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Extraordinary writs have two central functions in the hands of appellate courts. One is to enforce the court's mandate; there is no particular difficulty with this use of the writs, and no more need be said about it. The other function is to circumvent the ordinary channels of appellate review. In this function, writs operate as appeals in all but name. As this use has become more and more routine, it would be more appropriate to speak of them as "appeals writs" rather than extraordinary writs. My assignment is to speak of the experience with appeals writs in criminal cases in civilian courts, in hopes that some profitable analogies may be drawn to the system of military justice. The assignment is limited to this scope because I am entirely innocent of any knowledge about the structure, procedures, or substantive law applied within the military justice system. As ungracious as it may seem, I must begin by suggesting the reasons why the analogies are very perilous. The most I can really hope to do is to suggest the kinds of concerns that must be addressed in shaping your own writ practice.

The most important factors that control the appellate use of extraordinary writs depend on the full institutional context of the entire court system involved. The most important part of my talk is the first part, which addresses the multitude of institutional factors that must be accounted for. There is no lesson more useful than to learn to reflect wisely on these factors. As a general proposition, these factors appear to have led to similar conclusions for both civilian and military courts: in the ordinary course of events, proceedings should be completed at one judicial level before review is had in another level. In the civilian courts, this conclusion is expressed through the "final judgment rule." As to criminal cases, the final judgment rule provides virtually the only path of appeal. The second part of my talk will illustrate some of the ways in which the final judgment rule has been applied and manipulated in criminal cases. Appeals by defendants and by the government must be discussed separately in this setting, because substantially different concerns are reflected in the developed doctrine.

The third and fourth parts of this talk go directly to the use of extraordinary writs to avoid the limits of appeal jurisdiction. Here the more general part is perhaps less important-the formal pronouncements that define the role of the writs are familiar to most of us, and do not shed much light on the specific questions you are apt to encounter. The more detailed part is, I hope, more interesting, and is most likely the sort of discussion that was bargained for in setting this topic for discussion. Civilian courts have employed writs to control trial court actions in a wide variety of circumstances, at the behest both of criminal defendants and of the government. For all of the reasons that will be detailed before we get there, these specific illustrations cannot be carried over directly to military practice. Nonetheless they provide a context for testing the more general suggestions.


Use is with the permission of Thomson Reuters. Originally published as Cooper, Edward H. "Extraordinary Writ Practice in Criminal Cases: Analogies for the Military Courts." Fed. Rules Decisions 98 (1983): 593-612.