the CCA under Article 69(d). Referral is discretionary with TJAG. (Experience suggests referrals are uncommon.)
4. Here the CA has not yet acted, and the case is in post-trial litigation with a military judge.
5. There is an end run around the TJAG review?
6. Concern the floodgates will open, and the system will be overwhelmed with writs in subjurisdictional cases?
“This case presents the issue of whether this Court may entertain a petition for extraordinary relief, even where it does not appear likely that mandatory appellate review by this Court will obtain, in order to ensure the fairness of pending court-martial proceedings. The type of harm alleged—the bias or apparent bias of the presiding military judge—goes to the core of such proceedings’ fairness, and we are asked to take appropriate action to remedy that alleged harm before it takes root.”
Bottom line, NMCCA hangs its jurisdiction on the potential of a TJAG referral under Article 69(d), although most of understand such a referral is uncommon.
“The doctrine of potential jurisdiction thus gives us authority to issue writs in cases with a possible pathway to our review but for which an appeal has not been—and may never be—perfected. Our potential jurisdiction here stems principally from two statutes, Articles 66 and 69, UCMJ, 10 U.S.C. §§ 866, 869, which provide parallel paths for a special court-martial to find its way to this Court for review. First, Article 66 provides that the Judge Advocate General [JAG] shall refer to the CCA the records for every trial “in which the sentence, as approved, extends to death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable or bad-conduct discharge, or confinement for one year or more.” Article 66(b)(1), UCMJ. Second, Article 69 provides that for cases tried at special court-martial resulting in an approved sentence not meeting the above threshold, the office of the JAG, “upon application of the accused,” may review each case for “error prejudicial to the substantial rights of the accused” (among other things) or the JAG may send it to the CCA for such review. Arts. 69(b), 69(d), UCMJ.”
Reviewing CAAF cases NMCCA concludes that,
“Only where there is no pathway to its actual jurisdiction has the CAAF found a CCA to be deprived of potential jurisdiction to entertain a writ petition. United States v. Arness, 74 M.J. 441 (C.A.AF. 2015).”
--and there is a potential pathway here no matter how unlikely.
Standby for CAAF’s view.
Cheers, Phil Cave.