JAG CENTRAL

NOTE: If you just want to know the holding of the case, skip down! I'll tell you where to stop!

Tuesday, Dec. 20, CAAF released its first two opinions of the 2006 term. The first was Loving v. United States, No. 03-8007. Yes, you read that case number right - 2003. Here's a quick run down of the history:

On December 12, 1988, petitioner Dwight Loving, an Army private
stationed at Fort Hood, Texas, murdered two taxicab drivers from the
nearby town of Killeen. He attempted to murder a third, but the driver
disarmed him and escaped. Civilian and Army authorities arrested
Loving the next afternoon. He confessed. After a trial, an eight-
member general court-martial found Loving guilty of, among other
offenses, premeditated murder and felony murder under Article 118 of
the Uniform Code of Military Justice (UCMJ).

Loving v. United States, 517 U.S. 748 (1996). Yes, that case made it all the way to the U.S. Supreme Court on direct review, where the Court upheld the military death penalty. In 2003 and 2004, Loving filed two writs of coram nobis with C.A.A.F. The court hear oral arguments a few months later in each case. So what took so long to get the opinion out?

There are several factors, but mostly: (1) this is a death penalty case, and (2) these writs present some terribly thorny procedural issues. If you're a law-nerd, and you're interested in things like jurisdiction, collateral review, and the relationship between Article I courts and Article III courts, then by all means read all 59 pages of the opinion.

What? No takers? Well, that's o.k. Just because I like that junk doesn't mean that you have to. You'll have to wait until my big book on military jurisdiction is released sometime in the fall of 2009.

OK NOW IT'S TIME FOR THE HOLDING(S) - YOU CAN STOP SCROLLING

First, C.A.A.F. has jurisdiction to grant collateral review in a death case (and probably any other case) until the President has made final approval of the death sentence. Second, the proper mechanism is the WRIT OF HABEAS CORPUS, as authorized by THE ALL WRITS ACT, rather than the "writ of coram nobis." What does this mean for Loving? Well, the court pretty much encouraged him to file the SAME claims again, but in a "motion for habeas corpus." So, there will be more litigation on these same claims. However, with the procedural business out of the way, the next appeal really should address the merits. And, we can only assume that the judges have vigorously discussed the merits in conference already - so it might not take them so long to issue a ruling next time.

What does this mean for military justice? Well, the idea of extraordinary writs at C.A.A.F. had been somewhat confusing. Maybe some of the confusion survives, but I think this is a step in the right direction. We know now that the proper writ to raise collateral challenges after the court has heard direct appeal is the "habeas corpus" writ; we also know that the court is asserting jurisdiction under the "All Writs Act" (holding that under that statute it has authority to grant extraordinary writs "in aid of" its jurisdiction.). After my quick reading of the case, it looks like that assertion would survive US Supreme Court scrutiny (under Goldsmith), while preserving the right (to whatever extent it exists) for Article III review. Basically, if you buy the court's reasoning that "final" action on a DP case is the President's approval, then the rest of the opinion looks good.

But that's all theoretical. What about the practical issues? All of this time, all of this litigation, and we still don't know whether Loving's constitutional challenges will be successful or not. Also, all of this is for naught if the President approves Loving's death sentence before a decision on the soon-to-be-filed habeas petition is released. How likely is this? It's not at all clear. I can't imagine that the people advising the President want a new sentencing hearing for Pvt. Loving. When he was Governor of Texas, the President demonstrated that he believed in the death penalty once the courts did their business.