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Reprinted and posted with the permission of the Los Angeles Daily Journal © 2009.  All rights reserved.

 

LOS ANGELES

DAILY JOURNAL

March 20, 2009

CASE HIGHLIGHTS NEED FOR ACTION ON SERVICE MEMBERS' COURT ACCESS

FORUM COLUMN

By Norbert Basil MacLean III

On March 25, the Supreme Court will hear oral argument in the little known military case of United States v. Denedo. The high court's decision could have a major affect on a military appellate court's jurisdiction to hear appeals from service members or former service members under the All Writs Act. If military courts are prohibited from hearing appeals under the act, the Uniform Code of Military Justice should be amended by Congress to permit such appeals. Earlier this month, the government argued in its reply brief that "Congress has the primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military," not the courts. Unfortunately, over the last 25 years Congress as a whole has shown a shocking lack of interest in America's military justice system. The last time any substantive hearings took place in a congressional committee on the military justice system was in 1983. The Uniform Code of Military Justice is an outdated 20th century justice system operating in the 21st century. America's military justice system, once cutting edge, now lags far behind most of its allies.

Under eight years of the Bush administration, the government has been pushing for narrower jurisdiction on service members' access to the courts. In the case of Jacob Denedo, a lawful permanent resident from Nigeria, the jurisdictional issue is whether the military courts could hear his appeal given he is no longer a member of the military and the case was final under the Uniform Code of Military Justice. Denedo had served honorably for nine years in the U.S. Navy before he was court-martialed in 1998. Claiming ineffective assistance of counsel, Denedo attempted to reopen his case eight years after he pleaded guilty to conspiracy and larceny because the government, in 2006 out of the blue, initiated deportation proceedings. The deportation proceeding was solely based on the court-martial conviction. Denedo alleged that he specifically told his defense attorney "his primary concern and objective" was "to avoid the risk of deportation," and that he was "far more concerned about deportation and being separated from his family, than the risk of going to jail." His attorney had assured him that "if he agreed to plead guilty at a special-court-martial he would avoid any risk of deportation."

Not known to Denedo was the fact that his defense attorney was suffering from alcohol abuse. In 1997, a year prior to the court-martial, the attorney had entered into an agreement with Florida Lawyers Assistance to participate in an alcohol rehabilitation program. Even though the attorney failed to stay sober, he continued to practice law through 2000. In response to a Florida bar complaint, the attorney admitted failing to adequately advise his clients, which violated Florida's Rules of Professional Conduct. The Florida Supreme Court suspended the attorney from practicing law for 30 days and placed him on probation for two years. Later that year, the attorney's parents had him involuntary committed because "extreme consumption of alcohol made him a danger to himself and others." In 2002, the Florida Supreme Court indefinitely suspended the attorney and in 2008 reinstated him on a three-year probationary period.

Last year in Denedo's case, the nation's highest military court, the Court of Appeals for the Armed Forces ruled 3-2 that it needed "a more fully developed record" and remanded to an intermediate court. But first the court concluded that Denedo was entitled to pursue his appeal in the military justice system under the All Writs Act. Judge Margaret Ryan wrote a well-reasoned dissent, finding no statutory basis for review and noting the limits of an Article I court. The government sought appeal to the Supreme Court, claiming that the military courts had no jurisdiction, and certiorari was granted. The government was able to appeal to the Supreme Court because under current law, if a service member is granted relief by the nation's highest military court an appeal is permitted. Conversely, if the military appellate court had ruled the other way, in favor of the government, Denedo would have been precluded from filing an appeal to the high court because of an inequity in current law that permits appeals only if relief is granted.

Two bills, identical except in title, have been introduced in Congress to correct the inequity: the Equal Justice for Our Military Act of 2009 in the House, and the Equal Justice for United States Military Personnel Act of 2009 in the Senate. The House bill was introduced by Rep. Susan Davis, D-Calif., and Rep. Ike Skelton, D-Mo. Within two months of the bill's introduction, two retired Navy veterans signed on as cosponsors: Rep. Joe Sestak, D-Penn., a retired Navy vice admiral, and Rep. Eric Massa, D-N.Y., a retired Navy commander.

In the last Congress, an identical bill was passed by the full House. The Senate Judiciary Committee also had favorably reported out a similar bill. But one Republican senator blocked a floor vote on both bills during the waning days of the 110th Congress. The House-passed bill and Senate Judiciary Committee-approved bill died as a result of one lawmaker using parliamentary procedure to thwart the democratic process.

Even if Congress passes one of the bills, the Supreme Court's decision in Denedo may require Congress to take further action by amending the Uniform Code of Military Justice to give military courts specific jurisdiction to hear cases in aid of their jurisdiction under the All Writs Act in order to correct their own errors. The government argues that Congress never gave the military courts jurisdiction to hear cases under the act after they conclude review in those courts and become final. Specifically, that the All Writs Act requires another source of jurisdiction in order to invoke it and that the Uniform Code of Military Justice does not confer such jurisdiction. Because Denedo is no longer in custody and discharged from the military, there is serious doubt that he could invoke habeas corpus in a U.S. district court. Additionally, federal district courts have been reluctant to apply coram nobis to military cases as pointed out by the military appellate court opinion in Denedo. The majority noted that counsel in another case had conceded she had "not found one decision in the history of the United States using coram nobis to set aside a judgment rendered by another court." Notwithstanding, since Denedo's discharge was more than six years ago, he is unable to invoke the U.S. Court of Federal Claims' jurisdiction to collateral challenge the court-martial due to the statute of limitations.

The Federal Circuit, in Tucker Act cases, has repeatedly rejected applying equitable tolling to the six-year statute of limitations in military discharge cases involving both non-judicial disciplinary actions and court-martial proceedings despite the discovery of new evidence or changed circumstances. Denedo cannot turn to the Board of Corrections of Naval Records because in 1984 Congress took away their jurisdiction to review court-martial cases. Jurisdiction is also questionable because in the past district courts, for reasons of comity, have required a military service member to bring the error first to the military courts. Thus, if the Supreme Court rules that military courts do not have jurisdiction to hear his case, Denedo appears to be left without any redress of grievance. In a democracy such as the United States, that result is appalling.

Former judge advocates general, senior military attorneys and law professors have filed a friend of the court brief supporting Denedo. They argue that the government is attempting to deprive the military court system of its power to correct fundamental errors.

Further, that a ruling siding with the government would upset the long recognized exhaustion doctrine, which required a service member to first turn to the military courts before attempting review in the Article III courts.

The case of Denedo is an excellent example of the dire need for congressional oversight and action. While some members of Congress have tried to do what's just for service members, others have obstructed fixing serious due process issues for our military by blocking floor votes. Such obstruction degrades the service of our uniformed citizens and belittles the democratic ideals for which they risk their lives.

Both political parties should work together in a bipartisan way to assure our troops have court access and a right to basic procedural due process protections. If the Supreme Court rules that military courts do not have jurisdiction to correct their own errors, and Congress has done nothing to ensure access to the courts for service members, the end result is an embarrassment for our nation and demeans our democratic values. It's time for Congress to get off the sidelines and take action.

Norbert Basil MacLean III is a dual American-Australian citizen and lives in Sydney, Australia. He served on active duty in the U.S. Navy from 1989-1994 and is an advocate for service members' rights.

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Reprinted and posted with the permission of the Los Angeles Daily Journal © 2009.  All rights reserved.