Friday, October 27, 2006

CAAF issues writ requiring continued appellate representation

The 24 October daily journal has a most interesting summary disposition of a petition for extraordinary relief.

Air Force Staff Sergeant Joshua P. Lovett is doing 14 years for various offenses, including the rape of a child. After extensive appellate review, the Court of Appeals for the Armed Forces affirmed his findings and sentence on 6 June 2006. United States v. Lovett, 63 M.J. 211, 212 (C.A.A.F. 2006). On 14 July, Lovett filed a pro se petition for reconsideration. On 14 July 14, Lovett's appellate defense counsel informed him “that neither I nor any other attorney from the Appellate Defense Division will represent you in any further action you decide to take in your case.” On 14 August, CAAF denied Lovett's pro se reconsideration petition.

In granting Lovett's petition for writ of mandamus, CAAF set out that procedural history and then explained:

The Uniform Code of Military Justice provides: “Appellate defense counsel shall represent the accused before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court . . . when requested by the accused . . . .” Article 70(c)(1), UCMJ, 10 U.S.C. § 870(c)(1) (2000). Petitioner’s case is not final as a matter of law. See Article 71(c), UCMJ, 10 U.S.C. § 871(c) (2000). The immediate question before us is not whether counsel must file any particular matter in the course of representing a servicemember, but whether counsel may discontinue such representation before the case is final as a matter of law. Nothing in the record of the present case established a basis for counsel to sever the lawyer-client relationship. Accordingly, it is ordered that the Judge Advocate General of the Air Force shall provide appellate defense counsel to represent Petitioner for the purposes of review of his court-martial under Article 67a, UCMJ, 10 U.S.C. § 867a (2000).

From the Daily Journal, it isn't clear exactly for what purpose Lovett is seeking an appellate defense counsel's assistance -- though it one does the math, it is apparent that his time for filing a cert petition at the Supreme Court hasn't yet run. But CAAF is insisting, no doubt correctly, that Lovett continue to be represented until his case is final -- if for no other purpose, I suppose, than to advise him that he has no non-frivolous issue to raise in a cert petition before the Supremes.

--Dwight Sullivan

1 comment:

Marcus Fulton said...

Most lawyers in any subspecialty probably have a golf bag of cases, each standing for frequently recited, almost stultified points of law. If you practice before military appellate courts, you know what's in your bag, and when to use each one. You may tee off on a par four guilty plea with the Prater "substantial basis" three wood, knowing that you'll probably have to go chasing after it with your Scott ineffective assistance seven iron--you know, the iron you use to try to get out of about any jam, from clubbing stubbornly voluntary guilty pleas to throwing at your friends. Once back on the fairway, you try to salvage the hole with your Snelling sentence appropriateness chipping iron. If things are really bad, you might try to hack your way out of the UMC sand with the Quiroz sand wedge, raking out with the Sales reassessment request. Now you're safely on the green, grabbing for the Grostefon so you can three-putt a non-meritorious issue into appellate oblivion. And you haven't had to actually think that hard about what any of these cases actually says. I mean, actually re-reading them would be like reading an instruction manual for a golf club. You know what it's for, just hit the ball already. So being told that Grostefon requires continue appellate representation after CAAF has decided a case is a little like having your caddie hand you your putter after you set the ball on the tee at the next hole. How am I supposed to use this? Maybe I better read the case.

As it turns out, Grostefon seems to only apply to representation before the CCA and CAAF; at least that's what I take away from pp. 437-37. But since Grostefon predates Article 67a, should one take this part of the opinion as language of limitation? After handing Lovett's counsel the putter, CAAF seems to invite him or her to not hit the ball: "[t]he immediate question before us is not whether counsel must file any particular matter . . . ." But what counsel supposed to do? Just hold the client's hand and wait for the CAAF case to stop twitching? Grostefon works in the military context because it's so easy to raise issues in military courts; ten minutes and some toner and you're done. The Supreme Court rules don't permit IFP-style filings from CAAF as far as I remember. A cert petition is a pretty serious undertaking, and appellate divisions aren't really resourced to take them on in the context of frivolous issues. I'll be looking forward to seeing how this works out.

Just for the record in case Code 13 is reading, I don't really practice law as badly as I described above. But I am that bad a golfer.