Courts Martial and Judicial Recusals (Part 2)

by | Nov 6, 2018 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

Justice Kagan continued: Shortly thereafter, Judge Mitchell participated in Ortiz’s CCA appeal.  Ortiz claimed that Judge Mitchell’s CMCR appointment barred his continued CCA service under both a statute and the Constitution. First, he argued that the appointment violated §973(b)(2)(A), which provides that unless “otherwise authorized by law,” an active-duty military officer “may not hold, or exercise the functions of,” certain “civil offices” in the federal government.  Second, he argued that the Appointments Clause prohibits simultaneous service on the CMCR and the CCA. The CAAF rejected both grounds for ordering another appeal.

This Court has jurisdiction to review the CAAF’s decisions. The judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex. An amicus curia, Professor Aditya Bamzai, argues that cases decided by the CAAF do not fall within Article III’s grant of appellate jurisdiction to this Court.  In Marbury v. Madison, 1 Cranch 137, Chief Justice Marshall explained that “the essential criterion of appellate jurisdiction” is “that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.”  Id., at 175. Here, Ortiz’s petition asks the Court to “revise and correct” the latest decision in a “cause” that began in and progressed through military justice “proceedings.”  Unless Chief Justice Marshall’s test implicitly exempts cases instituted in a military court, the case is now appellate. There is no reason to make that distinction. The military justice system’s essential character is judicial. Military courts decide cases in strict accordance with a body of federal law and afford virtually the same procedural protections to service members as those given in a civilian criminal proceeding.

One difference between the juries in military courts and civilian courts is that they are not chosen by the attorneys via the use of challenges for cause and peremptory challenges. The juries are chosen by the convening authority. Another difference is that juries in military courts consist of three to five jurors, as opposed to the twelve juror that sit in civilian criminal courts. The one exception is that military death penalty cases have twelve jurors.

Excellent rating
Based on 288 reviews
Google star 1Google star 2Google star 3Google star 4Google star 5
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred Sisto handled my case very well. I was happy with outcome. I wouldn't hesitate to recommend him to any of my friends or family.
David V
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred is a detail minded attorney that works tirelessly to get the job done right. If you need help Fred knows how to take care of your issues. Fred has years of experience and will work hard for justice for his clients. Fred is easy to talk to and has great communication skills!
Gibson H
Google star 1Google star 2Google star 3Google star 4Google star 5
For the people. For the little guy My legal bully
Glennlykesmusic
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred always publishes where local DWI Checkpoints are going to be! He is also a very prominent Attorney in the Ocean County areas of Point Pleasent and Now a new Brick office!
Michael K
Google star 1Google star 2Google star 3Google star 4Google star 5
The DUI checkpoint alerts have been exceptional. Much needed work to bring attention to the unconstitutional searches.
Daniel K
Google star 1Google star 2Google star 3Google star 4Google star 5
Very knowledgeable with expungement!!! Thanks again!!!
Nicole B
Google star 1Google star 2Google star 3Google star 4Google star 5
Like clockwork thank you for all the info
Lee M
Google star 1Google star 2Google star 3Google star 4Google star 5
I am writing to share my experience working with Fred From the very beginning, he provided outstanding service and demonstrated a high level of professionalism. He was attentive to my needs, communicated clearly, and always made sure I understood each step of the process. What impressed me most was his efficiency—he handled my case quickly without compromising on quality. His dedication and expertise gave me confidence and peace of mind throughout the entire process. I highly recommend Fred to anyone seeking reliable and effective legal support. His commitment to his clients and ability to deliver results promptly truly set him apart.
Aida F
Google star 1Google star 2Google star 3Google star 4Google star 5
Frederick is a pleasure to work with,great family guy. Fred pays attention to every detail and is totally accessible.
Tom A
Google star 1Google star 2Google star 3Google star 4Google star 5
Not to long ago I ran into a very serious legal issue for the first time in my life, I'm closing in on 60. Needless to say I was unsure of the process. I was fortunate that a friend recommended Fred. Fred handled my case in a professional and courteous manner yet was very down to earth and straight forward. It took nearly 9 month to resolve and during that time Fred was always available to answer questions, explain the process and most of all alleviate my stress. I feel we got the best possible outcome and I would highly recommend Fred to anyone facing a legal/criminal matter
Manny P