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