Gonzalez & Waddington – Attorneys at Law

Falsely Accused of Sexual Assault? What to Do If It Happens to You


  1. Much like the military appellate courts, federal courts struggle with the scope of their jurisdiction under the All Writs Act. The Supreme Court held that federal courts can exercise writ jurisdiction to protect the legal rights of parties, and are not limited to orders protecting just the courts’ own duties and jurisdiction.
    See United States v. New York Telephone Co.,
    434 U.S. 159 (1977).
  2. Ordinary course of appellate review of trial cannot give adequate relief. Andrews v. Heupel, 29 M.J. 743 (A.F.C.M.R. 1989). “An extraordinary writ is not to be a substitute for an appeal even though hardship may ensue from delay and perhaps an unnecessary trial.”
  3. Circumstances warrant extraordinary relief.
    1. McCray v. Grande, 38 M.J. 657 (A.C.M.R. 1993). Petitioner seeks extraordinary writ for release from confinement. CA commuted BCD to four months, but did so five months after sentencing. Accused was immediately taken to the brig at Camp Lejeune. The brig determined that the accused’s sentence ran from date of sentence and not confinement and released the accused. A week later, the accused was taken to an Army facility. The Army facility took the position that the accused’s sentence began on the date that the CA commuted the BCD to six months and incarcerated petitioner. Proper subject for review by Court, and ordered release.
    2. Keaton v. Marsh, 43 M.J. 757 (Army Ct. Crim. App. 1996). Petition for writ of habeas corpus by accused who was ordered released from pretrial confinement by military magistrate, and subsequently ordered back into pretrial confinement by military judge. Court found propriety of accused’s pretrial confinement proper subject for extraordinary writ, and ordered release.
    3. Petition for writ of prohibition by accused who was a retiree challenging the right of the military justice system to exercise jurisdiction over him was an extraordinary situation warranting consideration. Pearson v. Bloss, 28 M.J. 764 (A.F.C.M.R. 1989). See also Sands v. Colby, 35 M.J. 620 (A.C.M.R.). 1992).
    4. Toohey v. United States, No. 04-8019, 2004 CAAF LEXIS 656 ( Jul. 2, 2004). Petitioner seeks extraordinary writ for release from confinement because of lengthy appellate delay. The chronology of the case indicates that the Petitioner has not received his first level of appeal as of right more than five years and ten months after his sentence was adjudged. Court agrees that delay is unreasonable but does not order release. Court gives Navy-Marine Corps Court 90 days to issue decision.
    5. United States v. Kreutzer, 60 M.J. 453 (2005). (Crawford, J., dissenting). As Petitioner not currently under sentence of death, writ of mandamus granted to the extent that Petitioner must be moved from death row. f.
      United States v. Buber, 61 M.J. 70 (2005). (Crawford, J., dissenting). Army Court dismissed specification supporting remaining confinement and Government filed for reconsideration. Writ of habeas corpus granted with direction to release Petitioner from post-trial confinement immediately.
  4. Available remedies are exhausted.
  5. Relief will advance judicial economy. a. Maximize utility of judicial resources. b. Resolve recurrent issues that will inevitably lead to more cases in the future. c. To prevent a waste of time and energy of military tribunals.

Our Lawyers Defend False Sexual Assault Allegations

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