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
I think Fred's alerts are a great service to his audience and a very smart marketing tool. Keep up the good work, Fred.
Charles O
Google star 1Google star 2Google star 3Google star 4Google star 5
Today my life was about to change! With great communication and excellent service he was able to create the impossible!! I am now able to continue to drive for a living!! I highly recommend his services and trust his judgment-HE KNOWS HIS STUFF!!! He saved my life and livelihood today! Mr.Frank Sisto is an absolutely amazing attorney! Thank you again I’ll never forget this day! God Bless
Edward J
Google star 1Google star 2Google star 3Google star 4Google star 5
I had the pleasure of dealing with Mr Sisto personally from beginning to end. He was very Professional, very clear with his communication and acted quickly to find a solution to my particular issue. I HIGHLY recommend Frederick P Sisto to any and all who need an amazing and hard working attorney...
Eddie B
Google star 1Google star 2Google star 3Google star 4Google star 5
Especially given the situations we had to work under right now with COVID-19, I am glad to have had Fred Sisto represent me. The outcome was much better than anticipated, and he always ensured to maintain proper communication, including not going any further until you 100% understood what's going on, and made a point to keep me updated as much as possible with any of the incoming changes due to quarantine (which was confusing for me at first). Always has your best interests in mind, and an all-around great attorney and person.
Mel C
Google star 1Google star 2Google star 3Google star 4Google star 5
I am thankful and fortunate to have had Fred represent me as counsel. His expertise, responsiveness and professionalism are second to none. I was more than satisfied with the outcome of my case and the level of service Fred's practice provided.
John M
Google star 1Google star 2Google star 3Google star 4Google star 5
....and his Dog Gonzo is a great attorney.
Duane H
Google star 1Google star 2Google star 3Google star 4Google star 5
The most important thing an attorney can do for their client is get results in the courtroom. Fred Sisto did this for me, and did so in such a professional and communicative manner that I would absolutely recommend him to anyone in New Jersey who is dealing with criminal charges. Fred was able get results when other attorneys did not. I definitely recommend speaking with him.
Brian C
Google star 1Google star 2Google star 3Google star 4Google star 5
always feel better knowing I don't need to be stopped when I haven't done anything wrong it's a great service and gives me peace of mint
Liesel T
Google star 1Google star 2Google star 3Google star 4Google star 5
Great Job! Enjoy getting the updates.
Ed R
Google star 1Google star 2Google star 3Google star 4Google star 5
He has helped numerous people stay out of trouble
Christopher B