A job announcement on the website of the U.S. Court of Appeals for the Armed Forces seeks applicants for a two-year (renewable) at-will appointment as a staff attorney on the Central Legal Staff. According to the announcement:
The principal tasks of the staff attorney include:
• Performing a comprehensive legal review and analysis of petitions for review, to include a complete de novo review of records of trial;
• Performing a comprehensive legal analysis of extraordinary writs, motions, and other pleadings;
• Preparing legal memoranda on petitions for review or other pleadings, to include recommendations for disposition;
• Preparing orders of the Court on behalf of the Clerk of the Court;
• Performing other duties as assigned. [Emphasis added.]
The part of particular interest is the italicized language in the first bullet.
Here is what Art. 67(a)(3), UCMJ says:
The Court of Appeals for the Armed Forces shall review the record in—
* * *
(3) all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review.
"We are all textualists now," Justice Elena Kagan has famously said. As you read the text of the statute, does it contemplate that the court will conduct its own de novo review of the record of trial before it has granted review? Doesn't the past tense of the terminal "has granted a review" clause indicate that the duty to "review the record" arises only after good cause has been shown and the petition has been granted? Is the court putting the review-the-record cart before the grant-of-review-for-good-cause horse?