Saturday, December 17, 2016

Equal Justice Under Law

That's what it says on the Supreme Court building.

In United States v. Dalmazzi, the U.S. Court of Appeals for the Armed Forces granted review on August 18, 2016 as to whether a judge of the U.S. Navy-Marine Corps Court of Criminal Appeals was disqualified because he was also serving on the U.S. Court of Military Commission Review. Thereafter, the Court of Appeals heard oral argument and on December 15, 2016, issued a decision holding that the issue was moot because the judge's second appointment had not been made when the service court decided 2LT Dalmazzi's case. In a published opinion, the Court of Appeals vacated its earlier grant of review and denied the petition for review.

Fly in the ointment: cases in which the Court of Appeals has granted a petition for review are eligible for review by the Supreme Court of the United States. Cases in which it has denied a petition for review are not. Is Dalmazzi -- who once had a right to seek Supreme Court review -- now ineligible to do so? Can the Court of Appeals turn certiorari-eligibility on and then off by denying a petition for review it previously granted? Why didn't it simply affirm, instead of denying 2LT Dalmazzi's previously-granted petition for review?

Congress has to fix the statute governing certiorari review of decisions of the Court of Appeals so this kind of question won't come up again. It's only fair: other state and federal criminal defendants can always seek certiorari; ditto for military commission accuseds.

HASC/SASC: anybody home?

[Full disclosure: the Editor is counsel in a case that includes a Dalmazzi issue.]

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