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Thursday, February 01, 2007
Subject Matter Days at CAAF
I like CAAF's new trend of releasing two oinions on the same subject matter on the same day. Jan. 25th was Members' Challenges Day (with a side order of sentencing evidence), Tuesday was Human Lie Detector Day, and Wednesday was Confrontation Clause Day. Maybe tomorrow can be Meaningful Relief For Post-Trial Delay Day (MRFPTD Day)? Unfortunatley for those accused languishing on appellate review, that includes you QM1 Forbes, I think both CAAF and the CCAs believe MRFPTD Day is celebrated on Feb. 30th.
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9 comments:
Would MRFPTD Day be the same day as "allow appellate defense counsel to advantage their clients by repeatedly seeking enlargements and then seeking relief because nobody stopped them day" (or, AADCTATCBRSEATSRBNST Day)?
How about Shortstaffing Already Limited Appellate Defense Divisions Actually Yields Sentencerelief Day, or SALAD DAYS Day?
Seriously now folks, it seems to me that the underlying theory for CAAF's post-trial delay jurisprudence is quite sound. The Judge Advocates General have a statutory duty to provide appellate defense counsel. Surely we would all agree that there is some point at which any objective observer would believe that an Appellate Defense Division is not adequately staffed to perform this function. Assigning just one counsel to litigate all 1876 appeals docketed with the Navy-Marine Corps Court in FY 2005, for example, would produce such a conclusion. Also, at that point, it would seem fair to attribute delay in the 1876th case (and a good number before) to the government for under-resourcing the appellate defense function, rather than to the individual appellate defense counsel for seeking an enlargement.
If we accept that theory, then it simply becomes an exercise in line-drawing to determine when we have passed the point when the delay should be attributable to the government rather than to the defense counsel. The overall trend of the case law in this area seems to reflect judicial willingness to say that during the past few years, the appellate defense divisions were on the "inadequately staffed" side of the line. But then the military appellate courts offset this line-drawing with a general reluctance to award meaningful relief despite holding that the government, not the individual appellate defense counsel -- or, much less, the appellant -- is at fault for the delay. But this seems to result in baby splitting where the baby is actually split. It seems to leave no one happy.
All that might be true, but it's also undeniable that the CAAF's post-trial delay jurisprudence creates, at a minimum, a moral hazard when the burden of delays in filing appellant briefs is (rightly or wrongly) imposed on the government.
As for the size of the case load in the Appellate Defense Divisions, I have a few ideas that I'm working on with respect to that. I do agree with you that there are too many cases in the pipeline.
I didn't say there were too many cases in the pipeline -- I indicated there were too few counsel relative to the number of cases they must handle. I suspect I might not like your solution for changing that ratio. :-)
You might be right about that. My ideas are probably skewed because I was disserved by a subpar instruction staff at NJS (wink).
I would tell you both how much my client, Corporal Moreno, desperately wanted to serve his entire prison sentence of six years confinement while waiting for his turn in line for a government attorney to address his meritorious appeal, which ultimately required a rehearing, but he has not authorized me to discolse our privileged communications.
I'm with you that the line is too long. I think we all can agree on that, regardless of whether you believe that the best way to reduce the client/attorney ratio is to reduce the numerator or increase the denominator.
I am with Mr. O on this. I think tweaking both numbers is warranted. I never thought it was fair that client's wanting review should have to wait in line because CCA wa pestering aporllste counsel to file a case where the client was MIA or absconded to South America, or something. But, the MilJus system is sort of like Iraq, regardless of whether you think we should be where we are, we must pay the price to fix things now. Until the legislative fix, that means more boots on the . . . Courtrooms?
Until Congress decides that military commanders can in fact be trusted in delivering the lasting ignominy of the punitive discharge, the United States must furnish what Congress has required of it. Those who wish to return to the era before the Morgan draft may do so, but only after Congress agrees.
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