Wednesday, February 07, 2007

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

13 comments:

No Man said...

One an alternative theory of the denial could be that CAAF had already determined that they were not deciding the case on Holmes/Woolheater grounds (for those that don't know those two cases they both deal with defense rights to present a defense regardless of the strength of the gov't evidence). CAAF could have a different issue in mind, possibly something like the Dearing issue and whether prior testimony raised the defense-then drop a footnote that they are not deciding the larger issue. Just a thought. It could also be a poorly drafted amicus brief-just kidding Super G.

gene fidell said...

CAAF's refusal to grant leave is consistent with its practice over many years. See Guide to the Rules of Practice and Procedure 157-58 (12th ed.) (citing Jenkins, 59 M.J. 339, 347; Fricke, 53 M.J. 214; Graf, 35 M.J. 249, 250; Lightfoot, 4 M.J. 271). (The Guide is available on the NIMJ website under Basic Sources. Hard copy of the 12th ed. should be available shortly. Suggestions are welcome for the 13th ed.)

Jason Grover said...

Gene,
Excellent points, but there is more to your Jenkins example. Although that motion to file as an amicus was denied, a latter one was granted. CAAF denied the attempt of the Navy-Marine Corps Appellate Defense Division to act as an amicus in one of its own cases. But the order left open the possibility individual appellants filing. And at 59 M.J. 347, CAAF issued the following order:
"Motion for leave to file amicus curiae brief in support of Appellant on behalf of Antionette Vanderbilt, Jimmie Geter, Jeffrey B. Mazer, Thomas J. Schnable and Whitman D. Wallace granted; and motion for leave to participate in oral argument as amici curiae denied."

Note CAAF referred to the appellants themselves, not the lawyers.

So CAAF did allow individual appellants, out of the same Appellate Division, to file amicus briefs. I believe they were all cut and pasted, but I am not positive.

None of the other cases you cite were capital cases, although Fricke started out that way.

Lastly, I would note that you and I were involved in what I believe was CAAF's last non-law student amicus in United States v. Miller, 62 M.J. 471 (2006). In that case, both the Navy-Marine Corps Appellate Defense Division and NIMJ weighed in on this critical issue:

III. TO THE EXTENT THAT UCMJ ARTICLE 61 IS AMBIGUOUS, AND GIVEN THAT CONGRESS HAS EXPRESSLY GRANTED THE PRESIDENT RULE-MAKING AUTHORITY IN THE FIELD OF MILITARY JUSTICE, MUST AN ARTICLE I COURT DEFER TO THE PRESIDENT'S REASONABLE INTERPRETATION OF THAT ARTICLE.

CAAF even granted two amicus arguments. The grand result:

"Accordingly, we view the third certified issue as raising a question not pertinent to our decision, and we decline to address it." 62 M.J. at 475. So in No-Man's words, maybe it is just me.

Guert Gansevoort said...

Mr. Grover makes a compelling case. Perhaps your client would allow you to withdraw from your death penalty case so that his appeal could be taken up by a few 2L's.

Fitzcarraldo said...

Another recent non-student amicus was the ACLU's brief and argument in US v. Lane.

Jason Grover said...

I stand corrected, Lane was more recent than Miller.

John O'Connor said...

The most nuanced and sophisticated word I can use to describe Project Outreach is "stupid."

I also wonder if CAAF's denial of the amicus motion is a backhanded way of saying that defense counsel should stick to filing briefs in their own cases in this time of inordinate post-trial delay. But then, the court just invited God and everybody to file amicus briefs on the issue of the CCAs deciding cases without appellant briefs, so what do I know.

Marcus Fulton said...

I invite the group to assign an irony value to cutting and pasting amicus briefs in a case about how horrible it is for a court to cut and paste opinions.

Jason Grover said...

Clipper,
I was trying to be funny, I don't believe they were cut and pasted. I think they were combined into one joint amicus in Jenkins.

Jason

Marcus Fulton said...

Oh yeah, I think I wrote that (Vanderbilt). Of course I ripped my fair share out of LT Ng's brief. It was pretty good.

egn said...

Even more ironic, I confess that the original supplement complaining of the NMCCA cut'n'paste to CAAF in Jenkins was largely cut and pasted (or shall I say "derived") from a civilian attorney's filing in a Florida court. With his permission.

egn said...

Oh, and I thought I'd throw in that I am not viewing this blog in Arabic, even though I'm in Bahrain. When I first accessed Google, however, it appeared in Arabic until I changed it -- I suspect that that action added a cookie telling Blogger to blog to me in English.

Anonymous said...

man is guilty end of story I wa shis roomate and IM 1100% sure of it