CAAF rejects amicus brief: Why can't we be friends?

I'm trying to live up to my promise to become Project Outreach's biggest fan. But boy is CAAF making that hard.

First, let me offer a No Man-like disclaimer: I was once the appellate defense counsel in the Walker case discussed below. But I honestly believe I would be just as nonplussed if I hadn't been.

On 13 February, CAAF will hear oral argument at Loyola University School of Law. My understanding is that this is the very Project Outreach pit-stop that outed a law student who happened to be the GCM-convicted appellant in the case originally slated for argument there. That case was pulled and United States v. Roberson, No. 06-0611/MC, was inserted to plug the hole.

The granted issue in Roberson is almost incomprehensible:

WHETHER THE LOWER COURT ERRED WHEN IT DETERMINED THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION WHEN HE EXCLUDED SUBSTANTIAL TESTIMONY OF MR. [M] REGARDING [D.M.'S] MOTIVES TOWARD APPELLANT, APPELLANT'S FEAR OF [D. M.] AND THE FACT THAT [D. M.] OWNED A GUN.

[There's also a specified post-trial delay issue in the case.]

Let's look at the NMCCA opinion in the case to figure out what that unlikely combination of words actually means.

LCpl Roberson was convicted of larceny and two specs of forgery for stealing and forging checks belonging to his roommate, LCpl Abrenica. The defense theory of the case was that a guy named Dominique Matson thought LCpl Roberson owed him a large sum of money, that Matson showed up in Roberson's room armed with a handgun, that Matson took LCpl Abrenica's checks, and that Matson forced Roberson at gunpoint to forge Abrenica's signature on the checks.

During its case in chief, the government put Abrenica on the stand and elicited his testimony about some statements Roberson made to him. On cross, Abrenica testified that Roberson had also told him that Matson had forced him at gunpoint to commit the offenses. During its own case, the defense wanted to call a former servicemember named Mathas to testify about threats Matson had made against Roberson, to Matson's character for violence, and to the fact that Matson owned a handgun. The military judge refused to allow Mathas's testimony unless the defense presented additional evidence to support a duress defense. The military judge found that Roberson's statements elicited during Abrenica's cross were "unpersuasive" and insufficient to reasonably raise a duress defense. NMCCA affirmed.

After CAAF granted review in Roberson, LCDR Grover moved to file an amicus brief on behalf of LCpl Wade Walker, who currently resides on death row at the United States Disciplinary Barracks. Walker's case, which will be argued at NMCCA at the end of February, includes an issue similar to Roberson's. The outcome in Roberson will likely control the outcome of that issue in Walker's case. Walker quite literally has a life-or-death interest in Roberson's outcome.

Last Wednesday, CAAF denied LCDR Grover's motion to file an amicus brief on behalf of LCpl Walker. Two days later, CAAF granted two motions to file amicus briefs. One, filed by a member of the Loyola Law faculty, asked for leave to file an amicus brief supporting the appellant and to allow students to participate in the oral argument. The other, filed by a prominent private practitioner who is a Loyola Law alumnus, asked for leave to file an amicus brief supporting the United States and to allow students to participate in the oral argument. CAAF granted both motions and gave each amicus 10 minutes to argue.

So CAAF won't agree to read the submission of a lawyer for the guy on death row whose life depends on the outcome of this case. But it will not only consider the briefs of individuals with no apparent interest in the case beyond the bizarre series of events that accidentally brought U.S. v. Roberson to the Big Easy but also spend 20 minutes listening to law students' take on the case.

Maybe CAAF had a good reason for rejecting Walker's amicus. If so, it failed to share it with us. Here is CAAF's order in its entirety: "No. 06-0611/MC. U.S. v. Isaac D. ROBERSON. CCA 200301539. Motion of Lieutenant Commander Jason S. Grover for leave to file as amicus curiae denied." So we have no means of comparing the rationale for rejecting the Walker amicus with the rationale for accepting the two Loyola amici.

Roberson itself is the appeal of a special court-martial in which the accused completed his month of confinement five years ago. But for some people, the case is deadly serious. CAAF's mission is not pedagogy; its job is to get the outcome right. It's hard to see how rejecting an amicus brief makes accomplishing that mission more likely.

--Dwight Sullivan