Monday, November 27, 2006

Defense victory; sad day for the defense

United States v. Simon, __ M.J. ___, No. 05-0563/MC (C.A.A.F. Nov. 27, 2006), represents a total abdications of trial defense counsel's and appellate defense counsel's duties. Unfortunately, as those of us in the military defense bar know, it is hardly unique. Simon should serve as a reminder to everyone in the defense bar of their obligations under United States v. Palenius, 2 M.J. 86 (C.M.A. 1977).

In Simon, 275 days passed from trial until the CA acted on the 36-page record. It doesn't appear that the trial defense counsel did anything to speed the process. Worse still, 572 days passed between the CA acting on the case at Camp Pendleton and the record finally showing up at the Washington Navy Yard. As Judge Baker pointed out at oral argument, in that amount of time the government "could have biked [the record of trial] across the country. They probably could have walked it." Still the trial defense counsel did nothing. In the meantime, Private Simon himself was losing his grip on reality and sinking into the clutches of mental disease. Once the record finally showed up at NAMARA, Simon's appellate defense counsel submitted the case without assigning any error, such as the gross appellate delay, and without ever contacting his client. As CAAF notes, "As a result, Appellant's first defense counsel did not learn of Appellant's mental health issues and did not bring those issues to the attention of the Court of Criminal Appeals." Simon, slip op. at 4.

Every defense counsel -- trial or appellate -- who reads Simon should vow, "Never again!" The hallmark of being a defense counsel is total dedication to the client. The trial defense counsel must continue representation until the appellate defense counsel takes over the case. And the appellate defense counsel must REPRESENT THE PERSON, not simply PROCESS THE RECORD. And trial defense counsel and appellate defense counsel must adopt a SYSTEM to ensure that no one falls through the cracks, like poor Private Simon.

CAAF (then CMA) called this to everyone's attention almost three decades ago. In Palenius, the court announced that "the prevailing practice among some trial defense attorneys of ceasing all activity on behalf of their clients and, in effect, terminating the relationship of attorney and client without the permission of their clients or of the courts can no longer be countenanced." 2 M.J. at 93. Yet almost thirty years after Judge Perry wrote those words, that practice remains if not prevailing, then certainly common. CMA continued, "The trial defense attorney can with honor and should maintain the attorney-client relationship with his client subsequent to the finding of guilty while performing the duties we set forth today until substitute trial counsel or appellate counsel have been properly designated and have commenced the performance of their duties, thus rendering further representation by the original trial defense attorney or those properly substituted in his place unnecessary." Id. If you are a military defense -- trial or appellate -- I implore you to go read Palenius RIGHT NOW. Then recommit yourself to following its dictates. Then implement a system for trial and appellate defense counsel to have CONTACT relief. Think of the client as a baton in a relay race. You have to pass him (or her) from one counsel to the other, without ever allowing the client to slip from one of your grasps. It is the right thing to do. It is ethically required. It is legally required. And it will avoid embarrassments like United States v. Simon. A system of contact relief would also let the counsel know that a case is overdue. If a trial defense counsel hasn't heard from an appellate defense counsel within a reasonable amount of time after the CA's action, then the trial defense counsel would know something is amiss. And if the appellate defense counsel doesn't receive the record within a reasonable amount of time, then the appellate defense counsel will know something is amiss. That isn't the way we operate now. But it should be.

CAAF did the right thing in Simon by setting aside the meaningless Article 66 review that Private Simon received the first time and sending the case back to do it right. Now we in the military defense bar must do the right thing by ensuring that the lofty goals of Palenius finally become the standard of practice in the military.

--Dwight Sullivan


Anonymous said...

I have a standard Motion for a Post-Trial Hearing that I file now, after the 120th day. I ask for post-trial release pending appeal, and the ROT, or an explanation. Generally I get the ROT, although one Air Force judge recently gave me 6 months off of an 8 yr members sentence in a double rape case. And an Army judge almost gave 90 days, but the ROT was produced within his "give it to me or else" deadline. I have yet to receive an explanation for delay, and yet to have an appellate court ask why the delay.

Kevin Barry said...

I could not agree more that a revamp of "standard" defense counsel practice is warranted.

In addition, it seems to me that a return to the once common practice of the trial defense counsel filing an "Art. 38c Brief" is in order. Since the revamp of the appellate review process (and the elimination of the SJA Review in favor of the SJA Recommendation) in 1983, it has become common for TDC to file only clemency materials, and the practice of filing a brief of errors for the consideration of the convening authority seems to have become the exception rather than the rule.

It is difficult for appellate defense counsel to get a good handle on what really went wrong at trial simply by reading the record. If the TDC files a brief identifying the issues, that brief will not only be available for the convening authority and the SJA to consider if they will, but to educate appellate counsel as to issues that should be considered for argument before the CCA. It does take some time, but it is an enormously helpful document and could make be the difference between appellate relief being granted or not.

Anonymous said...

Kevin gives a good reminder. I always file a 38(a) along with a clemency petition in NG plea cases. I'm not always so sure it's necessary in guilty plea cases, because in effect the "review" is so limited. The 38(c) is part of what Palenius counsels. Maybe at next year's judicial conference the trial judges can be encouraged to set a real deadline for a record of trial. Perhaps it might go some way to answering the mail. I see CAAF just denied relief to two appellants, one of the cases took over 2000 days.