Rule changes cont'

Most CAAFlog readers seem to have already read, dissected and analyzed the proposed changes to CAAF’s rules. I will, nevertheless, provide a quick synopsis.

There are nine proposed rule changes, though two of them are designed to accomplish the same goal, so there are really only eight changes.

1. 24-7 filing. A change to Rule 9 would allow filings 24-7 with the CAAF Marshals. One of my more nostalgic memories as a captain at the Navy-Marine Corps Appellate Defense Division revolves around my many last-minute high-speed CAAF runs up the Southeast-Southwest Freeway with David “Sid” Sheldon as we constantly recalculated the average speed we would have to maintain to make it to the Clerk’s office before it closed and whether, if we hit traffic, one of us had enough time to get out of the car and sprint there before they closed. (We always had a backup plan – the post office at Union Station was open until midnight, so we could always go there and get the necessary postmark if we were late in our CAAF run. I don't recall that we ever were. I won't mention the time that one of my more prominent colleagues blasted past the Marshals to make it to the Clerk's Office on time -- I thought he might get shot.) No doubt to the relief of the entire driving population in Southeast D.C., such 1645 hell rides will become a thing of the past. Procrastinators of the world, rejoice! (Well, maybe tomorrow.)

2. No more honorary bar memberships. Rule 14 would be eliminated, bringing an end to honorary CAAF bar memberships for distinguished foreign military lawyers.

3. Deadline for Grostefon issues. A change to Rule 19 would establish a deadline for filing Grostefon issues with an escape hatch if an appellate defense counsel fails to inform the appellant of the deadline.

4. Allowing cross-certification. Changes to Rules 19 and 22 would provide a Judge Advocate General with a window to cross-certify an issue in the wake of CAAF granting a petition and would allow CAAF to provide for a combined briefing schedule in such a case.

5. Dismissal to allow CCA reconsideration petition. Right now, there is a bit of a disconnect between the CCA rules and the CAAF rules. The CCA rules allow a reconsideration petition to be filed within 30 days. But either the accused or a Judge Advocate General can short-circuit that timeline by filing a petition or certificate of review before the 30 days have run. The rule promotes a certain amount of gamesmanship, and I have played that game myself. Consider a case in which a CCA provides some relief to the accused, but doesn’t provide total relief. If the accused wants to cut off – or at least discourage – a government request for reconsideration or suggestion for en banc rehearing, the appellate defense counsel quickly submits a petition for grant of review. The case is then at CAAF and the appellate government division must move to remand it in order to seek reconsideration or en banc rehearing at the CCA. A change to Rule 19(g) would provide that in such a case, CAAF “may dismiss the appeal without prejudice and remand the case to the Court of Criminal Appeals for resolution of the motion for reconsideration.” The curious thing is that CAAF can already do so, and occasionally has. See, e.g., United States v. Sowell, 59 M.J. 170 (C.A.A.F. 2003) (summary disposition). So the only thing the new rule appears to do is tell the parties that they can do something (file a motion to dismiss) that commonsense (and CAAF precedent) would already tell them they can do.

6. Deadline for amicus briefs. A change to Rule 26 would appear to expedite the filing deadline for an amicus brief in support of the appellant. Several years ago, I made a presentation at the JAA appellate advocacy symposium arguing that amicus briefs on the merits at CAAF are largely an exercise in futility. Nothing I've seen since then – and I’ve seen a lot since then – has changed my mind. On the other hand, I also continue to believe that amicus briefs in support of petitions for grant of review are valuable. Under this rule change, such an amicus brief would be due 10 days after the supplement is filed. As Gene noted in his comment to the earlier post on CAAF's proposed rule changes, if the various services’ appellate defense divisions don’t currently coordinate to identify supplements from other services that should be supported with an amicus brief, they should begin to do so.

7. Fewer indexes and table of authorities. A change to Rule 37 would raise the number of pages requiring an index and table of authorities from five to ten. The Columbus Clipper has already weighed in supporting this change.

8. Housekeeping amendment. A change to Rule 41 is literally a housekeeping amendment – or, to be more specific, a courthousekeeping amendment. It would extend the current restrictions on taping or broadcast of CAAF oral arguments in its courthouse to arguments held elsewhere as part of Project Outreach. We have already seen a number of changes to CAAF practice since Chief Judge Effron took the gavel. I wonder if we will see a decline in Project Outreach arguments. If any of CAAFlog’s readers have any information or data on this topic, please share it with us.

--Dwight Sullivan